Canadian Criminal Sentencing/Detention and Forfeiture Under Section 490

Detention of things search
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:

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

Forfeiture of things seized
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:

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.

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".

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

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.

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.

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.

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.

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

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

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

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