When the police take something you own, your first thought is can they do that? Can the police seize my property? We have strong devotion to our rights, and a strong sense of property rights in Canada. What’s yours is yours. Nevertheless, provided that the police operate within the bounds of the law, there are circumstances in which they can seize property.
Evidence:
The police can seize anything which affords as evidence of a crime or unlawful activity pursuant to a warrant, or otherwise. This is an extraordinary power. The purpose of this power is to facilitate proper operation of the justice system, however. In other words, the search that leads to the seizure must be reasonable and the seizure itself must be reasonable. It must be authorized by law. The period of detention is set out in the Criminal Code. The purpose of the seizure must be for a lawful purpose in the justice system, which in most cases is because the items seized are evidence of an offence.
When the police seize property pursuant to the Criminal Code, the period of the seizure is set at ninety days. If the item or item seized are held as evidence related to an offence, the police can continue to hold that property if the person is charged with an offence related to the property. While charges are under consideration, if the period goes beyond 90 days, the seizure is unlawful unless the police bring forward an application for further detention of items seized.
Often, depending upon the nature of the investigation, the police are unable to complete all the investigative steps within the initial ninety days and a charge is not approved within that period. For instance, when the police seize blood from a suspected DUI driver, they may send the blood to the forensic laboratory for testing before preparing their file for charge approval by the prosecutor. The lab usually is not able to complete the testing in the initial ninety days so the police must bring an application in court for further detention of items seized, which, in this example, is an application to continue to seize the blood.
In an application for further detention of items seized, one of the key elements that the police must prove is that the property relates to the investigation. If the police are holding something that does not relate to the investigation, or are dragging their feet in the course of the investigation, these can be grounds to oppose the continued detention of evidence and potentially stop the police from investigating further or eliminate their reliance on the evidence for prosecution.
If the police hold any evidence for longer than ninety days without bringing an application in court pursuant to section 490, it is a violation of Charter, and the evidence can be returned or may be ruled as inadmissible in court.
An individual’s privacy interest in property is also grounds for getting the items released from police detention. For example, if your vehicle has been seized for a dangerous driving investigation, an application can be made in court to show that your interest in the property is more important than the continued detention. Moreover, the continued detention of the car may be immaterial to any potential prosecution.
When the police seize property, you can bring an application in court for the property to be returned. The issue comes down to whether the police were permitted to seize the property or may continue to seize the property pursuant to law. In the past decade the law has developed significantly when it comes to determinations of when the police can seize property.
If your property has been seized, give us a call. We’re just a phone call away, and we know how to handle these matters in court.