section 490(9.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a judge or justice to order continued detention of a seized thing if necessary purposes exist and it is in the interests of justice, even if the periods of detention have expired and no proceedings have been initiated.

SECTION WORDING

490(9.1) Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(a) or (b) may, if the periods of detention provided for or ordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied (a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and (b) that it is in the interests of justice to do so.

EXPLANATION

Section 490(9.1) of the Criminal Code of Canada allows a judge or justice to order the continued detention of a thing that has been seized even after the periods of detention provided for under subsections (1) to (3) have expired, provided that legal proceedings have not been instituted in which the thing may be required. The section is intended to prevent a situation where a thing that may be relevant to a legal proceeding is released or destroyed before the proceedings are instituted. For the judge or justice to order the continued detention of the thing, two conditions must be met. First, they must be satisfied that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4). These purposes include the completion of an investigation, the prosecution of an offence, or the use of the thing as evidence in a legal proceeding. Second, they must be convinced that it is in the interests of justice to order the continued detention of the thing. This section is important in ensuring that evidence that may be relevant to legal proceedings is not lost or destroyed before the proceedings are instituted, and that justice can be served. It gives judges and justices flexibility to order the continued detention of a thing, even if the periods of detention have expired, in situations where they are satisfied that it is necessary and in the interests of justice to do so.

COMMENTARY

Section 490(9.1) of the Criminal Code of Canada provides for a provision that gives a judge or justice the power to order the continued detention of a seized thing for such a period as deemed necessary, even if the periods of detention provided for or ordered under subsections (1) to (3) have expired, and proceedings have not been instituted in which the thing may be required. However, for this provision to be applied, the judge must be satisfied that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4), and that it is in the interests of justice to do so. The provision in question is a significant aspect of the Canadian Criminal Code that has far-reaching implications on the detention of seized items. The Criminal Code sets out the rules and regulations that must be followed when handling any seized item. When an item is seized as a part of an investigation, the police may detain that thing for only a limited period. As per section 490(9) of the Criminal Code of Canada, if the police detain a thing, they must release it or provide it to the owner or a person who appears to own the thing at the end of 90 days. However, in some exceptional cases, the police may be granted an additional 90 days by the court. The provision contained in section 490(9.1) is also relevant in cases where there is a delay in instituting proceedings or commencing the trial of a criminal case. While there may be a delay in starting a trial, it is essential to ensure that the evidence required for a fair trial is maintained and secured. Often, in such situations, items seized, such as weapons, drugs, or suspicious items, may be kept as evidence. However, maintaining custody of seized items may not always be practical, and the Criminal Code recognizes this by establishing time limits for detention. However, there may be cases in which the continued detention of a seized item may be required after the expiration of the detention period outlined in subsections (1) to (3). That is why section 490(9.1) of the Criminal Code of Canada provides a mechanism for extending the period of detention of a seized item. The continued detention period will be determined by the concerned judge or justice, based on their satisfaction that justice requires the extension of detention for such further period as the judge considers reasonable. The objectives mentioned in subsections (1) and (4) of section 490 of the Criminal Code of Canada contain a variety of purposes for which the continued detention of a seized item might reasonably be required. These purposes range from facilitating the investigation or gathering further evidence to preventing the commission of a further crime and protecting public safety. The decision of whether retaining the seized item is reasonable can be complex, and the police will need to provide sufficient evidence to justify continued detention for the prescribed period. Moreover, the provision contained in section 490(9.1) is essential in ensuring that justice is served correctly. The provision grants judges or justices the necessary flexibility to maintain the detention of seized items, ensuring that they remain secure and available for fair trial purposes. Therefore, the continued detention of the seized item allows for investigating and prosecuting the case efficiently, resulting in a fair and just conclusion. In conclusion, section 490(9.1) is an essential provision in the Criminal Code of Canada that allows for the continued detention of seized items beyond the period stated in subsections (1) to (3). The provision is vital in cases where there is a delay in instituting proceedings or commencing the trial of a criminal case. By providing this mechanism, the Criminal Code ensures that seized items remain available for fair trial purposes, thereby protecting the interests of justice. Judges and Justices will, however, need to observe the provisions and apply their discretion cautiously, maintaining the delicate balance between justice and individual rights carefully.

STRATEGY

Section 490(9.1) of the Criminal Code of Canada provides law enforcement officials and prosecutors with considerable discretion in determining whether to detain seized property for a period that exceeds the standard statutory time limits. The legal framework and procedures surrounding this section of the Criminal Code are complex, and it is important for lawyers to be strategic when invoking or challenging this provision in criminal proceedings. One important strategic consideration is whether to apply for an extension of detention under Section 490(9.1) or to seek the release of the seized property. Generally, prosecutors will seek an extension if there is a continuing need to retain the seized property, often for evidentiary purposes. Such a need can arise if forensic analysis or laboratory testing is required, or if the property is needed for use at trial. On the other hand, a defence lawyer may seek the release of the seized property if they believe that it is no longer required for evidentiary purposes, or if it is prejudicial to their client's interests to continue the detention. This may be the case if the property is personal property, such as a vehicle or electronic device, and its continued detention is causing significant hardship to the owner. Another strategic consideration is the timing of the request for extension of detention. Section 490(9.1) explicitly states that the continued detention must be necessary for a purpose mentioned in subsections (1) or (4) of the provision. Subsection (1) provides that property may be detained for the purpose of furthering an investigation or proceeding related to an offence, while subsection (4) allows for detention for the purpose of preventing the commission of an offence. If these conditions no longer exist, there may be no legal basis for the continued detention of the seized property. Prosecutors must also consider the interests of justice when making an application for extension of detention. Section 490(9.1)(b) allows a judge or justice to consider whether it is in the interests of justice to continue the detention. Factors that may be relevant to this analysis include the nature of the offence, the impact on the accused, the availability of alternative evidence, and any other relevant circumstances. Defence lawyers should be vigilant in challenging applications for extension of detention under Section 490(9.1), particularly if they believe that the continued detention is unnecessary or prejudicial to their client's interests. They may challenge the extension on procedural grounds, such as arguing that the prosecutor has not met the legal requirements for a successful application, or on substantive grounds, such as arguing that the interests of justice do not justify continued detention. In conclusion, Section 490(9.1) of the Criminal Code of Canada presents strategic considerations for both prosecutors and defence lawyers in criminal proceedings. The decision of whether to seek an extension of detention or to challenge such a request requires a careful weighing of the legal and factual circumstances of the case. It is important for lawyers to be familiar with the legal requirements of Section 490(9.1) and its procedural implications in order to be successful in negotiating this provision of the law.