March is Fraud Awareness Month. Our firm often reminds fraud victims that they cannot reasonably rely on Canada’s criminal justice system for recovery or justice in fraud matters. In the R. v. Abrams case recently released, the Court did not dismiss drug charges, holding they were serious – but stayed identity fraud charges against the same accused involved in the same arrest, on the basis that fraud is not taken seriously by Canadian Courts if a Charter issue arises. Our case summary follows:
Case Summary:
R. v. Abrams, 2025 ONSC 1070
Heard: January 6, 2025
Judgment: February 18, 2025
Ontario Superior Court of Justice
Between: His Majesty the King (Respondent) and Brandon Abrams (Applicant)
Counsel: Sabrina Montefiore (Respondent), Alison McArthur (Applicant)
Reasons for Decision
(Charter Application)
This Charter motion addresses: (1) when a detention begins, and (2) police obligations to delay investigation until s. 10(b) rights are fulfilled.
On January 2023, a hotel clerk in Niagara Falls reported suspected fraud. Constable Gibbons arrived at 7:09 am, spoke to the clerk, and asked Mr. Abrams for identification. He provided his name and date of birth verbally. Gibbons checked this in her cruiser, finding outstanding warrants, and arrested him at 7:23 am. She informed him of his rights to counsel at 7:28 am; he requested Ms. McArthur.
A search incident to arrest revealed drugs, an airsoft pistol, and identity documents. At the station by 7:49 am, he spoke to counsel at 9:05 am. Bag searches, completed by 11:50 am, uncovered more evidence, but new charges and rights were not communicated until 4:00 pm, after police attempted questioning.
Legal Analysis of Justice Latimer:
- Was Abrams detained pre-arrest? No. Initial interaction was not a detention under s. 9 (R. v. Suberu, [2009] 2 SCR 460). He was cooperative, unrestrained, and no investigative questions were asked beyond identification.
- S. 10(b) violation post-arrest? Yes. Police failed to hold off questioning until Abrams understood his new jeopardy and consulted counsel again (R. v. Sinclair, [2010] 2 SCR 310). Attempting to elicit statements at 4:00 pm breached his rights.
- Exclude evidence? Under s. 24(2) (R. v. Grant, [2009] 2 SCR 353), the violation was serious, but its impact on Abrams’ rights was minimal as he declined to speak, and evidence was lawfully seized pre-violation. Society’s interest in adjudicating drug charges (fentanyl-related) is strong. Identity documents of third parties for identify fraud, tied to the violation, are excluded; drugs, pistol, and paraphernalia are admissible due to their lawful seizure and public safety concerns.
Disposition: Identity documents are excluded; all other evidence is admissible at trial.
Our additional commentary: this investigation commenced because Mr. Abrams was trying to book a room with fraudulent credit card information (paragraph 3). The officer conducted a prudent investigation in not causing the concept of investigative detention to occur. The officer’s intuition lead to an arrest on an outstanding warrant and evidence subsequent to arrest being found. This is good police work.
The commentary with respect to a Charter analysis that “It is either sloppy policing or an active disregard for s. 10(b) of the Charter (paragraph 31) is unfortunate language by the judge. There is a third option between “sloppy” and “disregard” – that is it was the officer’s judgment call (discretion) that a violation Abrams’ Charter rights was not in play. It is unfortunate that a judge felt that that his disagreement with her use of discretion results in condemnation of the officer as “sloppy” or engaging in “disregard”. Whatever happened, the officer’s actions prevented further crime.
Another unfortunate aspect of this decision, which often applies to Charter cases, is that the judge did not mention was the impact on victims in this case. While rogues rely on Charter rights, some judges do not even mention victim rights of identify fraud victims in their analysis.
Investigation Counsel PC
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