Criminal database is exceeding its reach

Published on July 4, 2013

The National Repository of Criminal Records (NRCR), a national criminal record database maintained by and under the authority of the RCMP, collects and archives a vast quantum of criminal record information relating to individuals in Canada. In addition to gathering and warehousing data related to criminal conviction records, the NRCR retains criminal non-conviction record particulars, including, inter alia, acquittals, prosecutorial stays of proceedings, withdrawal of criminal charges, fingerprints and photographs.

The RCMP’s Policy for the Retention and Destruction of Non-Conviction Information — Adults (see rcmp.gc.ca), outlines the discretionary criteria employed by our national police force to determine whether criminal non-conviction information contained in the NRCR is retained or destroyed. When considering a person’s request for the destruction of his/her criminal non-conviction information record, the RCMP, pursuant to its policy, considers the nature and recentness of the criminal charge. Criminal non-conviction information related to serious criminal offences such as murder, treason, aggravated assault, sexually based offences and offences related to terrorist activity is retained by the RCMP for a minimum of five years from the date of the court decision.

Criminal non-conviction information, according to the RCMP, may be used by Canadian police agencies for operational activities, including crime scene investigations, identification and investigative purposes. The information, the force states, is not normally used for background checks or employment screening purposes; furthermore, the RCMP claims that the Identification of Criminals Act, a federal statute, provides the requisite, legal authority to keep criminal non-conviction information, including fingerprints and photographs, even if the court decision resulted in a non-conviction!

The Identification of Criminals Act (section 2(1)) provides the statutory authority for Canadian police forces, including the RCMP, to fingerprint and photograph individuals. This section states, among other things, that individuals, if charged with or convicted of an indictable criminal offence, can be fingerprinted and photographed; moreover, the act does not state, expressly or impliedly, that the RCMP has the legal authority to retain the fingerprints, photographs and other criminal non-conviction information of an individual who is neither charged with nor convicted of an indictable criminal offence.

The RCMP notes that its Policy for the Retention and Destruction of Non-Conviction Information — Adults aims to balance an individual’s privacy interests with public safety. The RCMP’s public safety perspective appears to be exclusively founded on the premise that the nature and recentness of a criminal charge laid against an individual dictates a potential public safety issue, irrespective of the fact that the criminal charge resulted in an acquittal by a court of competent criminal jurisdiction; a prosecutorial stay of proceedings; withdrawal

of criminal charges by the Crown;

or some other finding of not guilty/non-conviction remedy available to any criminal accused under a Canadian criminal and constitutional law paradigm.

The Identification of Criminals Act must be amended to allow for the mandatory, automatic removal and destruction of criminal non-conviction information contained in the NRCR, after relevant time periods have expired for Crown stays of proceedings and Crown appeals of acquittals. Parliament must ensure that this objective is given priority in federal criminal justice legislation.

Criminal charges which result in findings of guilt and convictions result in criminal records. Criminal charges which do not result in  criminal findings of guilt do so because, for example, the accused was found not guilty and lawfully acquitted; the Crown entered stays of proceedings on the charges; or the Crown withdrew the criminal charges do not result in criminal records. The RCMP needs to embrace this basic Canadian criminal law concept.

Colin James Hall writes from St. John’s.