2022 MBPC 14, 2022 MBPC 14

CITATION: 2022 MBPC 14 THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: Application pursuant to section 490(1) of the Criminal Code for detention of things seized, Envelope 28693 Reasons for Decision Delivered: March 29, 2022 Anne Krahn, A.C.J. Introduction [ 1 ] On February 23, 2022, Sgt. John Robinson and Shannon Hanlin, counsel for the Winnipeg Police Service, appeared before me in an ex parte proceeding requesting I make a detention order pursuant to section 490(1) of the Criminal Code for items seized pursuant to a search warrant. Sgt.

Robinson had twice filed a report to justice seeking a detention order from a Judicial Justice of the Peace (JJP), but the order was not made. After hearing further evidence from Sgt. Robinson and submissions from Ms. Hanlin, I advised I would issue the detention order and provide written reasons for doing so. These are the reasons. [ 2 ] The relevant statutory provisions, sections 487.1, 489, 489.1 and 490 are attached as an Appendix to these reasons. Procedural History [ 3 ] The following is a

summary of the circumstances leading to the application before me: 3.1. On November 25, 2021 a search warrant by telecommunication was issued by a JJP to search Suite 7-365 Mountain Avenue in the City of Winnipeg. 3.2. Sgt. Robinson completed a report to justice and dated it December 10, 2021. It was received by the court on December 16, 2021. 3.3.

A response from the JJP, dated December 17, 2021, on a form letter, advised the officer “A detention order has not been made” for the following reason: “The Disposition column on the List of Property Seized must be completed in full, including full address without abbreviations. Please review the instructions on bottom of the page.” The letter has the following sentences at the bottom, “Once this has been addressed, please send in a new Report to Justice to 408 York Avenue, Winnipeg, MB. A copy of the Report to Justice has been filed with the court.” 3.4. Sgt. J.

Robinson addressed the reasons outlined in this response from the JJP and re-submitted a Report to Justice. On January 17, 2022, the JJP responded that “A Detention Order has not been made.” A further reason is provided: “Report filed outside of 7 days pursuant to

Section 487.1(9), also see letter dated December 17, 2021.” Again, the letter advises that once this has been addressed, to send in a new report to justice. 3.5. On January 31, 2022, with a covering letter directed to the presiding judge, Sgt. Robinson asked for a detention order, setting out the history of the matter in the letter. He stated, The Winnipeg Police Service believes that the Criminal Code (

section 487.1(10) and s. 490(1) ) authorizes a justice either return the seized items to the lawful owner or person lawfully entitled to possession, or, order detention of the seized items if satisfied it is required for the purposes of any investigation or court proceeding. The Winnipeg Police Service does not believe that a justice has authority to refuse to order a detention order because the Report to Justice was filed outside of the time requirement in s. 487.1(9). 3.6. On February 2, 2022, I wrote to Sgt. Robinson asking that an ex parte hearing be set before me. I asked that Sgt.

Robinson or counsel on his behalf, provide me with legal authority to support their position as to the legal test for detention and be prepared to address the question of whether I have jurisdiction to consider their request. 3.7. On February 23, 2022, in an ex parte proceeding, on the record, counsel for the Winnipeg Police Service, Ms. Shannon Hanlin, and Sgt. John Robinson appeared before me. Sgt. Robinson provided some more information to support the detention order and Ms. Hanlin made oral submissions to supplement a written brief that had been provided in advance.

What is my Jurisdiction to Consider the Request for a Detention Order? [4] I raised the question of my jurisdiction to consider a third request for a detention order, as this might be seen as a review of thedecision made by a JJP. There is not a clear statutory basis for me to review the decision of another judicial officer of the same Court. [5] The Winnipeg Police Service argues a decision on the detention order has not yet been made. The response from the JJPindicates the request for detention order can be re-submitted.

Re-submissions, they argue, are distinct from a review of a detention orderissued or a clear refusal to issue a detention order. In either case, an application for review via certiorari or mandamus can be taken.They argue in this case no decision has yet been made, evidenced by the fact the JJP was indicating some further action or informationwas necessary before such a decision issued. They say it is routine for there to be re-submissions, especially of what should be a simpleadministrative process. [6] The Winnipeg Police Service relies on a number of cases to support their position.

They submit Minister of National Revenueand Justice of the Peace John H. Carroll and Phillip Carlini and Roger Durocher, Endorsement, CR-09-1791-00MO, December 12,2009 (Carroll Endorsement) is an example of a clear refusal by the Justice of the Peace to make a detention order when he struck certaindocuments from the requested detention order. This allowed the applicant to seek certiorari to have the decision quashed. [7] They rely on R. v.

Kawecki, 2014 ONSC 3584 where two reports to justice were filed in relation to the same seized vehicle.Twice a detention order was signed by a justice of the peace – the second one correcting errors in the description of the seized vehicle.The registered owner of the vehicle brought an application for certiorari with mandamus in aid, arguing there was no evidence to supportthe detention order therefore the detention order was made without jurisdiction. The Winnipeg Police Service points out the issuance ofthe detention order was clear in that case, unlike the case before me.

They also point out the facts in Kawecki support their submission itis common to re-submit a report to justice more than once. The Winnipeg Police Service points out there is nothing in the wording ofsection 490(1) which precludes multiple reports to justice being filed in support of the issuance of a detention order. [8] The Winnipeg Police Service relies on R. v.

Tennina, (ON SCDC), 88 O.R. (3d) 27 as another examplewhere the decisions of a justice of the peace were clear; a first decision not to extend a detention order pursuant to section 490(2) and asecond decision, based on the first, which ordered the investigators to return boxes of seized materials in a tax investigation. The justiceof the peace felt the investigation had not moved forward quickly enough to justify an extension of the detention order.

Since there wereclear decisions, the Winnipeg Police Service argue the investigating Canada Revenue Agency was able to file certiorari seeking to quashthe two decisions. In Tennina the return orders were quashed. A further appeal to the Ontario Court of Appeal, R. v. Tennina, 2008ONCA 498 confirmed the quashing of the decisions to return the seized files because the justice of the peace had exceeded hisjurisdiction by applying a legal test more strenuous than the legislation required. [9] And finally, the Winnipeg Police Service points to R. v.

Bellinger, 2017 ONSC 1639, as an example where there was a clearrefusal to order the detention of a car used in a drug transaction. The officer seeking the detention order explained they would be seekingto have the vehicle forfeited as offence-related property. The justice of the peace expressed concern about the storage costs that wouldaccrue to the owner of the car and refused to order its detention. The Crown filed an application of certiorari with mandamus in aidseeking the quashing of the refusal to order detention.

The Crown argued because the justice of the peace did not apply the correct legaltest, she acted without jurisdiction. The Court agreed with the Crown and quashed the order returning the vehicle. The request for adetention order was returned to the justice of the peace to apply the correct legal test on the issue of whether the vehicle should bedetained. The Court described the test in section 490(1) as an administrative act which affords limited discretion to the justice.

Thequestion to be asked was: “is the vehicle required for a trial or other proceeding, including a forfeiture hearing?” (at paragraph 33). [10] A further example of a justice considering a re-submission of a report to justice can be found in Re: Request for Order ofDetention, s. 490(1) Criminal Code, 2022 ONCJ 27. [11] The cases cited above do not deal specifically with the issue of the authority or jurisdiction for a judicial officer to considermultiple reports to justice.

However, I agree the cases cited do provide examples where it is clear a decision had been made by the justiceof the peace and/or more than one report to justice was filed with the court. I also find the recognition from the JJP in the facts before methat further reports to justice might be submitted support the conclusion that a final determination on detention has not yet been made. [12] I will elaborate further on this below but my reading of a section 490(1) makes it mandatory for a justice to consider a detentionorder in the supervision of seized items.

In my view, it is the judicial responsibility to supervise seized items that may often necessitatemultiple reports to justice. As failures to provide complete information are identified by a justice, further reports will be required in orderfor the additional information to be provided. The facts in this case illustrate the need for this practical and pragmatic approach. Forexample, the JJP pointed out in the first response to Sgt. Robinson that page 4 of 8 of the report to justice was not completed.

This wasimportant because this page identifies whether the exhibits will be returned or retained “according to law.” The report to justice filedbefore me, has addressed this issue. [13] I am satisfied on the facts before me, a decision on the police request for a detention order has not yet been made and this is nota review of a decision already made by a justice. What is the Effect of the Failure to File the Report to Justice in Seven Days as Required by

Section 487.1(9)? [14] Sgt. Robinson applied for the search warrant by telecommunication as provided for in

section 487.1(1) of the Criminal Code.Section 487.1(9) requires the report to justice, describing what has been seized pursuant to that warrant, to be filed in seven days. Thiswas not done. The only explanation offered in the letter from Sgt. Robinson to the “presiding judge” is it was “by omission.” The reportfiled was received in the court office 21 days after the warrant was executed. [15] The Winnipeg Police Service argues the failure of the police to file a report to justice in compliance with statutory deadlines isnot relevant to the determination of detention.

They say this is a process issue that applies to the police, not to the judicial officer. Theyargue the failure to comply with statutory filing deadlines and any remedy, is an issue that must be determined at trial. They arguesection 490(1) is the

section the judicial officer must consider when presented with a request for a detention order. Pursuant to section

490(1) the justice must either order detention or order return of the seized items. [16] I asked this matter be addressed before me because one possible approach is to find the failure to comply with mandatory,statutory deadlines, means the judicial officer has lost jurisdiction to consider the request for a detention order pursuant to section 490(1).After reviewing the case law and considering the written and oral submissions, I agree with the position put forward by the WinnipegPolice Service – a delay in filing a report to justice is a trial issue. A number of authorities support this conclusion. [17] In R. v.

Hicks, 2000 BCSC 89 , the Court considered two applications for certiorari challenging detention orders forseized monies made by a justice. The Court held the justice has very limited jurisdiction within the scope of section 490(1) and thatjurisdiction does not extend to a consideration of the “bona fides of the police officer’s actions in the execution of his duties under theCode. [See R. v. 9010-5693 Quebec Inc. (c.o.b. Microville), [1998] Q.J. No. 1283 (QC S.C.)]”. The Court held it was not a reasonablegrounds standard.

The limited question for the justice under section 490(1) is: are the items required for an investigation or a courtproceeding? The Court held the justice could rely on the statement of the police officer that the items were required for an investigation. [18] In R. v. Craig, 2016 BCCA 154 the British Columbia Court of Appeal considered the police failure to file a report to justice,after a telewarrant (ultimately found to be defective) was executed. The issue had been litigated before the trial court.

The Courtconsidered a divide in the authorities on whether the failure to file or delay in filing a report to justice amounts to a

section 8 Charterbreach. Some courts found the failure to file a report to justice was an administrative function and

section 8 Charter protection did notcover the retention of property (Re Church of Scientology and The Queen (No. 6) (1987), 31 C.C.C. (3d) 449 (Ont. C.A.) and JimPattison Industries Ltd. v. The Queen, (FC), [1984] 2 F.C. 954); some cases found whether the failure to file thereport to justice amounts to a

section 8 Charter violation depends on the circumstances, R. v. Backhouse (2005) (ONCA), 194 C.C.C. (3d) 1 (Ont. C.A.) and R. v. Veranski, 2012 BCSC 220; other cases, found

section 8 Charter protection did cover theseizure of property, and a failure to file a report to justice at all, amounted to a breach of

section 8, but a 24(2) Charter analysis did notnecessarily result in exclusion of the evidence, R. v. Butters 2014 ONCJ 228, aff’d 2015 ONCA 783, R. v. Garcia-Machado. [19] The Manitoba Court of Appeal recently referred to the divergence in the case law in Winnipeg (City) v. Caspian Projects Inc. etal, 2021 MBCA 33 (at paragraph 29 and related footnote). It remains to be settled whether a failure to comply with a statutoryrequirement to file a report to justice always results in a Charter breach.

In Paterson, 2017 SCC 15, the majority of the Supreme Court ofCanada found it unnecessary to decide whether a failure to file a report to justice amounted to a Charter breach.

Justice Moldaver indissent, commented, even if the failure to file a report to justice amounted to a Charter breach, the evidence would not be excluded unders. 24(2) given the negligible impact on privacy rights (at para. 60). [20] In Craig, the Court concludes, I agree with the approach taken by the Ontario Court of Appeal in Garcia-Machado and Butters that the failure to strictly comply withthe statutory provisions of the Criminal Code will result in a Charter breach where the accused had an ongoing residual privacy interestand rendered the continuing detention unreasonable.

I also agree that the circumstances are best left for an analysis under s. 24(2) of theCharter. (emphasis added) (at para. 182) After conducting the 24(2) analysis, the Court in Craig found the evidence ought not to be excluded. I note parenthetically, as will beseen below, in the case before me, it may be that the seized items belonged to the homicide victim and were seized from the victim’sresidence, so the charged persons may have no privacy interests in the seized items.

But that is not for me to determine at this early stagewhere police are seeking a detention order pursuant to section 490(1). [21] These cases do establish the failure to file a report to justice in compliance with statutory timelines does not necessarily resultin a finding of a Charter breach or necessarily result in the evidence being excluded.

The determination of whether the facts amount to aCharter breach is a decision which must remain with trial judges to decide, within an adversarial environment, as opposed to an ex parte,administrative proceeding, early in the investigation. [22] The Supreme Court of Canada in R. v. Raponi 2004 SCC 50 , [2004] 3 S.C.R. 35 summarized: “Section 490(1)requires the justice to whom the report is made either to order the return of the thing or order its detention if satisfied that it is requiredfor the purposes of investigation or for a proceeding.” (at para. 11).

In Raponi police seized $35,000 in cash when it was presented to thecourt by a lawyer to have his client released. Raponi challenged the police authority to seize the cash. The Supreme Court held thelawfulness of the seizure was not to be determined at the stage where police were seeking an extension to a detention order. In Raponithe Court was dealing with section 490(2) but, in my view, the same conclusion and analysis would apply to section 490(1). The Court isonly authorized to decide whether the items should be detained or returned.

The judicial officer is not authorized to decide the lawfulnessof the seizure based on alleged breaches of the Charter, including a delay in filing the report to justice. [23] The Court in Villaroman, 2018 ABCA 220 described the detention order as a “routine administrative order.” (para. 25). [24] In R. v. Gignac, 2007 ONCJ 472 Justice of the Peace Cuthbertson reviewed numerous cases to support her conclusion that allreports to justice should be filed in less than seven days and the failure to do so had in other trial decisions resulted in a finding of asection 8 Charter breach.

The report to justice in Gignac had been filed in excess of seven days. Nonetheless, despite her concernregarding the late filing, Justice of the Peace Cuthbertson concluded the court was not a court of competent jurisdiction to considerpossible Charter implications for the delay in filing. She accepted the report to justice to ensure the items seized were brought underjudicial supervision. [25] The appellate authorities are clear that the legislative scheme for filing reports to justice, as directed by

section 489.1, ensuresthat

section 490 is engaged.

Section 490 places “an obligation on the justice to supervise its detention.” (emphasis added) Winnipeg(City) v. Caspian Projects Inc. et al. (at para. 15). See also, Garcia-Machado at para 15, quoting R. v. Backhouse at para 112; Craig atpara.

Section 489.1 and 490 are meant to “ensure that items detained by police officers are not held indefinitely without judicialoversight.” (Villaroman at para. 24.) The wording of section 490(1) is imperative, “the justice shall” order return to a lawful owner or theperson lawfully entitled to the property, unless satisfied it is required for an investigation or a court proceeding.

[ 26 ] I find the police failure to file a report to justice in strict compliance with statutory deadlines does not prevent or create a barrier for a justice pursuant to section 490(1) of the Criminal Code from considering the request for a detention order. The police failure to file within statutory timelines is a trial issue and any remedy for that failure will have to be determined in the trial process. Should a Detention Order be made in this Case? [ 27 ] I turn now to the information in the report to justice before me and the supplemental information provided by Sgt. Robinson in the hearing before me.

The report to justice attaches a Winnipeg Police Service Exhibit List. This document identifies this as a “homicide” investigation and contains a list of “Scene Exhibits.” The search warrant authorized the seizure of the following items: a knife, a video camera/surveillance system, a smartphone, drinking vessels, cigarette butts and any forensically significant evidence including fingerprints, blood saliva, skin, hair, DNA.

The search warrant reveals it was in connection with the killing of Angus Maple and was for the premises of Angus Maple, Chelsea Paul, Timothy Maple in suite 7-365 Mountain Avenue in the City of Winnipeg. I was not the justice who issued the warrant; the information to obtain the warrant is sealed so the information I have to consider is the information in the report to justice and some additional information provided by Sgt. Robinson.

I agree with the position of the Winnipeg Police Service, there is nothing in the wording of section 490(1) which requires the report to justice to be made to the same justice who issued the search warrant. [ 28 ] Sgt. Robinson explained the deceased was found in suite 7-365 Mountain Avenue. Initially, police were unsure if Angus Maple had been shot or if he was stabbed. The deceased was found in a pool of blood. Out of an abundance of caution, police sought and obtained the search warrant for the crime scene.

In the initial stages of the investigation, there was some uncertainty as to who resided in the residence. On January 14, 2022 an Information was sworn charging Timothy Maple with second degree murder of Angus Maple. A female, Thunder Lightning Fontaine has been charged as well. Sgt. Robinson testified neither of the charged persons resided at 7-365 Mountain Avenue. [ 29 ] The report to justice says the police seized items pursuant to the warrant and pursuant to

section 489 of the Criminal Code .

Section 489 allows the police, when they are executing a warrant, to seize any additional items not listed in the warrant they have reasonable grounds to believe have been obtained, used or will afford evidence of an offence. On page 3 of 8 of the report to justice, police should specify the basis for seizure of items not specifically authorized under the warrant. This page has not been filled in, in particular the

section entitled, “Seizure under

section 489 of the Criminal Code ” is blank. There are items listed in the Exhibit List attached to the report to justice that are not clearly listed in the search warrant as items to be seized. The following is a listing of these items and the information provided by Sgt. Robinson in the hearing, in relation to those items: 29.1. SC1 - Black shirt, SC2 - Grey shirt – these items were near the body of the deceased; they had blood on them; 29.2. SC 6 - White plastic strip – Sgt. Robinson said this was found near the body of the deceased.

He learned later it was something used by the paramedics to administer medical aid, it was seized for possible fingerprints and because it had blood on it. 29.3. SC11 & SC12 - both identified as smoke alarms were seized to examine for video cameras, as a smoke alarm had been found with a surveillance camera in it. 29.4. SC16 - unfired 22 caliber round, seized for potential forensic analysis and fingerprints, as this was a firearms investigation. 29.5. SC21 small black safe – Sgt. Robinson explained when police shook the safe, they heard a metal sound in it.

Police felt it could be a firearm related to the offence, so the safe was seized for forensic analysis such as fingerprinting. I am satisfied the above items could be seized pursuant to the search warrant as “any forensically significant evidence” or as video camera/surveillance system. The safe could also have been seized pursuant to section 489(1).

I am satisfied police are entitled to detain all of the items seized from 7-365 Mountain Avenue, Winnipeg, including the above items, as they will be required for the purposes of a preliminary inquiry or trial. [ 30 ] I had the benefit of further information from Sgt. Robinson in an oral hearing. In the future, it is important the report to justice be completed properly to facilitate the judicial supervision of seized items. The justice needs information to be satisfied there was some legal authority to seize the items and they are required for a future court proceeding.

Conclusion [ 31 ] The test to be applied when a report to justice is filed pursuant to section 490(1) is a limited threshold assessment ( Hicks at para. 14 ). It is not the time to balance competing privacy or property concerns (see Kawecki at para. 34, 35 ; Carroll Endorsement at para. 6 & 9; Bellinger at para. 32 & 33 ).

The justice has a limited discretion to determine whether the items are required for a court proceeding or an investigation, and if not required, the law states they should be returned to the lawful owner. [ 32 ] When police are seeking a detention order, the justice is not entitled to consider the lawfulness of the seizure or potential Charter arguments including the failure to file the report to justice within statutory deadlines ( Hicks at para. 19 ; Raponi at para. 29 and 31 ). [ 33 ] Police officers should ensure the report to justice provides sufficient information to the justice, for the justice to determine under what authority the items were seized?

For example, are the seized items the things the warrant authorized police to seize? If, for example, items were seized in plain view as they appear to be related to an offence as allowed in

section 489 , the report to justice should clearly set that out. This allows the justice to fulfill the statutory requirement of ongoing judicial supervision of seized items. ( Craig at para. 181 ) [ 34 ] There is no bar to the police filing more than one report to justice in relation to the same search warrant. This facilitates proper judicial supervision of the seized items. This is demonstrated in this case where the JJP had not made a decision but was requesting

further information. [ 35 ] The items police have seized while executing the search warrant can be detained as they will be required for a court proceeding. “Original signed by:” A. Krahn, A.C.J. APPENDIX

SECTION 487.1 Telewarrants 487.1

(1) If a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a justice to make an application for a warrant in accordance with

section 487, the peace officer may submit an information on oath by telephone or other means of telecommunication to a justice designated for the purpose by the chief judge of the provincial court having jurisdiction in the matter.

(2) An information submitted by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, shall be on oath and shall be recorded verbatim by the justice, who shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the record or a transcription of it, certified by the justice as to time, date and contents.

(2.1) The justice who receives an information submitted by a means of telecommunication that produces a writing shall, as soon as practicable, cause to be filed, with the clerk of the court for the territorial division in which the warrant is intended for execution, the information certified by the justice as to time and date of receipt.

(3) For the purposes of subsection (2), an oath may be administered by telephone or other means of telecommunication.

(3.1) A peace officer who uses a means of telecommunication referred to in subsection (2.1) may, instead of swearing an oath, make a statement in writing stating that all matters contained in the information are true to his or her knowledge and belief and such a statement is deemed to be a statement made under oath.

(4) An information submitted by telephone or other means of telecommunication shall include (

a) a statement of the circumstances that make it impracticable for the peace officer to appear personally before a justice; (

b) a statement of the indictable offence alleged, the place or premises to be searched and the items alleged to be liable to seizure; (

c) a statement of the peace officer’s grounds for believing that items liable to seizure in respect of the offence alleged will be found in the place or premises to be searched; and (

d) a statement as to any prior application for a warrant under this

section or any other search warrant, in respect of the same matter, of which the peace officer has knowledge.

(5) A justice referred to in subsection (1) may issue a warrant to a peace officer conferring the same authority respecting search and seizure as may be conferred by a warrant issued under subsection 487(1) if the justice is satisfied that an information submitted by telephone or other means of telecommunication (

a) is in respect of an indictable offence and conforms to the requirements of subsection (4); (

b) discloses reasonable grounds for dispensing with an information presented personally and in writing; and (

c) discloses reasonable grounds in accordance with paragraph 487(1)(a), (

b) or (c), as the case may be, for the issuance of a warrant in respect of an indictable offence. The justice may require that the warrant be executed within the period that he or she may order.

(6) Where a justice issues a warrant by telephone or other means of telecommunication, other than a means of telecommunication that produces a writing, (

a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance; (

b) the peace officer, on the direction of the justice, shall complete, in duplicate, a facsimile of the warrant in Form 5.1, noting on its face the name of the issuing justice and the time, date and place of issuance; and (

c) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.

(6.1) Where a justice issues a warrant by a means of telecommunication that produces a writing, (

a) the justice shall complete and sign the warrant in Form 5.1, noting on its face the time, date and place of issuance; (

b) the justice shall transmit the warrant by the means of telecommunication to the peace officer who submitted the information and the copy of the warrant received by the peace officer is deemed to be a facsimile within the meaning of paragraph (6)(b); (

c) the peace officer shall procure another facsimile of the warrant; and (

d) the justice shall, as soon as practicable after the warrant has been issued, cause the warrant to be filed with the clerk of the court for the territorial division in which the warrant is intended for execution.

(7) A peace officer who executes a warrant issued by telephone or other means of telecommunication shall, before or as soon as practicable after entering the place or premises to be searched, give a facsimile of the warrant to any person who is present and ostensibly in control of the place or premises.

(8) A peace officer who, in any unoccupied place or premises, executes a warrant issued by telephone or other means of telecommunication shall, on entering or as soon as practicable after entering the place or premises, cause a facsimile of the warrant to be suitably affixed in a prominent place within the place or premises.

(9) A peace officer to whom a warrant is issued by telephone or other means of telecommunication shall file a written report with the clerk of the court for the territorial division in which the warrant was intended for execution as soon as practicable but within a period not exceeding seven days after the warrant has been executed, which report shall include (

a) a statement of the time and date the warrant was executed or, if the warrant was not executed, a statement of the reasons why it was not executed; (

b) a statement of the things, if any, that were seized pursuant to the warrant and the location where they are being held; and (

c) a statement of the things, if any, that were seized in addition to the things mentioned in the warrant and the location where they are being held, together with a statement of the peace officer’s grounds for believing that those additional things had been obtained by, or used in, the commission of an offence.

(10) The clerk of the court shall, as soon as practicable, cause the report, together with the information and the warrant to which it pertains, to be brought before a justice to be dealt with, in respect of the things seized referred to in the report, in the same manner as if the things were seized pursuant to a warrant issued, on an information presented personally by a peace officer, by that justice or another justice for the same territorial division.

(11) In any proceeding in which it is material for a court to be satisfied that a search or seizure was authorized by a warrant issued by

telephone or other means of telecommunication, the absence of the information or warrant, signed by the justice and carrying on its face a notation of the time, date and place of issuance, is, in the absence of evidence to the contrary, proof that the search or seizure was not authorized by a warrant issued by telephone or other means of telecommunication.

(12) A duplicate or a facsimile of an information or a warrant has the same probative force as the original for the purposes of subsection (11).

SECTION 489 Seizure of things not specified 489

(1) Every person who executes a warrant may seize, in addition to the things mentioned in the warrant, any thing that the person believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament.

(2) Every peace officer, and every public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, who is lawfully present in a place pursuant to a warrant or otherwise in the execution of duties may, without a warrant, seize any thing that the officer believes on reasonable grounds (

a) has been obtained by the commission of an offence against this or any other Act of Parliament; (

b) has been used in the commission of an offence against this or any other Act of Parliament; or (

c) will afford evidence in respect of an offence against this or any other Act of Parliament.

SECTION 489.1 489.1

(1) Subject to this or any other Act of Parliament, where a peace officer has seized anything under a warrant issued under this Act or under

section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable, (

a) where the peace officer is satisfied, (

i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and (ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding, return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so; or (

b) where the peace officer is not satisfied as described in subparagraphs (a)(

i) and (ii), (

i) bring the thing seized before the justice referred to in paragraph (a), or (ii) report to the justice that he has seized the thing and is detaining it or causing it to be detained to be dealt with by the justice in accordance with subsection 490(1).

(2) Subject to this or any other Act of Parliament, where a person, other than a peace officer, has seized anything under a warrant issued under this Act or under

section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, that person shall, as soon as is practicable, (

a) bring the thing seized before the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, before a justice having jurisdiction in respect of the matter, or (

b) report to the justice referred to in paragraph (

a) that he has seized the thing and is detaining it or causing it to be detained, to be dealt with by the justice in accordance with subsection 490(1).

(3) A report to a justice under this

section shall be in the form set out as Form 5.2 in

Part XXVIII, varied to suit the case and shall include, in the case of a report in respect of a warrant issued by telephone or other means of telecommunication, the statements referred to in subsection 487.1(9). 490

(1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(

b) or subsection 489.1(2), anything that has

been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, (

a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or (

b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding.

(2) Nothing shall be detained under the authority of paragraph (1)(

b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (

a) is decided, unless (

a) a justice, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or (

b) proceedings are instituted in which the thing detained may be required.

(3) More than one order for further detention may be made under paragraph (2)(

a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (

a) is decided, unless (

a) a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552, on the making of a

summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or (

b) proceedings are instituted in which the thing detained may be required.

(3.1) A thing may be detained under paragraph (1)(

b) for any period, whether or not an application for an order under subsection (2) or (3) is made, if the lawful owner or person who is lawfully entitled to possession of the thing seized consents in writing to its detention for that period.

(4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs.

(5) Where at any time before the expiration of the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized, the prosecutor, or the peace officer or other person having custody of the thing seized, determines that the continued detention of the thing seized is no longer required for any purpose mentioned in subsection (1) or (4), the prosecutor, peace officer or other person shall apply to (

a) a judge of a superior court of criminal jurisdiction or a judge as defined in

section 552, where a judge ordered its detention under subsection (3), or (

b) a justice, in any other case, who shall, after affording the person from whom the thing was seized or the person who claims to be the lawful owner thereof or person entitled to its possession, if known, an opportunity to establish that he is lawfully entitled to the possession thereof, make an order in respect of the property under subsection (9).

(6) Where the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required, the prosecutor, peace officer or other person shall apply to a judge or justice referred to in paragraph (5)(

a) or (

b) in the circumstances set out in that paragraph, for an order in respect of the property under subsection (9) or (9.1).

(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.

(8) 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 a justice, in any other case, may allow an application to be made under subsection (7) prior to the expiration of the periods referred to therein where he is satisfied that hardship will result unless the application is so allowed.

(9) Subject to this or any other Act of Parliament, if (

a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or

(

b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (

c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (

d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law.

(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.

(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.

(11) Subject to this or any other Act of Parliament, on an application under subsection (10), where a judge or justice is satisfied that (

a) the applicant is the lawful owner or lawfully entitled to possession of the thing seized, and (

b) the periods of detention provided for or ordered under subsections (1) to (3) in respect of the thing seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), the judge or justice shall order that (

c) the thing seized be returned to the applicant, or (

d) except as otherwise provided by law, where, pursuant to subsection (9), the thing seized was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant be paid the proceeds of sale or the value of the thing seized.

(12) Notwithstanding anything in this section, nothing shall be returned, forfeited or disposed of under this

section pending any application made, or appeal taken, thereunder in respect of the thing or proceeding in which the right of seizure thereof is questioned or within thirty days after an order in respect of the thing is made under this section.

(13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), make or cause to be made, and may retain, a copy of the document.

(14) Every copy made under subsection (13) that is certified as a true copy by the Attorney General, the person who made the copy or the person in whose presence the copy was made is admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the original document would have if it had been proved in the ordinary way.

(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.

(16) An order that is made under subsection (15) shall be made on such terms as appear to the judge to be necessary or desirable to ensure that anything in respect of which the order is made is safeguarded and preserved for any purpose for which it may subsequently be required.

(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order (

a) to the court of appeal as defined in

section 673 if the order was made by a judge of a superior court of criminal jurisdiction, in which case sections 678 to 689 apply with any modifications that the circumstances require; or

(

b) to the appeal court as defined in

section 812 in any other case, in which case sections 813 to 828 apply with any modifications that the circumstances require.

(18) Any person to whom three days notice must be given under paragraph (2)(

a) or (3)(

a) or subsection (7), (10) or (15) may agree that the application for which the notice is given be made before the expiration of the three days.