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S. 490 Applications – Return of Property

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Getting My Property Back!

When people are accused of a criminal offence, the authorities seek to have property related to the criminal offence seized or forfeited because that property has been in some way tainted by criminal activity.

Some of the reasons the authorities try to seize the property are because they allege the property is:

  • Evidence of a criminal offence;
  • Was used to commit a criminal offence; or,
  • Bought with proceeds of a criminal offence.

We have experience in securing the return of property that has been seized and the subject of civil forfeiture proceedings.

We can help you in getting back what is rightfully yours.

Please contact for a free initial consultation at 604-688-8331.

 

Before Trial

 S. 490 Applications

Section 490 of the Criminal Code provides the Police with authority to seize property for up to 90 days pursuant to an investigation.

If 90 days passes and the proceedings (for example criminal charges) have not commenced in which the property is needed, unless the Police apply for an extension and can show the Court why they need more time to hold your property for the investigation.

But the matters do not end there!

Section 489.1 and 490 establish “a predictable, fair, efficient, and orderly procedure for the detention, retention, return, and forfeiture of seized items, consistent with the interests of justice.”

The above provisions intention if the following, “to 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”.

We can oppose the Police’s application for an extension and seek to have the property returned to you by showing either that the Police have not complied with the law in this section or that the items are not still required for their investigation.

We have experience and great success in applying for the return of property. We also have extensive experience in negotiating the return of items from the Police without the need for a 490 application.

It is important to recognize these objectives that were in mind when creating these provisions. You are not powerless and the law seeks to create a balance.

We will help you in achieving that balance, reminding law enforcement of that balance, and giving you a voice within the system.

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 (Applications Must be Made with 3 Clear Days Notice)

Nothing shall be detained for a period of more than three months after the day of the seizure, unless a justice so orders it is warranted in regard to nature of the investigation.

In most situation the justice so orders the property be detained when the property may be required in evidence.

The cumulative period of detention shall not exceed one year from the day of the seizure unless a judge of a superior court of criminal jurisdiction with an application made before them is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted as they may be required.

Where continued detention no longer required

Where at any time before the expiration of the periods of detention provided for a prosecutor, or a peace officer determines that the continued detention of the thing seized is no longer required for any purpose mentioned above they shall

who shall, after affording the person from whom the thing was seized or the person who claims to be the lawful owner thereof or person entitled to its possession, if known, an opportunity to establish that he is lawfully entitled to the possession thereof, make an order in respect of the property under subsection (9).

Application for order of return

A person from whom anything has been seized may, after the expiration of the periods of detention provided and on three clear days notice to the Attorney General, apply summarily for an order under paragraph (9)(c) that the thing seized be returned to the applicant.

An application may be allowed before the periods of detention expire if the justice is satisfied a hardship will result unless the application is allowed.

Disposal of things seized

Where a judge ordered the detention of anything seized and is satisfied that the periods of detention have expired and proceedings have not been instituted and the property seized will not be required for any purpose they shall order the property returned to its lawful owner.

If possession of it by the person from whom it was seized is unlawful, or if the lawful owner is not known, order it to be forfeited to Her Majesty.

Exception

A judge may, if the periods of detention provided for in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied that the thing might reasonably be required or that it is in the interests of justice to do so.

Application by lawful owner

A person, other than a person who claims to be the lawful owner may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily for an order that the thing detained be returned to the applicant.

Detention pending appeal, etc.

Nothing shall be returned, forfeited or disposed pending any application made, or appeal taken, thereunder in respect of the thing or proceeding in which the right of seizure thereof is questioned or within thirty days after an order in respect of the thing is made under this section.

Access to anything seized

A judge on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained.

Right to Appeal

A person who feels aggrieved by an order made may appeal from the order.

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