DO I NEED TO PROVIDE FINGERPRINTS AND PHOTOS TO THE POLICE?
When an individual is arrested and charged with a criminal offence, they are generally fingerprinted and photographed. Those charged with a hybrid or an indictable offence must legally be fingerprinted and photographed according to the Identification of Criminals Act. Those charged with summary offences are not required to be fingerprinted and photographed. The vast majority of criminal offences in Canada are considered either hybrid or indictable, meaning the majority of those who are arrested and charged with a crime will eventually be fingerprinted and photographed.
Regardless of whether or not a conviction is obtained by the Court, the police will retain an individual’s fingerprints and photographs and store them in a police database indefinitely. If a conviction is obtained, the records will become part of the individuals criminal record. If a conviction is not obtained, these records could appear in a police records search. Having such records appear in a record search can have negative consequences for an individual including employment consequences. Depending on the type of background check, certain criminal history may show.
For an individual to be eligible to have their fingerprints and photographs destroyed, they must meet certain conditions. The police will only agree to destroy fingerprints and photographs in cases where the case resolved by way of acquittal, dismissal, withdrawal or peace bond. Additionally, those that plead guilty to the charges against them but receive a conditional or absolute discharge may also be eligible for fingerprint and photograph destruction. Those who have been convicted or plead guilty and received a sentence will not be eligible for fingerprint destruction. Further, those who have current additional outstanding charges will not be eligible to have their previous records destroyed until their current case has resolved.
In addition to eligibility, those requesting that their fingerprints and photographs are destroyed must also wait a requisite amount of time before they may submit their application. Depending on the disposition in the particular case, the wait times will vary. An individual who received a conditional discharge must wait three years from the time of their last court date and an individual who received an absolute discharge must wait one year from the time of their last court date before sending in their application.
The procedure for applying to have fingerprints and photographs destroyed varies by jurisdiction. Once reviewed, the police department will make a determination as to whether or not they feel the records should be destroyed. Should the police department agree to destroy the photographs and fingerprints, they will send a recommendation letter to the RCMP. Once the records have been destroyed, a written confirmation will be sent to the applicant.
When making the decision on whether or not to destroy an individual’s fingerprints and photographs, various factors will be taken into consideration. Such considerations include but are not limited to the following; how the retention of the record could potentially impact the applicant, the seriousness of the offence, the final disposition of the case, the age of the offender, any aggravating or mitigating circumstances in the case, the mental and physical capacity of the applicant, how dated the offence is and whether or not the applicant has been subsequently convicted of a crime since the original offence. Additionally, any further supporting evidence that may help bolster the applicant’s case may be included.
In cases where an application is denied, the applicant has the right to request a review of the decision. Such an appeal must be submitted in writing to the police agency that issued the denial. An appeal will generally include the various reasons why the records should be destroyed. An applicant will likely include detailed information on how the retention of the records is affecting their life. In situations where the appeal has been denied, an individual may file an application for judicial review of the final decision on the appeal. Such appeal applications can be complex and time consuming.
Our Firm has experience with fingerprint and photograph applications and appeals in jurisdiction all around the GTA including; Toronto, York Region, Durham Region and Peel Region. We can help guide you through the process to best ensure your application is approved and records destroyed.