Criminal Code of Canada - section 488.1(6) - Order to custodian to deliver

section 488.1(6)

INTRODUCTION AND BRIEF DESCRIPTION

If a document is seized and no one claims it, a judge can order the custodian to give it to the officer who seized it or someone designated by the Attorney General.

SECTION WORDING

488.1(6) Where a document has been seized and placed in custody under subsection (2) and a judge, on the application of the Attorney General, is satisfied that no application has been made under paragraph (3)(a) or that following such an application no further application has been made under paragraph (3)(c), the judge shall order the custodian to deliver the document to the officer who seized the document or to some other person designated by the Attorney General.

EXPLANATION

Section 488.1(6) of the Criminal Code of Canada outlines the process by which documents that have been seized and held in custody can be delivered to the officer who seized them or to another individual designated by the Attorney General. This section is designed to ensure that law enforcement officials have access to important documents that may be necessary to prosecute a criminal case. The first step in this process is for a document to be seized and placed in custody under subsection (2). This typically occurs when a law enforcement officer has reason to believe that a particular document may have evidentiary value in a criminal case. Once the document has been seized and placed in custody, the custodian must hold onto it until further instructions are given. If no application has been made under paragraph (3)(a), which refers to an application to have the document returned, or if such an application has been made but no further application has been made under paragraph (3)(c), which refers to an application for a hearing to determine the validity of the seizure, then the judge may order the custodian to deliver the document to the officer who seized it or to another individual designated by the Attorney General. Overall, Section 488.1(6) provides an important mechanism for law enforcement officials to access and use documents that are relevant to criminal investigations and prosecutions. It ensures that important evidence is not unnecessarily withheld, while still offering protections for individuals whose documents have been seized.

COMMENTARY

Section 488.1(6) of the Criminal Code of Canada pertains to the seizure and custody of documents that may be used as evidence in a criminal investigation. When documents are seized by law enforcement agencies, they are placed in custody under subsection (2) of the section. Following this, the Attorney General has the option to make an application under paragraph (3)(a), which pertains to the return of the document to the person who is entitled to it. Alternatively, the Attorney General may make an application under paragraph (3)(c), permitting the continued custody of the document by law enforcement agencies. However, if a judge is satisfied that either of these two applications has not been made, or following such an application, no further application has been made, the judge has to order the custodian to deliver the document to the officer who seized it or some other person designated by the Attorney General. In other words, if the Attorney General does not take any action within a certain period, the document can be returned it to the entity that it was seized from or another person deemed appropriate by the Attorney General. This section of the Criminal Code raises interesting questions pertaining to the balance between the needs of law enforcement agencies to investigate crime and the rights of individuals to access their own documents, which they may need to conduct their business or personal affairs. The major assumption underlying this section is that there will be an application of some kind filed by the Attorney General within a reasonable time frame. However, if this does not happen, the seizure of the document becomes a burden for the custodian and can impact the rights of individuals to their own possessions. Considering the current scenario, where Canada is grappling with the novel coronavirus pandemic, this section of the Criminal Code gains new importance and meaning. Lockdowns and physical distancing measures have made it difficult for the public to access legal services, which may result in the Attorney General not being able to file an application to continue the custody of documents as required under subsections (3)(a) and (3)(c). Furthermore, the pandemic has resulted in a surge of digital commerce and more people than ever are dependent on digital documents to conduct their business or personal affairs. The seizure of digital documents can create significant disruption and distress. It is, therefore, essential to reinterpret and revise the terms of this section to ensure that individuals have timely access to their own documents while allowing law enforcement agencies to carry out their investigations. In conclusion, Section 488.1(6) of the Criminal Code of Canada seeks to balance the interests of individuals and law enforcement agencies. However, the section contemplates the timely action of the Attorney General, which may not always be practical in the rapidly changing and uncertain circumstances of the modern world. Therefore, a timely review of the provisions of this section is necessary to ensure that the interests of individuals are protected and their rights are not curtailed.

STRATEGY

Section 488.1(6) of the Criminal Code of Canada deals with the seizure and custody of documents by law enforcement agencies in the course of an investigation. The section outlines the circumstances under which a judge may order the release of the seized documents to the officer or designated person under the direction of the Attorney General. This provision raises a number of strategic considerations for both the prosecution and defense: For the prosecution: 1. Timing: The prosecutor must be aware of the timing of the application for release of the documents. If no application has been made under paragraph (3)(a), the prosecution can make an application for release at any time. If an application has been made but no further application has been filed under paragraph (3)(c), the prosecutor must wait for a reasonable period of time before making an application for release. Therefore, timing is an important consideration for the prosecution. 2. Reasons for non-application: The prosecutor must consider the reasons for non-application. If it is determined that the applicant has not made an application under paragraph (3)(a) due to an unforeseen circumstance, the prosecutor may want to wait and give the applicant an opportunity to make an application before applying for an order for release. If the reasons for non-application are frivolous, then the prosecutor may want to proceed with an application for release immediately. 3. The identity of the person designated by the Attorney General: The prosecutor must consider who the Attorney General might designate to receive the seized documents. For instance, if the documents may contain sensitive information, then the Attorney General may designate a person with the appropriate clearance level to receive the documents. The prosecutor may also have to consider the potential consequences of releasing the documents to the designated person. For the defense: 1. Timing: Defense counsel must be aware of the timing of the application for release of the documents. If no application has been made under paragraph (3)(a), defense counsel has to prepare for an application at any time. If an application has been made, the defense counsel must be prepared to respond to the application and examine the evidence to determine if an objection can be raised. Therefore, timing is an important consideration for the defense. 2. The nature of the documents: The defense counsel must examine the nature of the seized documents to determine whether they are subject to solicitor-client privilege or any other legal protection. If they contain privileged information, then the defense may have to argue that the documents should not be released. 3. The impact on the client: The defense counsel may have to consider the impact of the release of the documents on the client's reputation, business, or personal life. If the client's business or livelihood depends on the information contained in the seized documents, then the defense may argue that the documents should not be released. Some of the strategies that could be employed by the prosecution and defense in dealing with Section 488.1(6) include: 1. Preparing a plan: Both the prosecution and defense should develop a plan for dealing with the section before an application is made. This will help in addressing potential issues and prevent surprises in court. 2. Conducting due diligence: The prosecution and defense must be diligent in investigating the facts and law surrounding the seized documents. This will enable them to make informed decisions and provide persuasive arguments. 3. Acting swiftly: Given the timing concerns, both the prosecution and defense must act swiftly when making applications or responding to them. 4. Negotiation: Both the prosecution and defense may want to consider negotiating a resolution that would avoid the need for an order for release of the documents. In conclusion, section 488.1(6) of the Criminal Code of Canada raises important strategic considerations for the prosecution and defense. Timing, reasons, and document nature are some critical issues that have to be considered when making an application or responding to one. Employing a plan, conducting due diligence, acting swiftly, and negotiating are some strategies that can be employed to effectively navigate this section of the Criminal Code of Canada.