R. v. Jahanrakhshan, 2013 BCCA 196
[24] It appears to be well-established in Canadian law that a person does not commit the crime of personation simply by adopting a false identity. In R. v. Northrup (1982), 1982 CanLII 3710 (NB CA), 1 C.C.C. (3d) 210 (N.B.C.A.), the accused gave a false name to police when he was arrested. He was convicted of personation, but the conviction was reversed on appeal. The New Brunswick Court of Appeal stated that the offence of personation “… contemplates the assumption for fraudulent purposes of the identity of another person now existing or who has existed” and differentiated between “pseudonymity” and personation.
[25] In obiter remarks in R. v. Hall (1984), 1984 CanLII 3573 (ON CA), 12 C.C.C. (3d) 93, the Ontario Court of Appeal indicated that it considered Northrup to have been correctly decided. I agree with that assessment. It seems to me that the words “another person, living or dead” in s. 403 of the Criminal Code 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] The question in the case before us, then, is whether the appellant, in describing himself as “Frank Pohl” was adopting the identity of a real person. The evidence establishes that there is a person by that name. That person worked as an investigator for the Royal Bank of Canada sometime prior to 2009. He never worked for the RCMP, nor did he have any involvement in any of the investigations of the credit card forgeries that lie behind this case. The evidence indicates that the various bank employees to whom the appellant represented himself as Frank Pohl had no knowledge of the former Royal Bank investigator. Neither is there any evidence that the appellant knew of him. In short, the evidence fails to connect the appellant’s use of the name “Frank Pohl” with a real person.
[27] In my view, in order to make out the crime of personation, it is necessary to show more than that there happens to be a person whose name is the same as that used by the accused. It must be shown that the accused was actually representing himself as the person who was personated. For example, if the appellant had represented to the 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 appellant guilty of personation. Even if the appellant’s inspiration for the use of that name had been familiarity with the Bard of Avon, it could not be said that he was pretending to be the deceased playwright.
[28] In R. v. Westerdahl (1988), 1988 CanLII 9623 (NS CA), 82 N.S.R. (2d) 178 (N.S.C.A.), the accused, when entering Canada from the United States identified himself as “Glen S. Miller”. The accused gave evidence that the name was fictitious, and that he used it because it was easy to remember, “recalling to mind the late well-known American bandleader”. While the bandleader was actually “A. Glenn Miller”, rather than “Glen S. Miller”, the case did not turn on the subtleties of initials or double consonants. Rather, the question was whether, quite apart from the use of the name, the accused had adopted the identity of the (presumed) dead bandleader. The evidence clearly indicated that he had not. The bandleader vanished in 1944, at the age of 40, while the accused was not born until 1961. He made no reference to being the famous Glenn Miller.
[29] In many cases, the mere use of the name of another real person will support an inference that an accused person is personating that 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 him or herself as that person.
[30] I do not mean to suggest that the offence of personation requires that an accused make use of some special attributes possessed by the person who is being impersonated. Any evidence that an accused has pretended to take on the personal characteristics of a person whose name is being used will tend to show that the accused is purporting to be that person, and not simply using a pseudonym.
[31] In the case before us, the trial judge relied on the fact that there was a genuine person named “Frank Pohl” to sustain a conviction for personation. There was, however, no evidence from which it was possible to infer that the appellant was representing himself as that person, rather than simply using a pseudonym. The evidence did not even go so far as to show that the former bank investigator known as “Frank Pohl” was a person known to the appellant. Nor did the appellant pretend to be a bank investigator, or suggest that he had any attributes of the Frank Pohl identified by the trial judge as the person being personated.
[32] In short, the evidence was incapable of showing more than that the appellant used a pseudonym. That did not amount to personating Frank Pohl. I would, therefore, allow the appeal with respect to the four personation counts.
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