Fingerprint destruction Lawyers in Canada

The Criminal Code ties attendance for fingerprinting to the release process. Section 501(4) says that an undertaking may require the accused to appear at the time and place stated in it for the purposes of the Identification of Criminals Act. The condition applies if the accused is alleged to have committed an offence referred to in paragraph 2(1)(c) of that Act.

Missing that appearance is a separate offence. Section 145(3) applies to a person named in an appearance notice or served with a summons who fails, without lawful excuse, to appear at the stated time and place for the purposes of the Identification of Criminals Act. Section 145(4) applies to a person at large on an undertaking. Each is either an indictable offence with a two-year maximum, or an offence punishable on summary conviction. For a summary conviction offence, section 787(1) sets a fine of up to $5,000, imprisonment of up to two years less a day, or both, unless the law provides otherwise.

A charge is an allegation. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty according to law. Being fingerprinted is not a finding of guilt.

A discharge is a way a court can deal with a finding of guilt. Under section 730(1) of the Criminal Code, a court may, if it considers a discharge to serve the interests of the accused and not to be contrary to the public interest, direct instead of convicting the accused that the accused be discharged absolutely or on the conditions in a probation order. The section does not allow a discharge for an offence with a minimum punishment, or for an offence punishable by imprisonment for fourteen years or for life.

Section 730(3) says the offender is deemed not to have been convicted of the offence, with exceptions that the section lists, such as the right to appeal the determination of guilt.

The Criminal Records Act then limits disclosure. Under section 6.1(1), no discharge record under section 730 that is in the custody of the Commissioner or of any department or agency of the Government of Canada may be disclosed to any person, without the prior approval of the Minister, once a set time has passed. That time is more than one year after an absolute discharge, or more than three years after a discharge on the conditions of a probation order. Under section 6.1(2), the Commissioner must also remove all references to the discharge from the RCMP's automated criminal conviction records retrieval system when the period ends.

The Commissioner in this Act is the Commissioner of the Royal Canadian Mounted Police. Section 6.1 speaks of records in the custody of that office and of federal departments and agencies. It does not mention records held by a municipal or provincial police service.

A record suspension is a different measure, and it applies after a conviction. Section 2(1) defines it as a measure ordered by the Board under section 4.1. The Board is the Parole Board of Canada. Under section 2.1, the Board has exclusive jurisdiction and absolute discretion to order, refuse to order or revoke a record suspension.

There is a waiting period before a person can apply. Section 4(1) makes a person ineligible to apply until a set period has passed after the expiration according to law of any sentence, including imprisonment, a period of probation and the payment of any fine. The period is 10 years for an offence prosecuted by indictment and five years for an offence punishable on summary conviction. Section 4 sets out exceptions and some ineligible persons, so the periods do not apply the same way to every case.

Under section 4.1(1), the Board may order a suspension if it is satisfied that the applicant has been of good conduct and has not been convicted of an offence under an Act of Parliament during the period. For the longer period, the applicant must also show that a suspension would provide a measurable benefit, would sustain their rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute. Section 4.1(2) puts the onus on the applicant.

A suspension can later be revoked. Under section 7, the Board may revoke it if the person is later convicted of certain offences, is no longer of good conduct, or knowingly made a false or deceptive statement in the application.

The statutes read for this page use the word suspension for convictions and the word discharge for discharges. They do not set out a process that destroys fingerprints. Section 6(2) says a conviction record for which a record suspension has been ordered is to be kept separate and apart from other criminal records. It adds that, subject to section 6(2.1), the record and the fact of the conviction are not to be disclosed without the prior approval of the Minister.

There is also a limit on that protection. Section 6.2 says that, despite sections 6 and 6.1, the name, date of birth and last known address of a person whose record is suspended, or who has received a discharge, may be disclosed to a police force if a fingerprint identified as that of the person is found at the scene of a crime during an investigation of the crime. The same applies during an attempt to identify a deceased person or a person suffering from amnesia.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% are completed there. The court publishes daily court lists of adult criminal cases for the current and next day. Youth cases are not on them. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones.

Section 10(b) of the Charter gives everyone on arrest or detention the right to retain and instruct counsel without delay and to be told of that right. Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer for the length of the criminal case. Applications are online or by phone at 1-800-668-8258. The Law Society of Ontario keeps a public Lawyer and Paralegal Directory where a lawyer's licence can be looked up. This site lists Ontario lawyers by city, and nothing on this page ranks or recommends any of them.