INTRODUCTION AND BRIEF DESCRIPTION

This section allows for multiple orders of detention, but the total period cannot exceed one year without a judges approval or pending legal proceedings.

SECTION WORDING

490(3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, 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, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or (b) proceedings are instituted in which the thing detained may be required.

EXPLANATION

Section 490(3) of the Criminal Code of Canada establishes the rules governing the detention of things that have been seized by authorities during a criminal investigation. This provision states that more than one order for further detention may be made, but the total period of detention must not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided. However, there are exceptions to this rule. If a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 is convinced that the further detention of the thing seized is warranted for a specified period and subject to other conditions that the judge considers just, then the judge may order for further detention. This is particularly relevant in the case of complex investigations where additional time is required. Additionally, if proceedings are instituted in which the thing detained may be required, then the previous order for detention will cease to apply. The main objective of this provision is to balance the need for authorities to have access to evidence during an investigation and the rights of individuals to the return of their property. Overall, section 490(3) provides a framework for the detention of seized property in Canada, ensuring that the rights of all parties involved are taken into account.

COMMENTARY

Section 490(3) of the Criminal Code of Canada provides for the detention of seized items for up to one year from the day of seizure unless a judge approves further detention. This section is a critical safeguard as it protects the rights of individuals and ensures that police do not overreach their authority when conducting investigations. Under Paragraph (2)(a), a police officer may detain things that they believe may be required as evidence against an accused person. This detention can be an inconvenience for the person from whom the thing was seized, particularly when the length of detention exceeds one year. This provision was included in the Criminal Code to ensure that police officers do not unduly detain items seized during an investigation. Instead, the provision provides for a maximum period of one year from the day of seizure, which is usually sufficient time for the police to conduct their investigations and determine whether the items will be used as evidence in court. However, the code recognizes that exceptionally complex investigations may require the further detention of seized items beyond one year. For this reason, subparagraph (a) permits a Superior Court Judge or an authorized judge under section 552 to order for the further detention of seized items for a specified period. This type of detention requires a detailed summary application to be made to the judge, explaining the justification for further detention. This process ensures that the detention of seized items is justified, and the person from whom the item was seized is not unjustly deprived of their property for an extended period. This Section of the Criminal Code provides an essential safeguard for the rights of individuals. Without this provision, police officers could potentially detain seized items indefinitely causing undue stress and hardship to those affected. However, the careful balance of protecting individual rights while allowing the police to carry out their investigations is a delicate one. For this reason, the provision includes certain checks and balances in the form of judicial review to ensure that the decision to further detain an item is not taken lightly. In conclusion, Section 490(3) of the Criminal Code of Canada protects the rights of individuals while still allowing the police to conduct investigations effectively. It provides a clearly defined maximum period of detention for seized items and only allows for further detention if it is necessary, with full oversight from a Superior Court Judge, ensuring that fundamental rights remain protected.

STRATEGY

When dealing with Section 490(3) of the Criminal Code of Canada, it is essential to consider the nature of the investigation and the potential impact of further detention on the case's outcome. This section provides for two scenarios where more than one order for further detention can be made for seized items but only for a maximum of one year, unless a judge of a superior court or a judge defined in section 552 is satisfied that further detention is warranted for a specified period. If further detention is warranted, subject to specified conditions, the judge can issue an order to allow detention for a specified period. One strategy that could be employed in this situation is to ensure that the investigation is conducted as efficiently as possible to avoid unnecessary detentions. This would involve the proper allocation and utilization of resources to gather evidence and analyze it promptly to avoid lengthy investigations leading to further detention of the seized items. Additionally, the appropriate application of investigative techniques, such as forensic analysis or electronic surveillance, could speed up the investigation and reduce the need for further detention. Another critical strategy is the timely and effective communication with all parties involved in the case, including the judge, the prosecution, and any affected parties. This would involve providing clear and concise updates on the investigation's progress and the need for further detention to ensure that all parties understand the reasoning for it. It is also essential to consider the potential impact of further detention on the seized items' integrity and the case's outcome. The longer the detention, the more likely it is that evidence may become tainted, or the chain of custody may be compromised. Therefore, it may be necessary to seek an order for a shorter duration, with specific conditions to preserve the integrity of the evidence while ensuring that the investigation is conducted thoroughly. Finally, it is crucial to seek legal advice and guidance to navigate the complexities of Section 490(3) of the Criminal Code of Canada effectively. Legal experts can advise on the appropriate strategy, including the most effective application for further detention, the correct conditions to apply, and any legal challenges to anticipate. This will help to ensure that the investigation is conducted lawfully, and the outcome is not jeopardized by any errors or omissions in the process.