Detention of Things Seized Under Section 490

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General Principles

Section 490 provides for a comprehensive scheme for the management, return or disposition of items that have been seized. [1]

Where property seized under s.489.1 has been brought before a justice or a report has been made to justice, the court has an obligation under s. 490 to "supervise its detention".[2]

Where there are privacy interests in the thing seized they remain in place throughout the duration of the seizure.[3]

Making Copies
Records seized and detained under s. 490 may be copied.[4] The police may keep the copies even if the originals are ordered to be returned under s. 490(15).[5]

  1. R v Gehl, 2008 ONCJ 305 (CanLII) at para 10
  2. R v Backhouse, 2005 CanLII 4937 (ON CA), [2005] OJ No. 754 at para 112 ("Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anything seized under s. 489.1, there is an obligation on the justice to supervise its detention.")
  3. R v Colarusso, 1994 CanLII 134 (SCC), [1994] 1 S.C.R. 20 at para 91
  4. R v Garcia-Machado, 2015 ONCA 569 (CanLII) at para 66
    R v Pèse Pêche Inc, 2013 NBCA 37 (CanLII)
  5. Pèse Pêche Inc ("In addition, the investigators have an unequivocal right to keep copies of the seized documents, which they were ordered to return to the appellants (s. 490(13) of the Criminal Code)")

Procedure Upon Seizure of Property

Upon seizing property, the police are obliged to safeguard the items they have seized.[1]

Section 489.1 governs the procedure to be followed by the police upon seizing property, whether under warrant, warrantless, or otherwise under an Act of Parliament including s. 489. This applies to seizure on search incident to arrest as well as seizure incidental to a search warrant.[2]

Restitution of property or report by peace officer
489.1 (1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,
(i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized ... to the person lawfully entitled to its possession and report to the justice who issued the warrant ... or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or

(b) where the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii),
(i) bring the thing seized before the justice referred to in paragraph (a), or
(ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained

to be dealt with by the justice in accordance with subsection 490(1).
...
Form
(3) A report to a justice under this section shall be in the form set out as Form 5.2 in Part XXVIII, varied to suit the case...
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49.


CCC

Under s. 489.1(1)(b)(ii), where the police seize property either in execution of a warrant or otherwise in execution of their duties, they must file a Report to Justice that is filed with the justice of the peace.

This will permit the officer to hold onto the property for a period of 90 days without laying charges. Where further time is needed the officer must apply for a further detention order under s. 490.

Any property seized pursuant to a search warrant "must be carreid before the justice who issued the warrant to be dealt with by him according to law".[3]

"Justice"
The reference to "justice" requires that the application be heard by a justice of the peace or a judge of the provincial court.[4]

Charter
Section 8 of the Charter can apply to the detention of items seized under s. 489 and 489.1.[5] Unreasonable retention of property may give rise to a s. 8 violation.[6]

A failure to report to the justice that the property was seized without warrant is a violation of s. 8 of the Charter.[7]


  1. R v Strilec, 2010 BCCA 198 (CanLII)
    R v Wint 2009 ONCA 52 (CanLII)
  2. R v Backhouse, 2005 CanLII 4937 (ON CA)
  3. AG (Nova Scotia) v MacIntyre, [1982] 1 SCR 175, 1982 CanLII 14 (SCC) at p. 179
  4. see s. 2 "justice" and Definition of Judicial Officers
  5. R v Garcia-Machado, 2014 ONCJ 81 (CanLII), [2014] OJ No 818 at para 50
    c.f. R v Persaud, [2008] OJ No 5077 (SCJ)(*no link)
    c.f. R v Vinneau, 2010 NBPC 19 (CanLII), [2010] NBJ No 122 (PC)
  6. R v Kirubanathan [2011] O.J. No. 5766 (S.C.J.)(*no link)
    R v Poulin [2004] O.J. No. 1354 (S.C.J.)(*no link)
    R v Villaroman, 2012 ABQB 630 (CanLII), [2012] A.J. No. 1425 (Q.B.), appealed on other matters to 2016 SCC 33 (CanLII)
  7. e.g. R v Butters, 2015 ONCA 783 (CanLII) at para 5

Report to Justice

Section 489.1 requires the seizing officer to file a Form 5.2 to the Justice who authorized the search. This requirement applies to seizures under s. 487 and s. 11 CDSA.[1]

A failure to file a report to justice under Form 5.2 does not render a valid search invalid, however, it will render detention of the items unreasonable and in breach of s. 8 of the Charter.[2]

The filing of a report is considered the "gateway" to "important procedural protections under s. 489.1 and 490 and so must be timely.[3] Courts should be "wary of any attempt to characterize the failure to meet the reporting reuqirements ... as trivial or insignificant".[4]

Timing of Filing
The report to justice must be filed "as soon as practiable". Failure to do so may result in a violation of s. 8.[5]

A late filing of Form 5.2 even by a few days will also violate s. 8 of the Charter.[6]

  1. e.g. R v Carpio, 2013 BCPC 305 (CanLII) - discusses requirements under CDSA
  2. R v Craig, 2016 BCCA 154 (CanLII) at para 177 to 184
    R. v. Arason, (1992), 1992 CanLII 1008 (BC CA), 78 C.C.C. (3d) 1 (BCCA) - court says failure to file the form does not affect the validity of the search
  3. R v Reeves, 2017 ONCA 365 (CanLII) at para 78
    R v Garcia-Machado, 2015 ONCA 569 (CanLII) at para 55
  4. Reeves, supra at para 78
  5. R v Butters, 2014 ONCJ 228 (CanLII), at paras 49 to 57 - per Paciocco J.
  6. R v Montgomery, 2016 BCCA 379 (CanLII), per Frankel JA, at para 159 to 160

Specific Scenarios

Inventory Searches

See also: Ancillary Powers Doctrine

Seizure of property will create an authority to perform a warrantless search the items seized for the purpose itemizing them and ensuring safe keeping. It cannot be searched for the purpose of advancing an investigation.[1]

  1. R v Adam 2012 ABPC 77 (CanLII)
    R v Wint 2009 ONCA 52 (CanLII)

Seizure by Non-Peace Officers

489.1.
...
Restitution of property or report by peace officer
(2) Subject to this or any other Act of Parliament, where a person, other than a peace officer, has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, that person shall, as soon as is practicable,

(a) bring the thing seized before the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, before a justice having jurisdiction in respect of the matter, or
(b) report to the justice referred to in paragraph (a) that he has seized the thing and is detaining it or causing it to be detained,

to be dealt with by the justice in accordance with subsection 490(1).
...
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49.


CCC

Detention Order

Section 490 governs the procedure for detaining property seized under s. 489 or 489.1, including obtaining the approval of justice to detain the property for a period of time.

An order can be made by a justice of the peace to allow the police to detain property under s.490(1):

Detention of things seized
490. (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall,

(a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or
(b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

...
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.


CCC

Section 489.1 and 490, together set out an administrative scheme for managing detained property in the course of a criminal investigation as well as returning property.[1]

The purpose of s. 490(1) to (3) is to "enable police to effectively carry out criminal investigations while, at the same time, invoking the Court’s supervisory powers to ensure that there is a proper basis for detaining and continuing to detain items seized and protecting the privacy interests of citizens".[2]

The obligations imposed by s. 489.1 and 490 are mandatory.[3]

These provisions establish "a predictable, fair, efficient, and orderly procedure for the detention, retention, return, and forfeiture of seized items, consistent with the interests of justice." Non-compliance is not to be translated into "substantive trial remedies" such as a stay of proceedings. Failure to comply may result in the return of the property. However, a judge "may not make such an order if it is not in the interests of justice to do so." [4]

Some courts have suggested that a failure to comply with the provisions, in particular, make a filing under s.489.1, will render the search unlawful.[5]

Still other courts have been reluctant to provide trial remedies.[6]

These provisions "safeguard in the balance between the state’s jurisdiction to invade the privacy rights of citizens and the high value that Parliament and the courts have seen fit to ascribe to those rights".[7]

The onus is on the applicant to prove on a balance of probabilities that the provisions were not complied with.[8]

Once property has been detained under s. 490, it is considered "under the control of the court, not the Crown or anyone else." Thus, can only be disposed of pursuant to an order of the court. [9]

  1. R v Mann, 2012 BCSC 1247 (CanLII) at para 71 and 83
  2. Canada Revenue Agency v Nathaniel Okoroafor, 2010 ONSC 2477 (CanLII) at para 18
  3. R v Pickton, 2006 BCSC 1098 (CanLII) at para 60
  4. R v Mann at para 83
    see also R v Arason (1992), 21 BCAC 20 (Report to Justice is “an administrative procedure to be carried out after the completion of a search. Non compliance with it ought not to affect the validity of the search itself."
    R v Berube 1999 CanLII 13241 (QC CA), (1999), 139 CCC (3d) 304 (Que.C.A.) : late filing was a technicality and not enough to invalidate search
    R v Karim, 2012 ABQB 470 (CanLII)("I can think of no [...] situation in our criminal law where a lawful act that meets the requirements of the Charter, ...can subsequently become non Charter compliant because of another action separated by time.")
  5. R v Guiller, (1985) 25 CRR 273 (Ont. Dist.Ct.)(*no link): evidence excluded under s.24(2)
    R v Noseworthy, [1995] O.J. No. 1759, 1995 CanLII 7425 (ON SC) (Ont. Ct. Jus G.D.)
    R v Macneil 1994 CanLII 4314 (NS SC), (1994), 130 N.S.R. (2d) 202 (N.S.S.C)
  6. R v Martens, 2004 BCSC 1450 (CanLII) at para 264
    R v Valiquette, 2010 BCSC 1423 (CanLII)
    R v Patterson, 2011 BCSC 1728 (CanLII)
  7. R v Pickton at para 60
  8. R v Mann, 2012 BCSC 1247 (CanLII) at para 75
  9. R v Bellefleur, [1992] S.J. No. 473 (Q.B.)

Duration of Detention

490.
...
Further detention
(2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless

(a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or
(b) proceedings are instituted in which the thing detained may be required.

...
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.


CCC

Section 490(2) provides no authority for the return of property seized from an unlawful seizure.[1]

The reference to "justice" requires that the application be heard by a justice of the peace or a judge of the provincial court.[2]

  1. R v Raponi, [2004] 3 SCR 35, 2004 SCC 50 (CanLII) at para 31 per McLachlin CJ
  2. see s. 2 "justice" and Definition of Judicial Officers

Extending Time Period of Detention

Under s. 490(2), all property that is seized by police must be released after the detention period. That is, unless there are proceedings "instituted in which the thing detained may be required." (s. 490(2)(b)) This would include criminal charges where the thing may be part of the evidence for trial.

Under s. 490(2)(a), the party may apply to have property seized pursuant to s. 490(1) detained past the time limit where "a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders"

Where charges have been laid, detention may be for the duration of the proceedings.[1]

A provincial court judge does not have jurisdiction to make an order requiring that items seized under a warrant be deposited with the Court for the duration of a contested extension application.[2]

Consent Extension
Under s. 490(3.1), continued detention is permitted where it is for a fixed period of time by consent of the lawful owner in writing:

490
...
Detention without application where consent
(3.1) A thing may be detained under paragraph (1)(b) for any period, whether or not an application for an order under subsection (2) or (3) is made, if the lawful owner or person who is lawfully entitled to possession of the thing seized consents in writing to its detention for that period.
...
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.


CCC

Procedure
A application to extend the detention under s. 490(2) should include:[3]

  1. filing a summary Notice of Application with the Court;
  2. obtaining a hearing date; and
  3. serving the person from whom the things detained was seized with the Notice at least three clear days before the date of the hearing;

When justifying an extension, there should be affidavit evidence explaining how the investigation is "long and complex".[4]

Notice
Notice to the property owner must be made before expiration of the order.[5]

Hearing
An extension hearing is not to be treated as a trial or preliminary inquiry that would justify full disclosure.[6]

A court has discretion to extend the hearing beyond the 3 month period of detention.[7]

Appeal
There is no right of appeal for an order under s. 490(2).[8]

Effect of 1995 Changes to s. 490(2)(a)
Section 490(2)(a) was amended on April 1, 1995.[9] The effect of the amendment was to permit the court to have jurisdiction to render a decision on a s. 490(2) hearing outside of the mandated 3 month period.[10] It does not however eliminate the requirement that there be notice and a hearing prior to the expiration of the 3 month time limit.[11]

  1. Canada (A.G.) v Luther, 2002 NSSC 100 (CanLII), [2002] NSJ No. 194 citing s. 490(4):
    When accused ordered to stand trial
    (4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs.
  2. R v Lam, 2008 BCPC 248 (CanLII)
  3. R v Thériault et al, 2015 NBPC 9 (CanLII) at para 22
  4. e.g. see Theriault, ibid. at para 34
  5. R v Hickey, 2003 NBQB 121 (CanLII) Theriault at para 22
  6. R v Evangelista, 2001 ABQB 103
  7. Theriault, supra at para 25 to 27
    R v Newport Financial Pacific Group S.A. 2003 ABPC 80 (CanLII) at para 126
  8. Raponi, supra
  9. see Hickey, supra
  10. Hickey, ibid. ("It appears clear to me that the only part of the decision in Papalia to be given statutory effect is Legg J.’s conclusion that the decision of the justice or the judge may extend outside the three-month period without loss of jurisdiction. ")
  11. Hickey, ibid.

Extension Under 490(3) Beyond One Year

Section 490(3) states:

490
...
Idem
(3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless

(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or
(b) proceedings are instituted in which the thing detained may be required.

...
R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.


CCC

There is no fixed time limit on investigations.[1]

Burden to Extend
The onus is upon the applicant to establish that further detention is warranted.[2]

Analysis On s. 490(3) Application
The focus on analysis under s. 490(3) is upon the complexity of the investigation and how it creates a need for continued detention.[3]

  1. Agency v Okoroafor, ibid. at para 18 Alberta (Attorney General) v Black, 2001 ABQB 216 (CanLII)
  2. Canada Revenue Agency v Nathaniel Okoroafor, 2010 ONSC 2477 (CanLII) at para 18
  3. Agency v Okoroafor, supra at para 18

Evaluating "Complexity" on an Investigation

The assessment of complexity takes into account "what work is yet to be done, the estimated time for completion and whether the work should reasonably have been done earlier".[1]

An investigation that is complex is "one that has many varied interrelated parts, patterns, or elements and consequently is hard to understand fully. It is an investigation that involves many parts, aspects, details, and notions necessitating earnest study or examination to understand or cope with". It is "intricate and composite", requires "analysis and reflection".[2]

Factors regarding the investigation to consider include:[3]

  • the number of police services and/or government departments involved
  • the involvement of foreign government[4]
  • that the investigation requires the assistance of lawyers, accountants, computer technicians and/or other professionals to decipher the documents or for other purposes
  • that the investigation requires the cooperation of police services other than the applicant and if so, whether those services are in Canada or elsewhere
  • that the investigation requires witnesses to be interviewed outside Canada
  • that the investigation covers an extensive timeframe and/or wide geographical area
  • that there is a confusing paper trail
  • that the offences were committed in more than one jurisdiction, by more than one person or with nominees
  • that complicated and time-consuming net worth calculations are required
  • that it is a paper case, or one where the “tentacles of evidence are wide ranging”
  • that the investigative agency has no control over the timely responses of third parties: Superior Pharmacy;
  • that documents or communications must be translated; and
  • that transcripts of intercepted private communications must be prepared.

Factors regarding the investigators include:[5]

  • the training and experience of the investigators
  • the time dedicated by the investigators
  • the need for further investigation
  • whether further resources would have sped up or delayed the process

Factors regarding the investigators against detention include:[6]

  • "foot dragging"
  • procrastination,
  • prejudice, and
  • bad faith.

Factors weighing against complexity:[7]

  • damages to one’s reputation, financial or emotional hardship,
  • that insufficient resources have been assigned to the investigation,
  • that there is substantial “grunt work” required to complete the investigation,
  • that voluminous material must be reviewed and/or that the investigators did not have enough time to fully review the documents seized, and
  • that there have been difficulties in obtaining information from third parties if procedures that could have required the third party to cooperate more fully, speedily and readily were not employed.

A case's greater demand on resources does not mean that the matter is more complex.[8]

  1. Canada Revenue Agency v Nathaniel Okoroafor, 2010 ONSC 2477 (CanLII) at para 19
  2. Agency v Okoroafor, ibid. at para 20
  3. Agency v Okorafor, ibid. at para 21
  4. Black, supra at para 30
  5. Agency v Okorafor, ibid. at para 22
  6. Agency v Okorafor, ibid. at para 22
  7. Agency v Okorafor, ibid. at para 23
  8. Moyer, Re, 1994 CanLII 7551 (ON SC)

See Also