Post-Seizure Reporting and Detention and Return of Seized Property

• Author: David Schermbrucker/Randy Schwartz/Mabel Lai/Nader Hasan
• Pages: 535-573

535

Post-Seizure

Reporting and

Detention and

Return of Seized

Property

15

I. Overview ...................................................... 536

II. Section 489.1—Post-Seizure Reporting .............................. 537

A. Returning, Detaining, and Reporting Things Seized .............. 537

B. Filing the Report to Justice “as Soon as Is Practicable” . . . . . . . . . . . 543

III. Section 490—Judicial Supervision of Seized Things .................... 545

A. Section 490(1)(b)—Initial Detention Order .................... 545

B. Section 490(2)(a)—Order for Further Detention

(Less than One Year) ...................................... 548

C. Section 490(3)(a)—Order for Further Detention

(More than One Year) ..................................... 552

D. Sections 490(2)(b), 490(3)(b), and 490(4)—Institution of

Proceedings ............................................. 555

E. Sections 490(6) to 490(8)—First-Party Applications for

Disposition .............................................. 555

F. Sections 490(9) and 9.1—Return, Forfeiture, or Further

Detention ............................................... 557

G. Sections 490(10) to (11)—Third-Party Applications for Return ..... 560

H. Sections 490(12) and (17)—Challenging a Decision ............. 562

I. Sections 490(13) to (14)—Making, Retaining, and Relying

on Copies ............................................... 563

J. Sections 490(15) to (16)—Accessing Seized Things ............. 565

IV. Consequences for Non-Compliance with Sections 489.1 and 490 ........ 566

A. At Trial: Sections 8 and 24(2) of the Charter .................... 566

B. Before Trial: Replevin and Other Applications to the

Superior Court ........................................... 570

Appendix A: Form 5.2—Report to a Justice .......................... 573

© [2021] Emond Montgomery Publications. All Rights Reserved.

536Search and Seizure

I. Overview

An individual’s privacy interest in a thing usually survives its legal seizure by the

police.1 A lawful seizure of a thing means that the interests of law enforcement out-

weighed the individual’s right to privacy, not that the interests of law enforcement

extinguished the individual’s right to privacy. Protecting the residual expectation of

privacy in seized items lies at the heart of the post-seizure obligations on the police.

Failure to comply with those obligations can constitute a stand-alone Charter breach,

separate and apart from the lawfulness of the original seizure.2

With some exceptions, the Criminal Code imposes post-seizure obligations on all

police seizures, whether judicially pre-authorized or otherwise.3 The salient point is

that judicial oversight presumptively applies at each stage where state conduct inter-

sects with an individual’s reasonable expectation of privacy: when the thing is initially

seized by police, after the thing is seized and retained in police custody, and when a

thing is returned to a person or forfeited to the Crown.

Sections 489.1 and 490 of the Criminal Code are intended to be a comprehensive

scheme for judicial supervision over things seized pursuant to federal legislation, sub-

ject to specific provisions in other legislation stating otherwise. Unfortunately, these

sections are “confusing”4 and “convoluted and… tortuous to read.”5 To exacerbate

the problem, post-seizure obligations sometimes attract less upfront attention in the

investigative plan, and less after-the-fact scrutiny in criminal litigation, than issues

relating to the authority to search for and seize the item in the first place.6 Police and

legal practitioners should take heed; it is only a matter of time until the privacy lens

in our modern section 8 Charter jurisprudence expands its view beyond the pow-

ers of search and seizure and refocuses on the landscape of post-seizure reporting,

retention, and forfeiture. Indeed, as the seizure of digital devices and electronic data

becomes more prevalent, the need to enforce post-seizure protections for residual

expectations of privacy becomes more palpable.

This chapter covers the statutory post-seizure obligations owed by the police and

the potential remedies available to the implicated parties, including access, return, or

forfeiture of the seized thing.

1 See R v Colarusso, [1994] 1 SCR 20, 1994 CanLII 134 at 61-64.

2 See e.g. R v Garcia-Machado, 2015 ONCA 569; R v Craig, 2016 BCCA 154 at paras 145-84; Rv

Tsekouras, 2017 ONCA 290 at paras 95-101.

3 See R v Backhouse, 2005 CanLII 4937, 194 CCC (3d) 1 (Ont CA) [Blackhouse cited to CanLII].

4 R v Raponi, 2004 SCC 50 at para 1.

5 R v Alekseev, 1990 CanLII 10992, 58 CCC (3d) 544 at 547 (BC Prov Ct).

6 As the trial judge noted in R v Villaroman, 2012 ABQB 630 at para 131, cited in Garcia-Machado,

supra note 2 at para 29, non-compliance with these provisions was a “not uncommon situation

in police forces across Canada.”

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter 15 Post-Seizure Reporting and Detention and Return of Seized Property 537

II. Section 489.1—Post-Seizure Reporting

A. Returning, Detaining, and Reporting Things Seized

Section 489.1 of the Criminal Code creates a reporting obligation on the police in

respect of all seized things. If a thing is seized, detained, and reported pursuant to

section489.1, the procedural framework in section 490 will govern the future treat-

ment and disposition of that thing.7 One objective of section 489.1 is to facilitate the

return of all seized things to their rightful owners, but its broader and more important

purpose is to regulate state activity that interferes with privacy interests.8

Section 489.1(1) provides as follows:

Restitution of property or report by peace ocer

489.1(1) Subject to this or any other Act of Parliament, where a peace ocer has seized

anything under a warrant issued under this Act or under section 487.11 or 489 or other-

wise in the execution of duties under this or any other Act of Parliament, the peace

ocer shall, as soon as is practicable,

(a) where the peace ocer is satisfied,

(i) that there is no dispute as to who is lawfully entitled to possession of the thing

seized, and

(ii) that the continued detention of the thing seized is not required for the pur-

poses of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled

to its possession and report to the justice who issued the warrant or some other jus-

tice for the same territorial division or, if no warrant was issued, a justice having

jurisdiction in respect of the matter, that he has done so; or

(b) where the peace ocer is not satisfied as described in subparagraphs (a)(i) and (ii),

(i) bring the thing seized before the justice referred to in paragraph (a), or

(ii) report to the justice 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).

Commensurate with its oversight function, section 489.1 has broad application. It

applies where a peace ocer has seized a thing under one of the following situations:

• a warrant issued under the Criminal Code;

7 Its predecessor was enacted in 1985 as part of a slate of amendments to the search and seizure

provisions in the Criminal Code. For a review of the legislative history of s489.1, see Back-

house, supra note 3 at paras 104-8.

8 See e.g. Garcia-Machado, supra note 2 at paras 49-51; R v Flintroy, 2019 BCSC 110 at paras

27-28.

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