Canadian Criminal Sentencing/Detention and Forfeiture Under Section 490

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Detention of things search[edit]

Property seized under s. 489.1 while executing a search warrant can be detained on ex parte application to a justice of the peace under s.490:

Detention of things seized
490. (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), 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.

Further detention
(2) Nothing shall be detained under the authority of paragraph (1)(b) 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.

Idem
(3) More than one order for further detention may be made under paragraph (2)(a) 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, 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.

[1]

See also: Canadian Criminal Procedure and Practice/Search and Seizure/Seizure of Property

Forfeiture of things seized[edit]

The property seized under s. 489 and , 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.

CCC

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.[1] It was clearly determined that s. 490(9) does not affect and is not affected by the similar powers found in Part XII.2.[2]

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".[3]

This section in no way requires that there be a conviction before the application for forfeiture can be made.[4]

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.[5]

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."[6] Thus, the Crown can still have property forfeited even where there are underlying criminal charges where there was an acquittal.[7]

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.[8]

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

  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.

The burden is upon the applicant to establish the elements beyond a reasonable doubt.[10]

There is varying case law on whether the normal rules of evidence in criminal matters applies, prohibiting the court cannot consider hearsay evidence.[11]

  1. R v Daley (2001) 156 CCC (3d) 225 (Alta. CA)
  2. British Columbia (AG) v Forseth, (1995) 99 CCC (3d) 296 (BCCA), 1995 CanLII 364 at 24 to 26
  3. British Columbia (AG) v Forseth, (1995) 99 CCC (3d) 296 (BCCA), 1995 CanLII 364 at 30
  4. R v Zamora, [2000] BCJ No. 1480 (PC) at para. 31, 42
  5. Re Mac and the Queen, (1995) 97 CCC (3d) 115 (Ont.CA) at para 31 citing R v Flemming [1986] 1 SCR 415
  6. R v Hicks [2000] BCJ No 2653 (PC) at para 34
  7. eg. R v Horne, [1997] AJ No 71 (CA) - acquitted for robbery but evidence of property connected to a crime
  8. APC Music & Video Inc. v. The Vancouver Police Department and Sergeant Doug Fisher, 2004 BCSC 1657 at 28,34
  9. R. v. Gill, 2007 ABPC 69 at para 28 in the context of money
  10. Canada (A.G.) v. Luther, 2002 NSSC 100 at 5
  11. Refusing hearsay:
    Canada (A.G.) v. Luther, 2002 NSSC 100
    Admitting hearsay:
    R. v. Allan 2003 CanLII 1935 (ON SC), (2003), 64 O.R. (3d) 610 (S.C.)
    see also: R. v. West, 2005 CanLII 30052 (ON CA)

Return of Things Seized[edit]

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

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) 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, where a judge ordered the detention of the thing seized under subsection (3), or
(b) a justice, in any other case,

for an order under paragraph (9)(c) that the thing seized be returned to the applicant.

CCC

For a review of s. 490 see R. v. Raponi, 2004 SCC 50, [2004] 3 SCR 35.