Fingerprints: The Law

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1.0 Criminal Code 

667. (1) In any proceedings,

(a) a certificate setting out with reasonable particularity the conviction or discharge under section 730, the finding of guilt under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, the finding of guilt under the Youth Criminal Justice Act, or the judicial determination under subsection 42(9) of that Act, or the conviction and sentence or finding of guilt and sentence in Canada of an offender, signed by

(i) the person who made the conviction, order for the discharge, finding of guilt or judicial determination,

(ii) the clerk of the court in which the conviction, order for the discharge, finding of guilt or judicial determination was made, or

(iii) a fingerprint examiner,

is, on proof that the accused or defendant is the offender referred to in the certificate, evidence that the accused or defendant was so convicted, so discharged or so convicted and sentenced or found guilty and sentenced, or that a judicial determination was made against the accused or defendant, without proof of the signature or the official character of the person appearing to have signed the certificate;

(b) evidence that the fingerprints of the accused or defendant are the same as the fingerprints of the offender whose fingerprints are reproduced in or attached to a certificate issued under subparagraph (a)(iii) is, in the absence of evidence to the contrary, proof that the accused or defendant is the offender referred to in that certificate;

(c) a certificate of a fingerprint examiner stating that he has compared the fingerprints reproduced in or attached to that certificate with the fingerprints reproduced in or attached to a certificate issued under subparagraph (a)(iii) and that they are those of the same person is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate; and

(d) a certificate under subparagraph (a)(iii) may be in Form 44, and a certificate under paragraph (c) may be in Form 45.

2.0 Identification of Criminals Act, RSC 1985, c I-1

2. (1) The following persons may be fingerprinted or photographed or subjected to such other measurements, processes and operations having the object of identifying persons as are approved by order of the Governor in Council:

(a) any person who is in lawful custody charged with or convicted of

(i) an indictable offence, other than an offence that is designated as a contravention under theContraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, or

(ii) an offence under the Security of Information Act;

(b) any person who has been apprehended under the Extradition Act;

(c) any person alleged to have committed an indictable offence, other than an offence that is designated as a contravention under the Contraventions Act in respect of which the Attorney General, within the meaning of that Act, has made an election under section 50 of that Act, who is required pursuant to subsection 501(3) or 509(5) of the Criminal Code to appear for the purposes of this Act by an appearance notice, promise to appear, recognizance or summons; or

(d) any person who is in lawful custody pursuant to section 83.3 of the Criminal Code.

(2) Such force may be used as is necessary to the effectual carrying out and application of the measurements, processes and operations described under subsection (1).

(3) The results of the measurements, processes and operations to which a person has been subjected pursuant to subsection (1) may be published for the purpose of affording information to officers and others engaged in the execution or administration of the law.

3.0 Constitutional Issues Regarding Fingerprints

Requiring a person to appear at a specific time and place and submit to the fingerprinting process on pain of imprisonment infringes section 7. However, the infringement does not violate the principles of fundamental justice, as the process of fingerprinting does not unduly invade the rights of the accused, and little indignity is attached to having one's fingerprints taken. The common law experience and legislative practice both indicate that custodial fingerprinting has not been considered fundamentally unfair. The police discretion to fingerprint or not is an essential, judicially recognized feature of the criminal justice system. 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. Sections 8, 9, 10, 11(c) and (d) of the Charter were not violated: R v Beare, [1988] 2 SCR 387  

The principal issue on appeal was 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 theCharter and consequently an unconstitutional retention and use of the fingerprints.

There is no constitutional requirement for the police 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. After all, it is that person who is in the best position to know his or her record, and it is reasonable to expect that a person who is concerned about fingerprints would inquire about having them returned or destroyed: R v Dore (2002), 162 OAC 56

4.0 Challenges to the Admissibility of Opinion Evidence on Fingerprints

The American cases Llera Plaza I and Llera Plaza II, as they are known, documented the first time in which a modern court submitted the reliability of fingerprinting to rigorous analysis.

In the first Llera Plaza decision, Justice Pollack used the Daubert criteria to strongly criticize the validity of fingerprinting as a science, and suggested the curtailment of fingerprint examiners’ ability to testify to “absolute conclusions”.

The court finds that ACE-V does not adequately satisfy the "scientific" criterion of testing (the first Daubert factor) or the "scientific" criterion of "peer review" (the second Daubert factor). Further, the court finds that the information of record is unpersuasive, one way or another, as to ACE-V's "scientific" rate of error (the first aspect of Daubert's third factor), and that, at the critical evaluation stage, ACE-V does not operate under uniformly accepted "scientific" standards (the second aspect of Daubert's third factor).

…Accordingly, this court will permit the government to present testimony by fingerprint examiners who, suitably qualified as "expert" examiners by virtue of training and experience, may (1) describe how the rolled and latent fingerprints at issue in this case were obtained, (2) identify and place before the jury the   fingerprints and such magnifications thereof as may be required to show minute details, and (3) point out observed similarities (and differences) between any latent print and any rolled print the government contends are attributable to the same person. What such expert witnesses will not be permitted to do is to present "evaluation" testimony as to their "opinion" (Rule 702) that a particular latent print is in fact the print of a particular person.

Justice Pollack did, however, take judicial notice of the fact that it was beyond reasonable dispute that the fingerprints of each person (a) are unique to that person and (b) are (barring some serious and deeply penetrating wound to the hand that substantially alters or defaces the surface of one or more of the fingers or of the palm) permanent from birth until death.

Following the first decision in Llera Plaza, the American government moved for reconsideration of the ruling, arguing that its prosecutorial effectiveness, both in the case at bar and in other cases in which fingerprint identification could be expected to play a significant role, would be seriously compromised by the preclusion of opinion testimony at the "evaluation" stage "that a particular latent print is in fact the print of a particular person." In response, Justice Pollack conducted a brief review of supporting literature and stated:

I have concluded that arrangements which, subject to careful trial court oversight, are felt to be sufficiently reliable in England, ought likewise to be found sufficiently reliable in the federal courts of the United States, subject to similar measures of trial court oversight. In short, I have changed my mind: United States v Llera Plaza, 188 F Supp 2d 549 (ED Pa 2002)

5.0 Application and Acceptance of Fingerprint Evidence at Trial

In Lepage, the Supreme Court addressed the question of whether or not the inference of possession can be drawn from the presence of fingerprints. The Court ruled that it was a question of fact depending on all the circumstances of the case and all the evidence adduced.

The accused was convicted of possession of LSD for the purpose of trafficking. In a search of the house the accused was renting, in which he sublet two of the rooms, the police found a clear plastic zip-lock bag containing blotting paper impregnated with 682 "hits" of LSD under a sofa in the living room where the accused and his girlfriend had been sitting. The only identifiable fingerprints on the bag were those of the accused. The issue at trial was to determine whether the trial judge was entitled to infer that the accused had possession of the LSD from the presence of his fingerprints on the plastic bag, as well as any other evidence at trial.

The Court held that the fact the fingerprints were found on the bag and not on the blotter paper itself was merely another factor to be taken into account in deciding whether or not to draw the inference of possession based on the totality of the evidence adduced. The fact the accused's fingerprints were on the bag was considered highly probative of possession of the drugs: R v Lepage (1995), 95 CCC (3d) 385 (SCC)

In Mars, the Ontario Court of Appeal found that the presence of a fingerprint was not, by itself, sufficient to establish identity. Rather, the Court of Appeal held that the probative value of fingerprint evidence would depend on an assessment of the strength of the evidence as a whole.

The accused, Mars, successfully appealed his conviction for a home invasion robbery. The only issue at trial was identity, and the only evidence connecting the accused to the robbery was his fingerprint found on a pizza box that was used as part of a ruse to gain entry into the apartment. There was no way of identifying when the accused's fingerprint was placed on the box. The trial judge found that the accused was involved in the home invasion beyond a reasonable doubt, but the Court of Appeal held that the verdict was unreasonable. The probative value of fingerprint evidence depended on the totality of the evidence. The fingerprint evidence standing alone did not permit any inference as to when the accused's fingerprint was placed on the box: R v Mars, [2006] OJ No 402 (CA)

In Nicholl, the Ontario Court of Appeal again addressed the probative value of fingerprint evidence. Like inMars, Nicholl involved a single fingerprint presented in the absence of other corroborating evidence. The accused, Nicholl, was convicted for the theft of a motor vehicle and a related break and enter. The vehicle was recovered by police two weeks after being reported stolen. The only evidence connecting Nicholl to the offence was a soda can inside the stolen vehicle that contained his thumbprint. The owner of the vehicle confirmed that the pop can was not inside the vehicle prior to its theft. The trial judge found that the presence of the pop can inside the stolen vehicle was sufficient to connect Nicholl to the offences.

On appeal, the court held that there was an insufficient evidentiary footing at trial to support an inference of guilt based on the doctrine of recent possession. There was no evidence that Nicholl ever had possession of the vehicle, nor was there any evidence that indicated when or how the pop can was placed inside the stolen car. There was no demonstration that Nicholl had been in recent possession of the soda can or explanation of how he had come to dispose of it. Nicholl's thumbprint was found on the pop can, but not on any of the stolen property. The presence of Nicholl's thumbprint on the pop can established that he handled the pop can, but did not prove anything else: R v Nicholl, [2004] OJ No 4308 (Ont CA)

Following the trend of Mars and Nicholl, the Ontario Court of Appeal in D.D.T. held that prints found on a window were insufficient evidence to connect the accused with the crime in question. In D.D.T, the accused was convicted for a break and enter. His fingerprints were found on the windows. On appeal, the accused argued that evidence fell short of establishing his connection to the offence. The investigating officer testified that the prints he had lifted were on the ends of the panes of glass where someone would touch to remove the windowpanes, and that the prints looked new. The Crown argued that the prints were sufficient evidence to support the trial judge's inference that the fingerprints were placed on the window panes in connection with the crime, in that it supported the inference that the appellant had grasped the window panes on the edges in order to lift them out of their casings to break and enter the building. The Court disagreed and concluded that the Crown's evidence amounted to nothing more than that the appellant, at some point in time during or prior to the time of the break-in, touched windows that were used on that day to gain entry to the building: R v DDT, [2009] OJ No 5486 (Ont CA)

In Rajalinkham, unlike in Mars, Nicholl, and D.T.T, the court held that the print in question was sufficient to establish identity when assessed as part of the evidence as a whole. The accused had appealed his conviction for assault causing bodily harm and related offences. One of the perpetrators smashed the rear window of the complainant's car. The accused's palm print was found directly over the top of the vehicle's smashed window. The expert testified that he would be surprised if the print had been there for more than two weeks and that the print's position would have been anatomically awkward for someone simply leaning on the car. The trial judge found the palm print consistent with guilt. The appeal was dismissed, as the trial judge was entitled to the conclusion that the circumstantial evidence of the palm print was consistent with guilt and inconsistent with any other rational conclusion, including innocent explanations suggested by the accused: R v Rajalinkham, [2005] OJ No 2240 (Ont CA)

R. v. J.J and R. v. P.W.L are cases dealing with the actual testimony and evidence of the fingerprint examiner.

In P.W. L., the examiner attempted to explain the fingerprint analysis approach. On cross-examination, he advised the court that there had been no “minimum points” requirements since the early 1970s. Instead, areas of similarity had become the focus. The examiner told the court that it was a subjective process, and that he knew that there had been a positive identification before he checked the print, but he always comes to his own conclusion and did so in this case. He explained that he looked for points of similarity as well as points of dissimilarity and came to the conclusion that it was the accused’s print: R v PWL, 2004 BCPC 193

In J.J., the court revealed its concerns with the expert evidence tendered in support of a palm print identification. The expert in question had failed to produce an expert report in advance of trial, had misidentified two digits, and had failed to advise anyone that the print taken from the bank was compared against a print taken from the accused for another arrest and not from the arrest for the offence in question. Other oversights and documentary errors brought to light during his testimony, as well as his apparent refusal to acknowledge other recognized methods of identification, led to the court declaring his evidence to be unreliable: R v JJ, 2012 ONCJ 133