INTRODUCTION AND BRIEF DESCRIPTION
This section allows a person to apply for the return of property seized by law enforcement.
SECTION WORDING
490(10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7), who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily to (a) a judge referred to in subsection (7), where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order that the thing detained be returned to the applicant.
EXPLANATION
Section 490(10) of the Canadian Criminal Code provides a mechanism for persons claiming to be the lawful owner or entitled to the possession of anything seized and brought before or reported to a justice under section 489.1 to apply for its return. This applies to anyone who is not eligible to make an application under subsection (7) of the section. Such an application can be filed at any time, provided that the applicant provides three clear days' notice to the Attorney General and the person from whom the item was seized. If a judge ordered detention of the seized object under subsection (3), an application for its return must be made to a judge referred to in subsection (7). In any other case, an application can be made to a justice for the return of the thing detained. The application can be made summarily, meaning it can be done quickly and without a full trial. The goal of this provision is to provide an avenue for rightful owners or those entitled to possession of seized items to apply for their return via a simpler process than a full trial. This ensures that the rights of individuals are protected and that property is returned to its rightful owner. It also provides an additional layer of accountability for law enforcement agencies to ensure they are not holding onto items that they have no legal basis to keep.
COMMENTARY
Section 490(10) of the Criminal Code of Canada provides a mechanism for an individual who claims to be the lawful owner or person lawfully entitled to possession of any seized item to apply for summary return of the item. This provision safeguards the interests of individuals whose property has been seized by law enforcement authorities. The provision acknowledges that seizures may occur for various reasons including during an investigation or search warrant. During such seizures, law enforcement officials are obliged to report the seizure of any item or substance to a justice. The justice may order the detention of the seized item or substance under subsection (3) of section 489.1 of the code. However, the powers of the officials are limited to detention and not seizure. The provision allows a person who claims to be the lawful owner or person entitled to possession of the seized item or substance to apply summarily to a judge or justice for the release of the item. If a judge ordered the detention of the seized item, the individual may apply to the judge referred to in subsection (7). However, if the detention orders were made by a justice, the individual may apply for release to any other justice. The provision mandates that the individual making the application must notify the Attorney General and the person from whom the thing was seized before applying to the judge or justice. The notice period required before making the application is three clear days. This provision aims to ensure that adequate notice is given to the Attorney General and the person from whom the item was seized to allow them to prepare for the application. The provision gives a remedy to individuals who may have had their property seized and detained or submitted to the court as evidence during a criminal investigation. It provides a safeguard against arbitrary seizures and detentions by police officers. The provision also upholds the principles of natural justice, which require that parties to a dispute be given a hearing and a chance to be heard. In conclusion, section 490(10) of the Criminal Code of Canada provides a mechanism for individuals who claim to be the lawful owners or persons entitled to possession of any seized item or substance to apply for summary return. This provision safeguards the property interests of individuals whose property may have been illegally seized or detained. It ensures that justice is done, and parties have a fair hearing in matters involving the seizure of property.
STRATEGY
Section 490(10) of the Criminal Code of Canada provides an avenue for individuals to reclaim their property that was seized by authorities during or after a criminal investigation. When considering this section, there are several strategic considerations to keep in mind: 1. Timeliness of Application: Individuals who wish to make an application under this section must do so promptly. The longer they wait, the more difficult it may be to prove their case. As such, it is important to act quickly and seek legal counsel to help guide them through the process. 2. Grounds for Seizure: When making an application under this section, individuals must be prepared to demonstrate that they meet the criteria for lawful ownership or entitlement of the seized property. They must also be aware of the grounds on which the property was seized, as this can affect their claim to the property. 3. Notice to Attorney General and Person from Whom Property Was Seized: Individuals making an application under this section must provide three clear days' notice to both the Attorney General and the person from whom the property was seized. This allows both parties to prepare their evidence and arguments for the hearing. 4. Jurisdiction: It is important to determine whether a judge or justice has jurisdiction over the case, depending on whether a judge ordered the detention of the property or not. It is vital to ensure that applications are made to the appropriate authority to avoid any unnecessary delays or complications. 5. Legal Representation: Seeking legal representation can provide vital assistance in preparing the necessary documentation and arguments for the hearing. Lawyers can guide individuals through the process and ensure that their evidence and claims are presented in a way that is persuasive and effective. Strategies that could be employed when dealing with this section include carefully reviewing the grounds for the seizure of the property and gathering evidence to demonstrate lawful ownership or entitlement. It is also important to provide notice to both the Attorney General and the person from whom the property was seized in a timely and effective manner. Furthermore, engaging an experienced lawyer can help individuals develop a strong argument during the hearing. This could include presenting evidence such as purchase receipts, ownership documents, and any other relevant documents to demonstrate their claim to the property. Overall, there are several considerations and strategies that individuals must keep in mind when seeking to reclaim property seized by authorities. Careful preparation, timely action, and seeking professional legal advice can help maximize the chances of success in an application under Section 490(10) of the Criminal Code of Canada.