Purser Law Blog

Can police seize my belongings if I haven't been criminally charged?

Police officers in Canada are allowed to seize an individual’s personal belongings even in circumstances where that person has not been criminally charged. Section 489(1) of the Criminal Code allows police officers to seize items as part of a criminal investigation, and section 490 outlines how long police are able to hold those items in their possession. If you’re confused as to whether police are allowed to hold your items under law, an experienced Edmonton criminal lawyer can help you determine if you’re able to get your personal items back.

 

What is Section 489(1) of the Criminal Code?

Section 489(1) sets out the procedure that police must follow when they take an individual’s property. This is true whether or not police have a warrant when the items are seized. This also includes items which are seized as part of a search following an arrest. Whenever a police officer seizes items under section 489(1), the police officer must file a Form 5.2 to a Justice. If a certain Justice authorized the search, the form must be filed with that Justice.

 

The purpose of this form is to make sure that the items seized are being supervised by a Justice. This creates accountability for the police officer and protects the item seized. The filing of the form is especially important where the search and seizure was not authorized by a Justice before it was conducted, as the form brings the seizure to the attention of the justice system. After the form is filed, the police officer is allowed to hold the property for 90 days without laying charges. If the police officer wishes to keep the item for longer than 90 days, they must file an application under section 490. If the police officer does not file this form in a timely manner, this can violate the right against unreasonable search and seizure under section 8 under the Canadian Charter of Rights and Freedoms.  If your items were seized by police and have been held for longer than 90 days, contact an Edmonton criminal lawyer about whether police are obligated to return your items to you.

 

What is Section 490 of the Criminal Code?

Once an item is seized and a Form 5.2 is filed, the process under section 490 is engaged. Section 490 creates a scheme for the management, return or destructions of items which have been seized. It also creates an obligation for a Justice to supervise the item seized while it is in the control of the police. Section 490 also makes sure that items seized by police are returned to their lawful owners in a timely manner unless that item is required for a further criminal investigation, a preliminary inquiry, a trial or another proceeding. Further, section 490(2) sets out that no item seized by police will be held for more than three months, unless required based on the nature of the police investigation, or a criminal proceeding has begun. In those cases, police or the Crown prosecutor can apply for the item to be held for longer than three months.

 

Any person who has had their item seized by police can apply to have their item returned to them after three months. Under section 490(8), an individual can apply to have their item returned to them before the three-month period is up, if they can demonstrate that not having the item has caused them hardship. Under section 490(9), the Crown prosecutor can apply to have the item forfeited, or given up, to the Crown’s office. Forfeiture will be allowed where the owner of the item cannot lawfully own it (for example, where the property seized by police was illegal drugs or an illegal firearm). It will also be allowed where the owner of the item is not known to the Court, the Crown or police.

 

It is important to note that, under section 490, it is assumed that the owner of the item seized by police was in legal possession of that item. It is up to the Crown prosecutor to prove beyond a reasonable doubt that the owner of that item possessed the item illegally, and that they are not entitled to that property. This means that the Court assumes that, if your item has been seized by police, you have a right to have your item returned to you unless the Crown prosecutor can prove that you are not entitled to it.

 

The procedure set out in section 489(1) and 490 can be confusing and difficult to navigate. If your item has been seized by police and you have not been criminally charged, contact an Edmonton criminal lawyer to see if your item can be returned to you.

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