Procedure on Seizure of Property

From Criminal Law Notebook
This page was last substantively updated or reviewed September 2022. (Rev. # 92716)

General Principles

See also: Seizure of Property

Section 489 and 489.1 govern the handling of property that attracts ownership and privacy rights.

Upon warrantless seizure of property under s. 489, 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]

The purpose of filing a report to justice under s. 489.1 is to place the property under judicial oversight. It creates accountability and imposes a measure of protection upon the property.[3]

Restitution of property or report by peace officer

489.1 (1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 [where warrant not necessary] or 489 [seizure of things not specified with or without warrant] 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) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that
(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and
(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or
(b) bring the thing seized before a justice referred to in paragraph (a) [returned detained property seized], or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1) [detention of things seized], if the peace officer is not satisfied as described in subparagraphs (a)(i) [no dispute of entitled possession] and (ii) [property not needed for any proceedings].

[omitted (2)]

Form

(3) A report to a justice under this section shall be in Form 5.2 [forms], varied to suit the case.
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49; 2022, c. 17, s. 26.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 489.1(1) and (3)


Defined terms: "peace officer" (s. 2), "person" (s. 2), "property" (s. 2), and "justice" (s. 2)

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 carried before the justice who issued the warrant to be dealt with by him according to law."[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 a warrant is a violation of s. 8 of the Charter.[7]

See Exclusion of Evidence Under Section 24(2) of the Charter

  1. R v Strilec, 2010 BCCA 198 (CanLII), 256 CCC (3d) 403, per Ryan JA
    R v Wint, 2009 ONCA 52 (CanLII), 184 CRR (2d) 57, per curiam
  2. R v Backhouse, 2005 CanLII 4937 (ON CA), 194 CCC (3d) 1, per Rosenberg JA
  3. R v Canary, 2018 ONCA 304 (CanLII), 361 CCC (3d) 63, per Fairburn JA, at para 45 ("Section 489.1 should not be conceptualized as a meaningless exercise in paperwork. Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight. It provides for a measure of police accountability when dealing with property seized pursuant to an exercise of police powers. This provides an important measure of protection to the party who is lawfully entitled to the property, but also provides a measure of protection to the police who become the custodians responsible for the property seized.")
  4. AG (Nova Scotia) v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, per Dickson J, at p. 179
  5. R v Garcia-Machado, 2014 ONCJ 81 (CanLII), [2014] OJ No 818, per Band J, at para 50
    cf. R v Persaud, [2008] OJ No 5077 (SCJ)(*no CanLII links)
    cf. R v Vinneau, 2010 NBPC 19 (CanLII), [2010] NBJ No 122, per LeBlanc J
  6. R v Kirubanathan, [2011] OJ No 5766 (SCJ)(*no CanLII links)
    R v Poulin, [2004] OJ No 1354 (SCJ)(*no CanLII links)
    R v Villaroman, 2012 ABQB 630 (CanLII), [2012] AJ No 1425 (Q.B.), per Yamauchi J, appealed on other matters to 2016 SCC 33 (CanLII), per Cromwell J
  7. e.g. R v Butters, 2015 ONCA 783 (CanLII), per curiam, at para 5

Report to Justice

See also: List of Criminal Code Forms

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 requirements ... 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]

Effect of the Filing

Thefiling of a report "places the property within the purview of judicial oversight."[7] This includes allowing the property to be dealt with according to s. 490(1).[8]

Section 487 Warrants

Section 487 also contemplates a requirement for a Report to Justice being made:

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 [see forms] that there are reasonable grounds to believe that there is in a building, receptacle or place

[omitted (a), (b), (c), (c.1) and (d)]
(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1 [restitution of property or report by peace officer].

[omitted (2), (2.1), (2.2), (3) and (4)]
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11; 2019, c. 25, s. 191; 2022, c. 17, s. 16.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 487(1)


Defined terms: [[Definition_of_Judicial_Officers_and_Offices#.22Justice.22|"justice" (s. 2)]] and "territorial division" (s. 2)

  1. e.g. R v Carpio, 2013 BCPC 305 (CanLII), per Mrozinski J - discusses requirements under CDSA
  2. R v Craig, 2016 BCCA 154 (CanLII), 335 CCC (3d) 28, per Bennett JA, at paras 177 to 184
    R v Arason, 1992 CanLII 1008 (BCCA), 78 CCC (3d) 1, per Cumming JA - court says failure to file the form does not affect the validity of the search
  3. R v Reeves, 2017 ONCA 365 (CanLII), 350 CCC (3d) 1, per LaForme JA, at para 78, overturned at SCC on other grounds
    R v Garcia-Machado, 2015 ONCA 569 (CanLII), 327 CCC (3d) 215, per Hoy ACJ, at para 55
  4. Reeves, supra, at para 78
  5. R v Butters, 2014 ONCJ 228 (CanLII), 311 CCC (3d) 516, per Paciocco J, at paras 49 to 57
  6. R v Montgomery, 2016 BCCA 379 (CanLII), 341 CCC (3d) 147, per Frankel JA, at paras 159 to 160
  7. Canary, 2018 ONCA 304 at para. 45}} ("Filing the initial report under s. 489.1(1) is the act that places the property within the purview of judicial oversight.")
  8. Peel Regional Police Service v. Latanya Grant, 2022 ONSC 287 (CanLII), per Woollcombe J, at para 22

See Also