Identity is a big thing in criminal law. There’s always the question of whether someone is in fact who they claim to be. It makes sense. Different people can look alike, and it’s not that unusual to find someone who’s a near-perfect doppelgänger living in the general vicinity of their counterparts. So over the years legislators have developed ways to keep track of individuals with increasingly advanced techniques.
The common version that most are familiar with is the mugshot. You get arrested and charged with a crime, police are allowed to take a photo of you, maybe obtain your measurements such as your height, note down whether you have any tattoos and so on. But photo lineups only go so far. So the same piece of legislation, the Identification of Criminals Act, also provides police the powers to obtain your fingerprints, which as far as science proves, are unique to each individual — and are often left behind at crime scenes.
Canada’s Identification of Criminals Act allows police to obtain fingerprints
First, a little bit about the Identification of Criminals Act. This act sets out when police are allowed to obtain these photographs, measurements and fingerprints of an accused person. Without pasting the entire piece of legislation, for the most part, it goes like this:
If you have been charged or convicted for an indictable offence (that’s Canada’s equivalent to a felony for those US crime drama lovers), or if a police officer or court issues a notice based on you being accused of an indictable offence, you may be photographed, measured or fingerprinted.
Two main points here. The first: if you’re charged or convicted with an indictable offence, barring some exemptions, you can automatically be compelled to be fingerprinted. The second allows a court or police officer to compel you, by issuing a notice, a promise to appear, a recognizance or a summons to provide your fingerprints even if you have not been charged or convicted. You simply need to be accused of a crime.
You can’t just refuse to show up either. Doing so could result in you being arrested or even worse, being further charged with a failure to appear offence.
Immediately, lawyers noticed a big issue.
Compelling an innocent person to do something, at the threat of arrest, is sort of unconstitutional. Remember, all the act requires is that you’re either charged with an indictable offence, or be accused of an indictable offence that you haven’t been charged for, as long as the demand is accompanied by a notice.
A constitutional challenge was filed, and a decision was rendered by the Supreme Court of Canada in 1988. In its decision, the Supreme Court of Canada determined that compelling someone to provide fingerprints at the threat of arrest infringes s. 7 of the Charter, which grants everyone in Canada the right to life, liberty and security. However, the Supreme Court also determined that while the rights of the accused are somewhat invaded, the legislation was not fundamentally unfair and did not offend the principles of fundamental justice.
As a result, the law was upheld.
How police began interpreting this fingerprint law
As often the case with developments in legislation, police may get creative in their interpretation of the law. A good example was documented in a 1998 case. This decision detailed how an officer had arrested someone for impaired driving and possessing stolen licence plates. The officer then decided to ask the driver to provide fingerprints.
Legally speaking, the officer had a few options.
He could hold the driver and wait until Crown prosecutors would approve charges, satisfying the Act by making sure the accused was charged with an indictable offence, before demanding fingerprints from the driver.
Alternatively, he could release the driver and issue a notice that the driver returns at a later date to provide his fingerprints.
The officer chose to do neither of those options and instead asked the driver to provide the fingerprints immediately. The driver complied.
Now the question before the BC Court of Appeal in 1998 was this: because the officer had neglected to follow the instructions of the legislation and instead asked the driver to provide fingerprints immediately, were the fingerprints lawfully obtained? More importantly, could the fingerprints be used to then identify this driver in the future?
This question opened a huge can of worms
The first question was whether the driver provided consent to the officer to obtain his fingerprints.
The court decided the driver did consent, and determined that since the driver may have eventually been compelled to provide his fingerprints through the avenues established by law, that the officer was actually doing the driver a favour by offering to take his fingerprints up front.
But the court wasn’t finished. It also wanted to answer the question of whether, by arresting the driver, the officer had technically “charged” him and was able to compel the driver to provide fingerprints regardless.
For those of us who are lawyers, this question is a little silly. In British Columbia, it is the Crown prosecutors who must approve every criminal “charge,” and police officers simply do not have the authority to do so.
The court took a more interesting theory: that the word “charged” isn’t properly defined in law and was up to interpretation. Held loosely, one judge’s opinion was the term “charged” could be interpreted as an accused being told they will be prosecuted criminally by an authority. In other words, to the judge who wrote the decision, an officer arresting someone on suspicion of a crime is good enough to qualify as a “charge,” and on further interpretation would mean that in theory fingerprints could be taken on any criminal arrest.
Wait, there’s more.
One of the interesting factors of this case was how impaired driving is a hybrid offence. This means impaired driving is neither a summary offence (misdemeanour) nor an indictable offence (felony) by itself, and it’s up to the Crown prosecution to decide whether, depending on the severity of the case, to proceed summarily or by indictment.
An important note here: because the impaired driving allegation was the driver’s first offence, it was more than likely the Crown would have proceeded summarily. This is a point we’ll get back to.
Let’s go back a few steps. You’ll recall that in order for police to demand fingerprints, the offence being alleged must be an indictable offence. So for the purposes of fingerprints and identifying criminals, would a hybrid offence be considered an indictable offence, especially considering that it would have been likely for the Crown to proceed summarily?
In New Brunswick, there is legal precedent that the answer would be “no,” that unless the officer believed a hybrid offence would proceed as an indictment, the officer may not take fingerprints. BC’s Court of Appeal chose not to follow that decision.
Instead, the BC Court of Appeal preferred other legal precedents in Ontario and BC that an indictable offence is one that “could be dealt with on indictment” and not one that must be dealt with on indictment. The mere possibility, it seems, was enough.
The court wasn’t finished, just yet.
There was the question of retention of fingerprint records. If someone was acquitted of their past offences, namely the offences through which they were fingerprinted, do police have an obligation to destroy the records? If the answer is yes, then if this driver had been found innocent of his previous charge, there would be no admissible record of his fingerprints.
Great question. BC Court of Appeal had a better answer. It took the example of someone theoretically being charged with a crime they had previously been acquitted for, and asks: how would this person prove they had previously been acquitted?
From the decision:
“In order to invoke this protection against being tried again after having been acquitted, a person must be able to establish that he or she is the very person who had formerly been tried. Fingerprints which have been retained following the acquittal provide the only certain means of doing so.”
I mean, this is a bit like suggesting that constantly having police monitor our every movement will prove our innocence in the event we are accused of a crime. It’s a stretch, at best. And no, you’re not the only one frustrated by this suggestion.
There was one saving grace
Thankfully, BC’s Court of Appeal works in panels of three judges. One of the judges said the Court would be going too far to decide the matter of whether a police officer arresting someone, indicating a prosecution may occur, would qualify as a “charge” for the purposes of fingerprinting.
The third judge, meanwhile, said that while the charge interpretation may be acceptable, the Identification of Criminals Act shouldn’t be read as a law “augmenting” police powers during an arrest.
Very confusing, I know.
Other judges were just as confused
Just a year later, a judge in the BC Supreme Court was asked to interpret whether a person who had been arrested, without being charged, could be compelled to give their fingerprints based on the interpretation of the previous 1998 decision.
It was an unenviable task. This judge was essentially asked to determine what the previous three judges at a higher level of court meant when they disagreed with each other on whether police can demand fingerprints on each and every arrest.
The judge wasn’t certain, and even said so in the decision. His own conclusion was that “an arrest is not enough,” and that there must be a charge or conviction as stated by the Identification of Criminals Act. While his decision was not challenged, what we in the legal profession and the public are left with is an unanswered question. Are police allowed to take fingerprints on every arrest?
At least one opinion in the BC Court of Appeal thinks so. At least one opinion in the BC Supreme Court thinks not. And none of us are really sure what will happen if a police officer decides to demand your fingerprints for a minor arrest and you object.
It’s perhaps time for the Supreme Court of Canada to step in?
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.