Return of Things Seized to Lawful Owners

From Criminal Law Notebook
This page was last substantively updated or reviewed December 2022. (Rev. # 93228)

Release and Return of Property

A Superior Court Justice has inherent jurisdiction under s. 24(1) to order the return of property seized by the police where the items are not needed for trial and otherwise not needed to be held by the police. [1]

  1. ↑ see Butler v Canada (Attorney General), 1981 CanLII 373 (BC SC), 61 CCC (2d) 512, per McLachlin J

Return of Property Upon Quashing of Search Warrant

A court may order the return of items seized upon the quashing of a search warrant.[1] This power arises from the court's incidental authority under s. 24(1) of the Charter.[2] The Crown may prevent the return of the seized items by establishing that the property will still be necessary for a prosecution.[3]

  1. ↑ e.g. see R v Du, 2004 ABQB 937 (CanLII), 378 AR 145, per Macklin J
  2. ↑ Du, ibid., at para 9
  3. ↑ Du, ibid.

Return of Things Seized Under Section 490

The initial possessor of the items can apply under section 490(7) to have the items returned to them. Section 490(7) states:

490
[omitted (1), (2), (3), (4), (5), (6) and (7)]

Application for order of return

(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] and on three clear days notice to the Attorney General, apply summarily to

(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges], where a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or
(b) a justice, in any other case,

for an order under paragraph (9)(c) [disposal of things seized – return to lawful owner] that the thing seized be returned to the applicant.

Exception

(8) A judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges], where a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or a justice, in any other case, may allow an application to be made under subsection (7) [application to return property to owner after expiration] prior to the expiration of the periods referred to therein where he is satisfied that hardship will result unless the application is so allowed.
[omitted (9), (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 (CanLII), (DOJ)

Note up: 490(7) and (8)

Only the provincial court has jurisdiction to hear applications under s. 490.[1]

  1. ↑ R v Flynn, 2011 BCSC 1688 (CanLII), per Goepel J

Third Parties

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9) and (9.1)]

Application for order of return

(10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7) [application to return property to owner after expiration], who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 [restitution of property or report by peace officer] may, at any time, on three clear days’ notice to the Attorney General and the person from whom the thing was seized, apply summarily to:

(a) a judge as defined in subsection (7) [application to return property to owner after expiration] when a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or
(b) a justice, in any other case, ordered that the thing seized be returned to the applicant.

[omitted (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.

– CCC (CanLII), (DOJ)

Note up: 490(10)

For a review of s. 490 see R v Raponi, 2004 SCC 50 (CanLII), [2004] 3 SCR 35, per McLachlin CJ.

Return of Property Seized Under Warrant That is Not Needed

Restitution of thing or report

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 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) 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), 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), if the peace officer is not satisfied as described in subparagraphs (a)(i) and (ii).
Person other than peace officer

(2) Subject to this or any other Act of Parliament, if a person other than a peace officer has seized anything under a warrant issued under this Act, 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 and so that the thing seized may be dealt with in accordance with subsection 490(1),

(a) bring the thing before 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; or
(b) report to the justice referred to in paragraph (a) that the thing has been seized and is being detained.

[omitted (3)]

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 (2)

The reference to "other proceeding" includes a forfeiture hearing following a trial.[1]

  1. ↑ R v Flynn, 2011 BCSC 1688 (CanLII), per Goepel J, at para 20

Return of Property Upon Conclusion Proceedings

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7) and (8)]

Disposal of things seized

(9) Subject to this or any other Act of Parliament, if

(a) a judge referred to in subsection (7) [application to return property to owner after expiration], where a judge ordered the detention of anything seized under subsection (3) [further detention – exceeding 12 months], or
(b) a justice, in any other case,

is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial], he shall

(c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or
(d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession,

and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

Exception

(9.1) Notwithstanding subsection (9) [disposal of things seized], a judge or justice referred to in paragraph (9)(a) [disposal of things seized – judge] or (b) [disposal of things seized – justice] may, if the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied

(a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial]; and
(b) that it is in the interests of justice to do so.

[omitted (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 (CanLII), (DOJ)

Note up: 490(9) and (9.1)

Section 490(9) allows for the return of property where (1) "the time for detention has expired and proceedings have not been instituted", or where (2) "where the time has not expired but the item is not required for an investigation or proceeding"[1]

Section (9.1) is known as the "slip rule" which permits application for further detention where the previous detention order has expired and charges have not been laid.

If however the period of detention has not expired, then s, 490(5) must be considered:

490
[omitted (1), (2), (3), (3.1) and (4)]

Where continued detention no longer required

(5) Where at any time before the expiration of the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized, the prosecutor, or the peace officer or other person having custody of the thing seized, determines that the continued detention of the thing seized is no longer required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial], the prosecutor, peace officer or other person shall apply to

(a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges], where a judge ordered its detention under subsection (3) [further detention – exceeding 12 months], or
(b) a justice, in any other case,

who shall, after affording the person from whom the thing was seized or the person who claims to be the lawful owner thereof or person entitled to its possession, if known, an opportunity to establish that he is lawfully entitled to the possession thereof, make an order in respect of the property under subsection (9) [disposal of things seized].

Idem

(6) Where the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required, the prosecutor, peace officer or other person shall apply to a judge or justice referred to in paragraph (5)(a) [where continued detention no longer required – superior court] or (b) [where continued detention no longer required – provincial court] in the circumstances set out in that paragraph, for an order in respect of the property under subsection (9) [disposal of things seized] or (9.1) [order continued detention – initial detention expired and proceedings not started].

[omitted (7), (8), (9), (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 (CanLII), (DOJ)

Note up: 490(5) and (6)

This section only applies where the detention period has not expired and the property is no longer needed.[2]

  1. ↑ R v Raponi, 2004 SCC 50 (CanLII), [2004] 3 SCR 35, [2004] SCJ No 48, per McLachlin CJ
    see also R v West, 2005 CanLII 30052 (ON CA), [2005] OJ No 3548, per Weiler JA
  2. ↑ R v MacLeod, 2005 MBQB 15 (CanLII), [2005] MJ No 19, per Suche J ("Section 490(5) provides that where the property is no longer required, before any period of detention has expired the police or prosecutor can apply either to the justice, or if a superior court judge ordered an extension, to that judge, for an order under s. 490(9) disposing of the property.")

Continued Detention

The provincial court has jurisdiction under. s. 490(9.1) only where the seizure date was less than a year prior and where the prior detention order was not made by a superior court. Otherwise, only a superior court will have jurisdiction to make an order.[1] This equally applies to orders under s.490(6).[2]

A superior court judge may extend the detention to any amount of time. a provincial court cannot make any order that permits detention beyond a year from the date of seizure.[3]

  1. ↑ Application under s. 490(9.1) of the Criminal Code, 2010 ONCJ 546 (CanLII), per Cuthbertson J
  2. ↑ Application under s. 490(9.1) of the Criminal Code
  3. ↑ Application under s. 490(9.1) of the Criminal Code

Return of Documents Seized Under Section 490

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12)]

Copies of documents returned

(13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1) [detention of things seized], (9) [disposal of things seized] or (11) [order of return or order to forfeit seized property], make or cause to be made, and may retain, a copy of the document.

Probative force

(14) Every copy made under subsection (13) [copies of documents returned] that is certified as a true copy by the Attorney General, the person who made the copy or the person in whose presence the copy was made is admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the original document would have if it had been proved in the ordinary way.
[omitted (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 (CanLII), (DOJ)

Note up: 490(13) and (14)

Application by Lawful Owner

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9) and (9.1)]

Application by lawful owner

(10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7) [application to return property to owner after expiration], who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily to

(a) a judge referred to in subsection (7) [application to return property to owner after expiration], where a judge ordered the detention of the thing seized under subsection (3) [further detention – exceeding 12 months], or
(b) a justice, in any other case,

for an order that the thing detained be returned to the applicant.

Order

(11) Subject to this or any other Act of Parliament, on an application under subsection (10) [application by lawful owner], where a judge or justice is satisfied that

(a) the applicant is the lawful owner or lawfully entitled to possession of the thing seized, and
(b) the periods of detention provided for or ordered under subsections (1) to (3) [detention of things seized without consent (various means)] in respect of the thing seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) [detention of things seized] or (4) [when accused ordered to stand trial],

the judge or justice shall order that

(c) the thing seized be returned to the applicant, or
(d) except as otherwise provided by law, where, pursuant to subsection (9) [disposal of things seized], the thing seized was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant be paid the proceeds of sale or the value of the thing seized.

[omitted (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 (CanLII), (DOJ)

Note up: 490(10) and (11)

See Also

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