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Pro Se Litigant

Classic Precedents:  Impersonation

Identity Theft and Identity Fraud

Impeding the Press:  Fictitious Journalists

Steve Martell: Ontario Provincial Police Constable.

Posed as: A journalist; held a video camera.

Aim: To monitor protestor Shawn Brant at a Mohawk rally during the Aboriginal Day of Action (2007).

Backlash

Journalist organizations (CJFE, CAJ, CBC News) asked the Ontario Police to stop impersonating reporters.

A democracy relies on journalists to probe issues of public interest. Citizens who approach a journalist expect to speak to an independent third party, not an undercover operative in disguise. If the police pull this ruse without penalty, it will be imitated by lobbyists and special-interest groups. Concerns:

1.  It threatens journalists' safety if media crew cannot be distinguished from undercover operatives.

2.  It makes it hard for legitimate media to access sources and break stories. The citizens who will shy away the most – people involved in a dispute with the government, and whistleblowers – actually have the most pivotal information to contribute.

R. v. Carew (1992) BCSC 1530

Personation Refers to Real, Not Fictitious, Person

The accused, Mr. Carew, impersonated a living person. What makes this case a classic resource is that, during its deliberations, the court carefully reviewed the jurisprudence where a fictitious person was involved. The law defines a person as:

A real person, and not a fictional entity created by the accused

Note: That particular interpretation is limited to the specific language and objects of the offence of personation in section 403 of the Canadian Criminal Code.

R. v. Cole (1982) ONDC 37 O.R. (2d) 144

Capacity for Rights or Duties

The accused, Mr. Cole, used the name Kenneth Lane to obtain a driver's license. He did so because his own license was suspended. It was agreed that the accused made up or fabricated the name Kenneth Lane. The Judge dismissed the charge of impersonation which had been levied against Mr. Cole.

When writing his opinion, the Judge addressed himself to the meaning of person found in section 361 of the Criminal Code (the forerunner of our contemporary section 403):

  • In law, a person is any being that is capable of having rights and duties, and is confined to that. Persons are of two classes only – natural persons and legal persons. A natural person is a human being with the capacity for rights or duties. A human being, therefore, is a being that is real; it is not a fictitious person.
  • It is not for this Court to assume that fictitious persons are included in the definition of person in s. 361 of the Criminal Code, simply because Parliament must have intended that without so saying. On the contrary, I understand s. 361 to refer – when using the word person – to a human being, in this context without considering whether it involves a corporation. If Parliament had intended that word to include fictitious person, as I find on the facts that Kenneth Lane is, then it would have said so.
  • I am bolstered in that interpretation by reading the words immediately following the word person in the section – living or dead. If Parliament had intended that a fictitious person be included in that section or in the meaning of the word person, in my view it would have said so by simply adding the word fictitious to the qualifiers living or dead.

This formed the basis of future legal decisions on personation.

R. v. Northrup (1982) NBCA 1 C.C.C. (3d) 210

Classic Precedent:  Definition of Personation

The accused was charged under CCC section 361 (now 403). When Mr. Northrup was arrested, he gave his name as Ronald John Davis. It was subsequently discovered through a fingerprint investigation that the accused was not Davis, but was in fact Ronald Joseph Northrup. He was convicted at trial of personation, but on appeal his conviction was overturned and he was acquitted.

The Appeal Court ruled that Northrup used a fictitious name which was not that of any specific person, living or dead. This action was outside the scope of CCC section 361.

The offence of personation is not committed when the accused merely assumes a false or a fictitious name. Personation involves the assumption for fraudulent purposes of the identity of another person now existing or who has existed. The use of a fictitious name does not meet this requirement. The word person in section 361 (now 403) refers to a human being and does not include a fictitious person.

R. v. Northrup emerged as the classic precedent for personation.

R. v. Westerdahl (1988) NSCA 82 N.S.R. (2d) 178

Personation Conviction Overturned

Mr. Westerdahl used the name Glenn Miller when endeavoring to enter Canada. At trial he was convicted of personation. However, on appeal his conviction was overturned. The Appeal Court held that the name used was not meant to be that of a real person, but was simply fictitious.

The Appeal Court followed both the R. v. Cole and R. v. Northrup precedents, and ruled that the new case involving Mr. Westerdahl had not been proven to be within the orbit of section 361 (now 403) of the Canadian Criminal Code.

R. v. Aftergood (2007) ABPC 140

Parliament Consciously Excludes Fictitious Persons

In this case, the accused was charged under the Election Act as follows:

David Aftergood did between (certain dates) at or near Calgary, Alberta, request a ballot in the name of some other person, whether the name is that of a person living or dead or of a fictitious person, contrary to the Local Authorities Election Act, section 148 (2)(a).

The Local Authorities Election Act states:

Election Act 148(2)(a) –  No person shall request a ballot in the name of some other person, whether the name is that of a person living or dead or of a fictitious person.

When enacting the Election Act, Parliament specified that a person, for the purposes of the Act, could be living, dead, or fictitious. The charges laid against Aftergood contain a parallel construction, referring to a person living or dead or fictitious. The Election Act is precise, not vague regarding the use of fictitious names.

When Parliament enacted the Criminal Code, we must assume equally precise intent. Parliament had the option of appending that same simple phrase – or of a fictitious person – to CCC section 403. By declining that option, Parliament made a measured decision to exclude fictitious persons from the offence of personation in Criminal law.

R. v. Jahanrakhshan (2013) BCCA 196

When a Pseudonym Matches a Real Person’s Name

Canadian resident Kamyar Jahanrakhshan was accused of using counterfeit credit cards from four foreign banks during 2008–2009. While investigating the case, the Canadian RCMP sent inquiries to those foreign banks. In response the accused himself contacted the banks, posing as an RCMP officer to finagle information; the accused also told bank officials they did not need to forward affidavits to the (real) RCMP.

Kamyar Jahanrakhshan was then charged with obstructing a police investigation and intercepting affidavits when personating Detective Frank Pohl, RCMP.  For this long precedent, our summary is confined to the personation charges, which were acquitted by the British Columbia Appeal Court  (3 judges, unanimous decision).

Modern Courts:  Definition of Personate

[22]   The word personate is no longer commonly used, but its definition does not create difficulty. The Shorter Oxford English Dictionary (3rd edition) includes this definition: Personate:  to pretend to be (another), usually for purposes of fraud. This definition is echoed in CCC s. 403(2) and captures the essence of the crime, namely identify theft.

[23]   In the case before us, the accused adopted a false identity – that of Frank Pohl of the Canadian Police – with the intent to obtain property (affidavits, documents, and a disabled credit card) from four foreign banks (1 in England, 1 in Abu Dhabi, and 2 in Australia). The accused could have been charged with personating a peace officer under CCC s. 130, but was not. Instead, the Crown sought to prove that he pretended to be an identifiable person whose name is Frank Pohl.

[24]   A person does not commit the crime of personation simply by adopting a false identity. Canadian courts differentiate between pseudonymity and personation.

Northrup Well-Established in Canada

[25]   The Judge affirmed R. v. Northrup, saying it was correctly decided. In CCC s. 403 the words another person, living or dead contemplate a real person. Those words are not apt to describe a fictitious entity. Section 403, then, is directed to situations in which a person adopts the identity of a real person.

[26]   In the current case, R. v. Jahanrakhshan, the question is whether the accused adopted the identity of a real person when he described himself as Frank Pohl. As the evidence shows:

  1. A real person named Frank Pohl worked as an investigator for the Royal Bank of Canada before 2009. That date is marginal. As well, the real Pohl never worked for the RCMP, and never investigated the credit-card forgery which led to the original fraud charges against Jahanrakhshan.
  2. The accused called himself Frank Pohl when he phoned and wrote to banks in England, Australia, and Abu Dhabi. But those were all foreign banks, whose clerks had no knowledge of the real Royal Bank investigator living in Canada.
  3. The accused himself never heard of the real Frank Pohl.
  4. In summary:  The evidence failed to connect the accused's use of the name Frank Pohl with a real person.
Personation Requires Both Name and Identity

[27]   To make out the crime of personation, it is not enough that a person exists somewhere in the world whose name matches the pseudonym of the accused. The accused must actually represent himself as the person who was personated. Example: If the accused had told bank officials that his name was William Shakespeare, the mere fact that a well-known person had that name would not suffice to make the accused guilty of personation. Even if his inspiration for choosing that name was familiarity with the Bard of Avon, it could not be said he was pretending to be the deceased playwright.

[28]   Compare the case R. v. Westerdahl:  A man entered Canada from the USA, and at the border identified himself as Glen S. Miller. Later in court, the man said the name was fictitious; he used it because it was easy to remember recalling to mind the late well-known American bandleader. Note the bandleader was actually A. Glenn Miller rather than Glen S. Miller, but the case did not turn on subtleties of initials or double consonants. Rather, the question was whether, quite apart from the use of the name, the man adopted the identity of the dead bandleader. The evidence clearly indicated he had not. The bandleader vanished in 1944 at age 40, while the accused was born years later in 1961. He made no reference to being the famous Glenn Miller.

[29]   In many situations, the mere use of the name of another real person will support an inference that an accused is personating that real person. If an accused attempts to take advantage of that real person's identity – for example to cash a cheque made out to that person, or to use that person's right to enter an otherwise-restricted area – it will be obvious that the accused is actively attempting to portray himself as that real person.

Special Attribute versus Any Personal Characteristic

[30]   Personation does not require that an accused make use of the special attributes associated with the real person. The requirement is broader: Evidence that the accused disguised himself using any personal characteristic of the real person infers that the accused purported to be that person, and did not simply coin a pseudonym.

[31]   In the current case, R. v. Jahanrakhshan, the lower court relied on the existence of a genuine person named Frank Pohl to sustain a conviction for personation. But there was no evidence that the accused represented himself as the real Pohl, instead of simply inventing a pseudonym. According to testimony: the accused did not know the real bank investigator Frank Pohl; did not feign any attributes of the real Frank Pohl; in fact, did not pretend to be a bank investigator at all.

The evidence was incapable of showing more than that the accused used a pseudonym. That did not amount to personating Frank Pohl. The B.C. Appeal Court overturned the conviction with respect to the four personation counts.

Alias Derived from One’s Own Name Not Impersonation – Yet

The B.C. Appeal Court allowed Jahanrakhshan to use the pseudonym Frank Pohl and also allowed him liberal use of variations on his own name. Of the eleven CanLII rulings for Kamyar Jahanrakhshan, three discuss his real name(s):

Canadian Criminal Court
R. v. Jahanrakhshan (2011) BCSC 894

[39] There will be further terms on the probation order. First of all, it will be a condition that the accused will not use any names or possess any identification in names other than Kamyar Jahanrakhshan, Andy Jahanrakhshan, Andrew Jahanrakhshan, Andrew Rakhshan, or Andy Rakhshan, or Kamyar Rakhshan.

Canadian Criminal Court
R. v. Jahanrakhshan (2012) BCCA 341

[38] In support of his application to the court, Mr. Jahanrakhshan wrote a statutory declaration which he signed Andrew Kamiar Rakhshan. This was signed under penalty of perjury under the laws of Washington state.

[39] During this B.C. court session, the Prosecutor tendered a copy of the Findings of Fact and Conclusions of Law issued by Washington Superior Court in the civil case Andrew Rakhshan v. Whatcom County.

[Explanation: A man named Andrew Rakhshan launched, and lost, a civil case in Washington State (see below). In America, the name of the accused was Rakhshan. But when that court's Findings were discussed in Canada, the name Jahanrakhshan was substituted – hence they are one and the same person.]

USA Civil Court
Rakhshan v. Whatcom County (2009)
Washington Appeal Court (No 61697-8-I)

Andrew Rakhshan launched a civil suit seeking the return of five seized cars. The court ruled: A thief has no right to possess stolen property. Rakhshan bought the cars from internet dealerships using a fake, novelty identification card bearing the derivative alias Andrew Rahshan which he represented as an authentic B.C. driver's licence. Rakhshan also sent a fraudulent fax to the French Rogatory Commission, to impede their taking testimony from international witnesses pertinent to his case.

CBC News reported: It's not the first time Jahanrakhshan has run afoul of the law. The American citizen has been convicted of theft in Washington state and sued numerous times by various litigants including a Vancouver collection agency and the University of British Columbia. This convoluted case raises an essential question: What happens when a person's singular christened name sprouts derivative aliases intended for fraud? Bringing this under CCC s. 403 may, in time, set new law for impersonation.

Canadian Criminal Code

Part X: Fraudulent Transactions Relating to Contracts and Trade

Identity Theft and Identity Fraud

Definition of Identity Information

CCC s 402.1  –  For the purposes of sections 402.2 and 403, identity information means any information – including biological or physiological information – of a type that is commonly used alone or in combination with other information to identify or purport to identify an individual, including a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, Social Insurance Number, health insurance number, driver's licence number or password.

Identity Fraud

CCC s 403. (1)  –  Everyone commits an offence who fraudulently personates another person, living or dead,

  1. with intent to gain advantage for themselves or another person;
  2. with intent to obtain any property or an interest in any property;
  3. with intent to cause disadvantage to the person being personated or another person; or
  4. with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.
Clarification

CCC s 403. (2)  –  For the purposes of subsection (1), personating a person includes pretending to be the person or using the person’s identity information – whether by itself or in combination with identity information pertaining to any person – as if it pertains to the person using it.

Punishment

CCC s 403. (3)  –  Everyone who commits an offence under subsection (1)

  1. is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years; or
  2. is guilty of an offence punishable on summary conviction.
Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com
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