



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Floward Enterprises Ltd. (H. Williams and Co.), 2017 ONCA 448

DATE: 20170602

DOCKET: C61163

Gillese, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Floward Enterprises Ltd. o/a H. Williams and Co.

Applicant (Respondent)

and

The Estate of Martin
    Winberg

(Appellant)

Paul Adam, for the appellant, the Estate of Martin
    Winberg

Jordan Green, for the respondent, Floward Enterprises
    Ltd.

Michael Fawcett, for the respondent, Her Majesty the Queen

Heard: May 1, 2017

On appeal from the order of Justice Nola E. Garton of the Superior
    Court of Justice, dated September 21, 2015.

Gillese J.A.:

OVERVIEW

[1]

As part of a criminal investigation, Toronto
    police seized a valuable diamond from a pawnbroker, believing it was stolen
    property.  They retained the diamond for the duration of the criminal
    proceedings.

[2]

When the criminal proceedings were over, the
    pawnbroker successfully brought an application under ss. 490(7) and (9)(c) of
    the
Criminal Code
, R.S.C. 1985, c. C-46
for
    the return of the diamond.  Section 490 of the
Code

contains a comprehensive set of rules for the detention and
    disposition of property seized by peace officers in the execution of their
    duties.

[3]

The estate of the individual from whom the
    diamond had been stolen appeals, pursuant to s. 490(17).  It was not given
    notice of the application and says that it was entitled to participate in the
    application, given its ownership interest in the diamond.

[4]

For the reasons that follow, I would allow the
    appeal.

BACKGROUND IN BRIEF

[5]

On August 4, 2011, Martin Winberg bought a
    diamond from Guildhall Diamond Investments Inc. for approximately $40,000.  At
    Mr. Winbergs request, an acquaintance agreed to store the diamond at his home.

[6]

Sometime in the spring of 2012, the acquaintance
    told Mr. Winberg that his friend, Brian Colyer, had stolen the diamond. 
    Apparently, Mr. Colyer had stolen other things as well.  The thefts were
    promptly reported to the Toronto Police Service.

[7]

The police investigated and soon arrested and
    charged Mr. Colyer.  During the police investigation, the police located the
    diamond at Floward Enterprises Ltd., operating as H. Williams & Company
    (the Pawnbroker).  The police believed that Mr. Colyer had stolen the diamond
    and then pawned it to the Pawnbroker.

[8]

Accordingly, on July 5, 2012, the police took
    possession of the diamond from the Pawnbroker.  It was assigned Property Receipt
    #N956247.  The police retained the diamond throughout the criminal proceedings
    against Mr. Colyer.

[9]

Martin Winberg died on February 19, 2015.

[10]

Around the time that the criminal proceedings
    against Mr. Colyer were concluded, the Pawnbroker learned from the police that
    an individual named Martin Winberg had a potential interest in the diamond
    because he was the person from whom the police believed the diamond had been
    stolen.

[11]

The Pawnbroker wrote letters to the police
    demanding the immediate release of the diamond to it, asserting its entitlement
    to the diamond.  The police did not comply.

[12]

Instead, in a letter dated June 1, 2015,
    addressed to both the lawyer for the deceased and the lawyer for the
    Pawnbroker, the police explained that the prosecution against Mr. Colyer was
    complete, the police no longer needed the diamond, and there were at least two
    adverse claims to it.  In the letter, the police also explained that they were
    not in a position to adjudicate the competing claims to the diamond and that the
    diamond would not be released without either a waiver jointly issued by the
    parties or a court order.

[13]

There was communication between counsel for
    Martin Winbergs estate (the Estate) and counsel for the Pawnbroker about
    entitlement to the diamond.

[14]

By letter dated July 6, 2015, counsel for the
    Pawnbroker advised counsel for the Estate that it would commence legal
    proceedings without further notice if it did not hear from the Estate within 10
    days time.

[15]

On July 20, 2015, counsel for the Pawnbroker
    again wrote to the police demanding the immediate return of the diamond.  The
    police responded with a letter to both parties in which the police refused to
    release the diamond, reiterated that there were two competing claims to it, and
    asked that the parties use the s. 490 process to settle the dispute.

[16]

Michael Winberg is the deceaseds brother.  He
    was appointed the Estate trustee by a certificate of appointment of estate
    trustee with a will annexed, issued on September 11, 2015.

[17]

By application dated September 14, 2015, and
    brought under ss. 490(7) and (9)(c) of the
Code

(the Application), the Pawnbroker sought a court order requiring
    the police to return the diamond to it.  The Pawnbroker did not give the Estate
    notice of its Application.  The written material filed on the Application was
    brief and did not mention the Estate or the fact that the Estate was laying claim
    to the diamond.

[18]

The Application was heard on September 21,
    2015.  The Pawnbroker did not tell the court that there was another interested
    party who might challenge the return of the diamond to it.  Instead, counsel
    for the Pawnbroker stated:

So what we have here is a simple application
    for return property under s. 497 [
sic
] and 499(c) [
sic
].  The
    property was a diamond. It was seized by police almost three years ago and held
    for investigation.  I understand that the investigation is now complete and we
    just want the property returned.  It was, it was against a third party that it
    was seized for the investigation.

[19]

Counsel for the Crown appeared on the
    Application.  She took no position on it but offered the court background information
    about the underlying theft investigation.  She advised the court that the
    diamond had been taken from the deceased and pawned to the Pawnbroker, from
    whom the police had seized it.  She also advised the court that she had seen
    some letters that morning which suggested that counsel for the Pawnbroker had
    attempted to contact the deceaseds brother.

[20]

Counsel for the Pawnbroker then made the
    following comment to the court:

If it pleases the court, under this
    application no notice is required to be given to the brother. That being said,
    out of abundance of caution, we have contacted counsel for the [E]state and
    have received no reply and let them know that we would be proceeding for return
    of the property.

[21]

The Application was granted and by order dated
    September 21, 2015 (the Order), the police were required to release the
    diamond to the Pawnbroker.

[22]

The police forwarded a copy of the Order to the
    Estate.  The Estate moved quickly to bring this appeal.

THE PARTIES POSITIONS

[23]

The Estate claims that it was entitled to participate
    in the Application, given its ownership interest in the diamond.  It says that,
    in the circumstances, the application judge erred in law in deciding the
    Application without requiring that notice be given to it.  The Estate also filed
    fresh evidence on the appeal.  On the basis of the fresh evidence, the Estate asks
    this court to order that the diamond be returned to it.

[24]

The Pawnbroker says that the appeal should be
    dismissed because the Estate failed to assert its interest in the diamond with
    diligence and it should be estopped from asserting any interest now.  The
    Pawnbroker, too, filed fresh evidence to explain the factual circumstances
    leading up to the Application and to buttress its claim to entitlement to the
    diamond.

[25]

The Crown took a limited role on the appeal.  It
    took no position as to which party is the rightful owner of the diamond nor did
    it take a position on the factual disputes between the claimants.  Its sole
    interest is to protect the integrity of the s. 490 process.  The Crown
    submits that the Pawnbroker failed to make full and frank disclosure in its
    Application and, as a result, it asks this court to set aside the Order.

THE ISSUES

[26]

The central issue on this appeal is whether the Order must be set aside
    as a result of the Application being decided in the absence of full and frank
    disclosure by the Pawnbroker.  If so, the court must also decide whether to
    accede to the Estates request for an order that the diamond be returned to it.

THE RELEVANT LEGISLATIVE PROVISIONS

[27]

Section 490 is set out in full in Schedule A
    to these reasons.  Sections 490(7), (9) and (10) are the most critical
    provisions for the disposition of this appeal.  They read as follows:

(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.



(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.



(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.

ANALYSIS

[28]

To resolve the issue raised on this appeal, one
    must consider the notice requirements in s. 490.  Before doing so, however, it
    is necessary to consider ss. 489.1 and 490 of the
Code

more broadly.

[29]

Sections 489.1 and 490 contain a comprehensive
    set of rules for preserving and disposing of property seized by peace officers
    in the execution of their duties.  Section 489.1 governs the front end of the
    process, in that it sets out the obligations on a peace officer who has seized
    property.   Section 489.1 is not directly relevant to the matters in issue in
    this appeal.  Section 490 provides for the judicial supervision of the
    continued detention and ultimate disposition of the seized property.

[30]

In
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1, at paras. 98-114, this court sets out
    the history, scheme and legislative context of ss. 489.1 and 490.  One objective
    in adding s. 489.1 and changing the wording of s. 490 was to facilitate the
    return of items seized to their rightful owners (para.107).  Where things have
    been brought before a justice or a report made to a justice in respect of
    anything seized under s. 489.1, there is an obligation on the court to
    supervise its detention (para. 112).  Furthermore, s. 490 is an elaborate
    scheme to facilitate the return of items seized to their lawful owners (para.
    112).

[31]

The overall purpose of s. 490, as reflected in s.
    490(1), is to ensure that, subject to judicial supervision, police return a seized
    item to the lawful owner or person lawfully entitled to its possession when its
    continued detention is not required for the purposes of an investigation or
    court proceeding.

[32]

Subsection 490(10) gives anyone claiming to be
    the lawful owner or a person lawfully entitled to possession of seized property
    the right to apply for its return:

(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.
[Emphasis added.]

[33]

On a plain reading of s. 490(10), an application
    brought pursuant to it requires that notice be given both to the Attorney
    General and to the person from whom the thing was seized.

[34]

Where the applicant is the person from whom the
    thing was seized, the application may be brought pursuant to s. 490(7).  The
    relevant parts of s. 490(7) read as follows:

(7)

A
    person from whom anything has been seized may,  on
three clear days
notice to the Attorney General
, apply summarily to

(a)
a judge of a
    superior court of criminal jurisdiction or

(b)
a
    justice

for an
    order under paragraph (9)(c) that the thing seized be returned to the
    applicant.  [Emphasis added.]

[35]

On a plain reading of s. 490(7), where the
    person from whom the thing has been seized makes the application, that person
    need give notice only to the Attorney General.

Application to the Present Case

[36]

In this case, the Pawnbroker brought the
    Application pursuant to ss. 490(7) and 490(9)(c).  Because the Pawnbroker was the
    person from whom the diamond had been seized, it was entitled to bring its
    application under those provisions.  As noted above, s. 490(7) required the Pawnbroker
    to give notice only to the Attorney General.  It did so.

[37]

I have taken pains to explain the notice
    provisions in s. 490 to address the question of whether the Application was
    made on an ex parte

basis.  The Estate and the Crown have referred to
    the Application as being made on an
ex parte
basis, to which the
    Pawnbroker takes exception.  The Pawnbroker says that s. 490(7) required it to
    give notice to the Attorney General and it did so.  Therefore, it contends, it
    is not appropriate to treat the Application as if it were made on an
ex
    parte
basis.

[38]

I agree with the Pawnbroker that it met the
    notice requirements in s. 490(7).  However, in my view, the Application was made
    on an
ex parte
basis.

[39]

In
Ruby v. Canada (Solicitor General)
, 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 25, the Supreme Court of
    Canada held:

Ex parte
, in a
    legal sense,

means a proceeding, or a procedural step, that is taken or
    granted at the instance of and for the benefit of one party only, without
    notice to or argument by any adverse party.

[40]

In this case, the proceeding (Application) was
    taken at the instance of the Pawnbroker and for its benefit only.  Notice was
    given to the Attorney General.  However, the Attorney General was not an
    adverse party  it was a neutral third party.  No adverse party had notice and
    none was present to argue at the Application.  Therefore, in my view, the
    Application was brought and decided on an
ex parte
basis.

[41]

Consequently, as the Supreme Court stated at
    para. 27 of
Ruby
, the Pawnbroker was under a duty of utmost good faith
    in the representations that it made to the court:

In all cases where a party is before the court
    on an
ex parte
basis, the party is under a duty of utmost good faith in
    the representations that it makes to the court.  The evidence presented must be
    complete and thorough and no relevant information adverse to the interest of
    that party may be withheld.  Virtually all codes of professional conduct impose
    such an ethical obligation on lawyers. [Citations omitted.]

[42]

The need for an applicant to make full and frank
    disclosure in a s. 490 application is acute.  On such an application, the court
    is tasked with providing judicial oversight to achieve the ultimate goal that a
    thing seized by peace officers is returned to the lawful owner or person
    lawfully entitled to its possession when the thing is no longer required for
    any criminal investigation or proceeding.  By its own terms, the application
    process is done summarily.  Furthermore, as I have explained, the process under
    s. 490(7) is an
ex parte

one.  As the Crown
    points out, absent the requirement of full and frank disclosure, an application
    under s. 490(7) would allow a party to assert its claim unchallenged, while concealing
    information about others who would assert their claims if given an opportunity.

[43]

Although made in the context of a motion for a
Mareva

injunction, the comments of
Sharpe J. (as he then
    was) in
United States of America. v. Friedland
, [1996] O.J. No. 4399,
    1996 CarswellOnt 5566 (Ont. C.J. (Gen. Div.)), at para. 26, reproduced in
    Robert J. Sharpe,
Injunctions and Specific Performance
, loose-leaf
    (Rel. Nov. 2016), 4th ed. (Toronto: Canada Law Book, 2012), at para. 2.40, are
    apposite:

It is a well-established principle of our law that a party who
    seeks the extraordinary relief of an
ex parte
injunction must make full
    and frank disclosure of the case.  The rationale for this rule is obvious.  The
    Judge hearing an
ex parte
motion and the absent party are literally at
    the mercy of the party seeking injunctive relief.  The ordinary checks and
    balances of the adversary system are not operative.  The opposite party is
    deprived of the opportunity to challenge the factual and legal contentions advanced
    by the moving party in support of the injunction.  The situation is rife with
    the danger that an injustice will be done to the absent party.

[44]

I
n order for the court to properly fulfill its supervisory
    role and achieve the purpose of s. 490  to see that seized things are returned
    to their lawful owners or those lawfully entitled to their possession once they
    no longer are required for any criminal investigation or proceeding  judges
    hearing applications under s. 490(7) must be able to rely on applicants to have
    made full and frank disclosure.  Only through such disclosure can the court
    make informed decisions about, among other things, whether other interested
    parties must be given notice of the proceeding.

[45]

In my view, there is no question that the Pawnbroker
    failed to make full and frank disclosure.  In its written materials and oral
    submissions on the Application, the Pawnbroker failed to disclose material
    facts to the court, including: the Estates claim of an interest in the
    diamond; the Estates intention to assert its claim; its own
unsuccessful
    attempts to secure the diamonds release from police; the polices refusal to
    release the diamond because of two adverse claims to the property; and, that
    the Estate had confirmed its interest in the diamond to the police.

[46]

Accordingly, the Order must be set
    aside.

THE REMEDY

[47]

For the reasons given, I would allow the appeal. 
    However, I would not order that the diamond be returned to the Estate.  There
    are serious, complicated factual and legal disputes between the Estate and the
    Pawnbroker that must be resolved to determine entitlement to the diamond.  The
    record before this court is wholly inadequate to make such a determination.

DISPOSITION

[48]

Accordingly, I would allow the appeal and set
    aside the Order.

[49]

Both the Estate and the Pawnbroker sought costs of
    the appeals in their factums.  Neither addressed the matter of costs at the
    oral hearing of the appeal.  If the parties wish to pursue the matter of costs,
    they shall file written submissions within fourteen days of the date of the
    release of these reasons, such submissions to be no more than four pages in
    length and to include a statement of this courts jurisdiction to make an award
    of costs in the circumstances of this case and the test for awarding the same.

Released: EEGJune 2, 2017

E.E. Gillese J.A.

I agree. Grant Huscroft J.A.

I agree. G.T. Trotter J.A.

SCHEDULE A:
Criminal
    Code
, R.S.C. 1985, c. C-46, s. 490

Detention of
    things seized

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 q        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

(a)
to the court of appeal as defined
    in section 673 if the order was made by a judge of a superior court of criminal
    jurisdiction, in which case sections 678 to 689 apply with any modifications
    that the circumstances require; or

(b)
to the appeal court as defined in
    section 812 in any other case, in which case sections 813 to 828 apply with any
    modifications that 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; 2008, c. 18, s. 14.


