Fingerprinting even without criminal charges in Canada?

fingerprint evidence and wrongful convictionsAccording to the Globe and Mail, the Tory government intends to introduce legislation allowing police to obtain and retain fingerprints for anyone detain by police, whether they are ultimately charged or not.  Under present law, before police are permitted to retain fingerprints of an individual, that person must be charged with an indictable offence.

Police powers to take fingerprints off anyone charged with an offence.

What this means in the simplest of terms is that if the law comes into force, the police will have the power to take fingerprints from anyone that they suspect, or even hold in relation to a criminal investigation.

Here are a couple of scenarios that come to my mind:

A person is believed to be involved in a robbery, taken to the police station for questioning but not arrested.  They are fingerprinted when they arrive at the station.  Upon questioning, it is quickly discovered that the suspect is the wrong person – as they are a teacher and was in the middle of teaching a summer school class when the robbery happened. They are released immediately.

A person is walking down the street.  Police detain and question the individual with respect to a recent string of break and enters in the neighbourhood.  Before even commencing their investigation (to later realize that he is a resident and is in fact one of the people who was broken into), police take prints from the walked.  The person is quickly released but the prints remain in the police possession.

What is so shocking about this new proposed legislations is that unlike the present law that requires reasonable and probable ground for an arrest, the present law would only require the person be detained.  In short, that means there is no criteria other than a police officer’s hunch, prejudice, or any other bias that doesn’t even meet the low standard of reasonable and probable grounds.

Concerns over the legislation of fingerprinting.

Political opponents of the Tories have expressed concern over the new legislation and pointed out, quite rightly, that this is ripe for police abuse.

What is more troubling is that there is no mechanism for destruction of prints after they are taken.  So, returning to our teacher or local residence example, those prints may remain on police databases forever, even though they did absolutely nothing wrong.

Rationale for this new legislation seems lacking.  Mr. Nicholson, the brainpower behind this proposal, stated that “Crime is constantly evolving in Canada so it is crucial that our criminal justice system evolves with it.”  It is hard to understand this is anything other than devolution that allows people who are not even charged with crimes to be subject to police seizure of highly personal information that is not subject to destruction.  The irony is that the designed to retain prints for those who are not criminals (otherwise they would have been charged and had their prints taken anyway).

As a criminal defence lawyer, this legislation is not only “ripe for abuse” it is destined.  Write your MP.