The Police Have Taken My Property: Now What?

How the Law Works

When property is seized through a warrant or during the execution of police duties, the police must file a document called a Form 5.2.

A Form 5.2 is an official record of what property the police took from the individual. After the Form 5.2 is filed, a court will have the power to manage, return, and decide the overall outcome of property within the rules stated in Section 490 of the Criminal Code of Canada.

Under Section 490, seized items are held in custody if a judge deems them to be required for the purpose of an investigation, preliminary inquiry, trial, or any other proceeding. The items detained have a 90-day period of lawful detention, but can be extended to a year past the seizure date and potentially longer.

You may be asking how, or why, the police can keep your items past the 90-day lawful detention period. The answer to the question of “how” is by way of a 490 application. The answer to the question of “why” is because these seized items are deemed important enough to the nature of the investigation to be held in further detention.

But, there are nuances to the length of further detention. The police can apply to a provincial court to hold an item for up to a year after the seizure date under Section 490(2) of the Criminal Code. If the police want to hold the items for longer than a year, they will have to apply to a superior court under Section 490(3). Generally, the longer an investigation goes on, it becomes more challenging for the police to satisfy a judge for further detention.

As of right now, although it may not seem like it, the objective of Section 490 is to protect individual rights while also allowing for the police to preserve evidence during an ongoing investigation. If you’re an individual involved in a scenario where police have seized your property, a way to exercise your rights is to contest a 490 application.

Contesting a 490 Application

Again, a Section 490 application is where police want to extend the detention of property past the initial 90-day lawful period. Generally, these applications happen when the police are still investigating a potential crime and need more time to strengthen their case.

Successfully contesting an application can disrupt the ongoing investigation, reveal information the police have against the individual, and result in the return of the seized property.

Here is a hypothetical example to help you understand why you might want to challenge a 490 application:

The police are investigating a drug offence and seize a cellphone from a suspect. The police are unable to retrieve data from the cellphone within the 90-day period and apply for further detention. The suspect hires a lawyer to challenge the application. The lawyer succeeds and the application is not granted. The police must return the cellphone, leading to no charges being laid due to a lack of sufficient evidence.

How Your Charter Rights Can Be Affected By a 490 Application

Section 8 of the Charter of Rights and Freedoms protects individuals from unreasonable search and seizure on behalf of the police.

In R v. Colarusso, [1994] 1 S.C.R 20, the Court clarified that Section 8 of the Charter applies to seized items and continues to apply until the items are no longer under seizure. So, what does this mean? It means that your property is still protected under the Charter even when it is in the custody of the police. Privacy is a central consideration when Section 8 is violated. As such, you still have an ongoing expectation of privacy when your property is seized.

Under Canadian law, the reporting of seized items, the right to notice if the police make an application for further detention, and the right to challenge a 490 application are vital protections to individuals in Canada. If these are violated, it can aid your defence.

Consider this example:

The police make a 490 application without notifying the suspect 3-days prior to the hearing date. This deprives the suspect from the opportunity to challenge the application and assert their rights to privacy and protections from unreasonable seizure. As a result, the police have violated the suspect’s rights by failing to respect due process and legal protection. The infringement on the suspect’s right may cause key evidence to not be considered in future proceedings.

What Can You Do?

Talk to a lawyer and find out your options.

The law in this area is complex and may be pivotal to how your case plays out. It requires a professional, experienced, and effective lawyer who will look out for your best interest.

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