A teenaged girl was arrested for shoplifting a five dollar pair of earrings, charged with theft and fingerprinted. The charge was a hybrid offence where the Crown could choose to proceed either by way of indictment or the less serious route of summary conviction.

Police are using their power to fingerprint those who are charged with indictable offences to also fingerprint for hybrid offenses before the Crown attorney has decided whether to proceed by way of indictment. Indictable offences carry heavier penalties.

The police wish to obtain as many fingerprints as possible in order to better solve crimes. Police often fingerprint those charged with petty hybrid offences when there is no need for fingerprints at that time. These fingerprints, however, can be used to identify the person in future crimes.

The Issue

Is fingerprinting for hybrid offences a reasonable invasion of the rights of an accused?

The Police Perspective

The process of fingerprinting was developed in the late 1800s and in 1908 became the primary method of identification for law enforcement purposes in Canada. Fingerprinting is a valuable criminal investigative tool due to its ease and speed and the fact that no two persons’ fingerprints are alike.

For a variety of law enforcement reasons, police wish to collect as big a library of fingerprints as possible. Fingerprints are a useful aid to identify the person in custody, but the main reason police wish to maintain fingerprint databases has more to do with solving crimes. Fingerprints of an accused can be used as evidence for the crime with which he is charged, but once the fingerprints are stored in the police library, they can also be the key to solving the mystery of other crimes.

The common law has given police the authority to take fingerprints of those lawfully in custody whether or not they have been charged with a summary conviction or an indictable offence; R. v. Buckingham, [1946] 1 W.W.R. 425 (B.C.S.C.); R. v. Hayward (1957), 118 C.C.C. 365 (N.B.C.A.). However, if force is used to obtain the fingerprints, the accused may have an action for assault against the police.

Parliament extended the fingerprinting power in the Identification of Criminals Act (the “Identification Act”) by giving the police the right to use necessary force to obtain the fingerprints of those charged with, but not convicted of, an indictable offence.

The Criminal Code contains a wide variety of hybrid offences that may be proceeded with by way of either summary conviction or indictable offence. Some hybrid offences include public mischief, bestiality, assault and theft under $1,000.

Section 501(3) of the Criminal Code authorizes police officers to issue appearance notices to those charged with an indictable offence requiring them to appear to identification and fingerprinting. Failure to appear may result in an arrest warrant being issued.

In addition to fingerprinting, the identification process usually includes photographing and questioning about identifying characteristics such as height, weight and bodily marks.

The purpose of the identification procedure is to enable the identity of the accused to be established for the following reasons:

• to assist in determining whether the accused committed the crime by comparing fingerprints with latent prints at the scene in cases where the identity of the person who committed the crime is in issue
• to assist in determining if the accused has been convicted or stands charged with other crimes in order to establish whether the accused might be released on bail, whether the offence ought to be proceeded with by way of summary conviction or indictment, whether to proceed by way of second conviction or whether the accused is unlawfully at large; to facilitate the apprehension of the accused should he fail to appear in court, and
• to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they may be segregated.

An innocent accused will benefit from fingerprinting since it may establish that someone else committed the crime. Fingerprints may also ensure that an innocent person does not become wrongly identified with someone else’s criminal past simply because his name or appearance is similar.

In urban areas individuals are relatively anonymous and often attempt to conceal their identity and criminal past. Fingerprinting helps urban police know who they have arrested.

For hybrid offences fingerprints are taken in the majority of cases. It is up to the accused to apply to have the fingerprints removed from the system if not convicted of an indictable offence. The fingerprints will not be destroyed automatically if the person is not convicted of an indictable offence.

Copies of all fingerprints are sent to the central police registry in Ottawa. Therefore, two separate applications are necessary for a person to have his fingerprints removed from police files is he is pardoned or not convicted, applications to both the local police and the central registry.

The local RCMP policy for the destruction of fingerprints is that an accused who has not been convicted of an indictable offence may apply to have his fingerprints destroyed. The accused or his lawyer may personally witness the destruction of the original fingerprints and all copies, or may choose simply to receive written confirmation of the destruction.

The Courts’ Perspective

The question of whether a hybrid offence is an indictable offence for which fingerprinting may be required under the Identification Act was considered in Re M.H. and the Queen (1984), 14 C.C.C. (3d) 210 (Alta. Q.B.) by the Alberta Court of Queen’s Bench. The Court held that since the Crown could elect to proceed summarily or by indictment, the offence was clearly an indictable offence for the purposes of the Identification Act.

A person must, however, first be arrested on reasonable grounds before the police may obtain his fingerprints pursuant to the Identification Act. In R. v. Sequin (1990), 73 O.R. (2d) 587 (Ont. D.C.), a police officer arrested a vandalism suspect merely on a suspicion and did not have reasonable grounds for the arrest. No charge was laid until after the fingerprints were taken and found to match those at the scene of the crime. The Court held that the arrest was made solely for the purpose of obtaining the fingerprints. Therefore, the arrest was made in bad faith and arbitrary, and violated section 9 of the Canadian Charter of Rights and Freedoms (the Charter) which protects against arbitrary detainment or imprisonment. As a result the evidence of the fingerprints was excluded.

In Re M.H. and The Queen (No. 2) (1984), 17 C.C.C. (3d) 443 (Alta Q.B.), the Alberta Court of Queen’s Bench held that “getting ink on one’s fingers does not jeopardize one’s life, liberty and security of the person”. Furthermore, despite evidence that fingerprinting would be stressful experience for a young offender, a young offender’s security is not infringed because he is caused to be emotionally upset or anxious. Therefore, fingerprinting does not violate the guarantee of those rights found in section 7 of the Charter. The taking of fingerprints was also found not to be a search or a seizure and, even if it was, it would be allowable since it was not unreasonable.

The Supreme Court of Canada considered the civil liberties implications of the Identification Act in R. v. Beare [1989] 1 W.W.R. 97 (S.C.C.). The Court held that although fingerprinting may offend the dignity of the accused, it does not unduly invade the accused’s rights. The Court reasoned that other aspects of law enforcement and the criminal justice system, including arrest and being charged involve other distasteful procedures and a stigma which far outweighs that associated with being fingerprinted.

The Court also held that the identification procedures under the Identification Act were not arbitrary since they only apply where there are reasonable and probable grounds to believe the accused has committed an indictable offence. Fingerprinting is universally accepted as reliable, efficient and minimally intrusive on the accused. Due to the numerous and varied functions of fingerprints, the Court held that it would be inappropriate to require the police to first show on reasonable and probable grounds the necessity of fingerprinting.

On the question of fingerprinting violating the accused’s reasonable expectation of privacy, the Court held that an accused charged with an indictable offence must expect a significant loss of personal privacy. An accused must expect that incidental to his being taken into custody he will be subjected to observation, search and fingerprinting. While fingerprinting may be unpleasant to some, it is of short duration and leaves no lasting impression. Unlike blood tests, there is no penetration of the body and no substance is removed from the body.

As a physical invasion, fingerprinting amounts to practically nothing. As a humiliation, it is insignificant compared to the publicity surrounding an indictment reported in the media.

The lower court, the Saskatchewan Court of Appeal, had considered the Act to violate the right to life, liberty and security of the person protected by the Charter. The Court of Appeal considered that subjecting a person to fingerprinting prior to conviction violated the elements of dignity and self respect in the Charter; R. v. Beare, [1987] 4. W.W.R. 309 (Sask. C.A.).

The Court of Appeal considered the concept of “life, liberty and security of the person” as protected by section 7 of the Charter to refer not only to physical but also to mental integrity. Mental integrity meant “the dignity and worth of the person”. The Court of Appeal, therefore, held that subjecting a person to fingerprinting prior to conviction violates the elements of dignity and self-respect inherent in section 7 of the Charter.

The Chief Justice of the Court of Appeal stated:

[I]n the minds of the public fingerprinting is associated with criminals and criminal activity: to be fingerprinted is to be treated like a criminal. It is one thing, however, to have been found by a court to be a criminal and then to be treated like one. It is quite another not to have been so found (particularly when the person has an honest belief in his innocence) and to be treated like one. The humiliation is exacerbated when the person realizes that the fingerprints remain as a permanent record, a permanent stigma, notwithstanding the withdrawal or the dismissal of the charge. That such a person’s reputation, self-respect or dignity may suffer in the process is patent.

The Supreme Court of Canada, however, held that fingerprinting does not violate the Charter because any deprivation of life, liberty and security of the person is not contrary to the principles of fundamental justice. The common law permits a number of far more serious intrusions on the dignity of a person in custody in the interest of law enforcement. For example, a police officer can search an arrested person and take any property reasonably connected with the offence as evidence or any weapon found.

The Conclusion

Police should not have the right to fingerprint people at will in a free and democratic society. The privacy of an accused and his right not to be treated as a criminal just be given careful consideration. We do not wish to live in a country where law enforcement can arbitrarily tramp on our individual rights.

Many of the arguments from the police and courts perspectives, however, are persuasive that fingerprinting of accuseds is often needed for valid law enforcement reasons. Where then do we place the limits on fingerprinting and is the present limit set properly?

Parliament has limited the fingerprinting requirement to indictable offences, the more serious offences. The Courts have interpreted this limit to also include hybrid offences where the Crown has the option of proceeding by way of indictment. But if the offence is petty and the chances of the Crown exercising this option are remote, should the police have the discretion to require fingerprinting?

Given the arguments in favour of fingerprinting presented above, it appears that for proper law enforcement, the police need some ability to require fingerprints from an accused even if the charge is a petty hybrid offence.

While police may need the discretion to require fingerprinting for hybrid offences, they should exercise that discretion reasonably. Fingerprinting should only be required by the police for a petty hybrid offence where other identification measures are insufficient and there is a reasonable possibility that the Crown will proceed by way of indictable offence. Fingerprinting should be rare for circumstances that rarely proceed by indictment.

Furthermore, the onus should not be on a person not convicted of an indictable offence to apply to have his fingerprints destroyed. Fingerprints should automatically be destroyed if the person is not convicted of an indictable offence. In some case the police could be encouraged to wait for the Crown to make the election before fingerprinting. Waiting would reduce the administrative time spent taking and then automatically destroying fingerprints when the person is not prosecuted by indictment.