Detention Order for Things Seized Under Section 489 or 487.11

From Criminal Law Notebook

General Principles

See also: Procedure on Seizure of Property

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), per Cuthbertson J, at para 10
  2. ↑ R v Backhouse, 2005 CanLII 4937 (ON CA), [2005] OJ No. 754, per Rosenberg JA, 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 SCR 20, per La Forest J , at para 91
  4. ↑ R v Garcia-Machado, 2015 ONCA 569 (CanLII), per Hoy ACJ, at para 66
    R v Pèse Pêche Inc, 2013 NBCA 37 (CanLII), per Deschênes JA
  5. ↑ Pèse Pêche Inc, ibid. ("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)")

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), per Groves J
    R v Wint, 2009 ONCA 52 (CanLII), per curiam

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 [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, 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) [detention of things seized].
...
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49.
[annotation(s) added]

– CCC

Note up: 489.1(2)

Initial Detention Order

See also: Procedure on Seizure of Property

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) [report detained property to a justice] or subsection 489.1(2) [restitution of property or report by peace officer], 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.

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

Purpose

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]

Making a return to the justice is "an integral and essential aspect of the legal execution of the warrant".[2]

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".[3]

It is also to prevent potential laches or lack of good faith on the part of the police and to avoid the items being forgotten.[4]

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." [5]

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".[6]

Mandatory Obligations

The obligations imposed by s. 489.1 and 490 are mandatory.[7]

Consequence of Failure to Comply

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.[8]

Still other courts have been reluctant to provide trial remedies.[9]

The failure to file a report to justice has been described as a "continuing" breach that may taint the whole process.[10]

Onus of Proof

The onus is on the applicant to prove on a balance of probabilities that the provisions were not complied with.[11]

Effect of Order

Once the 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.[12]

  1. ↑ R v Mann, 2012 BCSC 1247 (CanLII), per Bernard J, at paras 71 and 83
  2. ↑ R v Guiller, [1985] O.J. No. 2442 (D.C.), (1985) 25 CRR 273 (Ont. Dist.Ct.) per Borins J at para 41 (complete citation pending) ("I have no doubt that the necessity of making a return is an integral and essential aspect of the legal execution of search warrant. As I will explain, the failure to act in compliance with [the section] removes an important safeguard to the invasion of privacy rights permitted by that section. It is the courts and not the police who determine whether adequate grounds exist for retaining seized materials. When the provisions of [the section] have not been met the search is rendered unlawful")
  3. ↑ Canada Revenue Agency v Nathaniel Okoroafor, 2010 ONSC 2477 (CanLII), per Durno J , at para 18
  4. ↑ R v Adams, 2007 NSPC 1 (CanLII), at para 31 ("purpose has been said to be to prevent the potential for laches and the lack of good faith on the part of seizing authorities and to protect things seized from being forgotten.")
    R v Moyer, 1994 CanLII 7551 (ON SC), , 95 CCC (3d) 174, per Fedak J, at p. 178
  5. ↑ Mann, supra, at para 83
    see also R v Arason (1992), 21 BCAC 20, 1992 CanLII 1008 (BC CA), per Cumming JA (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.), per Biron JA : late filing was a technicality and not enough to invalidate search
    R v Karim, 2012 ABQB 470 (CanLII), per Hughes J ("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.")
  6. ↑ Pickton, supra, at para 60
  7. ↑ R v Pickton, 2006 BCSC 1098 (CanLII), per Williams J, at para 60
  8. ↑ Template:Surpa1: ("When the provisions of [the section] have not been met the search is rendered unlawful") evidence excluded under s.24(2)
    R v Noseworthy, [1995] OJ No 1759, 1995 CanLII 7425 (ON SC) (Ont. Ct. Jus G.D.), per Sedgwick J
    R v Macneil, 1994 CanLII 4314 (NS SC), (1994), 130 NSR (2d) 202 (N.S.S.C), per Davison J
    R v Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (C.A.)(complete citation pending) at para 115
  9. ↑ R v Martens, 2004 BCSC 1450 (CanLII), per Davies J, at para 264
    R v Valiquette, 2010 BCSC 1423 (CanLII), per Halfyard J
    R v Patterson, 2011 BCSC 1728 (CanLII), per Blok J
  10. ↑ R v Garcia-Machado, 2014 ONCJ 81 (CanLII), per Band J, at para 42
  11. ↑ R v Mann, 2012 BCSC 1247 (CanLII), per Bernard J, at para 75
  12. ↑ R v Bellefleur, [1992] S.J. No. 473 (Q.B.), 1992 CanLII 7844 (SK QB), per Armstrong J

Duration of Initial Detention

490
[omitted (1)]

Further detention

(2) Nothing shall be detained under the authority of paragraph (1)(b) [order thing detained] 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.

[omitted (3), (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(2)

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]

Notice

490
[omitted (1), (2), (3), (3.1), (4), (5), (6), (7), (8), (9), (9.1), (10), (11), (12), (13), (14), (15), (16) and (17)]

Waiver of notice

(18) Any person to whom three days notice must be given under paragraph (2)(a) [justice satisfied further detention warranted] or (3)(a) or subsection (7) [application to return property to owner after expiration], (10) [application by lawful owner] or (15) [access anything seized] may agree that the application for which the notice is given be made before the expiration of the three days.
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(18)

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

Extending Initial Detention Order

See Also

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