INTRODUCTION AND BRIEF DESCRIPTION
A person with interest in detained items can apply to examine them with notice to the Attorney General.
SECTION WORDING
490(15) Where anything is detained pursuant to subsections (1) to (3.1), a judge of a superior court of criminal jurisdiction, a judge as defined in section 552 or a provincial court judge may, on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained.
EXPLANATION
Section 490(15) of the Criminal Code of Canada pertains to situations where property or items have been detained by authorities in the course of an investigation, particularly with respect to criminal offenses. It allows for individuals who have an interest in the items detained to request an opportunity to examine them. An application can be made for this purpose by filing a summary application with a judge who has jurisdiction over criminal matters, such as a judge of a superior court or provincial court. The main purpose of the provision is to ensure that individuals who have a legitimate interest in the detained items are not prevented from accessing them for the purpose of examining them. This may be necessary for a variety of reasons, such as to establish ownership, to gather evidence, or to assist with a defense in a criminal trial. Notably, the provision requires that notice be provided to the Attorney General at least three clear days before the application is made. This is designed to ensure that the government is aware of the request and can put any necessary safeguards in place to protect the integrity of the investigation or the security of the items in question. In practical terms, this provision may be useful for individuals who have had personal property seized by authorities during a criminal investigation, such as a search warrant. It allows them to take an active role in the process and to gather information that may be important to their case. Overall, this provision serves to balance the interests of law enforcement with the rights of individuals who may be affected by property seizures in the course of criminal investigations.
COMMENTARY
Section 490(15) of the Criminal Code of Canada grants the ability for interested parties to apply to a judge for the examination of detained items. This provision is designed to address situations where law enforcement has seized items under the authority of the Criminal Code and the detained property may be useful for a variety of reasons. This section allows individuals to obtain access to the detained property for examination purposes, provided that they can demonstrate an interest in the item. However, there are certain limitations and qualifications applying to the circumstances that make this provision applicable. The provision states that a judge may order that a detained item be examined if an individual has an interest in the detainment after three clear days notice to the Attorney General. The purpose of the notice period is to give the Attorney General, and any other interested party, an opportunity to oppose the application. It also allows the police to ensure they retain the evidence they have gathered for the investigation and in a situation where something is found, or they have suspicions, that indicate they should restudy the items. This provision is a valuable aspect in a legal system as it holds the authority of law enforcement accountable when they seize property and retain it for investigation purposes. The right to apply for this examination helps to uphold the balance between individual rights and law enforcement powers. If an individual asserts that their property has been unjustly seized, they can then, with the capability this provision grants, apply to a judge to present a case for the return of their property. Moreover, it serves as a reminder that the power to detain and investigate suspected criminal activity is one that is given to the authorities, not an inherent right, and is to be exercised with care and a concern for the rights of the individual. However, the provision does offer protections for law enforcement as well, as it does not grant automatic access to the detained item, and the application is subject to the discretion of a judge. A judge must take certain considerations into account, including the nature and purpose of the examination and whether it would hinder or prejudice the investigation. The provision also dictates that only those who have a legal interest in the detained item may make an application; this is to prevent frivolous or malicious applications made by persons who have no vested interest in the item in question. Specifically, the legal interest refers to any individual who has any right, title or interest in the detained item. Overall, Section 490(15) serves as another essential protection for the individual rights in Canada's legal system. The ability to apply for the examination of detained items is designed to prevent the overreaching of law enforcement powers and hold those exercising such powers accountable. It is a safeguard that ensures individuals' rights are respected and upheld. As such, it plays a crucial role in improving confidence in the legal system by maintaining the separation of powers while upholding the human rights that every individual is entitled to receive.
STRATEGY
Section 490(15) of the Criminal Code of Canada is a provision that allows for the examination of anything that has been detained pursuant to subsections (1) to (3.1) by a judge of a superior court of criminal jurisdiction or a provincial court judge. This provision is significant for individuals who have an interest in what has been detained as it provides them with the opportunity to examine the detained object, which can help them in their defense. When dealing with this provision, there are several strategic considerations that should be taken into account. Firstly, it is important to note that the application for examination of the detained object must be made by a person who has an interest in the object. This means that the person must have a legal or proprietary interest in the object, such as the person who owns the object or has a leasehold interest in it. This consideration is important because it means that individuals who have no interest in the object will not be able to make an application to examine it. Another strategic consideration when dealing with section 490(15) of the Criminal Code of Canada is the requirement for three clear days' notice to the Attorney General. This notice requirement is critical, as it gives the Attorney General time to object to the examination of the object. For example, if the Attorney General believes that the examination of the object could compromise an ongoing investigation, they may object to the application. Therefore, it is important to ensure that the notice requirement is strictly complied with to avoid any objections from the Attorney General. Strategy One strategy that could be employed when dealing with section 490(15) of the Criminal Code of Canada is to ensure that the application for examination of the detained object is made at the earliest possible opportunity. This strategy is important because it ensures that the person who has an interest in the object has sufficient time to prepare their defense. Additionally, making an application for examination of the object early can reduce the likelihood of objections from the Attorney General. Another strategy that could be employed is to provide as much information as possible to the judge when making the application for examination of the object. This information could include details of the legal or proprietary interest that the person has in the object, the reasons for the detention of the object, and any other relevant information that can support the application. Providing this information can help the judge to make an informed decision and can increase the likelihood of the application being granted. In conclusion, section 490(15) of the Criminal Code of Canada is an essential provision for individuals who have an interest in a detained object. When dealing with this provision, it is important to take into account the requirements for making an application, notice requirements and any objections from the Attorney General. Employing strategies such as making an application early and providing as much information as possible can increase the likelihood of a successful application for examination of the detained object.