INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the options for detention and return of seized items during investigations and legal proceedings.
SECTION WORDING
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.
EXPLANATION
Section 490(1) of the Criminal Code of Canada outlines the procedure and rules for the handling of seized items. The section states that if anything is seized pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), it must be brought before a justice or reported to a justice. The justice must then make an order regarding the detention or return of the seized item. If the lawful owner or person entitled to possession of the thing seized is known, the justice must order it to be returned to them. However, if the prosecutor or peace officer is able to show that detention of the item is necessary for the purposes of an investigation or legal proceeding, the justice may order it to be detained. Reasons for detention could include ensuring the evidence is preserved until the conclusion of an investigation or until it is required for legal proceedings. The prosecutor or peace officer must take reasonable care to ensure the item is preserved and protected during detention. Overall, this section ensures that seized items are handled fairly and appropriately, balancing the need for evidence in legal proceedings with the rights of individuals to possess their lawful property.
COMMENTARY
Section 490(1) of the Criminal Code of Canada is an important safeguard against unreasonable search and seizure. It provides guidance on what should happen when something is seized by law enforcement, and outlines the process for determining whether or not it should be returned to the rightful owner or held for investigative purposes. Under this section, if something is seized and brought before a justice, the justice must make a decision based on several factors. The first consideration is whether or not the lawful owner or person entitled to possess the thing seized is known. If they are known, the justice must order that the thing be returned to them, unless there is a compelling reason to keep it for investigative purposes. This provision aims to protect the property rights of individuals who may have been subject to an improper seizure or search. By ensuring that items are returned to their rightful owners whenever possible, the law recognizes the importance of respecting an individual's privacy and property rights. However, if the prosecutor or law enforcement officials can show that the thing seized needs to be detained for investigative purposes, the justice may order that it be held. In this case, the justice must take reasonable care to ensure that the item is preserved until the conclusion of the investigation or any other legal proceedings. This provision is also an important safeguard for law enforcement agencies, as it allows them to hold onto items that may be crucial to an investigation or trial. The provision recognizes that in certain circumstances, retaining the thing seized may be necessary to ensure that justice is served. In addition, this provision helps ensure that any evidence used in court is reliable and admissible, as it requires law enforcement officials to take reasonable care to preserve the item until it is required to be produced in court. By doing so, the provision helps to promote fairness in the criminal justice system by ensuring that all parties have access to the same evidence. Overall, Section 490(1) of the Criminal Code of Canada is an important provision that helps ensure that individuals' property rights are protected while also allowing law enforcement to conduct investigations effectively. It recognizes the need for a balance between the interests of individuals and the interests of society, and provides guidance on how to achieve that balance in cases involving seized property.
STRATEGY
Section 490(1) of the Canadian Criminal Code outlines the actions that must be taken by a justice when property has been seized pursuant to paragraph 489.1(1)(b) or subsection 489.1(2). The section provides that the justice must order the return of the seized property to the lawful owner or person lawfully entitled to possession, unless there is a reason to detain the property for the purposes of an investigation or legal proceeding. One strategic consideration when dealing with this section is to carefully review the circumstances under which the property was seized. If there are any doubts about the legality or validity of the seizure, it may be possible to challenge the seizure and have the property returned immediately. Additionally, it is important to keep in mind the potential impact that the detention of property could have on an investigation or legal proceeding. If the property is critical to the case, it may be necessary to detain it for the duration of the investigation or until it is needed for trial. Another strategic consideration is to carefully document all actions taken in relation to the seized property. This includes ensuring that the property is properly stored and secured and that any testing or analysis is carried out carefully and accurately. Additionally, it is important to maintain accurate records of all interactions with the property and any individuals involved in the case. Strategy wise, negotiating with the prosecutor could be employed to come to an agreement about the need for detention of property. Depending on the circumstances, it may be possible to reach an agreement that allows for the property to be released sooner or to be subjected to additional testing or analysis prior to trial. Another potential strategy is to appeal to the justice overseeing the case to release the property. This can be particularly effective if there are compelling reasons why the property should be released, such as if it is needed for a person's livelihood or if there are concerns that its detention could result in significant economic harm. Overall, when dealing with Section 490(1) of the Criminal Code of Canada, it is important to carefully consider all of the factors at play and to engage in strategic decision-making that will best serve the interests of all parties involved.