Criminal Code of Canada - section 490(13) - Copies of documents returned

section 490(13)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the retention of a copy of a seized document before it is brought before a justice or dealt with under certain subsections.

SECTION WORDING

490(13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), make or cause to be made, and may retain, a copy of the document.

EXPLANATION

Section 490(13) of the Criminal Code of Canada enables the Attorney General, the prosecutor, or a peace officer/individual in custody of a seized document to create a copy of the document before presenting it to a justice or complying with an order under subsection (1), (9) or (11). This provision is an essential tool for law enforcement officials carrying out investigations related to criminal activity. This section allows for a copy of the seized document to be retained and used for a range of purposes, such as examining potential evidence, conducting analysis or preparing for court proceedings. The retention of the document is crucial for investigating and prosecuting criminal activities, such as fraud or organized crime, which often entail a complex web of evidence. However, this provision also allows for the potential abuse of this power. If the authority holding the seized document makes a copy and retains it longer than necessary, it could infringe upon privacy rights and civil liberties. Therefore, there must be proper oversight and accountability measures in place when implementing this provision to ensure that the power is not used unethically. In summary, Section 490(13) of the Criminal Code of Canada provides the necessary powers for authorized individuals to retain copies of seized documents, enabling law enforcement officials to carry out thorough investigations and prosecutions of criminal activities while also safeguarding individual privacy rights.

COMMENTARY

Section 490(13) of the Criminal Code of Canada provides a provision for the control and usage of seized documents during a criminal investigation. This legal text indicates that the Attorney General, the prosecutor, the peace officer, or any other person who has custody of the document seized can make or cause a copy to be made. Notably, this provision requires that the original document be safely retained. This commentary will analyze the practical implications of this provision, its interpretation, and application in the legal system. Section 490(13) is significant for law enforcement and the legal system because it allows the authorities to maintain the potential evidence, reducing the risk of losing the original document due to damage or mishandling. The provision acknowledges the importance of protecting the original document as evidence so that it might be used during courtroom proceedings. The retention of an original document can serve as proof that a copy of the document has not been tampered with or altered in any way, which can be used to question the validity of the evidence during a trial. Furthermore, the provision grants the Attorney General, the prosecutor, or the peace officer the authority to keep the original document seized. This can prove crucial in instances where the document is needed for further investigations, related proceedings, or appeals. The retention of the original document can help ensure that legal proceedings are conducted effectively, with all the necessary evidence in hand. In some instances, retaining the original may also be the only way of preserving evidence, especially if the document is perishable or subject to decomposition/corrosion. However, it should be noted that the provision does not allow the retention of all documents seized. For instance, persons who are not authorized by law are not allowed to hold or retain any document seized, and the provision does not authorize the retention of any document in a situation where it is contrary to other provisions of the Criminal Code. Instead, it only allows certain authorized persons to retain a copy of the document seized for investigative purposes. Moreover, the provision emphasizes that usage or retention of the copy of the document must only be for the purpose of the specific investigation or legal proceedings; the document seized cannot be used for any other purposes. The provision restricts the disclosure and usage of the document, ensuring the privacy rights and freedoms of individuals. This way, the provision remains faithful to the legal precedents of the Canadian Charter of Rights and Freedoms, which provides protection against unreasonable search and seizure. Section 490(13) has practical implications in the criminal justice system. Firstly, the provision highlights the importance of evidence handling during investigations and legal proceedings. The retention of seized evidence can prove to be essential to safeguard against the destruction or loss of documents that may be critical to a case. Proper evidence preservation can help ensure successful prosecution or defense and promote public trust in the legal system. Furthermore, the provision allows for the creation of a comprehensive and accurate record of documentation held by law enforcement. Provided that the retention of the document is compliant with the law, the authorities can establish a chain of custody necessary for the purpose of transparency and credibility of evidence during court proceedings. In conclusion, Section 490(13) of the Criminal Code of Canada emphasizes the importance of preserving evidence and proper evidence handling during investigations and legal proceedings. The provision grants authorized individuals the right to retain a copy of a document seized, provided the original document obtained is safely held to avoid losing or destroying the evidence. The interpretation and application of this provision ensure that the legal system remains faithful to the Canadian Charter of Rights and Freedoms. The practical implications of this provision are crucial in safeguarding the transparency and credibility of evidence presented in court proceedings.

STRATEGY

Section 490(13) of the Criminal Code of Canada provides a crucial provision for law enforcement officials, prosecutors, and the Attorney General, allowing them to make copies of seized documents and retain them for their use. This provision can be helpful in numerous scenarios, including both criminal and civil investigations. However, there are several strategic considerations that law enforcement officials need to take into account before using this provision. The first strategic consideration is whether the document is protected by solicitor-client privilege. If the document is privileged, then seizing it is not permitted, so the law enforcement officials have to take the necessary steps to ensure that confidentiality is protected. The Supreme Court of Canada has set out several factors in the decision of R. v. McClure to determine whether the claim of privilege is valid. These factors include whether the communication is between a client and the lawyer, whether the communication is made for the purpose of seeking legal advice, and whether the communication is made in confidence. The second strategic consideration is whether the seizure of the document will adversely impact or prejudice the subject of the investigation. If the seizure is likely to cause harm to the individual or entity, then the law enforcement official should consider alternative means of obtaining the necessary information. For example, they could consider obtaining the information through a search warrant or production order instead of seizing the document. The third strategic consideration is whether the document contains any personal information and, if it does, how the collection, use, and storage of that data comply with relevant privacy legislation. Section 490(13) of the Criminal Code allows copies to be made of the document, but care must be taken to ensure that the use and storage of that data comply with privacy legislation. Any breach of privacy legislation can have significant implications for the investigation, including the possibility of excluding evidence obtained through the breach. The fourth strategic consideration is whether the disclosure of the document to a third party would violate any applicable law or policy. The document may contain sensitive or confidential information that is subject to legal or policy restrictions on disclosure. The law enforcement officials must ensure that the document's use and disclosure comply with the applicable legal and policy requirements. In addition to these strategic considerations, law enforcement officials may also employ several strategies when dealing with section 490(13) of the Criminal Code. One strategy is to obtain legal advice before using this provision to ensure that they comply with all legal and procedural requirements. Another strategy is to use this provision only if it helps the investigation, and there are no alternative means of obtaining the information needed. They can also consider redaction or anonymization of the document to protect sensitive information while still allowing for the necessary information to be obtained. In conclusion, section 490(13) of the Criminal Code of Canada provides an essential tool for law enforcement officials, prosecutors, and the Attorney General in criminal and civil investigations. However, there are several strategic considerations and potential risks involved in its use, including solicitor-client privilege, prejudice to the subject of the investigation, privacy legislation, and legal and policy restrictions on disclosure. As such, it is crucial to use this provision selectively and carefully, following all legal and procedural requirements and obtaining legal advice when necessary.