Canadian Criminal Procedure and Practice/Search and Seizure/Seizure of Property

Seizure of Things Not Specified
Section 489 authorizes police officers to seize certain property. It specifically addresses the situation where police seek to seize property other than what is specified in the warrant.

Under s. 489, a peace officer in lawful execution of their duty may seize anything without a warrant that they reasonably believe to be:
 * 1) obtained by crime;
 * 2) used in a crime; or
 * 3) affords evidence of a crime.

All items that are seized must be reported to a justice of the peace pursuant to s. 489.1. The justice of the peace will grant a detention order for a period of time. The property must be returned on the expiration of the order unless the justice grants an extension under s. 490(1) or if charges are laid.

This section does not codify or incorporate any part of the common law doctrine of "plain view".

Procedure Upon Seizure of Property
Section 489.1 governs the procedure to be followed by the police upon seizing property, whether under warrant, warrantless, or otherwise under an Act of Parliament including s. 489. This applies to seizure on search incident to arrest as well as seizure incidental to a search warrant.

Under s. 489.1(1)(b)(ii), where the police seize property either in execution of a warrant or otherwise in execution of their duties, they must file a Report to Justice that is filed with the justice of the peace.

This will permit the officer to hold onto the property for a period of 90 days without laying charges. Where further time is needed the officer must apply for a further detention order under s. 490.

Inventory Searches
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.

Detention Order
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):

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.

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, "may not make such an order if it is not in the interests of justice to do so."

Other 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.

Still other courts have been reluctant to provide trial remedies.

The obligations imposed by s. 489.1 and 490 are mandatory.

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".

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

Once 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.

Extending Time Period of Detention
Under s. 490(2), all property that is seized by police must be released after the detention period. That is, unless there are proceedings "instituted in which the thing detained may be required." (s. 490(2)(b)) This would include criminal charges where the thing may be part of the evidence for trial.

Under s. 490(2)(a), the party may apply to have property seized pursuant to s. 490(1) detained past the time limit where "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"

Release and Return of Property
A Superior Court Justice has inherent jurisdiction 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.

Release of Exhibits for Testing
All objects that are put in as exhibits before the court may be released for the purpose of testing on application of a party.

Section 605 states:

The application may be made before either a superior court judge or a provincial court judge on three days notice.

Once the proceedings are complete and all avenues of appeal are exhausted this section no longer applies to exhibits.

Media Access to Exhibits
The right to access to exhibits flows from the "open court principle".

Dagenais/Mentuck test should apply to requests of third-parties to access exhibits.

The test requires the party opposing access to show that it is "necessary to prevent a serious risk to the proper administration of justice and that the salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public."

Exigent Circumstances
Under s.117.02, an officer believes that a firearm or related item "was used in the commission of an offence" or where there was, or is ongoing, an offence where the subject-matter is a firearm or related item and the officer believes the item "is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house", then the officer may search the premises or person without a warrant, so long as it under exigent circumstances where it "would not be practicable to obtain a warrant".

Failure to Produce Authorization
Under s. 117.03, where a person is found in possession of a firearm or related items and cannot produce the appropriate documents authorizing them to possess it, an officer may seize the items. If the proper documentation is produced within 14 days, the officer must return the items seized. If 14 days pass without producing the authorization, the officer may apply to the court to have the firearm forfeited.

Danger to self or public
Under s.117.04, an officer may seize a firearm from someone in lawful possession of it where the officer believes he may pose a danger to themselves or the public. A warrant is required unless there are exigent circumstances such that "by reason of a possible danger to the safety of that person or any other person, it would not be practicable to obtain a warrant".(s. 117.04(2))

Under s.117.05, the officer may apply to forfeit the firearm after 30 days where it can be established that forfeiture is in the "interests of the safety of the person". (see Canadian_Criminal_Sentencing/Ancillary_Orders/Forfeiture)