Do I have to be Fingerprinted and Photographed?

In Canada, you must submit to photographs and fingerprinting if you are arrested and charged with a hybrid offence or an indictable offence. An individual charged with a straight summary conviction offence is not required to submit for photographs and fingerprinting.

Section 2(1) of the Identification of Criminals Act states that the following individuals may be fingerprinted and photographed or subject to other such measurements, processes and operations having the object of identifying the individual:

• Any person in lawful custody charged with or convicted of any of the following;
  • An indictable offence or any other offence that is designated under the Contraventions Act in respect of which the Attorney General within the meaning of the Act, has made an election under section 50 of that Act,
  • Any offence under the Security of Information Act, or
  • A summary conviction offence that may also be prosecuted as an indictable offence (a hybrid offence)
• Any person apprehended under the Extradition Act
• Any person alleged to have committed an indictable offence, other than an offence designated under the Contraventions Act in respect of which the Attorney General, within the meaning of the Act, has made an election under section 50 of the Act, who is required under subsection 500(3), 501(4) or 509(5) of the Criminal Code to appear for the purposes of this Act by an appearance notice, undertaking or summons; or
• Any person who is lawfully in custody under section 83.3 of the Criminal Code (related to terrorist activity).

The majority of offences listed in the Criminal Code are hybrid offences. A hybrid offence is a criminal offence that can be tried either by summary conviction or by indictment. The Crown who screens the case will determine which election to make based on the severity of the allegations. Generally, the Crown will elect to proceed by indictment where the allegations are more serious or there are aggravating factors and will elect to proceed summarily in all other cases.

Having a complete understanding of the Elements of the Criminal Offence, Your Rights and the Consequences associated with a Criminal Record is necessary before any legal decisions are made.

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Frequently Asked Questions

Can I Refuse to be Fingerprinted and Photographed?
Can I Have my Fingerprints and Photographs Destroyed?
-Non-Conviction
-Conviction
-Appeal
What’s the Process to Destroy Records?

Additional Resources

Assault
Assaulting a Peace Officer
Children’s Aid Society
Sexual Assault Law in Canada
Consequences of a Criminal Record
Domestic Abuse
First Offenders
Immigration Consequences
Keeping Charges Private
Travel & US Waivers
Vulnerable Sector Screening
Elements of a Crime
Your Rights

Can I Refuse to be Fingerprinted and Photographed?

If you have been lawfully placed under arrest and charged with a hybrid offence or an indictable offence you do not have the right to refuse to be fingerprinted and photographed. If necessary, section 2(2) of the Identification of Criminals Act, gives police the right to take photographs and fingerprints by force. Physically resisting officers lawfully attempting to take fingerprints and photographs may lead to additional criminal charges including assault on a peace officer or obstruction of a peace officer.

Can I have my Fingerprints and Photographs Destroyed?

In many cases, yes. Once an individual is arrested and photographed and fingerprinted, those records will be retained by the arresting police department and the RCMP. Whether or not you were convicted of the offence for which you were photographed and fingerprinted will impact whether or not police will agree to destroy the records.

Non-Conviction

An individual who had their charges withdrawn, entered into a peace bond, were granted a conditional or absolute discharge, were found not guilty at trial, or had their charges stayed, may apply to the arresting police department to have their records destroyed. To be eligible for a records destruction in these cases, the applicant cannot have any prior criminal convictions or any outstanding charges and must have been 18 years old at the time of their arrest.

In addition to the eligibility requirements, there are also waiting periods depending on the method of resolution. Where the charges were withdrawn there is no mandated waiting period, although local police departments may mandate their own waiting periods (Toronto Police require a 5 month waiting period). Where the accused entered into a peace bond they must wait until the peace bond has expired (generally 12 months) prior to applying for records destruction (in Toronto there is an additional 6 month waiting period after the peace bond has expired). Where the charges against the accused resolved by way of absolute discharge there is a one year waiting period. Where the charges resolved by way of conditional discharge there is a three-year waiting period.

Conviction

An individual who has been convicted of the crime for which they were photographed and fingerprinted must apply for a record suspension prior to applying to have their photographs and fingerprints destroyed. A record suspension, formerly known as a pardon, clears an individual’s criminal record.

It is important to note that being granted a record suspension does not guarantee that an applicant’s fingerprint and photograph destruction application will be approved. While the Parole Board of Canada grants record suspensions, the arresting police department determines whether or not they will purge their records.

Generally, the police will refuse to destroy photographs and fingerprints of an individual who was arrested for a primary designated offence which includes offences such as sexual assault, child pornography or aggravated assault. The police may also refuse to destroy records of an individual charged with a secondary designated offence which includes offences such as uttering threats or assault. Finally, police may refuse to destroy records of an individual if they believe it is not in the public interest to do so.

Appeal

It is possible to appeal an arresting police departments decision to refuse destruction of photograph and fingerprint records. Generally, an applicant will have 30 days from the time of refusal to demonstrate why destruction is appropriate. It may be helpful to have legal counsel assist in writing such an appeal.

What’s the Process to Destory Records?

The process for having your fingerprints and photographs destroyed varies between jurisdictions. Generally, an individual wishing to have their records destroyed will submit a form provided by the police department, or write a letter asking for the records to be destroyed. Some jurisdictions charge a fee and others do not.

Applicants must provide the police department with their legal name at the time of arrest, their address, their charges, their last court date, the location of their last court date including the courtroom and the method of resolution.

Once submitted the police department will review the application and determine whether they are going to destroy the records. Once they have decided, they will mail a notice to the applicant. If the decision is to refuse the destruction, the applicant may appeal the decision, providing reasons for why their records should be destroyed.