R. v. A.S. Date:, 2013 BCPC 373

Citation: R. v. A.S. Date: 20131119 2013 BCPC 0373 File No: 192645-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.S.S. RULING ON VOIR DIRE OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Lee Counsel for the Defendant: E. Duncan Place of Hearing: Surrey , B.C. Dates of Hearing: October 7, 8, 9, 10, 2013

Date of Judgment: November 19, 2013 [ 1 ] THE COURT : A.S.S. (A.S.) is before the court and his trial is underway on the following charges set out in Information 192645-1. Count 1 alleges that on or about the 8th of February, 2012, at Surrey, British Columbia, he did rob Shiu Ram, contrary to s. 344 of the Criminal Code . Count 2 on the same date and in the same circumstances, that he falsely represented himself to be a peace officer by identifying himself as an undercover police officer, contrary to s. 130(1) (

a) of the Criminal Code . In the same circumstances, on the same date, that he committed assault of another person, that is, Shiu Ram, contrary to s. 266 of the Criminal Code . [ 2 ] A voir dire was held at the outset to address the following issues. A.S. asserts that his right to be secure against unreasonable search and seizure under s. 8 of the Charter has been violated in respect of fingerprint evidence the Crown seeks to lead at trial.

He further says that certain assertions made in an Information to Obtain an Impression warrant, which was granted by a judicial justice of the peace, pursuant to s. 487.092 of the Criminal Code , are inaccurate and not supported on amplification. He says that those inaccurate assertions must be excised from the Information to Obtain, leaving no basis to justify the granting of the warrant. He says that admission of the fingerprint evidence in the circumstances would bring the administration of justice into disrepute. He seeks exclusion of the evidence, pursuant to s. 24(2) of the Charter.

The relevant circumstances are the following. [ 3 ] On February 8 of 2012 at 4:10 a.m., Shiu Ram was driving home. He observed a vehicle behind his with flashing lights. He pulled over, believing this to be a police vehicle. He was approached by the East Indian male passenger from the vehicle, who identified himself as a plainclothes police officer. He demanded Mr. Ram's driver's licence, registration and vehicle keys. He was told to get out of the vehicle and to hand over his wallet. At this point, Mr. Ram suspected the individual was not a police officer, he refused to get out, he locked the vehicle doors.

The male attempted to open the driver's door by pulling on the handle. He then punched Mr. Ram in the face with a closed fist through the open driver's window and returned to the suspect vehicle which then drove off. [ 4 ] Mr. Ram contacted police, who conducted an investigation, which included an examination for fingerprints on the driver's door where Mr. Ram said the male grabbed the door. Natalie Melnyk is a forensic identification assistant with the RCMP Integrated Forensic Identification Section. She is trained to locate, preserve and document fingerprints at crime scenes.

She located three fingerprint impressions on the driver's door above the handle and to the right of the window. She lifted those impressions and, on the same day, she sent them by electronic mail to the British Columbia Automated Fingerprint Identification System, which is often referred to as B.C. AFIS. B.C. AFIS is a database of fingerprint records maintained for law enforcement investigative purposes. The AFIS database was searched electronically to determine if there was a possible match between the prints FIA Melynk recovered from Mr. Ram's vehicle and prints in the database.

On February 14, 2012, FIA Melynk sent an e-mail to Cst. Tracy Kerins, one of the investigators, which stated: B.C. AFIS has provided a possible suspect for one of the fingerprints for 2012-17549. Which is a reference to the Ram investigation. She continued: I'll have the identification confirmed by an identification specialist and will get back to you as soon as possible.

That e-mail is Exhibit C on the voir dire . [ 5 ] Later on February 14th of 2012, it appears FIA Melynk sent a second e-mail in which she informed investigators that one of the three lifted prints, referenced as R3B, was associated to a sealed criminal record. It was later established that record was sealed pursuant to the Youth Criminal Justice Act . Pursuant to that Act, FIA Melynk informed investigators the record was associated to A.S., born (d.o.b.). His last known address was provided as (address), Surrey, British Columbia.

That e-mail was not in evidence on the hearing. [ 6 ] The sealed fingerprint record relating to A.S. arose from a police investigation on March 3rd of 2009. At that time, A.S. was a young person under the YCJA. On that morning, as a result of monitoring the Surrey RCMP radio channels, Supt. Cooke attended to a vehicle in the 13200 block of 81st Avenue and he had dealings with the driver, a person identified as A.S. A.S. was formally arrested at the scene by Cst. Schnyder for simple possession of marihuana. The marihuana was in a baggy and weighed about seven grams. A.S. was taken to the police station.

On arrival at the police station, Cst. Shnyder stated that a strip search was conducted to ensure no drugs were concealed on the body. He did so bearing in mind cell phones were found in the vehicle suggesting a possible dial-a-dope operation. Nothing was found on that search. [ 7 ] A.S. was released on a promise to appear for simple possession, contrary to s. 4(1) of the Controlled Drugs and Substances Act .

Pursuant to that promise to appear, he further promised to attend court on May 7th of 2009 and he promised to attend the Surrey RCMP detachment on May 6th, 2009, for the purpose of the Identification of Criminals Act . A.S. attended, as directed, and was photographed and fingerprinted. On May 7th of 2009, the Information charging A.S. with possession of marihuana, contrary to s. 4(1) of the CDSA was sworn. The promise to appear was cancelled and a warrant issued. A.S. was released upon entering into an undertaking before a Youth Court judge on May 15th, 2009.

On September 23rd of 2009, Crown counsel entered a stay of proceedings and the undertaking was cancelled. [ 8 ] Pursuant to s. 4(5) of the Controlled Drugs and Substances Act , simple possession of cannabis marihuana in an amount less than 30 grams is an offence which may only be prosecuted by

summary process. Section 2(1) of the Identification of Criminals Act , to the extent that it is relevant here, states as follows: 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 the Contraventions Act in respect of which the Attorney General within the meaning of that Act has made an election under s. 50 of that Act, or (ii) an offence under the Security of Information Act . [ 9 ] In his evidence, Cst. Shnyder confirmed the arrest related just to the baggy of marihuana and that is what is documented on the promise to appear that he issued.

He said his practice with young persons is to set the fingerprinting date one day before the court date in order to avoid prints of young persons being taken if the charge is not proceeding. He assumes that decision will have been made by the day before the court date. He followed that procedure with A.S. Cst. Shnyder said he knew he could not take fingerprints on a strictly

summary offence but that he can do so for indictable offences, which include hybrid offences, those being offences on which the Crown may elect the process to be followed. He stated in evidence he issued a promise to appear directing an attendance for purposes of the Identification of Criminals Act because, he said, all drug possession offences were hybrid offences. He was surprised when told during his evidence that possession of this small amount of marihuana was a straight

summary offence. He said he has received training respecting the offences on which he is permitted to take fingerprints under the Identification of Criminals Act . He said he was aware there was some significance to the 30-gram amount of marihuana but he could not recall why it was significant. He said at the time of the investigation, he had about six months of practical experience, although I note that he was still misinformed about the

summary nature of simple possession of a small amount of marihuana four years later when he gave evidence in this proceeding. [ 10 ] On February 18th of 2012, Cst. Mark Louie, assigned at that time to the Surrey RCMP Robbery Unit, took conduct of the investigation of the alleged robbery of Mr. Ram. He reviewed reports generated to that point respecting the investigation; he reviewed FIA Melynk's e-mails of February 14, 2012. From this material, he concluded that the accused, A.S., was a possible suspect. On February 21 of 2012, he arranged for Mr.

Ram to view a photo pack line-up, which included a photo of the accused. Mr. Ram picked a different photograph. [ 11 ] On February 23rd of 2012, Cst. Louie prepared a Report to Crown Counsel. In that report, he asserted that a match had been made between the prints on Mr. Ram's vehicle door and A.S. [ 12 ] On February 24, 2012, an Information was sworn charging A.S. with the offences which are before this court today. A warrant issued as process. [ 13 ] On or about March 5th of 2012, A.S. learned the warrant was outstanding. He turned himself in at the Surrey courthouse. He was subsequently released on bail.

Because the arrest and subsequent release occurred at the courthouse, he was not fingerprinted. [ 14 ] The fingerprint evidence was and is central to the Crown's case. The sealed prints could not be used as evidence at trial. Having directed the investigation to A.S., it was now necessary to obtain a new set of A.S.'s fingerprints. Had he turned himself in at a police station, his fingerprints would have been taken at that time. Because he did not do so, another means of obtaining his prints was required. [ 15 ] On March 21st of 2012, Cst.

Louie prepared and swore an Information to Obtain an Impression warrant, pursuant to s. 487.092. That ITO is Exhibit A on the voir dire . He was granted a warrant by a judicial justice of the peace that day to be executed between March 21st and March 30th of 2012, authorizing the detention of A.S. for the purpose of obtaining his fingerprints. The warrant is Exhibit B on the voir dire . [ 16 ] On March 28th of 2012, Cst. Louie executed the warrant. Cst. Louie noted a tattoo on A.S.'s chest when A.S. attended at the door of his residence on Cst. Louie's arrival. Cst. Louie took A.S. to the police station.

On arrival there, Cst. Louie directed A.S. to remove his clothing. He made a record of tattoos on A.S.'s upper chest, left arm and wrist. Cst. Louie said in evidence these observations would be placed on a police database for possible future use as a secondary means of identification. In his evidence, Cst. Louie agreed that the warrant did not grant authority to have the subject remove his clothing. He said he routinely asks people he has arrested at the time of booking whether they have any scars or tattoos. [ 17 ] Cst. O'Hara took the fingerprints of A.S. on this particular date pursuant to the warrant.

A copy of those prints is Exhibit D in these proceedings. In admissions filed as Exhibit G, paragraph 14 states the following: It is Cst. O'Hara's practice to ask all prisoners who are being booked in whether they have any tattoos, scars or other identifying marks.

If so, he will photograph them and ensure that the photographs are uploaded to Surrey RCMP computerized automated booking system, referred to as CABS. [ 18 ] Although no photograph of any of the tattoos has been filed, I note the C216 form containing the prints and photograph of A.S. taken pursuant to the impression warrant includes reference to a tattoo on the chest. [ 19 ] Cpl. Jeffrey Jackson is a member of the Lower Mainland Integrated Forensic Services

section of the RCMP. He is a fully- qualified fingerprint identification specialist with considerable experience. He became involved in the investigation when he received

information from FIA Melynk. Cpl. Jackson said FIA Melynk is trained to attend crime scenes and search for latent fingerprints. She is trained to then develop, lift and preserve those prints and she is trained to submit them to AFIS. She is not trained to compare fingerprints nor is she trained to determine whether or not prints match. Cpl. Jackson said that, following submission of suspect prints to AFIS, if a possible match is found, FIA Melynk is advised. The process, he said, assists investigators to narrow their focus to a particular individual.

Although AFIS reports its findings using conditional language, as a "possible" suspect, the name is only released by AFIS to the investigating agency after AFIS staff have verified that result. [ 20 ] Cpl. Jackson then searches for a known set of prints for the possible suspect using the name, date of birth and last known address provided by AFIS. Using known prints he locates, Cpl. Jackson will then conduct a comparison using those known prints and the latent prints developed from, in this case, the car door by FIA Melynk. A colleague will also compare the prints. [ 21 ] In the present case, Cpl.

Jackson said that on March 6th of 2012, he did a comparison using known prints of A.S. and determined that there was a match with the latent prints from the door. The evidence does not establish the source of the known prints Cpl. Jackson used on March the 6th of 2012. [ 22 ]

Section 113 of the Youth Criminal Justice Act states the following:

(1) The Identification of Criminals Act applies in respect of young persons.

(2) No fingerprint, palm print or photograph or other measurement, process or operation referred to in the Identification of Criminals Act shall be taken of, or applied in respect of, a young person who is charged with having committed an offence except in the circumstances in which an adult may, under that Act, be subject to the measurements, processes and operations. [ 23 ] The Youth Criminal Justice Act then sets out a regime for the retention of records, including fingerprints of a young person, dealt with under that Act. That regime places controls and limits access to those records.

Section 115(1) of the Act provides for retention of such records by a policing agency. Sections 115(2) and (3) state the following:

(2) When a young person is charged with having committed an offence in respect of which an adult may be subject to any measurement, process or operation referred to in the Identification of Criminals Act , the police force responsible for the investigation of the offence may provide a record relating to the offence to the Royal Canadian Mounted Police. If the young person is found guilty of the offence, the police force shall provide the record.

(3) The Royal Canadian Mounted Police shall keep the records provided under (2) in the central repository that the Commissioner of the Royal Canadian Mounted Police may, from time to time, designate for the purpose of keeping criminal history files or records of offenders or keeping records for the identification of offenders. [ 24 ] Section 118(1) of the Youth Criminal Justice Act states: Except as authorized or required by this Act, no person shall be given access to a record kept under ss. 114 to 116 and no information contained in it may be given to any person where to do so would identify the young person to whom it relates as a young person dealt with under this Act. [ 25 ] Section 119(1) sets out a list of persons or agencies who may have access to a record kept pursuant to s. 115 by a police agency.

That access is for a period limited in time pursuant to s. 119(2). In the present case, because the proceedings against A.S. were stayed against him on September 23rd, 2009, s. 119(2)(

d) applies. That subsection states:

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

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. [ 26 ]

Section 128 addresses disposition of records after the applicable period set out in s. 119(2) expires; in this case, one year following the stay of proceedings, being September 23rd, 2010. Section 128(1) provides that following that date: No record kept under ss. 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act or the Young Offenders Act . That is the end of the quote as it is relevant here. Section 128(3) provides:

All records kept under s. 115(3) shall be destroyed, or, if the librarian or archivist of Canada requires it, transmitted to the librarian or archivist at the end of the applicable period set out in s. 119 or 120. [ 27 ] Section 128(5) appears to provide the only basis on which access to A.S.'s fingerprints or related information from 2009 might be justified.

That subsection states the following: Despite ss. (1), (2) and (4), an entry that is contained in a system maintained by the Royal Canadian Mounted Police to match crime scene information and that relates to an offence committed or alleged to have been committed by a young person shall be dealt with in the same manner as information that relates to an offence committed by an adult for which a record suspension order under the Criminal Records Act is in effect.

Section 6.2 of the Criminal Records Act provides the following: Despite s. 6 and 6.1, the name, date of birth and last known address of a person whose record is suspended under s. 4.1 or who has received a discharge referred to in s. 6.1 may be disclosed to a police force, if a fingerprint identified as that of the person is found: (

a) at the scene of a crime during an investigation of the crime, or (

b) during an attempt to identify a deceased person or a person suffering from amnesia. [ 28 ]

Section 129 of the Youth Criminal Justice Act states: No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless the disclosure is authorized under this Act. [ 29 ] The parties are agreed that the legislation would permit the release of A.S.'s name, date of birth and last known address associated to the fingerprint record taken in 2009 for purposes of the investigation and charges before me by virtue of the incorporation of the Criminal Records Act provisions just referred to.

The defence says, however, first, that that record was unlawfully obtained because A.S.'s fingerprinting was not authorized under s. 2(1) of the Identification of Criminals Act and so his s. 8 Charter right was violated. Second, that no common law power exists to fingerprint incidental to an arrest for a

summary offence. Three, in any event, the legislation limits the persons to whom this information may be then disclosed and, specifically, it could not be disclosed to a justice of the peace in the Information to Obtain the Impression warrant. Four, the defence says, specific paragraphs of the Information to Obtain the Impression warrant overstate the information in the hands of Cpl. Louie respecting the comparison of fingerprints at the time the Information to Obtain that warrant was sworn.

The defence says the excising of material from the Information to Obtain the Impression warrant, based on these assertions, or any of them, leaves no basis for the granting of that warrant and the prints obtained when the warrant was executed must be excluded. [ 30 ] I must first determine whether there was a lawful basis upon which A.S.'s fingerprints were taken in 2009 following his arrest for simple possession of less than 30 grams of marihuana. That offence may only be prosecuted by

summary procedure, thus s. 2(1) of the Identification of Criminals Act did not provide and does not provide a lawful basis for fingerprinting of A.S. in those circumstances. The issue then is whether a common law power exists to fingerprint A.S. bearing in mind he was lawfully detained at the time but in respect of a

summary, not an indictable offence. [ 31 ] The authorities address the initial issue of whether or not fingerprinting amounts to a search and then whether common law power to fingerprint exists. All of those authorities, however, relate to indictable offences. [ 32 ] The state of the law on this issue has been canvassed in several cases referred to by counsel. R. v. Bishop 2013 BCSC 552 , a decision of Madam Justice Bruce in the Supreme Court in this province, and R. v. Arthur 2013 BCSC 770 , a decision of Madam Justice Maisonville in 2013, are included in the Crown's book of authorities. R. v.

Pelucco 2013 BCSC 588 , which is a decision of Mr. Justice Halfyard, and R. v. Nguyen 2013 BCSC 950 , a decision of Mr. Justice Williams, are relied on by the defence. Pelucco predates the decision in Arthur by several weeks but does not appear to have been referred to by Madam Justice Maisonville. [ 33 ] Mr. Justice Williams' decision had the benefit of each of those recent analyses. He chose to follow the reasoning of Mr. Justice Halfyard in Pelucco . In Pelucco , the officer investigating indictable drug offences arrested the accused. No charge had yet been laid.

He relied, he said, on the common law police power to fingerprint and photograph the accused. He then released the accused on an appearance notice. As in the case before me, the fingerprints of the accused were important evidence in the case. [ 34 ] The defence position was that the taking of the prints amounted to a search which was prima facie unreasonable because it was not conducted pursuant to the Identifications of Criminals Act provision and there was no common law power to take prints before charge.

The Crown argued that the taking of prints was not a search and, alternatively, the search was authorized at common law. [ 35 ] Mr. Justice Halfyard referred to the confused state of the law. At paragraphs 118 to 122 of that decision, he stated the following:

[118] In my opinion, both of the issues raised here were decided by the Supreme Court of Canada in R. v. Feeney, (SCC), [1997] 2 SCR 13. I think the court decided that the taking of a person's fingerprints is a search within s. 8 of the Charter and that the police continue tohave the power at common law to take fingerprints of persons who have been lawfully arrested for an indictable offence. As I see it, thedebate on these issues, which seems to persist, should be brought to an end. I will explain my reasons for saying this. [119] The judgment of the majority in R. v.

Feeney held that taking the fingerprints of an arrested person was a search under s. 8 of theCharter, in that it constituted 'a search and seizure related to the appellant's body'. (para 60). This statement of the law has never beenreversed by the Supreme Court of Canada and has been accepted in subsequent cases (for example, see the judgment of the Ontario Courtof Appeal in R. v. Door (2002), (ON CA), 166 CCC (3d) 225 at para 32. [120] Eight of the nine judges in R. v.

Feeney agreed that fingerprinting a suspect who was under lawful arrest for an indictable offenceis an incident of arrest and does not violate the Charter of Rights. These eight judges also agreed that this issue had been decided in R. v.Beare but Mr. Justice Sopinka writing for the majority of five found, that the arrest of the appellant was unlawful and so the commonlaw rule did not apply (see para. 60). Speaking for three of the four dissenting judges, Madam Justice L'Heureux-Dubé found that thearrest was lawful and so there was no Charter violation (see para. 179). [121] In R. v.

Connors, the Court of Appeal was referred to R. v. Feeney and the case was quoted and accepted by Cummings, J.A., atparagraph 60 of his reasons. Madam Justice Newbury held at paragraph 117 that the Identification of Criminals Act displaced only thecommon law police power to fingerprint persons arrested for

summary conviction offences. By necessary implication, Newbury, J.,agreed with Mr. Justice Cummings' decision that the police continued to have the power at common law to fingerprint persons lawfullyarrested for indictable offences. Mr. Justice Donald thought it unnecessary and undesirable to decide the issue. [122] In my opinion, our Court of Appeal has adopted the law on these issues as stated by the majority in R. v.

Feeney and agreed withby three dissenting judges, which I would paraphrase in this way: The police continue to have the power at common law to take the fingerprints of a person who has been unlawfully arrested for anindictable offence as a search incidental to that arrest. [36] Most recently, in R. v. Nguyen, after referring to all of the recent reviews of this issue, Mr. Justice Williams stated the followingat paragraph 124: Having examined the authorities with some care, I find myself minded to agree with the analysis and the succinct conclusion reached byHalfyard J. in R. v. Pelucco.

He accepted that the process of taking fingerprints is in fact a search, as established in R. v. Feeney. Healso concluded that the police have a common law power to take fingerprints of a person who has been arrested for an indictableoffence. He takes the view, persuasively, in my estimation, that R. v. Connors decided that the Identification of Criminals Act displacedonly the common law police power to fingerprint persons arrested for

summary conviction offences, but that the police continue to havethe power at common law to fingerprint persons lawfully arrested for indictable offences. [37] The Crown says the analysis should focus on the degree to which A.S. had a reasonable expectation of privacy in hisfingerprints considering he was under lawful arrest. The Crown says that in those circumstances his expectation of privacy in respect tohis prints is reduced. The Crown referred to R. v. Beare (1988), (SCC), 45 CCC (3d) 57 (SCC) where, at paragraph59, Mr.

Justice La Forest for the Supreme Court of Canada stated: It seems to me that a person who was arrested on reasonable and probable grounds that he has committed a serious crime or a personagainst whom a case for issuing a summons or warrant or confirming an appearance notice has been made out must expect a significantloss of personal privacy. He must expect that, incidental to his being taken in custody, he will be subjected to observation, to physicalmeasurement and the like. Fingerprinting is of that nature.

While some may find it distasteful, it is insubstantial, of very short durationand leaves no lasting impression. There is no penetration into the body and no substance is removed from it. [38] I note Mr. Justice Halfyard referenced the Beare decision in his very recent analysis.

In my view, considerations such asreduced expectation of privacy and the relatively non-intrusive nature of the procedure, may be relevant when considering whether theCrown has overcome a finding that the search is prima facie unreasonable and, ultimately, should an analysis under s. 24(2) of theCharter be undertaken. [39] I choose to follow the reasoning in R. v. Pelucco and R. v. Nguyen. In those decisions, I conclude that the taking of fingerprints

is a search and subject to s. 8 consideration. It is clear from those decisions that, although a common law power to fingerprint on lawful arrest continues to exist in respect to indictable offences, there is no such authority to fingerprint for offences which may be prosecuted only by

summary procedure. [ 40 ] The Crown has brought to my attention R. v. Multani 2002 BCSC 68 , a decision of Mr. Justice Curtis. It related to photographing a suspect on a provincial offence of driving while prohibited and so prosecutable only by

summary procedure. The issue was a photograph the officer took to assist him in later identifying the person in court. The court found that photographing did not violate the accused's s. 8 rights. The Crown argues, by analogy, that fingerprinting on a strictly

summary offence should similarly be found not to violate s. 8. I note photographing is provided for under the provisions of the Identification of Criminals Act where that Act applies. I have concluded that Multani does not assist the Crown. I note in his reasons at paragraph 23, Mr. Justice Curtis stated: Because traffic enforcement officers frequently experience drivers unable to produce driver's licences, giving false names, Cst.

Fedirchuk and others adopted a practice of taking Polaroid pictures which they did not publish but kept solely for the purpose of their own notes. [ 41 ] That is not the case with the fingerprints of A.S. They are not kept solely for the investigator's assistance in that case. Those prints go into a national repository available subject to the restrictions on access in issue in a case like this.

The analysis applicable to a photo taken of the individual at-scene for the sole use of that officer to assist him with later identification, if necessary, and not intended to be placed in a national database is not the analysis that should apply here. In any event, that analysis is now subject to the specific observations made in the very recent decisions referred to in which a specific delineation between indictable and

summary proceedings with specific reference to fingerprinting has been identified. [ 42 ] Thus, I conclude A.S. was subject to an unlawful search when his fingerprints were taken in 2009. That search was not justified under the Identification of Criminals Act and no common law power to search has been shown to exist in respect of a straight

summary prosecution offence. The search is prima facie unreasonable. [ 43 ] In considering whether the Crown has displaced a prima facie finding that the obtaining of A.S.'s prints in 2009 was unreasonable, I have considered the following: 1. In the case of a

summary offence, there is simply no power to take prints even in the case of a lawful arrest. 2. A.S. was a young person at the time. A rigorous regime is established under the Youth Criminal Justice Act to ensure that access to records, including fingerprints after the expiry of the specified time period, occurs only in very limited circumstances. 3. Those fingerprints, even when available, can be used for a limited purpose and only specifically identified persons are entitled to see that information. 4.

Section 128(3) of the YCJA makes specific provision for destruction of records kept under s. 115(3) at the end of the specified access period, although that does not appear to have occurred in this case. Further, the provisions of s. 113(2) of the Youth Criminal Justice Act , earlier set out, strengthen the argument that the Youth Criminal Justice Act regime emphasizes the special care to be taken in protecting YCJA records and the care that must be taken in developing the original record, including care to ensure fingerprints of young persons are only taken when authorized. Further, although Mr.

Justice La Forest in Beare referred to the minimally intrusive nature of fingerprinting, his analysis was in the context of the very serious offence of break-and-enter and involved an adult without the same protections as those present in the YCJA for records involving young people.

His analysis in that respect predates the Youth Criminal Justice Act provisions. [ 44 ] I conclude that at least in respect of the fingerprinting of young persons under the YCJA, if there is a reduced expectation of privacy, it is not so reduced that the search in the circumstances before this court is reasonable. [ 45 ] I find A.S.'s right to be secure against unreasonable search and seizure was breached and his fingerprints were taken unlawfully in 2009. [ 46 ] I conclude that references to the fingerprints taken from A.S. in 2009 set out in paragraphs 19, 20 and 31(

d) must be excised from the Information to Obtain the Impression warrant sworn March 21st, 2012. [ 47 ] The 2009 prints are central to the investigation because they focus the investigation on A.S. When that information is excised from the Information to Obtain, no basis remains for the issuance of the impression warrant. The resulting detention of A.S. on March 29, 2012, was arbitrary. The taking of his fingerprints that day amounting to a search, which was warrantless and prima facie unreasonable. [ 48 ] The Crown has not demonstrated circumstances on which I could find that warrantless search to be reasonable.

Although A.S. was an adult, his detention was unlawful and I am now referring to the subsequent printing under the impression warrant. The entire process which led to that unlawful detention traced back to the prints in 2009 obtained through an unlawful search when he was a youth. The argument in Beare of a reduced expectation of privacy in those fingerprints is not supported to elevate the search to a reasonable level. [ 49 ] For completeness, I am going to refer to the second argument for exclusion which was advanced by the defence. The defence has argued that Cst.

Louie overstated the facts in the Information to Obtain the Impression warrant. Specifically, the defence says the following assertion by Cst. Louie in the Information to Obtain are not accurate. Paragraph 20(

d) states the following:

I read an electronic mail dated February 14, 2012, from FIA Melynk regarding her involvement on Surrey RCMP file 1217549 and learned in part the following: (

d) Fingerprint R3B was identified to the left index finger of A.S. with a date of birth of (d.o.b.). The last known address of A.S. was (address). [ 50 ] The defence says this is not accurate because AFIS' e-mail refers only to a "possible" suspect. This conditional wording is the usual form used by AFIS in communicating back to the investigating agency. The circumstances surrounding this assertion are somewhat confused. An initial e-mail from FIA Melynk on February 14, 2012, is Exhibit C on the voir dire . It refers to a possible suspect provided by B.C. AFIS.

That e-mail is properly described in paragraph 19 of the Information to Obtain. It appears that a second e-mail from FIA Melynk on February 14, 2012, is the basis for the assertion set out in paragraph 20. However, that e-mail is not an exhibit and so there is not the opportunity to assess the accuracy of the assertion of Cst.

Louie in the Information to Obtain against that original document and FIA Melynk was not called on the voir dire . [ 51 ] It appears from the way paragraph 20 is constructed that it may be a précis of some of the contents of that second e-mail and not a verbatim recitation of the statements made in the e-mail. Cst. Louie's evidence is that Cpl. Jackson conducted the comparison. Cpl. Jackson's evidence is that he did so on March the 6th. On the other hand, the Crown argues that in the absence of evidence to the contrary, Cst. Louie's statement in paragraph 20 should be accepted.

It speaks for itself. [ 52 ] The defence also takes issue with paragraphs 31(

c) and (

d) of the Information to Obtain which state: I have reasonable grounds to believe information concerning the offence will be obtained through the use of the impression warrant. I base my belief on the following: (

c) Police submitted the fingerprints recovered from the driver's side doorframe to B.C. AFIS for comparison against known fingerprints. (

d) The fingerprint recovered during the forensic examination of the driver's side doorframe submitted to B.C. AFIS have now been matched to the known fingerprints of A.S. [ 53 ] The defence says the assertion of a match in paragraph 31(

d) is not borne out by the evidence. I disagree. The assertion is that the prints from the doorframe sent to AFIS "have now been matched." I take that to mean that, as of the date of the Information to Obtain, March 21, 2012, there had been a match. We know that Cpl. Jackson matched the print on the door to a known print of the accused on March 6th. The source of those known prints is not established on the evidence. Cpl. Jackson was not asked about their source. I accept, however, that the assertion in paragraph 31(

d) at the time it was made was accurate. On this argument put forward by the defence, even were I to excise the assertion made in paragraph 20(d), the assertion in paragraph 31(

d) would stand. [ 54 ] The third argument advanced by the defence is that the investigator was not authorized to inform the judicial justice of the peace of the existence of the YCJA record in the ITO. He argues the regime established in the YCJA allows for certain specific individuals to have access to the information and a JJP is not on that list. I choose not to resolve that issue. It is not necessary for me to do so in the course of reaching the conclusion already stated that A.S.'s s. 8 right has been violated.

In my view, a fuller argument would be required which might include a consideration of the specific legislation creating the office of justice of the peace. [ 55 ] A final issue then is consideration under s. 24(2) of the Charter ; whether, despite the breach of A.S.'s s. 8 Charter right, admission of the prints obtained on March 29, 2012, pursuant to the invalid impression warrant would bring the administration of justice into disrepute.

The analysis "must be understood in the long-term sense of maintaining the integrity and public confidence in the justice system." It is not the response to the exclusion of evidence in the particular case but "the overall repute of the justice system viewed in the long term…" which is important. It is an objective assessment from the perspective of a reasonably well-informed member of the public familiar with values underlying the Charter. ( R. v. Grant 2009 SCC 32 at para. 68 ) [ 56 ] Three issues must be assessed and balanced.

The first is the seriousness of the Charter-infringing state conduct where admission of the evidence may send the message that the justice system condones serious state misconduct. It is the gravity of the offending conduct by those "whom the rule of law requires uphold Charter rights which is in issue." ( R. v. Grant , para. 73 ) [ 57 ] Paragraph 75 in Grant speaks directly to the circumstances in this case: Extenuating circumstances, such as the need to prevent he disappearance of evidence, may attenuate the seriousness of police conduct that results in a Charter breach [see R. v. Silviera ].

Good faith on the part of the police may also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court disassociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.

It should also be kept in mind that for every Charter breach that comes before the court, many others may go unidentified and unaddressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour,

therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse, tends to support exclusion. (Note supporting citations not included.) [ 58 ] The original 2009 prints are the root of the investigation of A.S. Without intending to be overly critical of Cst. Shnyder, who set that process in motion, there was no lawful justification for directing A.S. attend to provide these prints. The constable did not consider the Controlled Drugs and Substances Act or the Identification of Criminals Act . He was not aware of the significance to be placed on the 30 gram level of marihuana and did not inquire. He was then, and continued to be, misinformed about the

summary status of that small amount of marihuana and that he could not fingerprint for that offence. It may well be that in similar circumstances, with this misunderstanding, numerous people believed they were required to provide their fingerprints when that was not the case. Although the procedure is minimally intrusive, it is clear that the legislative regime under the YJCA considers the fingerprint record of a young person to be important because substantial safeguards are in place to protect access to that record.

In those circumstances, I cannot conclude that there is only a modest privacy interest in that record, particularly as it applies to young people. [ 59 ] The breach in this case was not wilful or intentional. On the other hand, the police were not acting in good faith. There was an ignorance of the law. No steps were taken to determine what could and could not be done and that ignorance continued to the trial date.

Although the analysis now alters the emphasis to be placed on conscripted evidence, I note that ultimately in this case the accused was conscripted to provide evidence against himself where no lawful authority to do so existed. This is not a case of a discretion exercised inappropriately. I conclude the offending state conduct was significant. [ 60 ] The second issue to consider is the impact of the breach on the Charter-protected interest of the accused where admission may send the message that individual rights count for little. In R. v.

Grant , the Supreme Court of Canada noted that s. 8 protects the right to privacy and human dignity. Violation of an individual's security where a high expectation of privacy exists is more serious. Here, fingerprinting is not so intrusive as, for example, a strip search.

I note here the procedure is minimally intrusive but the implication of having a record in the national database is nevertheless, in the eyes of Parliament, as discussed a moment ago, a significant matter relative to young persons and for this reason, unlawful retrieval of that record and retention must be viewed as having a more than passing or trivial impact on the accused's Charter-protected interest. [ 61 ] I note in the present case that at the time A.S. was arrested in 2009, he was subjected to a strip search. No obvious basis for that to be carried out was provided.

Further, at the time the impression warrant was executed, he was told to remove his shirt in order to document tattoos for future reference, a procedure which was not authorized under the warrant. Although not determinative themselves, these are considerations which further strengthen the argument favouring exclusion of evidence. [ 62 ] The third line of inquiry addresses society's interests in seeing serious criminal cases resolved on their merits at trial and generally argues for admission of the evidence. Although the charge before the court here is serious, I note the concern expressed in R. v.

Grant for the vital interest the public has "in a justice system which is beyond reproach." ( R. v. Grant , para. 84 ) [ 63 ] When these considerations are balanced, admission of this evidence would bring the administration of justice into disrepute. The fingerprints taken pursuant to the impression warrant on March 28th of 2012 will be excluded. (RULING CONCLUDED)