Accounting for Law
Criminal

Fingerprints taken as a youth – can they be used against me?

By Aliki Yorgiadis

The short is answer is yes. When can they be used against you? The long answer is to look at s. 119(2) of the Youth Criminal Justice Act (YCJA).

This section outlines the various periods of access by those permitted to access the record (who are outlined in s. 119(1) of the YCJA). The time period varies depending on what happens to your youth charges. The section reads as follows:

119(2) Period of access

The period of access referred to in subsection (1) is

(a) if an extrajudicial sanction is used to deal with the young person, the period ending two years after the young person consents to be subject to the sanction in accordance with paragraph 10(2)(c);

(b) if the young person is acquitted of the offence otherwise than by reason of a verdict of not criminally responsible on account of mental disorder, the period ending two months after the expiry of the time allowed for the taking of an appeal or, if an appeal is taken, the period ending three months after all proceedings in respect of the appeal have been completed;

(c) if the charge against the young person is dismissed for any reason other than acquittal, the charge is withdrawn, or the young person is found guilty of the offence and a reprimand is given, the period ending two months after the dismissal, withdrawal, or finding of guilt;

(d) if the charge against the young person is stayed, with no proceedings being taken against the young person for a period of one year, at the end of that period;

(e) if the young person is found guilty of the offence and the youth sentence is an absolute discharge, the period ending one year after the young person is found guilty;

(f) if the young person is found guilty of the offence and the youth sentence is a conditional discharge, the period ending three years after the young person is found guilty;

(g) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is a summary conviction offence, the period ending three years after the youth sentence imposed in respect of the offence has been completed;

(h) subject to paragraphs (i) and (j) and subsection (9), if the young person is found guilty of the offence and it is an indictable offence, the period ending five years after the youth sentence imposed in respect of the offence has been completed;

(i) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an offence punishable on summary conviction committed when he or she was a young person, the latest of

(i) the period calculated in accordance with paragraph (g) or (h), as the case may be, and

(ii) the period ending three years after the youth sentence imposed for that offence has been completed; and

(j) subject to subsection (9), if, during the period calculated in accordance with paragraph (g) or (h), the young person is found guilty of an indictable offence committed when he or she was a young person, the period ending five years after the sentence imposed for that indictable offence has been completed.

A recent decision on retention of fingerprints

In a recent case I argued, my client’s charges as a youth had been dismissed. Section 128(3) of the YCJA outlines when a youth record held under s. 115(3) is to be destroyed. A record shall be destroyed at the end of the applicable period set out in s. 119 or 120.

Based on s. 119(2) above, I successfully argued that the police did not have lawful authority to retain and use my client’s fingerprint outside the two-month period of access when investigating him in a subsequent charge. The fingerprint evidence, as well as all evidence stemming from my client’s arrest was excluded. Ultimately the Crown did not call any evidence on the trial and the charges were dismissed.

How was this print accessed? When police locate a fingerprint on a piece of evidence or at the scene of a crime, that fingerprint is sent for comparison. It is inputted into an electronic database, AFIS (automated fingerprint identification system). In my case, a civilian police employee did this. From there, if the system finds a match, a ‘hit’ comes up. The ‘hit’ in my case was of an archived file, which should have caused some concern. That file then has a code in order to access another database to find more details about who the print belongs to and where it is located. The known print is then sent to another officer who analyzes the print and determines if there is a match to the print that was found. That officer conducts a comparison by physically looking at both prints.

In this case, there was also a physical file of the fingerprint available in the police station that was accessed by officers, so the youth record was accessed twice.  Access to the physical file would not have been available without first accessing the electronic database.

It’s important to look at the origin of the fingerprint being used for identification purposes in any case in order to ensure that the police did have lawful authority to access that ‘known’ print.

Read More at Toronto Criminal Law Blog

To Read More Aliki Yorgiadis Posts Click Here
Lawyer Directory
New Media Forensics (keep up until June 30, 2019)Hexigent Consulting (to remain until August 31/19)DivorcemateFeldstein Family Law (post until May 31/19)Greystones Health Kotak Personal Injury LawyersWill DavidsonAnton Katz (post until June 30/19)