Taking Photographs and Fingerprints of Accused Persons

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2020. (Rev. # 95937)

General Principles

While going through the "booking" process a peace office may take the fingerprints and a photograph of the accused for identification purposes. Alternatively upon releasing an accused, an officer may give notice to attend for the purposes of identification under the Identification of Criminals Act, R.S.C., 1985, c. I-1.

Taking of Photographs or Fingerprints

Section 2 of the Identification of Criminals Act governs the taking of fingerprints and photographs:

Fingerprints and photographs

2 (1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council:

(a) any person who is in lawful custody charged with or convicted of
(i) an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, or
(ii) an offence under the Security of Information Act;
(b) any person who has been apprehended under the Extradition Act;
(c) any person alleged to have committed an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, who is required pursuant to subsection 501(3) [undertaking – additional conditions] or 509(5) [summons – attendance for purposes of Identification of Criminals Act] of the Criminal Code to appear for the purposes of this Act by an appearance notice, promise to appear, recognizance or summons; or
(d) any person who is in lawful custody pursuant to section 83.3 [terrorism recognizance] of the Criminal Code.
Use of force

(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described under subsection (1).

Publication

(3) The results of the measurements, processes and operations to which a person has been subjected pursuant to subsection (1) may be published for the purpose of affording information to officers and others engaged in the execution or administration of the law.


...

[annotation(s) added]

– ICA

Section 2(2) of the Act also authorizes taking weight and measurements of the accused, known as "Bertillonnage", this includes obtaining the information verbally from the accused.[1] </ref> Information obtained from this Act before Accused's rights and caution, even when verbal, does not violate the right against self-incrimination.[2]

The collection of fingerprints is considered an "integral part of the criminal justice system at every stage".[3]

Common Law Powers

Where a detainee has not yet been charged at the time of fingerprinting of picture-taking, there is some uncertainty about whether it would constitute a violation of s. 8 of the Charter.[4] This controversy surrounds the issue of whether there still exists a common law power to take pictures and fingerprints. Where such power exists, there will be no violation of the Charter.[5]

Compelling Attendance

The accused can be compelled by way of an appearance notice under s. 500, an undertaking under s. 501 or a summons under s. 509.

Under s. 537(1)(b) a preliminary inquiry judge has the power to "remand the accused to custody for the purposes of the Identification of Criminals Act".

There is some suggestion that a judge may order a summons exclusively for the purpose of compelling attendance for fingerprinting under the ICA, without it being associated with issuance of undertaking, notice to appear or summons to attend court.[6]

Types of Offences

Section 2(1) of the Identification of Criminals Act applies to persons charged with an indictable or hybrid offences.[7]

Where the Crown elects to proceed by summary conviction it does not restroactively invalidate the making of a summons or other means of compelling the accused to attend for identification.[8] However, once a summary election is made, no summons can be issued.[9]

Manner of Obtaining Photos or Prints

There is no obligation that the location of the taking of the photo or print be at somewhere "convenient". It is only where it creates prejudice that it may amount to a violation of natural justice.[10]

Failure to Attend

Where the accused fails to attend, a justice may issue an arrest warrant under s. 502 where it relates to a "appearance notice or promise to appear or by a recognizance" or s. 510 where it relates to a summons.

Charter Rights to Privacy

The taking of fingerprints constitutes a search and seizure under s. 8 of the Charter.[11]

Where fingerprints are taken from a person in custody who is neither charged or convicted of an indictable offence section 8 of the Charter is violated.[12]

The police practice of taking fingerprints of all detainees who are arrested and charged with a criminal offence was found to be constitutional.[13]

  1. ↑ MacNeil c R, 2008 QCCS 908 (CanLII), 179 CRR 120, per David J
    See also for details on Bertillonnage R v Shortreed, 1990 CanLII 10962 (ON CA), 54 CCC (3d) 292, per Lacourciere JA, at p. 304
    R v Beare; R v Higgins, 1988 CanLII 126 (SCC), [1988] 2 SCR 387, per La Forest J
  2. ↑ MacNeil, supra
  3. ↑ R v Beare; R v Higgins, 1988 CanLII 126 (SCC), [1988] 2 SCR 387, per La Forest J
  4. ↑ R v Nguyen, 2013 BCSC 950 (CanLII), per Williams J, at paras 115 to 126
  5. ↑ e.g. see Nguyen, ibid.
  6. ↑ R v Chevalier, 2020 ONCJ 514 (CanLII), per Green J
  7. ↑ see Identification of Criminals Act, RSC 1985, c I-1
    see also e.g. R v Lewis, 1996 CanLII 1358 (BC SC), 36 CRR (2d) 364, per Levine J
  8. ↑ R v Blonde, 2015 ONSC 2113 (CanLII), per Brown J, at paras 20 to 32
  9. ↑ Blonde, ibid., at para 25
    R v Abarca, 1980 CanLII 2958 (ON CA), 57 CCC (2d) 410, per Lacourciere JA, at para 9 ([o]nce the Crown elects to proceed by way of summary conviction, it cannot compel the appearance of the Crown for fingerprinting.”)
  10. ↑ Blonde, ibid., at paras 32 to 64
  11. ↑ R v Dore, 2002 CanLII 45006 (ON CA), 166 CCC (3d) 225, per Feldman JA, at para 32
  12. ↑ R v Carpenter, 2010 BCPC 175 (CanLII), 259 CCC (3d) 426, per O'Bryne J
  13. ↑ Beare, supra

Compelling Attendance Upon Release

Attendance — Identification of Criminals Act

515.01 When a release order is made under section 515, the judge or justice may also make an order, in Form 11.1, requiring the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act if the accused is charged with an offence referred to in paragraph 2(1)(c) of that Act.

2022, c. 17, s. 33

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Failure to Appear

Failure to appear

510 Where an accused who is required by a summons to appear at a time and place stated in it for the purposes of the Identification of Criminals Act does not appear at that time and place and, in the case of an offence designated as a contravention under the Contraventions Act, the Attorney General, within the meaning of that Act, has not made an election under section 50 of that Act, a justice may issue a warrant for the arrest of the accused for the offence with which the accused is charged.
R.S., 1985, c. C-46, s. 510; 1992, c. 47, s. 72; 1996, c. 7, s. 38.
[Repealed on December 18, 2019, C. 2019, c. 25, s. 222]

– CCC (CanLII), (DOJ)

Note up: 510

Retention of Lawfully Obtained Fingerprints

The lawfulness of retaining fingerprints will be determined by the normal analysis required for breaches of s. 8 of the Charter.[1]

An accused who was acquitted or discharged will normally be entitled to have their fingerprints destroyed upon request.[2]

  1. ↑ R v Dore, 2002 CanLII 45006 (ON CA), 166 CCC (3d) 225, per Feldman JA, at para 38
  2. ↑ Dore, ibid., at paras 65 to 83

Destruction of Records

Destruction of fingerprints and photographs

4 Where a person charged with an offence that is designated as a contravention under the Contraventions Act is fingerprinted or photographed and the Attorney General, within the meaning of that Act, makes an election under section 50 of that Act, the fingerprints or photographs shall be destroyed.
1992, c. 47, s. 76; 1996, c. 7, s. 40.

– ICA

Young Offenders

Identification of Criminals Act applies

113 (1) The Identification of Criminals Act applies in respect of young persons.

Limitation

(2) No fingerprint, palmprint or photograph or other measurement, process or operation referred to in the Identification of Criminals Act shall be taken of, or applied in respect of, a young person who is charged with having committed an offence except in the circumstances in which an adult may, under that Act, be subjected to the measurements, processes and operations.

– YCJA

Note up: 113(1) and (2)

See Also

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