Present: Dickson C.J. and Beetz, Estey*201 McIntyre, Lamer, Wilson, Le Dain La Forest and L'Heureux‑Dubé JJ.
*Estey and Le Dain JJ. joined in the judgment of December 17, 1987, but took no part in this judgment.
on appeal from the court of appeal for saskatchewan
Constitutional law‑‑Charter of Rights ‑‑Right to liberty‑‑Fingerprinting after person charged but prior to conviction‑‑Whether or not right to liberty infringed‑‑Whether or not principles of fundamental justice infringed‑‑If section 7 infringed, whether or not infringement justified under s. 1‑‑Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 9 , 10 , 11(c) , (d)‑‑Constitution Act, 1982, s. 52(1) ‑‑Criminal Code, R.S.C. 1970, c. C‑34, ss. 453.3(3), 455.5(5)‑‑Identification of Criminals Act, R.S.C. 1970, c. I‑1, s. 2.
Criminal law‑‑Fingerprinting after person charged but prior to conviction‑‑Whether or not right to liberty infringed‑‑Whether or not principles of fundamental justice infringed‑‑If section 7 infringed, whether or not infringement justified under s. 1.
Respondents Beare and Higgins were charged with separate criminal offences and were served respectively with an appearance notice and a summons requiring attendance at R.C.M.P. offices to be fingerprinted under the Identification of Criminals Act. Section 2 of that Act provided for the fingerprinting of a person in lawful custody and ss. 453.3(3) and 455.5(5) of the Criminal Code required an appearance and deemed a person so appearing to be in lawful custody charged with an indictable offence. Neither respondent attended at the R.C.M.P. offices as required. The requirement that appearances be made for fingerprinting following charge but before conviction was unsuccessfully challenged on separate motions but the appeals, which were heard together, were allowed. The constitutional questions before this Court queried whether or not s. 2 of the Identification of Criminals Act and ss. 453.3(3) or s. 455.5(5) of the Criminal Code , to the extent that they provided for the fingerprinting of a person charged with but not convicted of an indictable offence, infringed s. 7 of the Charter , and if so, whether or not such infringement was justified by s. 1. Sections 8 , 9 , 10 and 11( c ) and (d) of the Charter were also relied on.
Held: The appeal should be allowed. The first constitutional question should be answered in the negative in respect of each case; it was not necessary to consider the second.
Fingerprinting, while an invaluable tool of criminal investigation, serves a wide variety of purposes not all confined to the criminal justice system and the judicial process. Sections 453.3(3) and 455.5(5) are not simple expansions of the authority to take fingerprints and photographs but rather integral parts of a larger scheme aimed at reducing the number of persons who are arrested and taken into custody.
The impugned provisions infringe the rights guaranteed by s. 7 because they require a person to appear at a specific time and place and oblige that person to go through an identification process on pain of imprisonment for failure to comply. The infringement of these rights, however, does not violate the principles of fundamental justice for the process does not unduly invade the rights of the accused. A sense of proportion is necessary in considering the matter.
Subjecting a person charged to fingerprinting procedures does not violate the principles of fundamental justice, there being reasonable and probable grounds to believe a person has committed an offence. Any indignity attached to having one's fingerprints taken is much less than the stigma attached to many ordinary aspects of law enforcement in relation to persons in custody charged with an offence. The common law experience and legislative practice both indicate that custodial fingerprinting has not been considered fundamentally unfair. Here, the respondents, while not in custody, should be treated as being in the same position with respect to fingerprinting as a person in custody. Prior to the Bail Reform Act, they could have been arrested on reasonable and probable grounds that they had committed the offences charged.
The impugned provisions did not violate the principles of fundamental justice through arbitrariness or any violation of respondents' privacy. The legislation was not arbitrary in its scope and did not create an arbitrary or irrational statutory scheme. Discretion, including the police discretion to fingerprint or not, is an essential, judicially recognized feature of the criminal justice system. The requirements necessary to issue and confirm an appearance notice offer a sufficient safeguard to meet the requirements of fundamental justice. A person who is charged on reasonable and probable grounds with having committed a serious crime must expect a significant loss of personal privacy incidental to his being taken into custody.
The issue of the retention of the fingerprints of an accused who was not convicted did not arise here because respondents' fingerprints were never taken.
Sections 8 , 9 , 10 , 11( c ) and (d) of the Charter were not violated. Section 8 guarantees the right to be secure against unreasonable search and seizure and s. 9 gives the right not to be arbitrarily detained or imprisoned. Neither section was breached for the reasons like those given with respect to s. 7. Section 10 (the right to counsel) and s. 11(c) (the guarantee against accused persons being witnesses against themselves) were not applicable here. Section 11(d) (the guarantee to a fair trial) could not be breached if the fingerprints used as evidence were taken in a manner consistent with fundamental justice.
It was not necessary to consider s. 1 of the Charter .
Cases Cited
Referred to: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Bacon (1915), 11 Cr. App. R. 90; People v. Sallow, 165 N.Y.S. 915 (1917); Pelletier v. Le Roi, [1952] B.R. 633; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Morrison (1987), 20 O.A.C. 230; Adair v. M`Garry, [1933] S.L.T. 482; United States v. Kelly, 55 F.2d 67 (1932); R. v. Buckingham and Vickers (1943), 86 C.C.C. 76; R. v. Hayward (1957), 118 C.C.C. 365; R. v. Nowakowski (1977), 40 C.R.N.S. 144; R. v. McLarty (No. 2) (1978), 40 C.C.C. (2d) 72; R. v. Jacobson, Ont. Dist. Ct., January 31, 1978, unreported; R. v. Nielsen and Stolar (1984), 16 C.C.C. (3d) 39, leave to appeal refused [1985] 1 S.C.R. xi; R. v. A.N. (1978), 2 C.R. (3d) 55; Brown v. Baugh and Williams (1982), 70 C.C.C. (2d) 71, aff'd [1984] 1 S.C.R. 192; Dumbell v. Roberts, [1944] 1 All E.R. 326; Callis v. Gunn, [1963] 3 All E.R. 677; Hayes v. Florida, 470 U.S. 811 (1985); R. v. Jones, [1986] 2 S.C.R. 284; United States v. Robinson, 414 U.S. 218 (1973); R. v. McGregor (1983), 3 C.C.C. (3d) 200; Re M. H. and The Queen (No. 2) (1984), 17 C.C.C. (3d) 443 (Alta. Q.B.), aff'd (1985), 21 C.C.C. (3d) 384 (Alta. C.A.), leave to appeal granted [1985] 2 S.C.R. ix; Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430; R. v. Halpern (1986), 73 A.R. 276; Schmerber v. California, 384 U.S. 757 (1966).
Statutes and Regulations Cited
Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2, s. 5.L<E Canadian Charter of Rights and Freedoms, ss. 1, 7, 8, 9, 10, 11(c), (d), 24(1).L<E Constitution Act, 1982, s. 52(1).L<E Criminal Code, R.S.C. 1970, c. C‑34, ss. 133(4), 134(4), 306(1)(b), 338(1), 450(1), 451, 453.3(3), 453(4), 455.1, 455.5(5), 455.6.L<E Identification of Criminals Act, R.S.C. 1970, c. I‑1, s. 2.L<E P.C. 1614, July 21, 1908, Canada Gazette, April 7, 1917, at p. 3484.L<E Police and Criminal Evidence Act 1984, 1984, c. 60, s. 61 (U.K.)L<E SOR/48‑412.
Authors Cited
Campbell, Donald. "Fingerprints: A Review," [1985] Crim. L. Rev. 195.L<E Canada. Committee on Corrections. Report of the Canadian Committee on Corrections. Toward Unity: Criminal Justice and Corrections. (The Ouimet Report). Ottawa: Queen's Printer, 1969.L<E Canada. Law Reform Commission. Investigative Tests (Working Paper 34). Ottawa: Law Reform Commission, 1984.L<E Canada. Senate. Debates of the Senate. Ottawa: Queen's Printer, 1971.L<E Moenssens, Andre A. Fingerprints and the Law. Philadelphia: Chilton Book Co., 1969.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1987), 56 Sask. R. 173, [1987] 4 W.W.R. 309, 57 C.R. (3d) 193, allowing an appeal, heard jointly, from a judgment of Rutherford J. dismissing an application to quash an order to appear, and from a judgment of Maurice J. dismissing an application to quash a summons to appear, for identification purposes pursuant to the Identification of Criminals Act. Appeal allowed. The first constitutional question should be answered in the negative; it was not necessary to consider the second.
Robert G. Richards and Kenneth J. Tyler, for the appellant.
David G. MacKay, for the respondent Claude R. Beare.
No one appeared for respondent Higgins.
William Corbett, Q.C., for the intervener the Attorney General of Canada.
S. Casey Hill, for the intervener the Attorney General for Ontario.
No one appeared for the intervener the Attorney General for New Brunswick.
Stuart Whitley and Marva Smith, for the intervener the Attorney General of Manitoba.
Jack Watson, for the intervener the Attorney General for Alberta.
B. A. Crane, Q.C., and Henry S. Brown, for the intervener the Canadian Association of Chiefs of Police.
The judgment of the Court was delivered by
r. v. beare La Forest J.
r. c. beare Le juge La Forest
1. La Forest J.‑‑The issue in this appeal is whether s. 2 of the Identification of Criminals Act, R.S.C. 1970, c. I‑1, and ss. 453.3(3) and 455.5(5) of the Criminal Code, R.S.C. 1970, c. C‑34, as amended by R.S.C. 1970 (2nd Supp.), c. 2, violate the Canadian Charter of Rights and Freedoms , in so far as they authorize the fingerprinting of a person who has been arrested but not yet convicted. The issue arises in two contexts: (a) in respect of a person to whom an appearance notice has been issued pursuant to s. 451 of the Code; and (b) in respect of a person who has been required by summons to appear for fingerprinting pursuant to s. 455.5. In this Court, the principal question addressed was whether those provisions contravene s. 7 of the Charter ; ss. 8 , 9 , 10 , and 11( c ) and (d) of the Charter were also relied on, but no argument regarding these provisions was advanced. Section 7 reads:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Facts
2. In February 1983, the respondent, Beare, was charged with breaking, entering and theft, contrary to s. 306(1) (b) of the Criminal Code . He was served with an appearance notice requiring him to attend in court and to appear at the Royal Canadian Mounted Police (R.C.M.P.) offices "for the purposes of the Identification of Criminals Act". The latter Act, by s. 2, provides that a person in lawful custody may be subjected to certain processes of identification, the best known today, of course, being fingerprinting, which has been sanctioned by the Governor in Council pursuant to this provision; see SOR/48‑412. Section 2 reads as follows:
2. (1) Any person in lawful custody, charged with, or under conviction of an indictable offence, or who has been apprehended under the Extradition Act or the Fugitive Offenders Act, may be subjected, by or under the direction of those in whose custody he is, to the measurements, processes and operations practised under the system for the identification of criminals commonly known as the Bertillon Signaletic System, or to any measurements, processes or operations sanctioned by the Governor in Council having the like object in view.
(2) Such force may be used as is necessary to the effectual carrying out and application of such measurements, processes and operations.
(3) The signaletic cards and other results thereof may be published for the purpose of affording information to officers and others engaged in the execution or administration of the law.
A person to whom an appearance notice is given is, by s. 453.3(3) of the Criminal Code deemed to be a person in lawful custody for the purposes of the Identification of Criminals Act. Section 453.3(3) at the relevant time read as follows:
453.3 ...
(3) An appearance notice or promise to appear or a recognizance entered into before an officer in charge may, where the accused is alleged to have committed an indictable offence, require the accused to appear at a time and place stated therein for the purposes of the Identification of Criminals Act, and a person so appearing is deemed, for the purposes only of that Act, to be in lawful custody charged with an indictable offence.
This provision was subsequently amended (S.C. 1985, c. 19, s. 77), but in a manner that does not affect the disposition of this appeal.
3. If a person fails to appear as required by such notice, a warrant may be issued for his arrest (s. 453.4). He is also guilty of an offence under s. 133(5) of the Code.
4. In December, 1982, the respondent, Higgins, was charged with defrauding Soo Security Motorways of more than $200 contrary to s. 338(1) of the Criminal Code . He was served with a summons requiring him to attend in court and to appear at R.C.M.P. offices "for the purposes of the Identification of Criminals Act". By section 455.5(5) of the Code, a person so summoned is also deemed to be a person in lawful custody for the purposes of the Identification of Criminals Act. Section 455.5(5) reads:
455.5 ...
(5) A summons may, where the accused is alleged to have committed an indictable offence, require the accused to appear at a time and place stated therein for the purposes of the Identification of Criminals Act, and a person so appearing is deemed, for the purposes only of that Act, to be in lawful custody charged with an indictable offence.
A person who fails to comply with such a summons is also subject to arrest by warrant (s. 455.6) and is guilty of an offence (s. 133(4)).
5. Neither Beare nor Higgins attended at the R.C.M.P. offices as required. Both challenged the requirement that they appear for fingerprinting as being a violation of the Canadian Charter of Rights and Freedoms . On March 14, 1983, Rutherford J. of the Court of Queen's Bench of Saskatchewan dismissed Beare's application without recorded reasons. On April 4, 1983, Higgins' application was also dismissed by Maurice J. who gave reasons.
6. Higgins' application was for relief pursuant to the Charter , particularly ss. 8, 11(d), 24(1) and pursuant to s. 52(1) of the Constitution Act, 1982 . Though Maurice J. thought the application contained procedural defects, he nonetheless proceeded to examine the merits of the case and concluded that the Identification of Criminals Act did not contravene ss. 8 and 11(d) and even if it did, the Act would be saved by s. 1 of the Charter .
7. Both respondents appealed to the Saskatchewan Court of Appeal. The appeals were heard together. Both argued that a requirement subjecting an accused to fingerprinting under the Identification of Criminals Act before conviction for an indictable offence infringed upon his rights as guaranteed by the Charter . Though reliance was placed on ss. 7 , 8 , 9 , 10 , 11( c ) and (d) of the Charter , the court restricted its considerations to s. 7.
8. By judgment dated April 14, 1987, the Saskatchewan Court of Appeal allowed the appeals (1987), 56 Sask. R. 173, [1987] 4 W.W.R. 309, 57 C.R. (3d) 193 (hereinafter cited from (1987), 56 Sask. R. 173), and ruled that to the extent that they provide for the fingerprinting of a person charged with but not convicted of an indictable offence, s. 2 of the Identification of Criminals Act and ss. 453.3(3) and 455.5(5) of the Criminal Code violate s. 7 of the Charter and are of no force and effect. The violation did not constitute a reasonable limit within the meaning of s. 1 of the Charter . Separate judgments were given by Bayda C.J.S. (Brownridge J.A. concurring) and Cameron J.A.
9. In Bayda C.J.S.'s view, the concept "life, liberty and security of the person" refers not only to physical but to mental integrity. The latter, he observed, could be subsumed in the phrase "the dignity and worth of the person." As he saw it, subjecting a person to fingerprinting prior to conviction violates the elements of dignity and self‑respect inherent in s. 7 of the Charter . He states at p. 182:
It is common knowledge that fingerprinting is not carried out universally but only in respect of those thought to have engaged in criminal activity ... that in 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.
10. Bayda C.J.S. was of the opinion that this violation was not in accordance with the principles of fundamental justice, given the absence of safeguards in s. 2 of the Act to prevent injury to those whom there is no need to identify or those who fall subject to the Act but are not criminals. He noted that the person in authority who has the power to require the fingerprinting need not have reasonable and probable grounds to believe the accused had committed the offence. That person could be arbitrary and capricious. In Bayda C.J.S.'s view the belief of the person who laid the charge is irrelevant. The final indignity, he noted, is the lack of any requirement to destroy the fingerprints if the accused is discharged. He referred to the British statute, the Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, that incorporates such safeguards.
11. Bayda C.J.S. then went on to consider whether the legislation might be saved under s. 1 of the Charter and concluded that it could not.
12. Cameron J.A. arrived at the same conclusion by a somewhat different route. After disposing of a number of procedural and jurisdictional issues not raised in this Court, and referring to the decisions of this Court in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, and Hunter v. Southam Inc., [1984] 2 S.C.R. 145, as establishing the applicable principles, he went on to discuss the Identification of Criminals Act in terms of these principles.
13. To the extent that the Act applies to a person in custody, accused but not convicted of the commission of a serious crime, he stated, its purposes are to enable the identity of that person to be established for three reasons: (1) to assist in determining whether the accused committed the crime in those cases where the identity of the person who committed the crime is in issue; (2) to assist in determining if the accused has been convicted or stands charged of other crimes in order to establish whether and on what terms the accused might be released pending trial, whether the complaint ought to be presented by way of summary conviction or indictment, whether to proceed by way of second conviction, and so on; and (3) to facilitate the apprehension of the accused should he fail to appear in court. He, too, noted that there are no provisions governing the ultimate disposition of the fingerprints in the event of a withdrawal of the charge, a stay or an acquittal.
14. Cameron J.A. considered that the impugned provisions of the Act and of the Criminal Code deprive the person affected thereby of liberty and security of the person. The person is required by law to surrender himself into the custody of the authorities, or face arrest and prosecution, and must submit to the bodily intrusions sanctioned by s. 2 of the Act. Such bodily force as is necessary to that end may lawfully be used.
15. He went on to say that this violation was not made in accordance with the principles of fundamental justice. Section 2 of the Act and ss. 453.3(3) and 455.5(5) of the Criminal Code provide no criteria as to how the discretion allowed by those provisions should be exercised. The Act does not require fingerprinting; it permits it. But section 2 is utterly barren of any guidelines by which the authorities acting under the section are to decide whether, and to what extent, an accused will be subjected to fingerprinting. Sections 453.3 and 455.5 are equally open to random and arbitrary action. Anyone charged with an indictable offence may be required to appear whether or not one or more of the purposes of the Act will be served thereby. Even if one were to construe ss. 453.3(3) and 455.5(5) as empowering a justice to compel the appearance of an accused for identification purposes only where it is made to appear that one or more of the purposes of the Act would be served by that appearance, there would remain grave flaws, because the sections in issue contain no framework for the exercise of that power. They do not require, for example, that the justice act only on credibly based probabilities.
16. Cameron J.A. indicated that the failure of the law to restrict the exercise of the powers it confers to situations in which one or more of the legitimate purposes of the Act would be served, coupled with its failure to provide a principled framework governing the exercise of that power, result in its undoing. He reviewed the report issued by the English Royal Commission and the Law Reform Commission of Canada Working Paper dealing with these matters and concluded that the provisions in issue did not meet the test of s. 1 of the Charter .
17. The Crown then sought and obtained leave to appeal to this Court. The following constitutional grounds were stated by the Chief Justice in respect of the Beare appeal:
1. Do section 2 of the Identification of Criminals Act, R.S.C. 1970, c. I‑1, and s. 453.3(3) of the Criminal Code, R.S.C. 1970, c. C‑34, to the extent that they provide for the fingerprinting of a person (who is not a young person as defined by the Young Offenders Act, S.C. 1980‑81‑82‑83, c. 110, and) who has been charged with but not convicted of an indictable offence, infringe rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms ?
2. If section 2 of the Identification of Criminals Act, R.S.C. 1970, c. I‑1, and s. 453.3(3) of the Criminal Code, R.S.C. 1970, c. C‑34, do infringe rights guaranteed in s. 7 of the Canadian Charter of Rights and Freedoms , are they justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
18. The Chief Justice stated identical questions in respect of the Higgins appeal except that s. 455.5(5) of the Criminal Code was substituted for s. 453.3(3).
19. Following the hearing of the appeals on December 17, 1987, the Court immediately allowed the appeal and held that the impugned provisions did not contravene the Charter . Since the accused had refused and, therefore, not been subjected to fingerprinting, the issue of their retention did not arise and the Court did not pronounce on this question. The Court announced it would give reasons later when it would also dispose of the matter of costs, which counsel for the respondent Beare sought in any event. That judgment reads as follows:
Since a decision as to the constitutional validity of the impugned provisions of the Identification of Criminals Act and the Criminal Code is a matter of urgency in the administration of justice, the Court disposes of these appeals forthwith, its reasons to follow at a later date.
The Court finds the provisions constitutional and allows the appeals. The issue of retention of fingerprints after acquittal does not arise on the facts of these appeals. The question of costs is reserved.
The Nature of the Legislation
20. The process of fingerprinting was developed in the late nineteenth century and became the primary method of identification for law enforcement purposes in Canada in 1908; see P.C. 1614, July 21, 1908, Canada Gazette, April 7, 1917, at p. 3484. By 1948, it had completely replaced the Bertillon system of identification which relied on the recording of a series of precise body measurements; see SOR/48‑412.
21. Fingerprinting is an invaluable tool of criminal investigation because of the ease and rapidity of the process and because it is virtually infallible, no two persons' fingerprints being alike. The quick acceptance of fingerprints by courts in the United States and Great Britain as a convenient and reliable means of identification was later followed in Canada; see R. v. Bacon (1915), 11 Cr. App. R. 90; People v. Sallow, 165 N.Y.S. 915 (Gen. Sess. 1917); Pelletier v. Le Roi, [1952] B.R. 633, at p. 635. Today their scientific reliability and usefulness to the criminal justice system is fully accepted; see Donald Campbell, "Fingerprints: A Review," [1985] Crim. L. Rev. 195, at p. 196.
22. Fingerprints serve a wide variety of purposes in the criminal justice system. These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of an accused should he fail to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate.
23. Fingerprints are also of great assistance in the judicial process. Thus in addition to their utility in positively identifying an accused, they may also assist the Crown in determining the punishment it should seek by revealing, for example, whether the accused is a first offender or otherwise. This, of course, will be of assistance to the court in imposing an appropriate sentence.
24. These are only some of the more important uses to which fingerprints are put. In brief, they have become an integral part of the criminal justice system at every stage. I should add that they provide advantages to an innocent accused. They may establish that another has committed the crime and they may also ensure that the innocent will not be wrongly identified with someone else's criminal history.
25. Finally, I should, in light of the view taken by the Court of Appeal, add that use of fingerprints is not confined to criminal matters, but serves a number of functions outside the criminal process. These include their use in relation to security clearances, provincial and municipal licensing of taxi drivers, security guards and others, positions involving contact with vulnerable members of society, applications for Canadian citizenship and visas to some foreign countries. The Attorney General for Alberta points out that it is even used by some parents to ensure the identification of their children if they become injured or missing.
26. I turn now to the specific purpose of ss. 453.3(3) and 455.5(5) of the Criminal Code . These were enacted in 1971 as part of the Bail Reform Act, R.S.C. 1970 (2nd Supp.), c. 2, s. 5. Before that time persons who were to be charged with an indictable offence would either be arrested or served with a summons. Appearance notices were not used and summonses were used in only a minority of cases; see Criminal Code , Part XIV, ss. 448‑459; Debates of the Senate, March 29, 1971, at pp. 786‑792. It was to reduce the number of persons being arrested and held in custody that the Bail Reform Act was enacted; see Debates of the Senate, ibid. The Act largely reflected the recommendations of the Report of the Canadian Committee on Corrections, Toward Unity: Criminal Justice and Corrections, 1969 (The Ouimet Report), which recognized the need to make new arrangements for fingerprinting and photographing if the number of people arrested was to be substantially reduced. The Report, at p. 98, states:
As the Committee envisages that there will be fewer persons in custody if its recommendations are implemented, it will be necessary to extend the provisions of the Identification of Criminals Act to require a person, who has been summoned to appear to answer a charge of having committed an indictable offence, to present himself and submit to fingerprinting as directed in the summons. Failure to do so without lawful excuse should result in arrest.
27. As can be seen then, ss. 453.3(3) and 455.5(5) are integral parts of a larger scheme aimed at reducing the number of persons who are arrested and taken into custody. They are not simple expansions of the authority to take fingerprints and photographs.
Section 7 of the Charter
28. The analysis of s. 7 of the Charter involves two steps. To trigger its operation there must first be a finding that there has been a deprivation of the right to "life, liberty and security of the person" and, secondly, that that deprivation is contrary to the principles of fundamental justice. Like other provisions of the Charter , s. 7 must be construed in light of the interests it was meant to protect. It should be given a generous interpretation, but it is important not to overshoot the actual purpose of the right in question; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344.
29. The Court of Appeal, we saw, found that the impugned provisions constituted an infringement of the right guaranteed by the opening words of s. 7, the majority because fingerprinting offends the "dignity and self‑respect" of at least those persons who because of their self‑perception or the perception of the community would feel demeaned by being thus treated. In short, the majority thought that being subjected to fingerprinting was to be treated like a criminal. This approach appears to be broad and indefinite and to introduce an undesirable notion of differentiation among those subjected to the procedure. For my part, I prefer the more specific finding of Cameron J.A. that the impugned provisions infringe the rights guaranteed by s. 7 because they require a person to appear at a specific time and place and oblige that person to go through an identification process on pain of imprisonment for failure to comply. The appellant concedes this position, as does the Attorney General for Manitoba. Contention thus essentially revolved around the issue whether the alleged infringement of s. 7 rights violated the principles of fundamental justice. Because I have come to the conclusion that these principles have not been violated in these cases, I shall confine my remarks to that issue.
30. In Re B.C. Motor Vehicle Act, supra, at p. 512, this Court stated that the principles of fundamental justice are to be found in the basic tenets and principles not only of our judicial system but also of the other components of our legal system. Consistent with this approach, the Court in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 327, held that to determine whether a legislative scheme for the indeterminate detention of dangerous offenders violated the principles of fundamental justice, it was necessary to examine that scheme in light of the basic principles of penal policy that had animated legislative and judicial practice in Canada and other common law jurisdictions. Here we are engaged in assessing law enforcement measures, specifically in the context of a person charged with an offence, and it is relevant then to consider them against the applicable principles and policies that have animated legislative and judicial practice in the field.
31. The majority in the Court of Appeal stressed that for many people it is demeaning to be subjected to the process of fingerprinting, and it cannot be denied that for many the process is distasteful. But it must be remembered that the interest of the public in law enforcement necessitates the subjection of the individual to other distasteful procedures. It is distasteful, and extremely so for some crimes, merely to be charged with an offence, to say nothing of the stigma attached to being arrested, detained and required to answer the charge in a public trial. As Chief Justice Dickson has stated in R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119‑20:
An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms.
32. The stigma attached to such ordinary aspects of law enforcement and the criminal justice system, I would have thought, far outweighs any feeling of indignity attached to having one's fingerprints taken. Yet I do not think that where there is reasonable and probable cause to believe a person has committed an offence, it can be seriously argued that subjecting a person to these procedures violates the principles of fundamental justice.
33. The application of s. 2 of the Identification of Criminals Act is confined to persons in or deemed to be in lawful custody, who are charged with or have been convicted of an indictable offence. It should be observed that the common law permitted a number of other, in my view more serious, intrusions on the dignity of an individual or persons in custody in the interest of law enforcement. As an incident to a lawful arrest, a peace officer has a right to search the person arrested and to take any property the officer reasonably believes is connected with the offence charged, or any weapon found upon such person; see R. v. Morrison (1987), 20 O.A.C. 230. This authority is based on the need to disarm an accused and to discover evidence. In the course of custodial arrest an accused may be stripped. Of particular relevance, height, weight and natural or artificial marks on the body, such as birth marks or tattoo marks, may be used for purposes of identification; see Adair v. M`Garry, [1933] S.L.T. 482 (J.)
34. These procedures have been permitted because of the felt need in the community to arm the police with adequate and reasonable powers for the investigation of crime. Should fingerprinting be assimilated to these procedures? Many considerations, we saw, argue for that position. Promptitude and facility in the identification and the discovery of indicia of guilt or innocence are of great importance in criminal investigations. This, along with its certitude, which is critical to the criminal justice system, has resulted in the general use of fingerprinting by police forces throughout the world. What really requires determination is whether in the circumstances the process unduly invades the rights of the accused.
35. In examining this question one must have a sense of proportion. Is the taking of fingerprints any more serious an invasion of the right of a person in custody than examining the person's body for birthmarks and the like? I do not think so and, as I noted, being arrested and charged for an offence seems to me to be more serious. As Augustus Hand J. stated in United States v. Kelly, 55 F.2d 67 (2nd Cir. 1932), at p. 70:
It is no more humiliating than other means of identification that have been universally held to infringe neither constitutional nor common‑law rights. Finger printing is used in numerous branches of business and of civil service, and is not in itself a badge of crime. As a physical invasion it amounts to almost nothing, and as a humiliation it can never amount to as much as that caused by the publicity attending a sensational indictment to which innocent men may have to submit.
36. The view expressed in United States v. Kelly, supra, was soon afterwards mirrored by the Scottish case of Adair v. M`Garry, supra, in 1933, which made clear that the Court there regarded the practice of custodial fingerprinting as comparatively innocuous, one that if denied would hamper the police in the investigation and detection of crime. Canadian courts have tended to follow that case and the great weight of authority in this country is that custodial fingerprinting is justifiable at common law; see R. v. Buckingham and Vickers (1943), 86 C.C.C. 76 (B.C.S.C.); R. v. Hayward (1957), 118 C.C.C. 365, at p. 372 (N.B.C.A.); R. v. Nowakowski (1977), 40 C.R.N.S. 144 (B.C.S.C.); R. v. McLarty (No. 2) (1978), 40 C.C.C. (2d) 72 (Ont. Ct. S.P.); R. v. Jacobson, Ont. Dist. Ct., January 31, 1978, unreported; see also R. v. Nielsen and Stolar (1984), 16 C.C.C. (3d) 39 (Man. C.A.), leave to appeal refused [1985] 1 S.C.R. xi. In R. v. A.N. (1978), 2 C.R. (3d) 55 (B.C.C.A.), aff'g R. v. Nowakowski, supra, it is true, Branca J.A. expressed a contrary view, but the other members of the court expressed no opinion on the matter and that court later indicated in Brown v. Baugh and Williams (1982), 70 C.C.C. (2d) 71 (B.C.C.A.), that it might be inclined to the view that the common law would permit the police to fingerprint a suspect in the proper circumstances and using reasonable force (aff'd [1984] 1 S.C.R. 192, without reference to this point).
37. In England the issue is not fully settled, but the courts seem to be leaning in the same direction. It is true that Scott, L.J. in Dumbell v. Roberts, [1944] 1 All E.R. 326 (C.A.), expressed the view that the taking of fingerprints of a person charged but not convicted was inconsistent with the presumption of innocence. However, in Callis v. Gunn, [1963] 3 All E.R. 677 (Q.B.D.), at p. 681, Lord Parker C.J., after noting that the other members of the court did not address the issue, referred favourably to Adair v. M`Garry, supra. However that may be, in the United States, the Kelly decision, supra, has been followed and quoted approvingly by most courts, and as has been said, "As a general rule, in the absence of statute, peace officers will be permitted to record the fingerprints of persons lawfully arrested on a felony charge"; see Andre A. Moenssens, Fingerprints and the Law (1969), c. 4, at p. 43 (the author reviews the cases at pp. 40‑43). In fact, there is persuasive authority that their power extends to misdemeanours and can, in certain circumstances, be used as an investigatory tool in the absence of arrest; see Hayes v. Florida, 470 U.S. 811 (1985), at p. 816.
38. I find it unnecessary to consider the latter point or, indeed, to decide definitively whether in the absence of statute, a peace officer would, at common law, have authority to require an accused person in custody on a charge for an indictable offence to be fingerprinted. That is provided for by the impugned measures. But it seems to me the common law experience strongly supports the view that subjecting a person to being fingerprinted in those circumstances does not violate fundamental justice.
39. While the common law is, of course, not determinative in assessing whether a particular practice violates a principle of fundamental justice, it is certainly one of the major repositories of the basic tenets of our legal system referred to in Re B.C. Motor Vehicle Act, supra. The common law experience reveals that the vast majority of judges who have had to consider the matter have not found custodial fingerprinting fundamentally unfair. Indeed they were prepared to accept the procedure as permissible at common law and as being similar in principle to the authority to physically restrain a person in custody, and to physically search that person; see Adair v. M`Garry, supra.
40. Legislative practice has been similar. This country is by no means alone in authorizing the police to fingerprint persons in custody for indictable offences. There is legislation of this kind in the United Kingdom (see Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60) and in a large number of the states of the United States; see Moenssens, supra, at pp. 43‑60. While not conclusive, this too suggests that compulsory custodial fingerprinting does not offend against the principles of fundamental justice.
41. Nor, despite the differences in the two constitutions, is it without relevance that attempts to have custodial fingerprinting declared unconstitutional under the comparable provision under the United States Constitution, and for that matter other provisions of that Constitution, have been almost uniformly rejected; see Moenssens, supra, at pp. 62‑72. The experience regarding other provisions of the Charter , which I shall examine later, is also indicative of the view that should be taken on this issue. Leaving aside questions respecting procedure that should be followed before fingerprints are taken, the foregoing material all point to the conclusion that custodial fingerprinting does not violate the principles of fundamental justice.
42. The respondents in these cases were not in custody, but were nonetheless required to subject themselves to fingerprinting. Their position, however, should not for this purpose differ from that of a person who has been arrested. Before the Bail Reform Act, they could have been arrested on the basis that there were reasonable and probable grounds that they had committed the offences charged. I cannot see how they can complain about a procedure, like that in the Bail Reform Act, that permits a lesser intrusion than arrest but requires them to conform to a procedure to which they could be subjected if arrested.
Arbitrariness
43. The judges in the Court of Appeal were of the view that the impugned provisions violated the principles of fundamental justice because they operated in an arbitrary manner. Before entering into a discussion of the specific shortcomings they attributed to these provisions, it is useful to look at the legislation generally from the standpoint of arbitrariness.
44. I begin by referring to what has already been said regarding the purposes of the legislation and the many uses to which fingerprinting has been put in effecting those purposes. In brief, the main purposes of the Identification of Criminals Act and the allied provisions of the Code, as they apply to a person charged with but not convicted of an offence, are to establish the identity and criminal record of the accused, to discover whether there are warrants outstanding for his arrest or if he has escaped from lawful custody, and, in some cases, to gather evidence which may be relevant to the question of whether or not he committed the crime with which he has been charged.
45. As already noted, it is appropriate and necessary for peace officers to check, confirm, or establish the identity of accused persons in a wide variety of situations. In urban areas, in particular, individuals are relatively anonymous. Virtually everywhere the population is very mobile. Peace officers themselves relocate and find themselves working in new communities, and thus may fail to recognize even long‑time residents. In this social context, the fact that accused persons often try to conceal their true identity or criminal past, and sometimes jeopardize innocent persons in the process, will very frequently justify the imposition of a requirement to submit to fingerprinting. That is what the impugned legislation seeks to do.
46. The legislation is not arbitrary in its scope. The Identification of Criminals Act and ss. 453.3(3) and 455.5(5) of the Criminal Code do not create an arbitrary or irrational statutory scheme. They apply only with respect to three categories of accused persons who have not been convicted of an indictable offence:
(i) those whom a peace officer has reasonable and probable grounds to believe have committed an indictable offence and who are arrested in consequence; (s. 450(1) , Criminal Code )
(ii) those whom any person has reasonable and probable grounds to believe have committed an indictable offence, and concerning whom a justice considers that the case for issuing a summons or a warrant has been made out; (s. 455.3, Criminal Code )
(iii) those charged with an indictable offence to whom a peace officer has issued an appearance notice, and concerning whom a justice, having heard that the peace officer has personal knowledge or reasonable and probable grounds for believing that the accused has committed the offence, considers that the case for confirming the appearance notice, or for issuing a summons or warrants has been made out; (ss. 455.1 and 455.4 and Form 2, Criminal Code )
47. The impugned provisions, therefore, operate only with respect to indictable offences which, obviously, constitute the most serious category of criminal offences. Moreover, with respect to each class of accused there must be reasonable and probable grounds to believe that the persons involved have committed an indictable offence. In the case of the last two categories noted above, a justice must be satisfied that a case has been made out for confirming or issuing a process requiring the accused to appear in court.
48. Nor does the statute grant unlimited powers to use unrestricted methods to establish identity. Only processes which have been sanctioned by the Governor in Council are authorized. The processes that have been approved are universally accepted as reliable and efficient and as minimally intrusive upon the individual.
49. What troubled the Court of Appeal was not so much the scope of the legislation, but its differential operation and the inadequacy of the procedures in this regard. The impugned legislation, the judges noted, permits the taking of fingerprints; it does not require it. The police, therefore, have a discretion whether to take or not to take the fingerprints of an accused. For the Court of Appeal, the failure of the provisions to either eliminate or to narrow or define the basis of discretion constituted a violation of fundamental justice. Fingerprints, they stated, can be demanded even when there is no justification for requiring them. This problem, they believed, could be solved by requiring an officer to show reasonable and probable grounds for believing fingerprinting is necessary.
50. The trouble with this approach, in my respectful view, is that it fails to keep in mind the numerous and varied functions of fingerprints, and that they may be useful in almost any case. It could seriously impede criminal investigations to impose rigid guidelines and place upon the courts the burden of determining on second‑hand knowledge that fingerprinting does not meet any of the important purposes for which it might legitimately be used.
51. The existence of the discretion conferred by the statutory provisions does not, in my view, offend principles of fundamental justice. Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid. Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.
52. The Criminal Code provides no guidelines for the exercise of discretion in any of these areas. The day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion.
53. This Court has already recognized that the existence of prosecutorial discretion does not offend the principles of fundamental justice; see R. v. Lyons, supra, at p. 348; see also R. v. Jones, [1986] 2 S.C.R. 284, at pp. 303‑4. The Court did add that if, in a particular case, it was established that a discretion was exercised for improper or arbitrary motives, a remedy under s. 24 of the Charter would lie, but no allegation of this kind has been made in the present case.
54. The judges in the Court of Appeal thought their objections to the discretionary features of the legislation could be met if the following conditions were satisfied: a peace officer, in addition to having reasonable and probable grounds for believing the accused had committed an offence, had reasonable and probable grounds for believing that fingerprinting would likely provide evidence relating to the offences, or reasonably doubted the identity of the accused, or believed on reasonable and probable grounds that fingerprinting would provide evidence of the subject's identity. In this context, they cited the Police and Criminal Evidence Act 1984 (U.K.), c. 60, s. 61, and the Law Reform Commission of Canada's study, Investigative Tests (1984). I am by no means sure this does not ignore the wide variety of reasons for which fingerprints may legitimately be used. Nor am I convinced these additional steps would afford any significant protection to an accused, and if more stringent requirements were imposed they could unduly limit the police in the exercise of their duty to investigate crime; see, in this context, similar considerations expressed in relation to bodily searches in United States v. Robinson, 414 U.S. 218 (1973), at p. 235, per Rehnquist J., and at pp. 237‑38, per Powell J. Assuming such procedures (or a provision such as that which appears in the British Act requiring that a decision to fingerprint be made by a senior officer) would constitute some improvement to the present unstructured system, I do not think it is constitutionally mandated. As the Court stated in Lyons, supra, at p. 362, s. 7 of the Charter guarantees fair procedures but it does not guarantee the most favourable procedures that can possibly be imagined. In my view, the requirements necessary to issue and confirm an appearance notice offer a sufficient safeguard to meet the requirements of fundamental justice for the taking of fingerprints.
55. Many of the matters relevant here are more directly related to the arguments regarding privacy raised in the judgment of Cameron J.A., a matter to which I now turn.
Privacy
56. Cameron J.A. thought the impugned provisions offended against the principles of fundamental justice by violating the respondents' privacy, and he here quite legitimately referred to ss. 8 to 14 as "an invaluable key to the meaning of `principles of fundamental justice' ''. He particularly relied on this Court's decision in Hunter v. Southam Inc., supra.
57. I rather think most of the arguments advanced in this context are fully answered by what has already been said earlier. I shall nonetheless attempt to deal with them specifically.
58. Assuming section 7 includes a right to privacy such as that inhering in the guarantee against unreasonable searches and seizures in s. 8 of the Charter , a proposition for which I have considerable sympathy, it must be remembered that the present Chief Justice in Southam was careful to underline that what the Constitution guaranteed was a "reasonable expectation" of privacy (at p. 159).
59. It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime, or a person against whom a case for issuing a summons or warrant, or confirming an appearance notice has been made out, must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it.
60. I am unable to accept that a provision providing for fingerprinting as an incident of being taken into custody for a serious crime violates the principles of fundamental justice. While a search of one's premises requires a prior authorization based on reasonable and probable grounds to believe both that the offence has been committed and that evidence will be found, the custodial fingerprinting process is entirely different. It involves none of the probing into an individual's private life and effects that mark a search.
61. Apart from this, the invasion of privacy on arrest on reasonable and probable grounds is a far more serious violation of the right to privacy. It is not significantly aggravated by the taking of the fingerprints of the person in custody. As already mentioned, there are many cases where the United States courts, including the Supreme Court, have refused to accord constitutional protection against a general discretion in the police to take fingerprints from persons in custody; see Moenssens, supra, at pp. 62‑70.
Retention of Prints
62. Finally, the Court of Appeal was much affected by the fact that there was no provision for the destruction of the fingerprints of an accused who was not convicted. This issue raises important considerations, but it does not arise on the facts of the present case. The fingerprints of the respondents were never taken so they could not, therefore, be retained. I rather doubt that s. 2 of the Identification of Criminals Act deals with this at all, but if it does it has nothing to do with the taking of fingerprints which is covered by ss. 2(1) and (2). Section 2(3) does provide for publication of the results of tests for the purpose of affording information for those engaged in the execution or administration of the law, but I do not think it authorizes their unconstitutional retention.
Other Charter Rights
63. In the courts below, counsel relied on ss. 8, 9, 10, 11(c) and (d) in addition to s. 7 of the Charter . No argument was addressed to this Court on any of these issues, although counsel for Beare declared he had not abandoned them. In the absence of argument, it is difficult to deal with these issues and I propose to do so as best I can in the most narrow and summary fashion possible.
64. Section 8 guarantees the right to be secure against unreasonable search and seizure. Assuming fingerprinting can be looked upon as a search (a view which has been rejected in those cases that have considered it; see R. v. McGregor (1983), 3 C.C.C. (3d) 200 (Ont. H.C.), and Re M. H. and The Queen (No. 2) (1984), 17 C.C.C. (3d) 443) (Alta. Q.B.), aff'd without written reasons (1985), 21 C.C.C. (3d) 384 (Alta. C.A.), leave to appeal to this Court granted September 19, 1985, [1985] 2 S.C.R. ix), it seems clear that fingerprinting would not be unreasonable in the present cases for the same reasons that it does not violate the principles of fundamental justice.
65. Section 9 gives the right not to be arbitrarily detained or imprisoned. I have largely dealt with this issue in examining arbitrariness in relation to s. 7. Apart from that, its relevance is not immediately apparent. The respondents could have been arrested on the basis that there was reasonable and probable cause for their arrests and, as I noted earlier, I cannot see how they can complain about a procedure that permits their not being arrested under the provisions of the Bail Reform Act subject to their being required to comply with an appearance notice to present themselves to conform to a procedure for which they could be subjected if they had been arrested; see in this context Re Jamieson and The Queen (1982), 70 C.C.C. (2d) 430 (Que. S.C.), Re McGregor, supra, and R. v. Halpern (1986), 73 A.R. 276 (Q.B.)
66. I am unable to grasp the significance of s. 10 (the right to counsel) to these issues in the circumstances of these cases. Nor do I see how the respondents could be said to be witnesses in proceedings against themselves under s. 11( c ) of the Charter (see Re Jamieson and The Queen, supra; see also the cases on the much broader provision of the Fifth Amendment against self‑incrimination in the United States Constitution, particularly Schmerber v. California, 384 U.S. 757 (1966), at p. 764, discussed in Moenssens, supra, at pp. 62‑66.
67. Section 11(d) guarantees a fair trial. If the fingerprints were obtained in a manner consistent with the principles of fundamental justice, it is not readily apparent how their use as evidence could affect the fairness of a trial.
Section 1 of the Charter
68. Since I have determined that the taking of fingerprints in the present cases does not violate the principles of fundamental justice within the meaning of s. 7 of the Charter , it becomes unnecessary to consider s. 1 of the Charter .
Disposition
69. Since the Court has already allowed the appeals, it only remains to reply to the constitutional questions and to dispose of the matter of costs. For the reasons given, I would reply to the first constitutional question in each case in the negative. It, therefore, becomes unnecessary to deal with the second constitutional questions. As to costs, I see no reason to depart from the ordinary practice in these matters, and I would make no order as to costs.
Appeal allowed.
Solicitor for the appellant: Brian Barrington‑Foote, Regina.
Solicitors for the respondent Claude R. Beare: MacKay & McLean, Regina.
Solicitors for the respondent Frederick G. Higgins: Gates & Herle, Regina.
Solicitor for the intervener the Attorney General of Canada: Frank Iacobucci, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General for New Brunswick: Barry Athey, Fredericton.
Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.
Solicitor for the intervener the Attorney General for Alberta: Jack Watson, Edmonton.
Solicitor for the intervener the Canadian Association of Chiefs of Police: John J. Robinette, Toronto.
Email this Content