Procédure de saisie de biens

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General Principles

Section 489 and 489.1 govern the handling of property that attracts ownership and privacy rights.

Upon warrantless seizure of property under s. 489, the police are obliged to safeguard the items they have seized.

Section 489.1 governs the procedure to be followed by the police upon seizing property, whether under warrant, warrantless, or otherwise under an Act of Parliament including s. 489. This applies to seizure on search incident to arrest as well as seizure incidental to a search warrant.

The purpose of filing a report to justice under s. 489.1 is to place the property under judicial oversight. It creates accountability and imposes a measure of protection upon the property.

Restitution of property or report by peace officer

489.1 (1) Subject to this or any other Act of Parliament, if a peace officer has seized anything under a warrant issued under this Act, under section 487.11 [lorsque le mandat n'est pas nécessaire] or 489 [saisie de choses non spécifiées avec ou sans mandat] 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) return the thing seized, on being issued a receipt for it, to the person lawfully entitled to its possession and report to a justice having jurisdiction in respect of the matter and, in the case of a warrant, jurisdiction in the province in which the warrant was issued, if the peace officer is satisfied that

(i) there is no dispute as to who is lawfully entitled to possession of the thing seized, and

(ii) the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or

(b) bring the thing seized before a justice referred to in paragraph (a) [biens saisis et remis], or report to the justice that the thing has been seized and is being detained, to be dealt with in accordance with subsection 490(1) [détention des objets saisis], if the peace officer is not satisfied as described in subparagraphs (a)(i) [pas de litige sur la possession autorisée] and (ii) [biens non nécessaires à une procédure].

[omis (2)]

Form

(3) A report to a justice under this section shall be in Form 5.2 [formes], varied to suit the case.
R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49; 2022, c. 17, s. 26.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Under s. 489.1(1)(b)(ii), where the police seize property either in execution of a warrant or otherwise in execution of their duties, they must file a Report to Justice that is filed with the justice of the peace.

This will permit the officer to hold onto the property for a period of 90 days without laying charges. Where further time is needed the officer must apply for a further detention order under s. 490.

Any property seized pursuant to a search warrant "must be carried before the justice who issued the warrant to be dealt with by him according to law."

Charter

Section 8 of the Charter can apply to the detention of items seized under s. 489 and 489.1. Unreasonable retention of property may give rise to a s. 8 violation.

A failure to report to the justice that the property was seized without a warrant is a violation of s. 8 of the Charter.

See Exclusion of Evidence Under Section 24(2) of the Charter

Report to Justice

Section 489.1 requires the seizing officer to file a Form 5.2 to the justice who authorized the search. This requirement applies to seizures under s. 487 and s. 11 CDSA.

A failure to file a Report to Justice under Form 5.2 does not render a valid search invalid, however, it will render detention of the items unreasonable and in breach of s. 8 of the Charter.

The filing of a report is considered the "gateway" to "important procedural protections under s. 489.1 and 490 and so must be timely. Courts should be "wary of any attempt to characterize the failure to meet the reporting requirements ... as trivial or insignificant."

Timing of Filing

The Report to Justice must be filed "as soon as practiable". Failure to do so may result in a violation of s. 8.

A late filing of Form 5.2 even by a few days will also violate s. 8 of the Charter.

Effect of the Filing

Thefiling of a report "places the property within the purview of judicial oversight." This includes allowing the property to be dealt with according to s. 490(1).

Section 487 Warrants

Section 487 also contemplates a requirement for a Report to Justice being made:

Information for search warrant

487 (1) A justice who is satisfied by information on oath in Form 1 [see forms] that there are reasonable grounds to believe that there is in a building, receptacle or place

[omis (a), (b), (c), (c.1) and (d)]

(e) subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1 [restitution de biens ou rapport par un agent de la paix].

[omis (2), (2.1), (2.2), (3) and (4)]
R.S., 1985, c. C-46, s. 487; R.S., 1985, c. 27 (1st Supp.), s. 68; 1994, c. 44, s. 36; 1997, c. 18, s. 41, c. 23, s. 12; 1999, c. 5, s. 16; 2008, c. 18, s. 11; 2019, c. 25, s. 191; 2022, c. 17, s. 16.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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See Also

• Detention Order for Things Seized Under Section 489 or 487.11 - Detention Orders
• Special Issues for Seizure of Property