DATE: 20020719
DOCKET: C29634

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and SIMMONS JJ.A.

BETWEEN:	)
	)
HER MAJESTY THE QUEEN	) ) )	Miguna Miguna             For the appellant
	)
Respondent	)
	) )	Michal Fairburn and             Shawn Porter
- and -	)	For the respondent
	)
	)
DUALE DORE	) ) )	Roslyn J. Levine, Q.C. and             Moiz Rahman for the             Intervenor, Attorney General of
	)	Canada
Appellant	) )
	)	HEARD:  March 29, 2001

On appeal from the conviction by Justice Hugh Locke, sitting with a jury, on February 19, 1998.

FELDMAN J.A.:

[1]         The appellant was convicted of sexual assault with a weapon, assault with a weapon, forcible confinement and uttering a death threat in relation to the rape of the complainant in the 12th floor stairwell of her apartment building. The police were led to the appellant after finding three fingerprints which matched the appellant’s on the stair railing at the spot where the rape occurred. There was no other definitive identification of the appellant other than in-dock identification.

[2]         The appellant’s fingerprints were in the police system because a few months earlier, he had been charged with an indictable offence and fingerprinted on arrest. The charges, however, had been withdrawn and he pled guilty to offences under the Compulsory Automobile Insurance Act, R.S.O. 1990, c. C. 25, and the Highway Traffic Act, R.S.O. 1990, c. H. 8. Although the Criminal Code charges were withdrawn, the appellant’s prints were retained in the system.

[3]         The principal issue on the appeal is whether the retention and use of the appellant’s fingerprints after criminal charges against him were withdrawn constituted an unreasonable search and seizure contrary to s. 8 of the Canadian Charter of Rights and Freedoms, and consequently, an unconstitutional retention and use of the fingerprints.

FACTS

[4]         On December 3, 1994, the complainant, then 17 years old, was doing her laundry in the laundry room of the apartment building where she lived with her mother and two siblings. During two of her four trips down to the laundry room she noticed a man lurking. She described him as follows: about 5’11”, big, round stomach, 190 to 200 pounds, Somalian, a large forehead and moustache, curly black hair cut short at the sides, a Somalian accent, 38-40 years old, wearing a grey sweat top with a zipper in the front. Another resident also saw the same man and gave a similar but not exact description of him. Although these descriptions resembled the appellant, the only identification of the appellant was by the complainant in-dock. Neither the complainant nor the other resident was able to pick the appellant out of a photo line-up.

[5]         At 7:00 p.m. the complainant left the laundry room for the final time and entered the elevator with the attacker and another man who exited at the first floor. The attacker then put a sharp object to her throat and told her to be quiet or he would kill her. He held her face to his chest while the elevator went to the 10^th floor where they exited and he took her to the stairwell and up two flights to the 12^th floor, the exit to the roof being blocked at that point.

[6]         The attacker took the complainant's pants and forced her to kneel on the 12^th floor landing and place her hands a number of steps up. He raped her from behind both vaginally and anally, after which he moved up the left side of the staircase to a location a few steps up from the 12^th floor landing and forced her to fellate him. She noticed that he was wearing a yellow condom. He fondled and sucked her breasts, then ran down the stairs and exited the building. The complainant went to her apartment on the third floor and the police were called.

[7]         Three fingerprints which matched the appellant's, the index, middle and ring finger of the left hand, were found on the railing at the location where the complainant said her hands and head were as she was forced to perform fellatio. The configuration suggested that he was clutching the railing with his left hand. There were no other identifiable prints on the railing.

[8]         Once the fingerprint check disclosed a match with the appellant, the police spoke to him. He said he had not been at the apartment building for two years.  At trial, however, the Crown led evidence that the stairwell, including the railings, had been cleaned a short time prior to the assault. The appellant did not testify, but his brother testified that he had seen the appellant at a party at the apartment building in the second week of October 1994 and that the appellant’s friend, a smoker, was also there. The stairwell was apparently a common place for people to go to smoke.  The appellant's friend did not testify, and the appellant's brother did not know whether the appellant went to the stairwell at any time during the party.

[9]         The police also searched the appellant’s car and found three condoms in yellow packages in the pocket of the door of the car. The appellant’s brother gave evidence that upon instructions from defence counsel, he attended Shopper’s Drug Mart where he purchased a number of different condoms for the purpose of demonstrating that condoms are commonly yellow. He did not open the packages or give evidence of their colour. Following that testimony, counsel requested that the condom packages be made exhibits and opened so that the jury could see the colours of the condoms, but the trial judge refused.

ISSUES

ANALYSIS

I.          The Constitutional Challenge to the Retention of Fingerprints

            1.            Background

[10]          On July 5, 1994 the appellant was charged with two Criminal Code offences, possession of property, a license validation sticker, obtained by the commission of crime, and obstruct justice by destruction of the validation. He was also charged under the Compulsory Automobile Insurance Act with driving without insurance. Because the Criminal Code offences were indictable, he was fingerprinted and photographed pursuant to s. 2(1) of the Identification of Criminals Act, R.S.C. 1985, c. I-1.

[11]          On July 19, 1994, the Crown withdrew all three charges and a new information was sworn which included both the original driving without insurance charge, as well as a Highway Traffic Act charge for use of an unauthorized validation sticker. On November 17, 1994, the appellant pled guilty to both charges and received a $600 fine.

[12]          The police examined the railing at the 12^th floor stairwell for fingerprints shortly after the assault. The only identifiable prints they found on the railing were compared to prints in the police computer system A.F.I.S. (Automated Fingerprint Identification System) and were a match with the appellant’s prints on the system. It was as a result of obtaining this match that the appellant became a suspect in the investigation.

[13]          The taking of fingerprints upon arrest or conviction for an indictable offence is authorized by s. 2 of the Identification of Criminals Act which provision read as follows in 1994:

[14]          The Act has been amended and currently provides:

[15]          The appellant says that the retention of his fingerprints by the police constitutes a violation of his s. 8 Charter right to be secure against unreasonable search and seizure. He submits that he retained a privacy interest in his fingerprints following their original seizure by the police upon arrest, and that retention of his fingerprints following withdrawal of the criminal charges constitutes an unreasonable seizure and therefore “unconstitutional retention” of the seized fingerprints

[16]          The appellant’s position is framed in the alternative:

[17]          Finally, the appellant submits that because of the s. 8 breach, the evidence of the fingerprints should not have been admitted under s. 24(2) of the Charter, as it was conscriptive evidence which would not have been found but for the Charter breach, and therefore its admission into evidence brings the administration of justice into disrepute.

[18]          At trial, the appellant moved to stay the indictment or in the alternative to exclude the fingerprint evidence. The appellant relied on ss. 7, 8 and 11(d) of the Charter. A voir dire was held where evidence was called by the appellant of the practice of both the RCMP and the Metropolitan Toronto Police regarding the retention of fingerprints.

[19]          The trial judge ruled that the retention of the fingerprints did not breach the appellant’s Charter rights,  that if it had, the evidence should be admitted under s. 24(2), and that the exclusion of the evidence in this case would bring the administration of justice into disrepute.

2.            The Supreme Court's Analysis in R. v. Beare and R. v. Higgins

[20]          Section 2 of the Identification of Criminals Act authorizes the police to take fingerprints not only from those who have been convicted of an indictable offence, but from persons charged with an indictable offence. The validity of the section in authorizing the initial taking of fingerprints from someone who has not yet been found guilty of an offence was challenged as contravening the Charter in the cases of R. v. Higgins and R. v. Beare (1987), 34 C.C.C. (3d) 193 (Sask. C.A.); (1988), 45 C.C.C. (3d) 57 (S.C.C.). Although the argument and the analysis of the courts focused on whether the provision contravened s. 7 of the Charter, the result reached by the Supreme Court included a discussion of the applicability of all potentially relevant sections of the Charter.

[21]          The Saskatchewan Court of Appeal delivered two very strong concurring opinions for judgment in which it held that fingerprinting a person who had not been convicted of a crime violated the elements of self-respect and dignity inherent in s. 7 of the Charter and deprived the person of liberty and security of the person. The court concluded that there are no safeguards built into the Act in order to satisfy the requirement that the deprivation be in accordance with the principles of fundamental justice. One of the issues of great significance to the court was the fact that there are no provisions which require destruction or return of the fingerprints if a person is acquitted or the charges are withdrawn or stayed, or which govern what use can be made of the fingerprints if they are retained, who makes the decision of retention and use in each case, and on what basis such decisions are to be made.

[22]          A unanimous Supreme Court of Canada reversed the decision of the Saskatchewan Court of Appeal. The Supreme Court did not share the concerns of the Saskatchewan Court of Appeal, and minimized the significance of the self respect and dignity interests associated with the taking of fingerprints on arrest. The Supreme Court held that s. 2 of the Identification of Criminals Act did not violate s. 7 or any other section of the Charter. The Supreme Court’s analysis in Beare and Higgins sets the framework for any further Charter scrutiny of the scope of the section.

[23]          The appellant bases his submissions on the observation of La Forest J. at p. 78, speaking for the court, when he addressed the concern of the Saskatchewan Court of Appeal as to the disposition of fingerprints of a person who is ultimately not convicted:

[24]          It is the reference to “unconstitutional retention” of fingerprints which provides the starting point for the appellant’s argument that Beare and Higgins left open for another case the analysis of whether, and under what circumstances, the retention of the fingerprints would be unconstitutional, even if the taking of the fingerprints was not.

[25]          Before embarking on the constitutional analysis, La Forest J. set out the context for his analysis by describing and endorsing the many uses for fingerprinting in the criminal justice system at pp. 67-8:

            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 (1917) (Gen. Sess.); Pelletier c. 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.R. 195, at p. 196.

[26]          It is in the context of this endorsement of the value of fingerprinting that the Court conducted its Charter analysis.

(a)             Section 7 Analysis

[27]          In his reasons for judgment, Bayda C.J.S. based his conclusion that s. 2 of the Identification of Criminals Act breached s. 7 of the Charter on the fact that the requirement of submitting to fingerprinting is demeaning and humiliating. In this regard, he discussed the different levels of indignity and loss of respect and self-respect inherent in having one’s fingerprints taken, depending on the particular person’s place in society and his or her own perception of the degree of humiliation involved in being fingerprinted as a criminal.

[28]          La Forest J., however, rejected this conclusion. He said that that approach “appears to be broad and indefinite” and introduced “an undesirable notion of differentiation among those subjected to the procedure” (p. 69). He was only prepared to consider the impugned legislation as an infringement on the basis that the person was obliged to attend and go through an identification process in the face of a penalty of imprisonment for failure to comply. He then turned to the issue of whether the infringement violated the principles of fundamental justice.  He noted that both the common law and legislative practice in other jurisdictions allowed fingerprinting as an incident of arrest at least for indictable offences, and commented that the common law experience supported the conclusion that fingerprinting in those circumstances did not violate the principles of fundamental justice and was not fundamentally unfair.

[29]          He also rejected the concern expressed by the Court of Appeal that the legislation was arbitrary in its operation because fingerprinting was not mandatory but left to the discretion of the fingerprinting officer who was not obliged to consider whether fingerprinting was necessary in the particular circumstances. He viewed discretion as an essential feature of the criminal justice system, which comes into play at many stages of the process both for the police and the prosecutors. Any particular abuse could be corrected by the application of s. 24(2) and the exclusion of impugned evidence in a particular case. La Forest J. accepted that procedures to guide decision-making such as were contained in the British legislation, which required that a decision to fingerprint be made by a senior officer, “would constitute some improvement to the present unstructured system;” however, he did “not think that these were constitutionally mandated” (p. 77).

[30]          La Forest J. also addressed whether the legislation violated an accused’s right of privacy in contravention of the principles of fundamental justice, an issue discussed by Cameron J.A. in the Court of Appeal. He agreed with Cameron J.A. that any right of privacy encompassed by s. 7 is effectively analogous to the privacy interest which forms the basis of the s. 8 guarantee against unreasonable search and seizure. Again he rejected any finding of infringement of a right of privacy at pp. 77-8:

(b)            Section 8 Analysis

[31]          The Court dealt with the applicability of other Charter sections in a summary way as they were not argued before it, although they had been relied on in the courts below. With respect to s. 8, La Forest J. stated at pp. 78-9 that fingerprinting was not unreasonable upon arrest for an indictable offence:

3.            Does s. 8 of the Charter Apply to the Taking of Fingerprints?

[32]          In Beare and Higgins, La Forest J. raised the issue whether the taking of fingerprints engages s. 8 of the Charter at all, and referred to the existing case law which suggested that taking fingerprints was not a search or a seizure, although he did not express a view on the issue. Subsequently, however, in R. v. Feeney (1997), 115 C.C.C. (3d) 129 the Supreme Court held that taking fingerprints incident on an unlawful arrest constitutes a violation of s. 8.  Sopinka J., writing for the majority, stated at p. 162:

4.         Does s. 8 of the Charter Apply to the Retention of Lawfully Taken Fingerprints?

[33]          The issue of the constitutional status of the retention of bodily samples which had been lawfully seized arose in R. v. Colarusso (1994), 87 C.C.C. (3d) 193 (S.C.C.). In that case, the accused caused a fatal car accident. Blood and urine samples were taken from the accused at the hospital with his consent by the medical staff. The coroner required blood and urine samples of the accused in connection with the investigation of the death of the accident victim and obtained them from the hospital lab under statutory authority of the Coroner’s Act, R.S.O. 1980, c. 93 (now R.S.O. 1990, c. C. 37). The coroner delivered the samples to the police to take to the forensic testing centre for analysis.  At trial, the Crown called the forensic analyst to report the blood alcohol level of the accused based on the forensic tests of the blood and urine samples which had been obtained by the coroner.

[34]          A majority of the Court held that when the police took the samples, that constituted a seizure of the samples from the coroner and that a warrantless seizure was unreasonable and therefore contrary to s. 8 of the Charter.  The majority found that it was also possible to take the view that the actions of the police made the originally valid seizure by the coroner unreasonable, since the evidence from that seizure was appropriated by the police for law enforcement purposes that went beyond the limited purpose for which the coroner was statutorily authorized to take the samples.  On this issue, La Forest J. made the following comment at p. 222:

[35]          A similar analysis was made in the cases of R. v. Borden (1994), 92 C.C.C. (3d) 404 (S.C.C.), and  R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.), where the Court considered whether bodily samples taken with the consent of the person for the purpose of one investigation could be used in another investigation, and whether the original consent could be said to have extended to permit that use. In Borden, the majority held that one must look at the time of the original seizure to determine whether the consent given at that time was a true waiver of the s. 8 right to protect the reasonable expectation of privacy in the substance that was seized. In that case, the court held that the accused was not given sufficient information to consent to the use of the sample for a different investigation and therefore that use violated his s. 8 right.

[36]          In Arp, the court came to the opposite conclusion. The police in that case had obtained the accused's hair samples through a search warrant, the validity of which was not directly challenged. Cory J. stated at p. 360 that "once the appellant's hair samples were taken by the police with the unconditional and reasonably informed consent of the appellant, he ceased to have any expectation of privacy in them", and added at p. 361 that "even if the appellant had a subsisting privacy interest in the hair samples, they were seized pursuant to a properly issued warrant." As in Borden, however, the fact that the seized samples were in the custody of the police when they were used for different investigations did not eliminate the need to examine whether the subsequent use of the seized samples constituted a new seizure which had to be constitutionally valid.

[37]          In this case the constitutional attack is on the retention of the fingerprints rather than on any subsequent seizure. As affirmed in Colarusso and subsequent cases, the “protective mantle” of s. 8 extends during the duration of the holding and retention of the thing seized in order to protect the privacy interest of the person from whom it was seized.  Consequently, if the constitutional safeguards that were present and justified the seizure are no longer in place, then unless they are replaced by new constitutionally accepted safeguards, the retention as an ongoing seizure may become unreasonable and no longer justifiable.

[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), 3 C.C.C. (3d) 1 at 14 (S.C.C.).

(a)            Is the Retention of Fingerprints Authorized by Law?

[39]          There is no specific provision in the Identification of Criminals Act that authorizes retention of fingerprints. However, in the 1994 version, there were two sections that dealt indirectly with the issue of retention. Section 2(3) authorized the publication of the fingerprints (measurements) taken under the authority of s. 2(1) “for the purpose of affording information to officers and others engaged in the execution or administration of the law.” That section allowed the sharing of the fingerprint information with those engaged in law enforcement. It put no time limits on that publication. Section 3(c) of the Act provided protection from liability for those who are engaged in publishing the fingerprints to law enforcement agencies as authorized by s. 2(3). Again there was no time limit or other condition placed on this protection.

[40]           By providing that the information obtained from an accused or convicted person can be published to law enforcement officers, without any temporal or other conditions thereafter, the Act implicitly authorizes the retention of the fingerprints. They could not be published unless they have been retained. If the fingerprints are not destroyed or returned, then they are retained on an ongoing basis. [2]

[41]          I conclude, as a matter of statutory interpretation, that some retention of fingerprints properly taken in accordance with ss. 2(1) and 2(2) was (and is) authorized by the Act. The extent of that authorization, however, is subject to the reasonableness analysis. As La Forest J. said in Beare and Higgins, the section does not authorize “unconstitutional retention.”

(b)       Is it Reasonable for the Act to Authorize Retention of Fingerprints Once an Accused Person Has Been Acquitted or the Charge Withdrawn?

[42]          The objective of s. 8 of the Charter is to protect the individual’s right of privacy and in particular, a person’s reasonable expectation of privacy. In Hunter v. Southam (1984), 14 C.C.C. (3d) 97 at 108 (S.C.C.), Dickson J. made the following oft-quoted statement on the scope of the s. 8 protection in the context of law enforcement objectives of the state:

[43]          When considering whether retention, as opposed to the original seizure, is constitutionally valid, there are two approaches one could take to the analysis. One is to analyze whether a person can have any remaining privacy interest in the informational component of his or her fingerprints after they have been legally seized by the state. Only if a person does have some remaining privacy interest does that then  become the threshold for the further reasonableness analysis and balancing of that privacy interest with the interest of the state in retention.

[44]          The other approach is to accept that s. 8 is engaged when the constitutional basis for the validity of the initial seizure is removed. The state is entitled to seize fingerprints from accused persons who are charged with or convicted of an indictable offence and to retain them while the charge is outstanding or upon conviction. Therefore, when the precondition for seizure and ongoing retention is removed by an acquittal, withdrawal or permanent stay of the charge, the person’s right to be left alone springs up again, and provides the threshold for a s. 8 analysis involving the balancing of the interests of the individual and the state. It is within that balancing process that one considers all of the circumstances including analyzing and weighing the strength of the privacy interest in one’s fingerprints.

 (i)       Does the Appellant Retain Any Privacy Interest in His Fingerprints Once They Have Been Lawfully Taken by the State? (The First Approach)                                          

[45]          The appellant’s submission is that he retains a privacy interest in the information component of his fingerprints after they have been taken by the state, and that once the charges have been disposed of in his favour, his privacy interest is the same as that of any person who was never charged with an indictable offence.

[46]          The position of the respondent and of the intervenor is that once a person’s fingerprints have been lawfully taken, the person retains no reasonable expectation of privacy in them or a very minimal expectation, and that expectation is met because the fingerprints are governed by the Privacy Act, R.S.C. 1985, c. P-21 and because of the police policy of destroying fingerprints upon request.

[47]          From the privacy point of view, there are two aspects of a “seizure” of fingerprints.  The first is the actual physical act of taking the impression of the fingers, including the physical and psychological indignity involved in that process.  The second is the acquisition by the state of the informational component of the fingerprint, its unique characteristics and identifying relationship to the particular individual.

[48]          In Beare and Higgins, where the Supreme Court concluded as part of its s. 7 analysis that fingerprinting upon arrest did not violate the principles of fundamental justice by violating an individual’s right to privacy, the Court focused on an accused’s reduced expectation of privacy upon arrest for a serious crime. In that context, the Court clearly minimized the expectation of privacy in fingerprints which a person has upon arrest and likened the taking of fingerprints to other incidents of search to which an arrested person may be subjected. The Court also referred to the non-invasive procedure for taking fingerprints as well as the lack of probing into a person’s private life that fingerprinting entails as compared to a search of premises, as supportive of its conclusion that the accused’s privacy interest in fingerprints is minimal, at least at the time they are taken upon arrest.

[49]          Similarly, In R. v. Stillman (1997), 113 C.C.C. (3d) 321 at 356 (S.C.C.), a majority of the Supreme Court characterized the procedure of taking fingerprints as only minimally intrusive, and accepted by society.  However, in Feeney, Sopinka J., speaking for the majority including La Forest J., equated the taking of fingerprints with other searches of the body, about which there is a high expectation of privacy when there is no lawful arrest.

[50]          Once fingerprints have been taken from an individual, it is only the informational component of the fingerprint about which a person can retain any expectation of privacy. When a person continues to be subject to the charge for which the person was arrested, or has been convicted of the charge, then the original basis for obtaining the information disclosed by fingerprints set out by La Forest J. in Beare and Higgins continues and therefore justifies the retention and use of that information on an ongoing basis for law enforcement purposes.  

[51]          But once the original justification has been removed, is there any basis for viewing the privacy interest of such a person in his or her fingerprint information, whatever that interest may be, as any different from that of any other innocent person in society? Does an acquitted person have a reduced expectation of privacy in that information?

[52]          In R. v. Plant (1993), 84 C.C.C. (3d) 203 (S.C.C.), which dealt with a search of records relating to hydro use, Sopinka J. wrote at p. 213 that because s. 8 is intended to foster the underlying values of dignity, integrity and autonomy, it seeks to protect "a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state." There the Court held that the hydro records did not contain information of that nature.

[53]          In my view, anything associated with one’s body, especially where it is not something that is otherwise normally accessible, is of a personal and confidential nature and is the type of information that people expect to be able to control and keep private in the ordinary course. The fact that one’s fingerprints may tell nothing about the person other than his or her identity hardly makes the information impersonal.

[54]          Linked to the inherent privacy interest one has in anything emanating from one’s body, is the factor that the fingerprints are stored by the police because they were originally obtained under the Identification of Criminals Act. Therefore, the storage and use of the fingerprints is associated with the identification of the person as a criminal, when the person has not been convicted of the offence.  Some U.S. courts identified this “rogues gallery” problem in early cases on the privacy interest. [3]  This concern was also identified by the Saskatchewan Court of Appeal in Beare and Higgins as a serious problem with retention (the issue not dealt with by the Supreme Court).

[55]          One argument made against a privacy interest in fingerprints is that fingerprints are not inherently incriminating, but only become incriminating when linked to the scene of a crime: see: R. v. Connors (1998), 121 C.C.C. (3d) 321 at 389-90 (B.C.C.A.). In my view, this concept adds nothing to the debate on whether a person has a privacy interest in his or her fingerprint information. The same can be said about DNA: it is also not inherently incriminating, but this does not speak to the privacy interest one may have in its contents, including its ability to identify a person.

[56]          The respondent also points to the Supreme Court’s approach in Arp as instructive in demonstrating why a constitutional seizure does not become unconstitutional retention. In that case, the accused had voluntarily supplied a hair sample to the police in connection with a murder investigation. The hair was tested and did not match the hair samples found on the victim's apparel. The accused was discharged after a preliminary hearing. About 2 1/2 years later, the same man was being investigated in a second murder, but refused to supply a hair sample for DNA analysis. As the police had retained the original sample, they executed a search warrant, reseized the strand of hair, and used the evidence to convict the accused of both murders. As I noted earlier, in that case, the Court held that once the hair samples were provided with reasonably informed consent and with no conditions, the accused no longer had any expectation of privacy in them.

[57]          However, a consensual and unconditional provision of a hair sample by an accused is not equivalent to a lawful seizure of a sample by the state for the purpose of considering whether the person retains any reasonable expectation of privacy in the sample. Where a person gives up his or her rights unconditionally as a voluntary act, certain inferences can legitimately be drawn from the person’s actions. The same cannot be said where evidence has been conscripted from the person under authority of law. In that circumstance, no inference can be drawn other than that the person will expect that the authorities will act strictly in accordance with the law.

[58]          In Arp, the Court concluded that because the hair samples were given with full consent as to their use, the accused “ceased to have any expectation of privacy in them.” The fact that the court was concerned about a residual privacy interest in retained bodily samples is consistent with the analysis that the privacy expectation has two components, the privacy interest engaged in the seizure of the sample, and the privacy interest in the information in the sample which identifies the person. Similarly, in Stillman, the Court considered whether the retrieval by the police of a tissue discarded at the police station and containing mucous constituted an unlawful search contrary to s. 8.  Implicit in this inquiry is the concept that there can be a privacy interest in mucous which has left the body, because of the ability of the DNA it contains to provide identifying information about the person.

[59]          Finally, the practice in some other common law countries reflects a recognition that an acquitted person may well retain an interest in maintaining the privacy of fingerprint information. The fact that such countries as Scotland, New Zealand, Tasmania and several states of the United States [4] have enacted legislation providing for the destruction or return of an individual's fingerprints upon acquittal or withdrawal of charges suggests that such a privacy interest may remain when a person is effectively cleared of the offence for which the fingerprints were taken. [5]

[60]          A contrary approach, however, was recently taken in England which amended its own applicable legislation, the Police and Criminal Evidence Act 1984, c. 60, s. 64. The English law formerly provided for destruction of fingerprints and DNA upon acquittal or the withdrawal of charges. The amendment allows the Chief Magistrate to retain such fingerprints and DNA. In the recent case of R. (on the Application of S) v. The Chief Constable of South Yorkshire; R. (on the application of Marper) v. Chief Constable of South Yorkshire, [2002] EWHC 478 (Admin.) [6] the amendment was challenged as contravening Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, which provides:

[61]          The Court outlined the genesis of the amendment, which was enacted following two recent, notorious cases where DNA identified the apparent perpetrators of the crimes, but because it was DNA that should have been destroyed under the then operative law, it was not admitted into evidence and both prosecutions failed.

[62]          In its analysis of whether the new statutory authority to retain fingerprints contravenes the protection of  “private life” in Article 8(1), the Court concluded that it is the taking of the fingerprints which may engage a person’s privacy interest. The Court stated that it was “far from convinced that the retention of fingerprints and DNA samples engages Article 8 in any form” (para. 21). The Court went on to find that the legislation is proportionate. Consistent with its view that it is the taking rather than the retention of fingerprints that engages the protected privacy interest, the Court justified retention of the fingerprints of an acquitted person on the basis that once the prints are lawfully compelled from a person charged with an offence, there is no basis to require the police to return them rather than keep them because of the possibility that the person will be involved in a future offence. The Court also held that although the amended Act does not require retention of fingerprints after acquittal but only allows it, the Chief Constable of South Yorkshire’s policy of retaining all such fingerprints was not an abdication of his discretion.

[63]          In stating that it was “not convinced” that the retention of fingerprints and DNA engaged any privacy interest, the English court in effect declined to decide that issue but instead, its decision turned on a weighing of the interests of the person versus those of the state.

[64]          On the issue of whether a person does retain any expectation of privacy in the informational component of fingerprints, I conclude that there is no basis in the case law or otherwise, to infer that a person who was subjected to fingerprinting upon arrest will not have some reasonable expectation of maintaining or regaining his or her privacy in fingerprint information if the charge is disposed of in his or her favour. There is no reason to differentiate the expectation of privacy that an acquitted person has in such information from the expectation that a person who has never been charged with an indictable offence would have, because it is information about and from one’s body not normally available without one’s consent. Added to that in the context of retention is the nature of the storage by the police which tends to stigmatize as a criminal the person whose fingerprints are retained. Although it may be that because of the nature of that information, the expectation of privacy is minimal when compared, for example, to information which can disclose the genetic make-up of the person and not merely the person’s identity, I conclude that a person can have some privacy interest in the retained fingerprints.

(ii)            Balancing the Privacy Interest against the Interest of the State in Retention

[65]          On either of the two approaches to the analysis of whether retention of fingerprints can violate s. 8 of the Charter, it is possible for a law which allows those fingerprints to be retained by the state after a person has been acquitted, or charges have been stayed or withdrawn, to operate in a manner which violates s. 8 of the Charter.

[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. As Lamer C.J. stated in a concurring judgment in R. v. Borden at p. 410:

[67]          In the case of state retention of fingerprints, the first contextual circumstance is the passive nature of the state’s impugned intrusion on the privacy interest of the affected person. The intrusion is the retention of the person’s fingerprints by the state in one or more police data banks following the lawful seizure of the fingerprints upon arrest for an indictable offence. The state takes no further action in respect of the fingerprints. There is no change in the status quo. The nature of the retention does not change once the fingerprints have been taken, either while the charge is outstanding, after conviction, or after the charge has been disposed of other than by a conviction. The passive nature of this retention is different, for example, from what occurred in Colarusso, where the police re-seized the blood and urine samples being retained by the Coroner, and used them for an entirely different purpose then the one for which they had been lawfully seized by him.

[68]          Next, while the retention is ongoing, what then triggers the person’s interest in being left alone, in this case the privacy interest in the fingerprints? Again, a consideration of all of the circumstances is required. The first part of the “trigger” is the acquittal, permanent stay or withdrawal of the charge. When that occurs, the original constitutional justification for taking and retaining the fingerprints no longer exists. However, if for example, the person has been charged with or convicted of another indictable offence and his or her fingerprints are already retained and stored in the police data bank as a result, then that person can still claim no reasonable expectation of privacy in the fingerprints. Because the fingerprints are already being retained, there is no constitutional significance to their retention following acquittal on another charge.

[69]          Another contextual factor in the “triggering” analysis is the state of knowledge of the disposition of the charges and of the person’s record by both the person and by the state. The person is immediately aware of the disposition and knows whether he or she already has a criminal record. In other words, the person knows immediately whether he or she again has a reasonable expectation of privacy in his or her fingerprints. Depending on the circumstances, the judge, the prosecutor, and even defence counsel may not be aware of the full picture immediately. It is only once the disposition reaches the police data bank or banks, that the police have the means of determining whether the person again has a reasonable expectation of privacy in the retained fingerprints.

[70]          Of course a very critical contextual factor is the nature of the privacy interest in fingerprints. As I have already discussed, the nature of the information contained in a person’s fingerprint is that it can identify the person. However, it cannot reveal core value, personal or private information as can, for example, DNA. The privacy interest is arguably a minimal one, but is derived both from the nature of the information emanating from one’s body, together with the fact that in the retention context, it is stored by the police and is linked with the stigma of identification as a criminal.

[71]          In this context, where the state of retention is a static one, where the nature and degree of the privacy interest in the fingerprints is more minimal, and where the affected person is in the best position to know whether he or she does regain an expectation of privacy in the informational component of his or her fingerprints when a charge is disposed of in the person’s favour, it seems to me that a reasonable balance is struck by holding that the right to be left alone in those circumstances arises if and when the person asserts his or her privacy interest by asking for the fingerprints to be returned or destroyed. 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.

[72]          The fact that the police have a practice of destroying fingerprints when requests are made by persons where the charge has been disposed of in their favour, is significant evidence that such a request tips the balance in favour of the privacy interest.

[73]          On the voir dire at trial,  the appellant led the evidence of two senior police officers on the issue of police practice with respect to fingerprints where there is an acquittal or withdrawal of the relevant charge. This evidence demonstrated that although there are circumstances where it is helpful for the police to have a more complete data base of fingerprints, the value in retaining the fingerprints of those acquitted or no longer in jeopardy does not outweigh the privacy interest of the individual when a request is made for their destruction.

[74]          Acting Detective Sergeant Piotrowski of the Metropolitan Toronto Police Force was the officer in charge of the latent fingerprint section including the A.F.I.S. He testified that since 1969 the Metropolitan Toronto Police Force has had a policy in place whereby, if a person is acquitted of a charge or the charge is withdrawn, the person has no previous record and the person requests the destruction of the fingerprints and photographs taken on arrest, those fingerprints and photographs are destroyed. He confirmed that this practice has no exceptions and is carried out 100% of the time.

[75]          Inspector Leaman of the R.C.M.P. was the officer in charge of the criminal history section of the force and in charge of all policy decisions with respect to fingerprints. He testified that it is also the practice of the R.C.M.P. to destroy the fingerprints and photographs of people who have been acquitted or against whom charges have been irrevocably stayed or withdrawn upon the request of the person or the person’s lawyer, unless it is considered not in the public interest to do so. In that regard, Inspector Leaman was aware of only three cases where there had been such a refusal.       

[76]          Inspector Leaman also verified that upon receiving a request, the R.C.M.P. consults the local force that sent in the prints as to whether they have any objection to destruction, as they will also destroy their copies at the same time. Detective Sergeant Piotrowski indicated that he knew of some local forces which do not destroy prints on request, but Inspector Leaman only referred to the three public interest cases as instances where requests for destruction have not been honoured. He said that the R.C.M.P. receives 300 requests per month for destruction from people who were not convicted on their charge or charges.

[77]          Inspector Leaman also explained that the fingerprints in R.C.M.P. possession are governed by the federal Privacy Act, and that the information is shared only with law enforcement agencies, unless it is produced in response to a subpoena or with the consent of the affected person.

[78]          Inspector Leaman also testified that approximately 30 identifications are made per year in criminal investigations based on fingerprints of non-convicted persons that remain in the system. The police officers also explained other uses for fingerprints including identifying deceased persons, identifying persons using aliases, and exonerating the innocent.

[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.

[80]          It is well-established that a law that is broadly framed must be implemented in a constitutional manner. In R. v. Adams (1996) 110 C.C.C. (3d) 97 at 117, Lamer C.J. stated:

[81]          More recently, in Little Sisters Book and Art Emporium v. Canada (2000), 150 C.C.C. (3d) 1, Binnie J. stated at p. 35 that “Parliament is entitled to proceed on the basis that its enactments ‘will be applied constitutionally’ by the public service.”  To the same effect he quoted with approval at p. 53 the following statement from Hogg, Constitutional Law in Canada, Vol. 2 at p. 34-11:

[82]          Binnie J. concluded that the impugned legislation was “quite capable of being applied in a manner consistent with respect for Charter rights.”

[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:

(iii)      The Effect of the Failure of the Act to Require Notice of the Ability to Apply for Destruction of Fingerprints

[84]          The final point raised by the appellant is that if the law can (and currently does) operate in a manner that reasonably balances the privacy interest with the state interest, it is still deficient because there is no mechanism for informing a person of the right to request that his or her fingerprints be destroyed. In effect, the appellant suggests that there is an informational component to the s. 8 privacy right which obliges the authorities to inform an affected person as to the nature of that right and how the person may exercise it. The appellant has provided no authority for this submission.

[85]          In my view, although it would be helpful and appropriate for the authorities to advise a person who is not convicted of charges that if the person has no other convictions or outstanding charges, he or she may apply to have their fingerprints destroyed, there is no constitutional requirement to do so (see Beare and Higgins at p. 77). As noted above, the person is in the best position to know his or her record.  Because it is a privacy interest that the person is exerting, one would expect that a person who is concerned about  fingerprints would make an inquiry about the potential for having them returned or destroyed. Furthermore, most people who have been through the system will have had legal representation and therefore have access to this information through a lawyer. This is not a situation where a person is arrested and is entitled to information from the police about his or her immediate rights to a lawyer and to remain silent.

[86]          I conclude that the law which allows fingerprints to be retained can operate in a reasonable manner in accordance with s. 8 of the Charter.

(c)       Was the Retention and Use of the Appellant’s Fingerprints in This Case Reasonable?

[87]          The appellant did not make any request for the destruction of his fingerprints after the Criminal Code charges were withdrawn. His fingerprints therefore remained in both the Toronto Police and the R.C.M.P. databanks at the time a search was done to identify the three fingerprints on the railing in the twelfth floor stairwell where the sexual assault occurred. That retention was authorized by the Identification of Criminals Act, and was reasonable and in accordance with the policy under which the databanks are operated. No issue arises in this case of a refusal in the public interest and the reasonableness of such a refusal. Suffice it to say, that the onus would be on the Crown to justify retention had a timely request been made for the destruction of the fingerprints.           

5.            Conclusion

[88]          The trial judge made no error in admitting the fingerprint evidence as this evidence was not retained by the police in breach of s. 8 of the Charter.

[89]          As I have found no Charter breach, there is no need to consider whether the evidence should have been admitted under s. 24(2).

II.        The Ruling Regarding the Condom Evidence

[90]          The complainant described the condom worn by her attacker as yellow and said that she could see fluid inside it. The investigating officers testified that when they searched the appellant’s car, they found three individually wrapped condoms in yellow wrapping in the driver’s side door compartment. Crown counsel referred to the condoms in his closing address to the jury. He said that the significance of the found condoms was not that there was a way of distinguishing their appearance. Rather, he asked the jury to conclude that the door compartment of the car was an unusually open place to keep condoms and to additionally consider as a piece of evidence the fact that the ones found were yellow and opaque [sic] as the complainant had described.

[91]           In his charge to the jury the trial judge told them that the Crown took the position that there was a circumstance connecting the accused with his fingerprints on the railing, taking together the fact that the complainant said that her attacker wore a yellow condom and the location of three yellow condoms in the door compartment of the appellant’s car.

[92]          The appellant’s brother testified at the trial. At the request of defence counsel, he had shopped for condoms at a drug store and purchased several different kinds. They were marked for identification. The trial judge ruled that they would not be made an exhibit for the jury because they did not contribute nor take away from the case for either side and were irrelevant. The defence wished to show that yellow was a common colour for condoms and therefore finding yellow condoms in the appellant’s car was not significant. The defence renewed its request after opening the packages and finding that 5 of the 7 packages contained light yellow condoms while 2 contained off-white ones. The trial judge maintained his ruling. The condoms found in the door of the appellant’s car were not shown to the complainant.

[93]          The appellant takes the position on appeal that the trial judge erred in not allowing the jury to learn that yellow was a common colour for condoms, given that the condoms and their colour was an important part of the Crown’s case. The appellant also takes the position that the trial judge misstated the defence position on the issue when he told the jury that the defence position was that condoms come "in all sorts of packages and colours" rather than that they are, generally speaking, yellowish in colour. The appellant submits that where the case for the Crown was not overwhelming, as here, the court cannot apply the curative proviso (s. 686(1)(b)(iii) of the Criminal Code) because it cannot be said that any evidence which might have diminished one of the few pieces of evidence relied on by the Crown would not have impacted on the verdict.

[94]          In my view, the trial judge did not err in declining to make the purchased condoms an exhibit. The issue of relevance here is a nuanced one. I agree with the defence that in order to suggest a link between the condom used by the attacker and the condoms found in the appellant’s car, the Crown was relying, in part, on the fact that the one the attacker used and the ones found in the appellant’s car were all yellow. Therefore, it would be relevant for the defence to minimize the significance of the potential link by demonstrating that yellow is a common colour for condoms. However, the defence evidence could not be taken to support the conclusion it proposed. The specific evidence of the appellant's brother was as follows:

[95]          It appears that at the point in time when the appellant led the evidence, the packages had not been opened, so that the colour of the condoms was not known. Later, when the packages were opened, the result of the particular sampling was that 5 out of 7 of the condoms were yellow. This was not a scientific experiment. To draw a conclusion about the colour of condoms generally from this particular sample could well have been misleading.

[96]          In his address to the jury, defence counsel said that the onus was on the Crown to show that the found condoms were other than normal condoms and that the Crown had not done so. The trial judge gave the jury the position of the defence on the issue, expressed in part through the evidence of the appellant's brother, that condoms come in “all sorts of packages and colours,” and that no inference of a connection could be drawn from the condoms found in the appellant’s car. In my view, that is as far as the defence evidence could be taken, without presenting an industry expert or scientific study on the percentage of generally available condoms that are yellow.

[97]          The Crown conceded in the jury address that it was not suggesting that the condoms were the same as the one used by the attacker, but that the jury could consider the possible link of a similar condom with those found not in a private place but in the door of the appellant’s car. It was not a strong piece of evidence. The position of the defence, supported by the shopping evidence of the accused’s brother, was made clear to the jury. I would not give effect to this ground of appeal.

III.            Refusal to Provide a Hair Sample

[98]          The police asked the appellant to provide certain bodily samples. They first asked for buccal and blood samples, which he willingly provided. They later came back for hair samples, which he declined to provide. Evidence was provided by the Crown at trial that because the attacker had used a condom, there was no semen left and therefore, the buccal, blood and saliva samples were of no use in identifying him.

[99]          Crown counsel referred to the appellant’s refusal to provide a hair sample in his opening to the jury. The next day, defence counsel asked the trial judge to declare a mistrial. The trial judge refused to do so, but offered to provide the jury with a limiting instruction. Counsel said he would consider the offer, but never responded to the trial judge. Six days into the trial Detective Schueller testified regarding the investigation conducted in the hours and days following the commission of the offence, including the fact that the appellant provided the police with blood and buccal swabs. Another Detective also gave that evidence. No objection was taken. When Detective Schueller testified that they returned to the appellant’s apartment later to “try to get a hair sample”, the trial judge interrupted and told the jury to ignore that. Later that day he gave a more lengthy instruction essentially telling the jury again to ignore what the witness had said as it was not admissible and therefore not evidence before them. At the end of that day, defence counsel again asked the trial judge to declare a mistrial, which he declined to do. The Crown also elicited from an identification officer the fact that hair samples were retrieved from the crime scene.

[100]      Crown counsel did not mention bodily samples in his closing address. However, in his address, defence counsel used the fact that the appellant willingly provided blood and buccal samples to the police as evidence of post-offence conduct which spoke to the innocence of the appellant.

[101]      The appellant’s objection to the Crown’s opening and other references in the Crown evidence to the appellant’s refusal to provide the police with a hair sample is that it violated the appellant’s right to remain silent. The appellant is correct: R. v. B (S.C.) (1997), 119 C.C.C. (3d) 530 at 545 (Ont. C.A.). The issue is whether the trial judge’s refusal to declare a mistrial is an error which requires this court to order a new trial.

[102]      I am satisfied that in this case, the offer by the trial judge of a limiting instruction (which was never taken up by defence counsel), together with the warning to the jury during and after Detective Schueller’s evidence to ignore the inadmissible portion of her evidence about going back to the appellant’s apartment for the purpose of obtaining a hair sample, were sufficient to overcome any prejudice which the appellant may have suffered as a result of the brief references to the hair sample. The Crown did not ask the jury to draw any inferences from it. In any event, the appellant chose to seek a benefit from the manner in which the sample evidence was limited, when counsel suggested to the jury that the appellant's provision of the three bodily samples that the appellant did provide was evidence of his innocence. The appellant in effect sought to obtain a benefit from his provision of certain samples, and to avoid any detriment from his refusal to provide the hair sample.

[103]      Given the brief references to the hair sample issue and the way this was ultimately dealt with by the trial judge as well as by Crown and defence counsel at trial, I am satisfied that the trial judge did not err in twice refusing to order a mistrial  and that any potential prejudice to the appellant was overcome.

IV.       The Motive of the Police to Lie

[104]      An important part of the appellant’s defence was an attack on the credibility of one of the lead investigating officers, Detective Stokes. In particular, in his closing address defence counsel suggested that the officer (1) had fabricated a significant part of the appellant’s statement to the police regarding when he had last been at the complainant’s apartment building; (2) that the officer had lied when he applied for the search warrant about the complainant seeing her attacker touch the railing during the attack; and (3) that he may have lost or destroyed a condom at the scene containing semen. Crown counsel in response urged the jury to reject the defence position on the credibility of the officer in part because a police officer would not jeopardize his or her career by fabricating evidence.

[105]      In his charge to the jury, the trial judge referred to and reiterated the Crown’s position. No objection was made to this aspect of the charge.

[106]      In R. v. Richards (1999), 26 C.R. (5^th) 286, this court commented that it was an error on the part of the trial judge to introduce into his credibility assessment of a police officer, the possibility that the officer might be discharged if a finding were to be made that his arrest of the appellant was racially motivated. The court noted that such a consideration was irrelevant and could have distorted the trial judge’s assessment of the burden of proof by eliminating the possibility that the trial judge, not being able to choose between the crown and defence on credibility issues, would therefore be left with a reasonable doubt.

[107]      The appellant therefore submits that it was incumbent on the trial judge to instruct the jury that they were not entitled to take into account the consequences to the officer’s career in their assessment of guilt or innocence.

[108]      The absence of a motive to fabricate an allegation is, however, a proper matter for consideration in the course of the fact finding process: R. v. Jackson, [1995] O.J. No. 2471 (C.A.). In this case, the defence directly alleged fabrication, making absence of a motive to fabricate a relevant factor on the issue of credibility. In any event, I do not find that the Crown took a position that linked the jury's verdict to the careers of the officers involved; in Crown counsel's remarks concerning Detective Stokes, consequences to the officer's career were not linked to the verdict, but rather to his alleged fabrication of evidence.

[109]      The trial judge charged the jury properly on the onus on the Crown and on the burden of proof. He also specifically referred to the onus on the Crown to prove that the appellant made the statement attributed to him by Detective Stokes and told them that if they found that he did not make the statement or they had a reasonable doubt about it, they were to ignore the officer’s evidence in that regard. He also reminded them that they could accept all, part or none of the statement.

[110]      In all the circumstances, the reference by the Crown to lack of motive to fabricate by the police officer and the trial judge’s brief repetition of the Crown’s position did not amount to an error requiring a new trial.

CONCLUSION

[111]      I would not give effect to any of the grounds of appeal. I would therefore dismiss the appeal.

Signed:            "K. Feldman J.A."           

                        "I agree Doherty J.A."

                        "I agree Janet Simmons J.A."

RELEASED:"DD" JULY 19, 2002