Extending an Initial Detention Order

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General Principles

See also: Detention Order for Things Seized Under Section 489 or 487.11

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"

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.[1]

No Extension Needed When Charges Outstanding

Where charges have been laid, detention may be for the duration of the proceedings.[2]

Discretion to Extend

It is at the discretion of the court whether to extend the detention beyond the initial 3 month period of detention.[3]

Procedure

An application to extend the detention under s. 490(2) should include:[4]

  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".[5]

Notice

Notice to the property owner must be made before expiration of the order.[6]

Hearing

An extension hearing is not to be treated as a trial or preliminary inquiry that would justify full disclosure.[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. R v Lam, 2008 BCPC 248 (CanLII), per Giardini J
  2. Canada (A.G.) v Luther, 2002 NSSC 100 (CanLII), [2002] NSJ No 194, per Moir J 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.
  3. Theriault, supra, at paras 25 to 27
    R v Newport Financial Pacific Group S.A., 2003 ABPC 80 (CanLII), 175 CCC (3d) 140, per Allen J, at para 126
  4. R v Thériault et al, 2015 NBPC 9 (CanLII), per Sivret J, at para 22
  5. e.g. see Theriault, ibid., at para 34
  6. R v Hickey, 2003 NBQB 121 (CanLII), per McIntyre J Theriault, supra, at para 22
  7. R v Evangelista, 2001 ABQB 103 (CanLII), per Martin J
  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 by Consent

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
[omitted (1), (2) and (3)]

Detention without application where consent

(3.1) A thing may be detained under paragraph (1)(b) [order thing detained] for any period, whether or not an application for an order under subsection (2) [further detention] or (3) [further detention – exceeding 12 months] 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.
[omitted (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
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.
[annotation(s) added]

CCC


Note up: 490(3.1)

Extension Under 490(3) Beyond One Year

Section 490(3) states:

490
[omitted (1) and (2)]

Idem

(3) More than one order for further detention may be made under paragraph (2)(a) [justice satisfied further detention warranted] 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 [definitions - judges], 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.

[omitted (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16), (17) and (18)]
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.
[annotation(s) added]

CCC


Note up: 490(3)

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

"Nature of the Investigation"

The nature of the investigation will include considerations such as:[1]

  1. whether the investigation by the police has at this stage been shown to be slow, stalled or dilatory and property has not been detained in bad faith.
  2. Whether reasonable resources have been allocated to this particular investigation.
  3. The amount of material seized both documentary and otherwise.
  4. the number of warrants have been executed.
  5. The seriousness of the charges
  6. The number of targets are involved.
  7. Whether the investigation involves not only each target individually but their relationship to each other and to the property seized.
  8. Whether the documents seized are not individually complex but the investigation will involve expert analysis of a large number of financial and other documents to determine whether there are chains of transactions or related transactions.
  9. Whether a document management system is important to the efficient and fair handling of the matter should it proceed and time is required to have documents put into the proper format for that system.
  10. What degree the material seized is relevant to the investigation.
  11. Whether the continued detention of the property is necessary for the investigation to continue based on the anticipated time for completion.
  12. If the continued detention of any particular property works a hardship on the person from whom it was seized that person has the right to make application under s. 490 for release of that property.

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), per Durno J, 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 (ONSC), per Fedak J