Any text in this node which is in italics is commentary by myself, and not necessarily part of the Criminal Code. This section of the code is quite boring, and talks too much about warrants and testimony and DNA and fingerprints. It is also quite long, so I will have to split it up into more than one node.

Part XV: Section 1 of 3
Part XV: Section 2 of 3
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Index

Prohibition
(8) No officer shall examine, make copies of or seize any document without affording a reasonable opportunity for a claim of solicitor-client privilege to be made under subsection (2).

Authority to make copies
(9) At any time while a document is in the custody of a custodian under this section, a judge may, on an ex parte application of a person claiming a solicitor-client privilege under this section, authorize that person to examine the document or make a copy of it in the presence of the custodian or the judge, but any such authorization shall contain provisions to ensure that the document is repackaged and that the package is resealed without alteration or damage.

Hearing in private
(10) An application under paragraph (3)(c) shall be heard in private.

Exception
(11) This section does not apply in circumstances where a claim of solicitor-client privilege may be made under the Income Tax Act.

R.S., 1985, c. 27 (1st Supp.), s. 71.

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.

Seizure without warrant
(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.

R.S., 1985, c. C-46, s. 489; R.S., 1985, c. 27 (1st Supp.), s. 72, c. 42 (4th Supp.), s. 3; 1993, c. 40, s. 16; 1997, c. 18, s. 48.

Restitution of property or report by peace officer
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).

Restitution of property or report by peace officer
(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).

Form
(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).

R.S., 1985, c. 27 (1st Supp.), s. 72; 1993, c. 40, s. 17; 1997, c. 18, s. 49.

Detention of things seized
How long they can keep stuff they napped off ya.
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.

Further detention
(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.

Idem
(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.

Detention without application where consent
(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.

When accused ordered to stand trial
(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.

Where continued detention no longer required
(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).

Idem
(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).

Application for order of return
(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.

Exception
(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.

Disposal of things seized
(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.

Exception
(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.

Application by lawful owner
(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.

Order
(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.

Detention pending appeal, etc.
(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.

Copies of documents returned
(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.

Probative force
(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.

Access to anything seized
(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.

Conditions
(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.

Appeal
(17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order to the appeal court, as defined in section 812, and for the purposes of the appeal the provisions of sections 814 to 828 apply with such modifications as the circumstances require.

Waiver of notice
(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.

R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50.
Perishable things
490.01 Where any thing seized pursuant to this Act is perishable or likely to depreciate rapidly, the person who seized the thing or any other person having custody of the thing

(a) may return it to its lawful owner or the person who is lawfully entitled to possession of it; or

(b) where, on ex parte application to a justice, the justice so authorizes, may

(i) dispose of it and give the proceeds of disposition to the lawful owner of the thing seized, if the lawful owner was not a party to an offence in relation to the thing or, if the identity of that lawful owner cannot be reasonably ascertained, the proceeds of disposition are forfeited to Her Majesty, or

(ii) destroy it.

1997, c. 18, s. 51; 1999, c. 5, s. 17.

Forfeiture of Offence-related Property

Order of forfeiture of property on conviction
490.1 (1) Subject to sections 490.3 and 490.4, where a person is convicted of a criminal organization offence and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen's Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

Property related to other offences
(2) Where the evidence does not establish to the satisfaction of the court that the criminal organization offence of which a person has been convicted was committed in relation to property in respect of which an order of forfeiture would otherwise be made under subsection (1) but the court is satisfied, beyond a reasonable doubt, that the property is offence-related property, the court may make an order of forfeiture under subsection (1) in relation to that property.

Appeal
(3) A person who has been convicted of a criminal organization offence or the Attorney General may appeal to the court of appeal from an order or a failure to make an order under subsection (1) as if the appeal were an appeal against the sentence imposed on the person in respect of the offence.

1997, c. 23, s. 15.

Application for in rem forfeiture
490.2 (1) Where an information has been laid in respect of a criminal organization offence, the Attorney General may make an application to a judge for an order of forfeiture under subsection (2).

Order of forfeiture of property
(2) Subject to sections 490.3 and 490.4, where an application is made to a judge under subsection (1) and the judge is satisfied

(a) beyond a reasonable doubt that any property is offence-related property,

(b) that proceedings in respect of a criminal organization offence in relation to the property referred to in paragraph (a) were commenced, and

(c) that the accused charged with the criminal organization offence has died or absconded,

the judge shall order that the property be forfeited and disposed of in accordance with subsection (4).

Accused deemed absconded
(3) For the purpose of subsection (2), an accused is deemed to have absconded in connection with a criminal organization offence if

(a) an information has been laid alleging the commission of the offence by the accused,

(b) a warrant for the arrest of the accused has been issued in relation to that information, and

(c) reasonable attempts to arrest the accused under the warrant have been unsuccessful during a period of six months beginning on the day on which the warrant was issued,

and the accused is deemed to have so absconded on the last day of that six month period.

Who may dispose of forfeited property
(4) For the purpose of subsection (2), the judge shall

(a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and

(b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen's Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law.

Definition of "judge"
(5) In this section and sections 490.5 and 490.8, "judge" means a judge as defined in section 552 or a judge of a superior court of criminal jurisdiction.

1997, c. 23, s. 15.

Voidable transfers
490.3 A court may, before ordering that offence-related property be forfeited under subsection 490.1(1) or 490.2(2), set aside any conveyance or transfer of the property that occurred after the seizure of the property, or the making of a restraint order in respect of the property, unless the conveyance or transfer was for valuable consideration to a person acting in good faith.

1997, c. 23, s. 15.

Notice
490.4 (1) Before making an order under subsection 490.1(1) or 490.2(2) in relation to any property, a court shall require notice in accordance with subsection (2) to be given to, and may hear, any person who, in the opinion of the court, appears to have a valid interest in the property.

Manner of giving notice
(2) A notice given under subsection (1) shall

(a) be given or served in the manner that the court directs or that may be specified in the rules of the court;

(b) be of any duration that the court considers reasonable or that may be specified in the rules of the court; and

(c) set out the criminal organization offence charged and a description of the property.

Order of restoration of property
(3) Where a court is satisfied that a person, other than

(a) a person who was charged with a criminal organization offence, or

(b) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) under circumstances that give rise to a reasonable inference that the title or right was transferred for the purpose of avoiding the forfeiture of the property,

is the lawful owner or is lawfully entitled to possession of any property or a part of any property that would otherwise be forfeited pursuant to an order made under subsection 490.1(1) or 490.2(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to the person.

1997, c. 23, s. 15.

Application
490.5 (1) Where any offence-related property is forfeited to Her Majesty pursuant to an order made under subsection 490.1(1) or 490.2(2), any person who claims an interest in the property, other than

(a) in the case of property forfeited pursuant to an order made under subsection 490.1(1), a person who was convicted of the criminal organization offence in relation to which the property was forfeited,

(b) in the case of property forfeited pursuant to an order made under subsection 490.2(2), a person who was charged with the criminal organization offence in relation to which the property was forfeited, or

(c) a person who acquired title to or a right of possession of the property from a person referred to in paragraph (a) or (b) under circumstances that give rise to a reasonable inference that the title or right was transferred from that person for the purpose of avoiding the forfeiture of the property,

may, within thirty days after the forfeiture, apply by notice in writing to a judge for an order under subsection (4).

Fixing day for hearing
(2) The judge to whom an application is made under subsection (1) shall fix a day not less than thirty days after the date of the filing of the application for the hearing of the application.

Notice
(3) An applicant shall serve a notice of the application made under subsection (1) and of the hearing of it on the Attorney General at least fifteen days before the day fixed for the hearing.

Order declaring interest not affected by forfeiture
(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant

(a) is not a person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any criminal organization offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and

(b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is a mortgagee or lienholder, by the mortgagor or lien-giver,

the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest.

Appeal from order made under subsection (4)
(5) An applicant or the Attorney General may appeal to the court of appeal from an order made under subsection (4), and the provisions of Part XXI with respect to procedure on appeals apply, with any modifications that the circumstances require, in respect of appeals under this subsection.

Return of property
(6) The Attorney General shall, on application made to the Attorney General by any person in respect of whom a judge has made an order under subsection (4), and where the periods with respect to the taking of appeals from that order have expired and any appeal from that order taken under subsection (5) has been determined, direct that

(a) the property, or the part of it to which the interest of the applicant relates, be returned to the applicant; or

(b) an amount equal to the value of the interest of the applicant, as declared in the order, be paid to the applicant.

1997, c. 23, s. 15.

Appeals from orders under subsection 490.2(2)
490.6 Any person who, in their opinion, is aggrieved by an order made under subsection 490.2(2) may appeal from the order as if the order were an appeal against conviction or against a judgment or verdict of acquittal, as the case may be, under Part XXI, and that Part applies, with any modifications that the circumstances require, in respect of such an appeal.

1997, c. 23, s. 15.

Suspension of order pending appeal
490.7 Notwithstanding anything in this Act, the operation of an order made in respect of property under subsection 490.1(1), 490.2(2) or 490.5(4) is suspended pending

(a) any application made in respect of the property under any of those provisions or any other provision of this or any other Act of Parliament that provides for restoration or forfeiture of the property, or

(b) any appeal taken from an order of forfeiture or restoration in respect of the property,

and the property shall not be disposed of or otherwise dealt with until thirty days have expired after an order is made under any of those provisions.

1997, c. 23, s. 15.

Application for restraint order
490.8 (1) The Attorney General may make an application in accordance with this section for a restraint order under this section in respect of any offence-related property.

Procedure
(2) An application made under subsection (1) for a restraint order in respect of any offence-related property may be made ex parte and shall be made in writing to a judge and be accompanied by an affidavit sworn on the information and belief of the Attorney General or any other person deposing to the following matters:

(a) the criminal organization offence to which the offence-related property relates;

(b) the person who is believed to be in possession of the offence-related property; and

(c) a description of the offence-related property.

Restraint order
(3) Where an application for a restraint order is made to a judge under subsection (1), the judge may, if satisfied that there are reasonable grounds to believe that the property is offence-related property, make a restraint order

(a) prohibiting any person from disposing of, or otherwise dealing with any interest in, the offence-related property specified in the order otherwise than in the manner that may be specified in the order; and

(b) at the request of the Attorney General, where the judge is of the opinion that the circumstances so require,

(i) appointing a person to take control of and to manage or otherwise deal with all or part of the property in accordance with the directions of the judge, and

(ii) requiring any person having possession of the property to give possession of it to the person appointed under subparagraph (i).

Conditions
(4) A restraint order made by a judge under this section may be subject to any reasonable conditions that the judge thinks fit.

Order in writing
(5) A restraint order made under this section shall be made in writing.

Service of order
(6) A copy of a restraint order made under this section shall be served on the person to whom the order is addressed in any manner that the judge making the order directs or in accordance with the rules of the court.

Registration of order
(7) A copy of a restraint order made under this section shall be registered against any property in accordance with the laws of the province in which the property is situated.

Order continues in force
(8) A restraint order made under this section remains in effect until

(a) an order is made under subsection 490(9) or (11) in relation to the property; or

(b) an order of forfeiture of the property is made under section 490 or subsection 490.1(1) or 490.2(2).

Offence
(9) Any person on whom a restraint order made under this section is served in accordance with this section and who, while the order is in force, acts in contravention of or fails to comply with the order is guilty of an indictable offence or an offence punishable on summary conviction.

1997, c. 23, s. 15.

Sections 489.1 and 490 applicable
490.9 (1) Subject to sections 490.1 to 490.7, sections 489.1 and 490 apply, with any modifications that the circumstances require, to any offence-related property that is the subject of a restraint order made under section 490.8.

Recognizance
(2) Where, pursuant to subsection (1), an order is made under paragraph 490(9)(c) for the return of any offence-related property that is the subject of a restraint order under section 490.8, the judge or justice making the order may require the applicant for the order to enter into a recognizance before the judge or justice, with or without sureties, in any amount and with any conditions that the judge or justice directs and, where the judge or justice considers it appropriate, require the applicant to deposit with the judge or justice any sum of money or other valuable security that the judge or justice directs.

1997, c. 23, s. 15.

Forfeiture of weapons and ammunition
491. (1) Subject to subsection (2), where it is determined by a court that

(a) a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence and that thing has been seized and detained, or

(b) that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance and any such thing has been seized and detained,

the thing so seized and detained is forfeited to Her Majesty and shall be disposed of as the Attorney General directs.

Return to lawful owner
(2) If the court by which a determination referred to in subsection (1) is made is satisfied that the lawful owner of any thing that is or may be forfeited to Her Majesty under subsection (1) was not a party to the offence and had no reasonable grounds to believe that the thing would or might be used in the commission of an offence, the court shall order that the thing be returned to that lawful owner, that the proceeds of any sale of the thing be paid to that lawful owner or, if the thing was destroyed, that an amount equal to the value of the thing be paid to the owner.

Application of proceeds
(3) Where any thing in respect of which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General or, where an order is made under subsection (2), to the person who was, immediately prior to the sale, the lawful owner of the thing.

R.S., 1985, c. C-46, s. 491; 1991, c. 40, s. 30; 1995, c. 39, s. 152.

Order for restitution or forfeiture of property obtained by crime
491.1 (1) Where an accused or defendant is tried for an offence and the court determines that an offence has been committed, whether or not the accused has been convicted or discharged under section 730 of the offence, and at the time of the trial any property obtained by the commission of the offence

(a) is before the court or has been detained so that it can be immediately dealt with, and

(b) will not be required as evidence in any other proceedings,

section 490 does not apply in respect of the property and the court shall make an order under subsection (2) in respect of the property.

Idem
(2) In the circumstances referred to in subsection (1), the court shall order, in respect of any property,

(a) if the lawful owner or person lawfully entitled to possession of the property is known, that it be returned to that person; and

(b) if the lawful owner or person lawfully entitled to possession of the property is not known, that it be forfeited to Her Majesty, to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law.

When certain orders not to be made
(3) An order shall not be made under subsection (2)

(a) in the case of proceedings against a trustee, banker, merchant, attorney, factor, broker or other agent entrusted with the possession of goods or documents of title to goods, for an offence under section 330, 331, 332 or 336; or

(b) in respect of

(i) property to which a person acting in good faith and without notice has acquired lawful title for valuable consideration,

(ii) a valuable security that has been paid or discharged in good faith by a person who was liable to pay or discharge it,

(iii) a negotiable instrument that has, in good faith, been taken or received by transfer or delivery for valuable consideration by a person who had no notice and no reasonable cause to suspect that an offence had been committed, or

(iv) property in respect of which there is a dispute as to ownership or right of possession by claimants other than the accused or defendant.

By whom order executed
(4) An order made under this section shall, on the direction of the court, be executed by the peace officers by whom the process of the court is ordinarily executed.

R.S., 1985, c. 27 (1st Supp.), s. 74, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 18.

Photographic evidence
491.2 (1) Before any property that would otherwise be required to be produced for the purposes of a preliminary inquiry, trial or other proceeding in respect of an offence under section 334, 344, 348, 354, 362 or 380 is returned or ordered to be returned, forfeited or otherwise dealt with under section 489.1 or 490 or is otherwise returned, a peace officer or any person under the direction of a peace officer may take and retain a photograph of the property.

Certified photograph admissible in evidence
(2) Every photograph of property taken under subsection (1), accompanied by a certificate of a person containing the statements referred to in subsection (3), shall be admissible in evidence and, in the absence of evidence to the contrary, shall have the same probative force as the property would have had if it had been proved in the ordinary way.

Statements made in certificate
(3) For the purposes of subsection (2), a certificate of a person stating that

(a) the person took the photograph under the authority of subsection (1),

(b) the person is a peace officer or took the photograph under the direction of a peace officer, and

(c) the photograph is a true photograph

shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the certificate without proof of the signature of the person appearing to have signed the certificate.

Secondary evidence of peace officer
(4) An affidavit or solemn declaration of a peace officer or other person stating that the person has seized property and detained it or caused it to be detained from the time that person took possession of the property until a photograph of the property was taken under subsection (1) and that the property was not altered in any manner before the photograph was taken shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature or official character of the person appearing to have signed the affidavit or solemn declaration.

Notice of intention to produce certified photograph
(5) Unless the court orders otherwise, no photograph, certificate, affidavit or solemn declaration shall be received in evidence at a trial or other proceeding pursuant to subsection (2), (3) or (4) unless the prosecutor has, before the trial or other proceeding, given to the accused a copy thereof and reasonable notice of intention to produce it in evidence.

Attendance for examination
(6) Notwithstanding subsection (3) or (4), the court may require the person who appears to have signed a certificate, an affidavit or a solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of any of the facts contained in the certificate, affidavit or solemn declaration.

Production of property in court
(7) A court may order any property seized and returned pursuant to section 489.1 or 490 to be produced in court or made available for examination by all parties to a proceeding at a reasonable time and place, notwithstanding that a photograph of the property has been received in evidence pursuant to subsection (2), where the court is satisfied that the interests of justice so require and that it is possible and practicable to do so in the circumstances.

Definition of "photograph"
(8) In this section, "photograph" includes a still photograph, a photographic film or plate, a microphotographic film, a photostatic negative, an X-ray film, a motion picture and a videotape.

R.S., 1985, c. 23 (4th Supp.), s. 2; 1992, c. 1, s. 58.

Seizure of explosives
492. (1) Every person who executes a warrant issued under section 487 or 487.1 may seize any explosive substance that he suspects is intended to be used for an unlawful purpose, and shall, as soon as possible, remove to a place of safety anything that he seizes by virtue of this section and detain it until he is ordered by a judge of a superior court to deliver it to some other person or an order is made pursuant to subsection (2).

Forfeiture
(2) Where an accused is convicted of an offence in respect of anything seized by virtue of subsection (1), it is forfeited and shall be dealt with as the court that makes the conviction may direct.

Application of proceeds
(3) Where anything to which this section applies is sold, the proceeds of the sale shall be paid to the Attorney General.

R.S., 1985, c. C-46, s. 492; R.S., 1985, c. 27 (1st Supp.), s. 70.

Information for tracking warrant
492.1 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that is relevant to the commission of the offence, including the whereabouts of any person, can be obtained through the use of a tracking device, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a tracking device in or on any thing, including a thing carried, used or worn by any person; and

(b) to monitor, or to have monitored, a tracking device installed in or on any thing.

Time limit for warrant
(2) A warrant issued under subsection (1) is valid for the period, not exceeding sixty days, mentioned in it.

Further warrants
(3) A justice may issue further warrants under this section.

Definition of "tracking device"
(4) For the purposes of this section, "tracking device" means any device that, when installed in or on any thing, may be used to help ascertain, by electronic or other means, the location of any thing or person.

Removal after expiry of warrant
(5) On ex parte application in writing supported by affidavit, the justice who issued a warrant under subsection (1) or a further warrant under subsection (3) or any other justice having jurisdiction to issue such warrants may authorize that the tracking device be covertly removed after the expiry of the warrant

(a) under any terms or conditions that the justice considers advisable in the public interest; and

(b) during any specified period of not more than sixty days.

1993, c. 40, s. 18; 1999, c. 5, s. 18.

Information re number recorder
492.2 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that would assist in the investigation of the offence could be obtained through the use of a number recorder, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a number recorder in relation to any telephone or telephone line; and

(b) to monitor, or to have monitored, the number recorder.

Order re telephone records
(2) When the circumstances referred to in subsection (1) exist, a justice may order that any person or body that lawfully possesses records of telephone calls originated from, or received or intended to be received at, any telephone give the records, or a copy of the records, to a person named in the order.

Other provisions to apply
(3) Subsections 492.1(2) and (3) apply to warrants and orders issued under this section, with such modifications as the circumstances require.

Definition of "number recorder"
(4) For the purposes of this section, "number recorder" means any device that can be used to record or identify the telephone number or location of the telephone from which a telephone call originates, or at which it is received or is intended to be received.

1993, c. 40, s. 18; 1999, c. 5, s. 19.

Part XV: Section 1 of 3
Part XV: Section 2 of 3

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Part XVI
Compelling Appearance of Accused Before a Justice and Interim Release