Criminal Code of Canada - section 490(9) - Disposal of things seized

section 490(9)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the conditions under which seized property may be returned to its rightful owner or forfeited to Her Majesty.

SECTION WORDING

490(9) Subject to this or any other Act of Parliament, if (a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

EXPLANATION

Section 490(9) of the Criminal Code of Canada deals with the detention of things seized by the police during criminal investigations. This section provides guidelines for the duration of the detention period for seized items and what should be done with them after their detention period has expired. According to subsections (1) to (3), the police can detain seized items for a specific period to facilitate an investigation, prevent evidence from being tampered with or removed, or to protect the public. However, if these purposes are no longer relevant, subsection (9) provides that a judge or a justice may order for the return of the seized item to the rightful owner or may order it to be forfeited to the Crown and be disposed of according to the Attorney General's directions. This section of the Code is critical in protecting the ownership rights of individuals, especially in cases where items are seized without a clear reason or basis. By setting a maximum period for detention, this section ensures that an accused person is not unfairly disadvantaged by the extended detention of their property. Additionally, this section speaks to the effectiveness of the justice system in ensuring that law enforcement authorities balance public safety and the rights of individuals. Through this section, the court system can challenge the police on the legality of detaining property, and in cases where detention is deemed unnecessary, order the rightful return or disposal of seized items to the satisfaction of all parties involved.

COMMENTARY

The Criminal Code of Canada outlines the legislative provisions that govern the country's criminal justice system. One important provision is section 490(9), which deals with the detention, seizure, and forfeiture of property related to criminal offences. This section is important because it sets out the circumstances under which seized property can be returned, forfeited to the government, or retained for further investigation. Section 490(9) outlines the conditions under which property seized under subsections (1) to (3) can be returned to its lawful owner or person entitled to its possession. It stipulates that if the detention period has expired and no proceedings have been instituted, and the continued detention of the property is no longer required for any purpose under sections (1) or (4), then the property must be returned to its owner. If the lawful owner or person entitled to the property's possession is known, then the property must be returned to them. If the lawful owner or person entitled to possession is not known, then the property may be forfeited to the government to be disposed of as the Attorney General directs. Section 490(9) strikes a balance between the rights of the state and the rights of the individual. It acknowledges the authority of the state to seize property related to criminal offences while also ensuring that the detention of property is not unduly prolonged without good cause. This is an important safeguard against the abuse of the state's powers and protects individuals from undue harm and inconvenience. Furthermore, it is crucial to note that this provision speaks to the principle of natural justice highlighting the importance of equitable treatment of individuals. The provision ensures that property unlawfully obtained is returned to its rightful owner and that property seized for evidence and investigation is not kept indefinitely without a valid purpose. On the other hand, some critiques may suggest the Criminal Code of Canada is too lenient in its approach to the detention and seizure of property related to criminal offences. They may argue that the government should have more powers to retain property for longer periods, or that it should be easier to forfeit property to the government in the absence of a known lawful owner. However, the current provision is an appropriate safeguard against state power. It is aimed to protect and respect individual's right to their possessions while allowing the state to exercise its obligations to maintain law and order. In conclusion, section 490(9) is an essential provision of the Criminal Code of Canada. It establishes a framework that balances the state's power to seize property related to criminal offences with the rights of the individual. Its provisions offer effective safeguards against the arbitrary detention and seizure of property while also allowing for evidence collection and fair legal processes to take place. Therefore, section 490(9) underpins the equitable treatment of individuals and the just administration of the criminal justice system in Canada.

STRATEGY

Section 490(9) of the Criminal Code of Canada deals with the detention of anything seized in relation to a criminal investigation or proceedings. This section provides for the release or forfeiture of the seized item(s) if the detention period has expired, and proceedings have not been instituted or continued detention is no longer required. There are strategic considerations when dealing with this section of the Criminal Code of Canada. Some of these considerations are outlined below. 1. Timely action: The first strategic consideration is to act proactively and timely. When a seized item is no longer required for the investigation or proceedings, it is advisable to make an application to the judge or justice immediately. Delay in making an application may lead to increased costs, time and resources in obtaining the release or forfeiture of the seized item. 2. Legal analysis: The second strategic consideration is to undertake a legal analysis of the situation. It is important to consider the applicable laws regarding the seized item(s) and determine whether there are any legal rights or obligations that are applicable. This includes assessing whether the possession of the seized item(s) is legal, and who the lawful owner or entitled person is. This analysis can assist in determining the appropriate course of action, such as seeking an order for return or forfeiture. 3. Communication: The third strategic consideration is communication. It is important to communicate with all relevant parties, including the prosecutor, law enforcement agencies, and the owner of the seized item(s). Effective communication can reduce the risk of misunderstandings, delays, or unnecessary legal disputes. A proactive approach to communication can assist in reaching a resolution in a timely and cost-effective manner. 4. Preparation of application: The fourth strategic consideration is to prepare a strong application. This involves providing sufficient evidence to support the application, outlining the relevant legal principles, and identifying any relevant case law. A well-prepared application can increase the chances of obtaining a favorable outcome. 5. Negotiation: The fifth strategic consideration is negotiation. Negotiation can be an effective way to reach a resolution that is satisfactory to all parties involved. Negotiation can involve agreed terms for the release or forfeiture of the seized item(s), and may avoid costly and time-consuming litigation. In summary, strategic considerations when dealing with section 490(9) of the Criminal Code of Canada include timely action, legal analysis, communication, preparation of application, and negotiation. Employing these strategies can assist in obtaining the release or forfeiture of the seized item(s) in a timely and cost-effective manner.