Please (Finger) Print Clearly

The Charter of Rights and Freedoms states that everyone charged with an offence has the right to be presumed innocent until proven guilty. So how and why can you be legally obligated to get fingerprinted and photographed before you are even convicted? The answer is based upon statutory enactments guided by considerations pertaining to the interests of justice. Or in simpler terms, “because the law says so”. Nevertheless, it is important to recognize the circumstances under which you may be required to get fingerprinted and photographed, and the consequences of refusing to do so. It is also critical to know how to destroy such records so they do not remain on police databases after your matter is resolved.

As a starting point, the federal Identification of Criminals Act authorizes the police to collect fingerprints and photographs for identification purposes when you have been charged with certain offences. Specifically, section 2 of the Act provides that you may be fingerprinted and photographed if you have committed, or are alleged to have committed, an indictable or hybrid offence. Indictable offences are ‘serious offences’ (such as Aggravated Assault and Robbery), compared to summary offences which are ‘less serious’ (such as Causing a Disturbance or Trespassing at Night). A hybrid offence is one which can be treated either summarily or by indictment, depending on how the Crown elects. So, if you are charged with a hybrid or indictable offence, then you must attend for fingerprinting and photographs at the precinct as specified on your release document (i.e. your Appearance Notice, Promise to Appear, Summons or Recognizance). If you are only charged with a summary offence, rather than hybrid or indictable offence, then you will not be obligated to attend the precinct for such purposes.

Further to the above, if you are required to go for fingerprints and photographs, it is critical that you adhere to this stipulation. Failing to attend your appointment will likely result in your being charged with a further offence. If such occurs, you will then have to answer not only to the original charge, but also to a subsequent Failure to Appear charge. The best way to ensure you don’t absentmindedly miss your fingerprinting appointment is to mark the date in your calendar the first chance you get. The effort of jotting down such a reminder pales in comparison to the effort it will take to defend a subsequent criminal charge.

Even if you ‘disapprove’ of the fact that the police may fingerprint and photograph you before your first court date, it is important that you are compliant with their demands. The Identification of Criminals Act explicitly authorizes the police to use such force as necessary to carry out their duties. In other words, if you are making things difficult for them, they certainly won’t hesitate to make things even more difficult for you. In addition to getting a few bruises, your resistance may result in your being charged with a further criminal offence, such as Obstructing a Peace Officer.

After your have been fingerprinted and photographed, these records will remain in the police database unless and until they are destroyed. This can be highly prejudicial to you for a variety of reasons. First, the mere though that “the police have you one file” is disconcerting. Second, if a subsequent offence is committed and fingerprints are lifted at the crime scene, those prints may be matched up against yours on the police database. This means that, even if you had nothing to do with the offence and were just a passerby at the crime scene who innocently left a few prints, you could be identified by the police and treated as a suspect. Third, your photograph may be shown to witnesses or victims of crimes, in attempts to identify the assailant. This may lead to a common misconception known as the “Rogues Gallery Effect”, whereby the witness assumes that you are the assailant, otherwise why would the police have your photo on file. As such, destruction of your photographs and fingerprints is vital to avoid these adverse consequences.

Even if you are not convicted of the offence for which you were charged, the police are under no legal obligation to destroy your fingerprints and photographs. Consequently, the burden rests on you to seek the destruction of these records. Upon your submitting a written request, the police will generally destroy your fingerprints and photographs unless there are compelling reasons in the public interest to refuse destruction. That being said, there are certain conditions which must be satisfied in order for your destruction request to be granted:

1)     Your charges must not have resulted in a conviction (i.e. the disposition must have been a peace bond, acquittal, dismissal, withdrawal, discharge, stay or other finding of non-guilt)
2)     The applicable time for any appeal process has expired
3)     You have no criminal convictions or outstanding charges before the courts
4)     The alleged offence(s) cannot be listed as a primary or secondary designated offence, as defined by section 487.04 of the Criminal Code of Canada
5)     Any requisite wait times have elapsed before your application is submitted (i.e. 1 year wait time after Stay or Absolute Discharge; 3 year wait time after Conditional Discharge)

In the event that your request for destruction is refused, you have the right to appeal this decision within 60 of the refusal date. To do so, you must submit a further application to the Manager at Records Management Services. This application must include information affirming that destruction is appropriate and/or necessary. Such information could include court transcripts, explanations as to how the alleged offence is trivial in nature, or other mitigating circumstances. A decision will be rendered within 60 days of the Manager’s receipt of your appeal application

Notwithstanding the above, the destruction process only provides for the destruction of fingerprints and photographs held by the Toronto Police Service. There may be associated reports and records maintained on other police databases which are subject to different retention guidelines. Furthermore,  destruction of fingerprints and photographs does not guarantee you entry into the United States, as that is at the discretion of U.S. authorities. Given the intricacies surrounding records destruction, and of course the actual underlying offence that must be dealt with, the value of retaining a lawyer cannot be overlooked. For professional legal representation on these and other criminal matters, contact the law offices of Aitken Robertson at (866) 762-9218.