Criminal Code (R.S.C., 1985, c. C-46)

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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, 355.2, 355.4, 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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Seizure of explosives

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

• Marginal note: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.

• Marginal note: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.

Marginal note:Warrant for tracking device — transactions and things

• 492.1 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed under this or any other Act of Parliament and that tracking the location of one or more transactions or the location or movement of a thing, including a vehicle, will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

• Marginal note:Warrant for tracking device — individuals

  (2) A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

• Marginal note:Scope of warrant

  (3) The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the tracking device, including covertly.

• Marginal note:Conditions

  (4) A warrant may contain any conditions that the justice or judge considers appropriate, including conditions to protect a person’s interests.

• Marginal note:Period of validity

  (5) Subject to subsection (6), a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.

• Marginal note:Period of validity — organized crime and terrorism offence

  (6) A warrant is valid for the period specified in it as long as that period ends no more than one year after the day on which the warrant is issued, if the warrant relates to

  • (a) an offence under any of sections 467.11 to 467.13;

  • (b) an offence committed for the benefit of, at the direction of, or in association with a criminal organization; or

  • (c) a terrorism offence.

• Marginal note:Execution in Canada

  (6.1) A warrant issued under this section may be executed at any place in Canada. Any public officer or peace officer who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.

• Marginal note:Removal after expiry of warrant

  (7) On ex parte application supported by an affidavit, the justice or judge who issued a warrant or another justice or judge who has jurisdiction to issue such warrants may authorize the covert removal of the tracking device after the expiry of the warrant under any conditions that the justice or judge considers advisable in the public interest. The authorization is valid for the period specified in it as long as that period is not more than 90 days.

• Marginal note:Definitions

  (8) The following definitions apply in this section.

  data

  data means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device. (données)

  judge

  judge means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec. (juge)

  public officer

  public officer means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament. (fonctionnaire public)

  tracking data

  tracking data means data that relates to the location of a transaction, individual or thing. (données de localisation)

  tracking device

  tracking device means a device, including a computer program within the meaning of subsection 342.1(2), that may be used to obtain or record tracking data or to transmit it by a means of telecommunication. (dispositif de localisation)

Marginal note:Warrant for transmission data recorder

• 492.2 (1) A justice or judge who is satisfied by information on oath that there are reasonable grounds to suspect that an offence has been or will be committed against this or any other Act of Parliament and that transmission data will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain the transmission data by means of a transmission data recorder.

• Marginal note:Scope of warrant

  (2) The warrant authorizes the peace officer or public officer, or a person acting under their direction, to install, activate, use, maintain, monitor and remove the transmission data recorder, including covertly.

• Marginal note:Limitation

  (3) No warrant shall be issued under this section for the purpose of obtaining tracking data.

• Marginal note:Period of validity

  (4) Subject to subsection (5), a warrant is valid for the period specified in it as long as that period ends no more than 60 days after the day on which the warrant is issued.

• Marginal note:Period of validity — organized crime or terrorism offence

  (5) The warrant is valid for the period specified in it as long as that period ends no more than one year after the day on which the warrant is issued, if the warrant relates to

  • (a) an offence under any of sections 467.11 to 467.13;

  • (b) an offence committed for the benefit of, at the direction of, or in association with a criminal organization; or

  • (c) a terrorism offence.

• Marginal note:Execution in Canada

  (5.1) A warrant issued under subsection (1) may be executed at any place in Canada. Any public officer or peace officer who executes the warrant must have authority to act in that capacity in the place where the warrant is executed.

• Marginal note:Definitions

  (6) The following definitions apply in this section.

  data

  data means representations, including signs, signals or symbols, that are capable of being understood by an individual or processed by a computer system or other device. (données)

  judge

  judge means a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec. (juge)

  public officer

  public officer means a public officer who is appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament. (fonctionnaire public)

  transmission data

  transmission data means data that

  • (a) relates to the telecommunication functions of dialling, routing, addressing or signalling;

  • (b) is transmitted to identify, activate or configure a device, including a computer program as defined in subsection 342.1(2), in order to establish or maintain access to a telecommunication service for the purpose of enabling a communication, or is generated during the creation, transmission or reception of a communication and identifies or purports to identify the type, direction, date, time, duration, size, origin, destination or termination of the communication; and

  • (c) does not reveal the substance, meaning or purpose of the communication. (données de transmission)

  transmission data recorder

  transmission data recorder means a device, including a computer program within the meaning of subsection 342.1(2), that may be used to obtain or record transmission data or to transmit it by a means of telecommunication. (enregistreur de données de transmission)