Forfeiture of Things Detained 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.

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".

Forfeiture of Things Seized

The property seized under s. 489, such as counterfeit products or proceeds of crime, can be forfeited to the Attorney General by way on an application to a court of competent jurisdiction under s.490(9). Section 490(9) is found in Part XV of the Code titled "Special Procedure and Powers" which states:

s. 490...
Disposal of things seized
(9) Subject to this or any other Act of Parliament, if

(a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or

(b) a justice, in any other case,

is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) 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) or (4), 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.

...
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

Jurisdiction
A s. 490(9) order may be considered by:

• a "justice" (see s. 490(9)(b)), which under s. 2 refers to "justice of the peace or a provincial court judge" or
• "a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3)" (see s. 490(7)(a) or 490(9)(a)). Section 490(3) applies to orders extending an initial detention order.

Return of Items
Section 490 permits the return of items where:

1. "the time for detention has expired and proceedings have not been instituted," or
2. "where the time has not expired but the item is not required for an investigation or proceeding".

Forfeiture
Section 490(9) permits forfeiture in two circumstances.

If "periods of detention provided for or ordered ... have expired" then forfeiture may happen where:

1. "proceedings have not been instituted in which the thing detained may be required"
2. "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
3. "the lawful owner or person who is lawfully entitled to its possession is not known"

If periods of detention "have not expired" then forfeiture may happen where:

1. "continued detention of the thing seized will not be required" for a "purpose mentioned in subsection (1) or (4)," which consists of:
   1. "the purposes of any investigation or a preliminary inquiry, trial or other proceeding" (s. 490(1)(a))
   2. the accused has been ordered to stand trial and the property is to be "detained by the clerk of the court and disposed of as the court directs" (s. 940(4))
2. "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
3. "the lawful owner or person who is lawfully entitled to its possession is not known"

The first branch would expect that the initial three month detention has expired, any extension has expired or has not been made, and proceedings have not been instituted against the accused.

This section in no way requires that there be a conviction before the application for forfeiture can be made.

For an application under s. 490(9) to succeed the applicant must establish;

1. items were ordered detained under s.490(1);
2. that the items seized is no longer required for a purpose set out in s. 490(1);
3. the period of detention ordered under s.489 has expired;
4. the item either does not have a lawful owner or the lawful owner is unknown, or the item is tainted by criminality and as such possession is unlawful.

To forfeit under s. 490 the crown should prove that the property "are proceeds of crime or sufficiently associated with criminality that they should be forfeited." Thus, the Crown can still have property forfeited even where there are underlying criminal charges where there was an acquittal.

Presumptions
The person in possession of the seized property is presumed to be in lawful possession unless the Crown proves otherwise. This applies even where the explanation of the source of property is disbelieved. R v Mac (1995), 97 CCC (3d) 115, 1995 CanLII 2071 (ON CA), per Brooke JA at paras 17 to 18
c.f. R v Chan, [2000] NTWJ No 67 (NWTSC) at paras 19 to 27
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Burden of Proof
The burden is upon the applicant to establish the elements beyond a reasonable doubt.

No Longer Required
The required purposes are listed under s. 490(1) to (4).

Owners
For all property seized under s. 490, there is a presumption of lawful entitlement based on possession. It is not for the possessor to prove that the property was not tainted by criminal activity. The crown must prove beyond a reasonable doubt that the possessor is not entitled to the property.

Inapplicability
Section 490(9) does not contemplate the situation where items have been entered in the court record or situations that arise once proceedings are instituted.

Section 490(9) cannot be applied after a criminal proceeding has concluded.

490 Forfeiture vs Proceeds of Crime
Section 490(9) can be used to forfeit crime-tainted cash seized during an investigation. Thus, this provision can be used in much same manner as Part XII.2 provisions for proceeds of crime. It was clearly determined that s. 490(9) does not affect and is not affected by the similar powers found in Part XII.2.

Jurisdiction
For a provincial court judge to have jurisdiction to consider an application under s. 490(9), there must have been an initial application for detention. Without such application, there is no jurisdiction.

Timing of Application
Section 490(9) only contemplates forfeiture before the trial proceedings are complete.

Once proceedings are concluded the prevailing cases suggest that the provincial court does not have jurisdiction, but rather only the superior court retains the inherent jurisdiction to dispose of the property.

Evidence

In order for an application under s.490(9) to be made, all parties must have an "opportunity to call or present evidence and be heard".

There is varying case law on whether the normal rules of evidence in criminal matters applies, prohibiting the court cannot consider hearsay evidence.

Common law

Superior courts have inherent jurisdiction to dispose of property seized under s. 490. This power does not include the power of forfeiture.

Outside of the power of forfeiture under s. 490(9), there is also a common law power under the principle of ex turpi causa non oritur actio.

See Also

• Civil Forfeiture