INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the procedures for releasing seized property if it is no longer needed for investigative or evidentiary purposes.
SECTION WORDING
490(5) Where at any time before the expiration of the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized, the prosecutor, or the peace officer or other person having custody of the thing seized, determines that the continued detention of the thing seized is no longer required for any purpose mentioned in subsection (1) or (4), the prosecutor, peace officer or other person shall apply to (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered its detention under subsection (3), or (b) a justice, in any other case, 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).
EXPLANATION
Section 490(5) of the Criminal Code of Canada outlines the procedure for determining whether the continued detention of seized property is necessary for any purpose mentioned in subsections (1) or (4). Subsections (1) to (3) provide the authorities with the power to seize property that they have reasonable grounds to believe is connected with an offence, and to detain it for certain periods of time for purposes such as investigation or court proceedings. If, before the expiration of these detention periods, the prosecutor or the peace officer in charge of the seized property determines that continued detention is no longer required, they must apply to a judge or a justice for an order under subsection (9). In cases where a judge ordered the detention of the property under subsection (3), the application must be made to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552. Otherwise, the application must be made to a justice. The judge or justice who receives the application must give the person from whom the property was seized, or the person who claims to be the lawful owner or entitled to its possession, an opportunity to establish that they are lawfully entitled to the property. Based on this opportunity and any other relevant information, the judge or justice will make an order in respect of the property under subsection (9). Overall, Section 490(5) is an important provision in the Criminal Code of Canada that ensures the proper handling of seized property. It helps to protect the rights of individuals by requiring a court order for continued detention, and provides a mechanism for resolving disputes over the ownership or entitlement to seized property.
COMMENTARY
Section 490(5) of the Criminal Code of Canada provides a process for the detention and release of seized property. This section recognizes that property may be seized for various reasons, including as evidence in a criminal investigation or as proceeds of crime. However, the continued detention of such property may not always be necessary. Under this section, if the prosecutor, peace officer, or other person having custody of the seized property determines that its continued detention is no longer required for any purpose mentioned in subsection (1) or (4), they must apply to a judge or justice for an order regarding the property. The judge or justice must then give the person from whom the property was seized or the person who claims to be the lawful owner an opportunity to establish that they are entitled to possession of the property. This section strikes a balance between the rights of the state to hold seized property for investigatory and prosecutorial purposes and the rights of individuals to their property. It provides a process for the timely release of property where its detention is no longer necessary for lawful purposes. However, this section also raises some concerns regarding the length of time that seized property may be held before a determination is made regarding its continued detention. Subsections (1) to (3) of section 490 allow for initial detention periods of up to 90 days, and this can be extended by a judge or justice for further periods of up to 90 days each. This means that property may be held for up to 270 days or more before a determination is made regarding its continued detention. This lengthy period of detention without any definitive determination of the property's status may create hardships for individuals who need access to their property for personal or business purposes. It also raises concerns about the right to a timely trial and the presumption of innocence, as the continued detention of property may affect a person's ability to mount a defense. To address these concerns, some have proposed amendments to section 490 to provide for stricter time limits on the initial detention of seized property and deadlines for making determinations regarding its continued detention. This may help to ensure a more expeditious and fair process for both the state and individuals affected by the seizure of property. Overall, section 490(5) of the Criminal Code of Canada provides an important process for the detention and release of seized property. However, there may be room for improvement to strike a better balance between the rights and interests of the state and individuals affected by property seizures.
STRATEGY
Section 490(5) of the Criminal Code of Canada deals with the detention of seized objects in criminal investigations. It outlines the process for releasing the detained objects when they are no longer required for any purpose mentioned in subsections (1) or (4). When dealing with this section of the Criminal Code of Canada, strategic considerations are essential. One of the most important considerations is the timeframe for the release of the detained object. Since the detention can't be prolonged, it's crucial to ensure that the object is released promptly if it's no longer required. Another essential consideration is the proper documentation and recording of the process. The prosecutor, peace officer, or any other person who has custody of the detained object should maintain a record of the movements and actions taken concerning the object's detention. This documentation is essential as it could be useful in proving that the object was correctly detained and released at the appropriate time. It's also important to ensure that the right people get notified of the object's release. The notification process should not have any delay, and the identified parties should be informed promptly through the right channels, such as mail or email address. The people that need to be notified may include the person from whom the object was seized, the person who claims to be the lawful owner of the property, or any other stakeholder identified in the investigation. When handling a detained object, it's best to ensure transparency and communication with the person from whom the object was seized or someone who claims to be the lawful owner or entitled to its possession. This is important as it will help the individual understand the reasons for the object's detention, the results of the investigation, and how to claim the object's possession in the future. Lastly, when dealing with Section 490(5) of the Criminal Code of Canada, it's important to ensure compliance with the section's provisions. Any wrongful detention or delay in the release of the detained object could be grounds for litigation against the law enforcement agencies, leading to costly and time-consuming legal battles. In conclusion, handling a detained object requires careful consideration of Section 490(5) of the Criminal Code of Canada. Proper documentation, timely notification, transparency, and compliance with the law's provisions are essential to avoid any legal ramifications.