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Criminal - Identification of Criminals Act (ICA). Reichert v. Ottawa Police Service
In Reichert v. Ottawa Police Service (Div Ct, 2026) the Divisional Court allowed a JR, which here challenged the refusal of the applicant's request to police to destroy "fingerprints and photographs" obtained under the federal Identification of Criminals Act after the withdrawal of criminal charges.
Here the court considers this issue on Charter s.8 ['search and seizure'] (aka privacy) grounds, citing the relevant case of R v Dore [which is not the same as the Charter-administrative Dore case]:[3] I would grant the application. The retention of fingerprints and photographs of a person who has not been convicted engages constitutionally-protected privacy interests and can only be justified when those interests are outweighed by a societal interest in effective law enforcement. Balancing of these competing interests must be done on a case-by-case basis having regard to the particular circumstances of the case. The OPS’s denial of the request on the basis of a policy that required denial in all cases involving certain categories of offences was unreasonable.
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C. The Decision in R. v. Doré
(i) The Facts
[19] While the ICA sets out the circumstances in which the police may fingerprint and photograph and individual, it is silent on the issue of retention. However, the authority to retain biometric information was extensively considered in R. v. Doré (2002), 2002 CanLII 45006 (ON CA), 162 O.A.C. 56 (C.A.).
[20] Mr. Doré had been fingerprinted and photographed after being charged with property and other offences. Those charges were later withdrawn, but Mr. Doré did not make a request to have the prints and photographs destroyed. The police later used the fingerprints in the investigation of a sexual assault in an apartment building stairwell, resulting in charges being laid against Mr. Doré. At his trial, he applied unsuccessfully to have the fingerprint evidence excluded pursuant to ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms. After being convicted, Mr. Doré renewed his Charter arguments on appeal.
(ii) Section 8 of the Charter
[21] The starting point of the court’s analysis was a recognition, based on R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13, at para. 60, that the initial taking of fingerprints pursuant to the ICA engages the protections of s. 8 of the Charter, although s. 2(1) of the ICA was held to be Charter-compliant in R. v. Beare; R. v. Higgins, 1988 CanLII 126 (SCC), [1988] 2 S.C.R. 387. The court concluded that the protection of s. 8 continues to apply for as long as the police retain the prints in order to protect the privacy interests of the individual from whom they were seized: Doré, at para. 37. The court then considered situations where the individual is acquitted or charges are withdrawn, so the justification for taking the prints provided by the ICA no longer exists (at para. 38):In order to determine whether and if so at what point an acquittal or discharge on the original charge which allowed the police to take the fingerprints makes the ongoing retention and use of those fingerprints an unreasonable seizure, the court must undertake a traditional s. 8 analysis, the onus being on the Crown to show on a balance of probabilities that (a) the ongoing retention is authorized by law; (b) the law is reasonable; and (c) the retention in this case was reasonable: R. v. Collins (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) 1 at 14 (S.C.C.). [22] The court concluded, at paras. 39 to 41, that the ICA implicitly authorizes the retention of fingerprints. However, the individual continues to maintain a privacy interest in the prints, although this does not necessarily mean that retention is contrary to s. 8 (at para. 66):It cannot be said that dismissal of the charge automatically means that ongoing retention of the fingerprints by the state is unconstitutional. The issue for the court is to determine whether and in what circumstances, an acquitted person’s interest in being left alone overrides the state's law enforcement interest in maintaining as large a data bank of fingerprints as possible. Because it is that balancing which will determine when it is reasonable for the Act to permit ongoing retention of the fingerprints, the balancing must be conducted in each case, having regard to the context and circumstances of the retention. [Emphasis added.] [23] After considering various contextual factors, the court concluded, at para. 71, that in cases of acquittals or withdrawal of charges, the “right to be left alone” arises when the individual asserts his or her privacy interest by asking for the fingerprints to be destroyed. The court continued (at para. 71):It is at that point that further retention of the fingerprints would become unconstitutional retention unless, in the particular circumstances, it could be shown that there were other factors that would trump the privacy interest. If the police asserted a special case, the retention could be challenged. [Emphasis added.] (iii) The Evidence Before the Court
[24] In discussing when “other factors … trump the privacy interest,” the court considered evidence in the record before it of police practices of destruction upon request in most cases, which it summarized at paras. 73-76. The evidence was that the Toronto Police destroyed fingerprints on request “100% of the time” where a person with no criminal record was acquitted or had charges withdrawn. The Royal Canadian Mounted Police (“RCMP”) acceded to destruction requests unless it was not in the public interest to do, but a senior officer who testified knew of only three cases of refusal, even though the RCMP received 300 destruction requests each month.
[25] The court concluded the following from the evidence (at para. 79):Based on this evidence, it is apparent that the policy which governs the retention of fingerprints from non-convicted persons is that such persons may exert their privacy interest in their fingerprints by requesting that they be destroyed. With limited exceptions, those requests are honoured. Therefore, the law which permits retention and which does not by its language define the duration of such retention or distinguish between fingerprints of convicted versus non-convicted persons, is currently effectively limited in its operation by the policy of destruction on request. (iv) Balancing Interests and the Exercise of Discretion
[26] The court recognized that it is the police who decide whether to accede to requests for destruction. However, relying on a number of authorities, including R. v. Adams, 1996 CanLII 169 (SCC), [1996] 3 S.C.R. 101, at para. 53, and Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 71, the court held, at paras. 80-82, that granting the police a discretion with respect to destruction does not offend the Charter provided that the discretion is exercised in a constitutional manner.
[27] Thus, Doré concludes that the police have a discretion with respect to requests for the destruction of biometric information, but must exercise that discretion in a constitutional manner that appropriately balances the individual’s privacy interests against the societal interest in the effective investigation of crime. The court said the following about where that balance should be struck (at para. 83):In my view, the current police policy which in practice limits the extent of the statutorily authorized retention of the fingerprints of the non-convicted by providing that those fingerprints be destroyed on request, provides cogent evidence of where the constitutional balance is appropriately struck. This conclusion is in accord with the position taken by the respondent in its factum at paragraph 35:Fingerprint destruction is currently a matter of police discretion. Almost without exception, the police exercise their discretion in favour of destroying fingerprints upon receipt of a simple request from an individual. This enhances the reasonableness of the retention scheme. It allows those individuals who are troubled by the fact of their fingerprints are being retained, to request their destruction. Except in highly exceptional circumstances, this request is acceded to. It is submitted that this approach strikes a reasonable balance between the privacy interests of the individual and the societal interest in the fair, effective, timely and accurate investigation of crime and administration of justice. C. Analytic Framework
(i) Is There a Presumption in Favour of Destruction?
[28] The crux of the disagreement between the parties in this case is the nature of the discretion the police have in considering requests for the destruction of biometric information obtained pursuant to the ICA. The applicant submits that the police are required to accede to such requests unless there are “highly exceptional circumstances” that justify retention. The respondent submits that there is no presumption in favour of destruction. Rather, the police have a “broad retention authority” which they must exercise on a case-by-case basis to determine whether “there is an enhanced public safety risk or a legitimate law enforcement interest” that is sufficient to outweigh the individual’s privacy interest. The respondent submits that the required case-by-case consideration is achieved by applying the Policy.
[29] With respect, the respondent’s submission that there is no presumption in favour of destruction is not consistent with Doré, which makes it clear at para. 71 that when a person who has been acquitted or whose charges have been withdrawn makes a request for destruction, “further retention of the fingerprints would become unconstitutional unless, in the particular circumstances, it could be shown that there were other factors that would trump the privacy interest.” The onus of showing that such other factors exist is on the state, that is, the police: Doré, at para. 38. This amounts to a rebuttable legal presumption that biometric information will be destroyed on request unless the police can justify retention.
(ii) The Appropriate Standard
[30] As made clear in Doré, a destruction request can be refused only if the particular circumstances of the case are such that the societal interest in effective law enforcement outweighs the individual’s constitutionally-protected privacy interest. The applicant’s description of this as a “highly exceptional circumstances” standard appears to be based on para. 83 of Doré, where the court described the current police practice of acceding to destruction requests “except in highly exceptional circumstances” as “cogent evidence of where the constitutional balance is appropriately struck.”
[31] While it is not clear that the court went so far as to adopt “highly exceptional circumstances” as a legal standard, it is clear that there is a significant threshold that must be met before a retention request can be denied.
(iii) Balancing of Interests
[32] As the respondent accepts, there must be an individualized assessment of the particular circumstances of each case to determine whether the individual’s privacy interests are outweighed by the societal interest in effective law enforcement: Doré, at paras. 66, 71. This will depend on whether the circumstances of the case are such that there is a realistic prospect that the individual’s biometric information will be of use to the police in the future. Retention cannot be justified by abstract references to the seriousness of the alleged offences.
[33] It is important to bear in mind that decisions about whether to retain biometric information are made in the context of charges which the Crown has not proven and of which the person is presumed innocent. The police cannot simply assume that the person is guilty of the allegations. But nor are the police required to ignore information obtained during the course of the investigation. The police may consider the information underlying the charges, its strengths and weaknesses, and the reason why the charges were withdrawn or the individual was acquitted. This is all part of an individualized assessment.
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