INTRODUCTION AND BRIEF DESCRIPTION
Items seized under paragraph (1)(b) cannot be detained for more than three months without a warrant or until an application is decided, unless a justice orders otherwise or proceedings are instituted.
SECTION WORDING
490(2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless (a) a justice, 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 that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or (b) proceedings are instituted in which the thing detained may be required.
EXPLANATION
Section 490(2) of the Criminal Code of Canada sets out the maximum period for which items seized by law enforcement can be detained. Under this section, items seized can only be detained for a maximum period of three months after the day of the seizure unless an application is made or proceedings are instituted in which the thing detained may be required. The section also allows for a justice to order further detention of the seized item if they are satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted. However, this can only occur if a summary application is made to the justice after three clear days notice thereof to the person from whom the thing detained was seized. In essence, this section aims to balance the interests of law enforcement in investigating crime with the rights of individuals to have their property returned to them in a timely manner. By providing a maximum detention period, it ensures that law enforcement cannot hold onto seized items for an indefinite amount of time, while also allowing for the possibility of extended detention in cases where it is necessary for the investigation.
COMMENTARY
Section 490(2) of the Criminal Code of Canada serves as an important safeguard against the misuse of police powers. It limits the amount of time that law enforcement officials can detain property that has been seized as part of an investigation to three months unless certain conditions are met. The purpose of this section is to prevent the police from holding onto property indefinitely, which could result in significant inconvenience and hardship for the owner. It also ensures that the police do not abuse their power by using the threat of property seizure as a way to coerce confessions or intimidate suspects. Under this section, the police must seek a warrant from a justice in order to detain property for more than three months. The justice must be satisfied that the continued detention of the property for a specified period of time is necessary given the nature of the investigation. This requirement ensures that the police do not hold onto property for longer than necessary and that they provide a valid justification for doing so. It also serves as a check on police power by requiring judicial oversight and review. In situations where proceedings have been instituted and the detained property may be required as evidence, the three-month limit does not apply. However, this exception is narrow and applies only in cases where there is a real risk that the property may be destroyed or lost if it is not being held by the police. Overall, section 490(2) is an important protection against the misuse of police powers. It strikes a necessary balance between the rights of individuals and the needs of law enforcement officials to carry out effective investigations. As such, it is a crucial component of Canada's criminal justice system.
STRATEGY
Section 490(2) of the Criminal Code of Canada places strict limits on the amount of time that law enforcement authorities can detain property that has been seized during an investigation. This provision is designed to balance the need for police to have the tools necessary to conduct thorough investigations with the fundamental rights of individuals to privacy and control over their own property. When dealing with this section of the Criminal Code, there are a number of strategic considerations that both prosecutors and defense attorneys should keep in mind. One of the most important of these is the need to understand the nature of the investigation and the reasons for the property seizure. This knowledge can help both sides make informed judgments about whether further detention of the property is warranted, and whether it is likely to be approved by a judge. For example, if the investigation involves suspected criminal activity with serious public safety implications (such as terrorism or organized crime), law enforcement authorities may be justified in seeking an extension of the detention period beyond the three-month limit. In such cases, a prosecutor may be able to convince a judge that the need for further investigation justifies a longer detention period, particularly if there is reason to believe that the property is crucial to the successful resolution of the investigation. On the other hand, defense attorneys may seek to challenge the need for continued detention of the property by arguing that the investigation has already been completed, or that the property is no longer needed as evidence. They may also seek to cast doubt on the reliability or validity of the evidence used to justify the seizure in the first place, with the hope of having the detention order overturned. Another strategic consideration when dealing with Section 490(2) is the potential impact of publicly available information on the case. In some cases, media coverage or social media activity may create a perception of guilt or wrongdoing that can be difficult to overcome. Prosecutors may work to manage the release of information to the media in order to minimize the potential impact on the suspect's reputation and ensure a fair trial, while defense attorneys may seek to use information released publicly to their advantage. Overall, there are a range of strategies that can be employed when dealing with Section 490(2) of the Criminal Code of Canada, depending on the specifics of the case and the goals of each party involved. By carefully considering the nature of the investigation and the evidence at hand, as well as the potential impact of outside factors like media coverage, both prosecutors and defense attorneys can make informed judgments about their approach to this crucial aspect of the legal process.