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Indexed as:
R. v. Nicholson

Between
Her Majesty the Queen, and
Edward Nicholson

[1999] B.C.J. No. 1330

42 W.C.B. (2d) 509

New Westminster Registry No. X049016

British Columbia Supreme Court

New Westminster, British Columbia

Boyle J.

Heard: May 27 and 28, 1999.

Judgment: filed June 2, 1999.

(5 pp.)

Criminal law -- Evidence and witnesses -- Admissibility -- Identification -- Line-up -- From

photographs, use of photos by police -- Photo -- Police -- Powers -- Identification of criminals --
Persons who are subject to identification procedures -- Fingerprinting.

This was a voir dire. The accused Nicholson sought to have evidence derived from a police photo
line-up ruled inadmissible, on the basis that his own photo, which was included in the line-up, was
unlawfully obtained. At the time when the photograph had been taken the accused had been arrested
but had not been charged, as required by the Identification of Criminals Act. The Crown argued that
a common law right had been preserved, independent of the Act, to take the accused's photograph or
fingerprints following a lawful arrest. The court had ruled in an earlier decision that the accused's
arrest in this case had been lawful.

HELD: The photo line-up evidence was inadmissible. It was Parliament's intention in enacting the
Identification of Criminals Act that there be either a charge or a conviction before photographs or
fingerprints could be taken. The Act had occupied the field and, therefore, the condition of charge in
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the Act not having been met, the photo and photo line-up evidence was not admissible.

Statutes, Regulations and Rules Cited:

Identification of Criminals Act.

Counsel:

R. Browning, for the Crown. D. Henderson, for the defendant.

1 BOYLE J.:-- In written reasons preceding this ruling in a voir dire, I concluded the defendant
had been lawfully arrested. However, it is agreed as noted in those reasons that he had not been
charged as that word found in the Identification of Criminals Act required.

2 That agreement meant there was no authority under the Identification of Criminals Act ("the
Act") to fingerprint or to photograph the defendant.

3 The Crown argued R. v. Connors (1998), 121 C.C.C. (3d) 358 (B.C.C.A.) is authority for the
preservation of the common law right to fingerprint (and, by analogy, to photograph) upon lawful
arrest.

4 At paragraphs 58 and 59, Cumming J.A. holds:

Thus, the Identification of Criminals Act may be seen not as displacing, but
rather augmenting, the authority which police officers have at common law.
While apart from statute police have the authority to fingerprint persons lawfully
in their custody, s. 2(2) of the Identification of Criminals Act makes it clear that
if the conditions set out in s. 2(1) apply, the police may then use such force as is
necessary to obtain the prints of a person who resists, and s. 3 protects the police
from liability for using such force lawfully.

This was the interpretation placed on the statute by the New Brunswick Supreme
Court Appeal Division in R. v. Hayward (1957), 118 C.C.C. 365. In that case
McNair C.J.N.B. said, The Act, in no way, purports to deal with the admissibility
of fingerprint evidence. Its purpose is to render a person in lawful custody
charged with, or under conviction of, an indictable offence liable to have
impressions of his fingertips compulsorily taken and it provides that such force
may be used in the process as may be necessary to effect the operation without
subjecting the person involved therein to liability, civil or criminal, therefor.
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The right of those concerned with the detection and punishment of crime to take
fingerprints and to submit them as evidence will be found embedded in the
common law.

5 In the Connors case, Donald J.A. reached a consensual result on the appeal but held at
paragraph 103:

In my respectful opinion, it is neither necessary nor appropriate to declare on the

facts of this case a common law power to take fingerprints incidental to a lawful
arrest. This would greatly expand the power of the state to gather and retain
information about individuals and would make redundant the Identification of
Criminals Act and its predecessors which have controlled compulsory
fingerprinting since the procedure began.

6 Whether Connors decides there is a continuing common law right turns on the reasons of
Newbury J.A. The Crown argues her judgment comes down with that of Cumming J.A.

7 Madam Justice Newbury found the Act has displaced the power "there may well have been" at
common law to take fingerprints as part of the general powers of search at the time of arrest.

8 That observation may have been directed to concern expressed by Mr. Justice Donald about
fingerprinting for minor offences, if the common law power were held to be unlimited.

9 Madam Justice Newbury added:

In other words, I read the Act as "occupying the field" and not as augmenting any
powers police officers had at common law.

10 She concluded:

I find it unnecessary to address whether common law powers of fingerprinting

would have violated the Charter.

11 With great respect, I am left uncertain as to the breadth of Madam Justice Newbury's
conclusion - whether it is limited to summary conviction offences or extends to those on indictment
- and I am not sufficiently presumptuous to make an assumption that she joins either Donald J.A. or
Cumming J.A. in her judgment on that question. She expresses caution about deciding the
unnecessary.

12 For those reasons I cannot say Connors binds this court to either position, that of Mr. Justice
Donald or that of Mr. Justice Cumming.
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13 My own conclusion - driven in part by Madam Justice Newbury's reference to the Charter - is
that the Act has occupied the field and, therefore, the condition of charge in the Act not having been
met, the photo and photo line-up evidence is not admissible. I reached that conclusion by asking
what mischief and defect Parliament had sought to cure by passing the Act. What stands out as the
answer to that is Parliament's requirement that there be either a charge or a conviction before
photographs or fingerprints can be taken. An arrest is not enough.

14 It might well also have been intended as a legislative response to the law as set out in Leclair
and Ross v. R. (1989), 46 C.C.C. (3d) 129 (S.C.C.), which was then that the police upon arrest and
charge, had authority to hold an in person line-up but the accused was not obliged to participate.

15 Having taken the right of refusal away, the Act has limited the circumstances under which the
obligation may be enforced. Those circumstances must include the accused having been charged or
convicted.

BOYLE J.
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