In March, 1980, RCMP in Kelowna, B.C., dragged a 16-year-old youth from his jail cell and forcibly took his fingerprints. At the time, it was a common enough scene. Encouraged by a social trend that promotes treating juvenile offenders as adults—and armed with a B.C. attorney general’s directive supporting them under the federal Identification of Criminals Act— B.C.’s police routinely fingerprinted youths.
No longer. In a prolonged court battle, the 16-year-old sued the arresting officer and the attorney general for assault—and last week was awarded $500 in damages. On top of tha¡ B.C. Supreme Court Chief Justice Allan McEachern has ruled that police may no longer fingerprint juveniles without their consent. Says legal services lawyer Jean Lytwyn, who arrived at the Kelowna jail soon after the youth’s arrest for theft of a truck: “The kid didn’t want to be fingerprinted.” Suspecting
the procedure was illegal, Lytwyn suggested taking the matter to court the morning after the arrest. The police declined, fingerprinted the youth despite Lytwyn’s objections, and Lytwyn subsequently turned the case over to Kelowna lawyer Greg McDade. Said McDade: “I took the case because I had the feeling the kid was right.”
A young idealist with a number of juvenile clients and a background in environmental law, McDade said it made him “damned angry” that police would fingerprint a youth before a court hearing. “I’m not worried about using fingerprints to detect crimes. It’s only the record-keeping function I’m after. A lot of kids grow up when they’re 16 to 19, and most of them straighten out when you treat them all right.”
In the nearly two years during which he handled the case, the lawyer wrote to the RCMP demanding an investigation, and to the attorney general asking for an apology to his client. When neither was forthcoming, McDade pursued the issue through the courts.
At stake was a grey area of the law, interpreted differently throughout the country. The forcible taking of fingerprints is legal where suspects are charged with indictable offences. But juveniles, because of their age, are subject to lesser charges for the same crimes. Canadian law, unlike its U.S. counterpart, allows illegally obtained evidence to be admitted in court. McDade argued that juvenile offenders must be treated separately and that, under the present act, juvenile offences did not warrant fingerprinting. “It
makes good sense,” he says, “to draw the line and treat these kids as kids.”
But when the precedent-setting B.C. Supreme Court decision in the case was handed down, not everyone was as pleased as McDade. “It’s a retrograde step,” said Peter Insley, a legal officer for the B.C. attorney general’s office. “It will tie the hands of the police. This decision has, in effect, shut down fingerprinting.” And, in fact, soon after the ruling the attorney general’s office changed directives, if not directions. Advising that police officers may now
be sued for juvenile fingerprinting, the attorney general’s office recommended that the practice “be terminated.” Although controversy surrounds the issue now (and the attorney general’s office announced late last week that an appeal will be launched), the problem may finally be straightened out sometime next year when Parliament acts on the new Young Offenders Act. That act would permit juvenile fingerprints to be taken. But police would have to destroy the files if the youth were acquitted or if proceedings against him were discontinued.
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