section 490(7)

INTRODUCTION AND BRIEF DESCRIPTION

A person may apply to a judge for the return of seized property after the detention period has expired and with three days notice to the Attorney General.

SECTION WORDING

490(7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order under paragraph (9)(c) that the thing seized be returned to the applicant.

EXPLANATION

Section 490(7) of the Criminal Code of Canada provides a procedure for a person from whom anything has been seized to apply for its return following the expiration of the periods of detention provided for or ordered under subsections (1) to (3). The person must give three clear days notice to the Attorney General and then can apply summarily to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 if a judge ordered the detention of the thing seized under subsection (3), or to a justice in any other case for an order that the thing seized be returned to the applicant under paragraph (9)(c). The purpose of this provision is to balance the needs of law enforcement to seize items while investigating crimes with the need to protect the rights of individuals who may have their property seized. It provides a mechanism for individuals to seek the return of their property in a timely and efficient manner, as well as offering a level of accountability to law enforcement agencies who have seized the items. Overall, section 490(7) of the Criminal Code of Canada serves as an additional safeguard to ensure due process and protection of individual rights in the context of criminal investigations and seizures of property.

COMMENTARY

Section 490(7) of the Criminal Code of Canada deals with the return of any seized items to their owner. It provides a mechanism for a person from whom anything has been seized to apply for the return of the item after the period of detention has expired. The section requires the person seeking the return of a seized item to give three clear days' notice to the Attorney General before making an application. This notice requirement is in place to ensure the Attorney General has an opportunity to consider whether to oppose the application, and it provides an opportunity for any potential legal issues to be addressed before a formal application is made. The section also outlines the courts that a person can bring their application to. If a judge ordered the detention of the seized item under subsection (3), then the application must be made to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552. In any other case, the application may be made to a justice. The purpose of subsection (7) is to provide a process for the orderly and lawful return of the seized item to its owner. The Criminal Code recognizes that sometimes items are seized by law enforcement for investigative or evidentiary purposes. However, it is not always appropriate or necessary for those items to be held indefinitely. This subsection allows for the owner to apply for the return of their item if it is no longer required for investigative or evidentiary purposes. It is worth noting that subsection (7) only applies to the return of the seized item to its owner. It does not address any potential legal or criminal consequences that may follow an investigation or search. Therefore, even if an item is returned to its owner, it does not necessarily mean that the investigation or search is over or that the owner is free from potential charges related to the item. In conclusion, section 490(7) of the Criminal Code of Canada provides an important process for a person to apply for the return of a seized item. The notice requirement and the specific courts where applications can be brought help ensure an orderly and lawful return process. However, it is important to recognize that the return of the item does not necessarily mean an investigation or search is over, and potential legal or criminal consequences may still arise.

STRATEGY

Section 490(7) of the Criminal Code of Canada lays out the process for an individual to retrieve any items seized by law enforcement, after the prescribed period of detention has expired. Having one's property seized can be a harrowing experience, as it often accompanies an investigation into a criminal offense. Hence, it is essential to navigate this process carefully and strategically to ensure that the seized items are returned promptly. The first strategic consideration is to understand the prescribed periods of detention. Subsections (1) to (3) outline the periods during which the police can keep an individual's property if it is seized during an investigation. It is crucial to note these periods, as they can vary depending upon the nature of the investigation and the type of property seized. Strategically, one should ensure that they keep track of these periods and start the process of retrieval as soon as possible, once the period of detention has elapsed. The second strategic consideration is to provide the requisite three clear days' notice to the Attorney General before filing the application for returning any seized properties. The notice can be a crucial element during the retrieval process, as it provides sufficient time for the Attorney General's office to assess the application and prepare an adequate response. This notice requirement can also be a strategic opportunity for the person whose items are seized to gather additional evidence or support for their case. Thirdly, one should give careful consideration to the forum where the application is to be made. Section 490(7) provides two options for applying for the return of seized items; the choice depends on the type of detention order issued. If a judge of a superior court or a judge as defined in section 552 ordered the detention of the item, then the application should be made to a superior court judge. If not, the application can be made to a justice. A fourth strategic consideration is regarding the content of the application for return. The application should be carefully and thoughtfully drafted, with all relevant details mentioned to support the individual's right to retrieve their property. For instance, the reasons why the property was seized, details of the investigation, and why the property should be returned. Providing all relevant details in the application can expedite the process, and enhance the chances of success. A fifth strategic consideration is to prepare for a contested hearing. The retrieval process can be straightforward if there are no objections from the Attorney General's office or the police department. However, in case of any challenges, the individual should be prepared to argue their case and provide additional documentation or evidence to support their cause. In case of contestation, it can be beneficial to enlist the services of an experienced criminal defense lawyer. In conclusion, the process of retrieving property seized under section 490(7) of the Criminal Code of Canada requires careful navigation and strategic considerations. Understanding the prescribed periods of detention, giving due attention to the notice requirement, choosing the right forum, drafting a comprehensive application, and preparing for a contested hearing are some of the steps that can enhance the chances of the successful retrieval of seized items.