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***Please note the following is not meant to be legal advice, it is simply a discussion about the topic.  If you or someone you know would like to apply to destroy your fingerprint records, please contact the lawyers at Nadi Law in order to schedule a consultation***

If you are arrested in Canada, the police will require that you attend the police station so that fingerprints and photographs can be taken. These records will be kept by the local police as well as shared with the RCMP and local and national databases.

Possession of your fingerprint records by police can have an impact on your life in a number of ways. It may affect your ability to travel, gain employment, or your treatment by police in the future.

If you have been convicted of an offence, there are very limited circumstances in which police will agree to destroy your fingerprint records. Police will not destroy your fingerprint records unless you have received a pardon or a record suspension, however, even that is not guaranteed. If you have been convicted of an offence and would like to get more information about whether or not you will be able to have your fingerprint records destroyed, it is best to speak to an experienced criminal lawyer such as those at Nadi Law.

If you have not been convicted of an offence, it is much easier to apply for your fingerprint records to be destroyed, however there is no guarantee. Examples of non-convictions that would allow you to apply for your fingerprint records to be destroyed include your charges being withdrawn by the Crown, a conditional or absolute discharge, entering into a peace bond, or if you have been found not guilty at trial.

When you are able to apply for the destruction of your fingerprint records depends which police department possess your records and the way that your charges were disposed of. For example, the Toronto Police Service may have different policies than York Regional Police, and you will likely need to wait until a peace bond expires to apply, while you can typically apply after 30 days if your charges have been withdrawn. This information can be found on the fingerprint destruction section of the police department’s webpage, or you can speak to a criminal lawyer and have them assist you with the guidelines for applying. There is typically a $50-$80 fee associated with applying, and if you apply too early, you may need to reapply and pay the fee again.

Unfortunately, applying to have your fingerprint records destroyed does not guarantee that the police will do so. For example, the Durham Regional Police Service state that they may refuse requests if you have a criminal record, the offence related to the fingerprints being taken involves drugs, violence, weapons, or sex, or if you have already had your fingerprint records destroyed. The Toronto Police Service website states that police can refuse to destroy fingerprint records when the alleged offence related to the taking of the fingerprints is a primary or secondary offence under section 487.04 of the Criminal Code of Canada.

Some of these refusals, such as a refusal due to having already had your fingerprint records destroyed before, may not be strictly legal. In the Ontario Court of Appeal decision R. v. Dore, 2002 CanLII 45006 (ON CA) at paragraph 71, the Court says that:

“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.”

The Court went on to say that everyone who has their charges disposed of in their favour (withdrawals, acquittals, discharges, peace bonds) maintains a privacy interest in their records, and this privacy interest should be trumped in only highly exceptional circumstances.

If the police reject your request to have your fingerprint records destroyed because they believe other factors trump your privacy interest, it is possible to challenge this decision through the judicial review process. Judicial review is a process by which courts make sure that the decisions of administrative bodies are fair, reasonable, and lawful. The matter of whether these “other factors” trump your privacy interest is a question of the case law, which is best left to anexperienced criminal lawyer familiar with the judicial review process. Contact Nadi Law today to book a consultation and find out whether you will be eligible to have your fingerprint records destroyed or whether you have a remedy after your application was rejected.