ONTARIO COURT OF JUSTICE
IN THE MATTER OF an Order of Continued Detention pursuant to s. 490(9.1) of the Criminal Code
Before Justice of the Peace J. Soloway
SOLOWAY, J Justice of the Peace
- These reasons address whether the Orders for Continued Detention signed in relation to property seized during an infant sudden death investigation were validly made under s. 490(9.1) of the Criminal Code. The issue arises from the position later taken by the investigating police service that the orders were invalid because they were not made following a noticed hearing under s. 490(2). For the reasons that follow, I conclude that the matter properly engaged the post-expiry framework under s. 490(9.1), and that the Orders for Continued Detention were validly made.
Background
On 21 January 2026, the Ontario Provincial Police were notified by the coroner of a sudden death involving a male infant at the Pikangikum Nursing Station. Pikangikum OPP officers attended the Pikangikum Nursing Station and spoke with a doctor who reported that the child had an undiagnosed heart murmur that was not an immediate medical concern. The doctor further advised that the hospital personnel in Sioux Lookout had documented concerns regarding the parents’ ability to adequately care for the newborn due to cognitive limitations.
Earlier that same day, [name removed] contacted Pikangikum nursing station and reported that the infant was not feeding well. Upon arrival at the clinic medical staff noted that the infant was dehydrated and underweight.
Shortly after 5pm CST, the infant went into cardiac arrest. Despite resuscitative efforts, the infant was pronounced deceased at 5:53 pm CST.
Following the infant’s death, the coroner reviewed a radiology report that identified fractures to the fourth and fifth ribs. Those fractures appeared to be in a state of healing. The coroner advised that the fractures pre-dated the resuscitation efforts, although it was unknown whether they may have been sustained during the birthing process.
On 25 January 2026 a postmortem examination was conducted at the Centre of Forensic Sciences in Toronto, Ontario. The preliminary cause of death was undetermined, pending further testing and studies.
During the course of the investigation, police seized a number of items. Some were seized without a warrant, while others were seized pursuant to judicial authorization.
On 21 January 2026, several items were seized without a warrant from the nursing station. Those items included a white blanket in which the infant had been transported to the clinic, and a bag containing baby supplies and clothing. A Report to Justice was submitted on 6 February 2026. An Order of Detention was issued by a Justice of the Peace the same day, with an expiry date of 21 April 2026.
On 23 January 2026, A Justice of the Peace authorized a search warrant under s.487 of the Criminal Code for the infant’s residence at […] Road, Pikangikum First Nation. The warrant authorized police to search for items potentially relevant to neglect. It was executed 25 January 2026. The items seized from the residence included a dirty baby bottle located on a kitchen sink, a comforter and quilt located in the infant’s bedroom, a baby bottle containing approximately 5 ounces of formula, infant formula containers located in the bedroom, medical documents belonging to [name removed], and ultrasound images containing medical information. A Report to Justice was submitted on 6 February 2026. An Order of Detention was issued the same day by a Justice of the Peace, with an expiry date of 25 April 2026.
On 26 January 2026, during post-mortem procedures, additional items were seized without a warrant. Those items included a hospital blanket located inside a body bag, a diaper removed from a plastic bag inside the body bag, and a coin recovered from within the body bag. A Report to Justice was submitted on 6 February 2026. An Order of Detention was issued the same day by a Justice of the Peace, with an expiry date of 25 April 2026.
On 3 February 2026, an Ontario Court Justice authorized a general warrant under s.487.01 of the Criminal Code to search the mobile devices of the infant’s parents. The warrant was executed on 8 February 2026, resulting in the seizure of two cellular phones. A Report to Justice was submitted on 9 February 2026. An Order of Detention was issued, by a Justice of the Peace, with an expiry date of 8 May 2026.
On 21 April 2026, the Justice of the Peace Intake Office received correspondence from Court Services Division (Kenora) requesting guidance regarding this matter. The earliest detention orders were set to expire effective 22 April 2026. Court services sought direction regarding the scheduling of a detention hearing because the applicable detention orders were about to expire.
The next available Criminal Hearings Court date for a s.490(2) application was 20 May 2026. That date fell after the expiry of both the earliest, and latest in time detention orders.
In response, the earlier Reports to Justice and the supporting materials associated with the investigation were reviewed. Based on the review, it was determined that the provisions under s.490(9.1) of the Criminal Code could be engaged.
The investigating officer subsequently forwarded draft Orders for Continued Detention relating to the residential search warrant and the general warrant authorizing the search of the mobile devices. Those draft orders were reviewed and signed.
Issues to be Addressed
On 28 April 2026 an email was sent by a Detective Sergeant of the Ontario Provincial Police, taking the position that pursuant to s.490 of the Criminal Code, a detention order cannot be issued without notice to the owners of the property, and therefore the signed Orders for Continued Detention were invalid.
That correspondence raises four issues to be addressed in these reasons.
First, whether there remained jurisdiction to proceed by way of a further detention hearing under s.490(2)(a).
Second, whether a justice has authority to issue Orders of Continued Detention under s.490(9.1) in the circumstances
Third, whether the statutory criteria under s.490(9.1) were met.
Fourth, whether the orders for Continued Detention remain presumptively valid unless and until varied, set aside, or quashed by a court with jurisdiction to do so.
Law
The Criminal Code
Section 490 of the Criminal Code creates a framework for judicial supervision over things seized by police. Its purpose is to ensure that seized property is returned to the lawful owner or person entitled to possession unless continued detention is required for an investigation, preliminary inquiry, trial or other proceeding.
The starting point under s.490(1) is return of the thing seized unless the prosecutor, peace officer, or other person having custody satisfies the justice that detention is required for one of the statutory purposes. Where the threshold is met, the justice may order the thing detained and preserved.
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.
- That detention authority is time limited. Under s.490(2), property cannot be detained beyond three months from the date of seizure unless a further detention order is made, an application for further detention has been made and remains to be decided, or proceedings have been instituted in which things may be required.
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
The ordinary application for further detention under s. 490(2) is made summarily to a justice, after three clear days’ notice to the person from whom the thing was seized. The justice must be satisfied that, having regard to the nature of the investigation, further detention for a specified period is warranted.
If the cumulative period of detention will exceed one year from the date of seizure, s. 490(3) applies. At that stage, the application is to a judge of a superior court of criminal jurisdiction, or a judge as defined in s. 552, again on three clear days’ notice. The judge must be satisfied, having regard to the complex nature of the investigation, that further detention is warranted for a specified period and subject to any conditions considered just.
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.
- A hearing may not be required where the lawful owner or person lawfully entitled to possession consents in writing to continued detention. Section 490(3.1) allows detention for the period consented to, whether or not an application under s. 490(2) or s. 490(3) is made.
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.
A further detention hearing is also not required where proceedings have already been instituted in which the thing may be required. In that circumstance, s. 490(2)(b) or s. 490(3)(b) provides the continuing authority for detention.
The ordinary result after expiry is addressed by s. 490(9). If the detention periods have expired and proceedings have not been instituted, or if continued detention is no longer required, the court is generally directed to order return of the thing to the person lawfully entitled to it, subject to issues of lawful possession, ownership, forfeiture, or other lawful disposition
If a detention order expires and proceedings have not been instituted, the property should not simply remain in police custody without further court authority. Section 490(6) requires the prosecutor, peace officer, or custodian to apply to the appropriate judge or justice for an order under s. 490(9) or s. 490(9.1).
Where continued detention no longer required
(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).
- Section 490(9.1) is the exception to that ordinary post-expiry result. It applies where the detention periods under s. 490(1) to (3) have expired, but proceedings have not been instituted in which the thing may be required
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.
Under s. 490(9.1), the judge or justice may nevertheless order continued detention for the period considered necessary, but only if satisfied of two requirements: first, that continued detention might reasonably be required for a purpose mentioned in s. 490(1) or s. 490(4); and second, that continued detention is in the interests of justice.
Properly understood, s. 490(9.1) is not the ordinary extension mechanism for an active detention order. If the existing order remains alive, the proper route is generally s. 490(2), or s. 490(3) if the one-year threshold is engaged.
Section 490(9.1) only becomes relevant after the statutory detention authority has expired, or is being addressed in that post-expiry context, and no proceedings have been instituted. It gives the court a limited remedial authority to permit continued detention despite that expiry of the ordinary detention periods, but only where the statutory test is met.
In practical terms, the framework is this: if the order is still active, proceed by way of further detention under s. 490(2) or s. 490(3); if the order has expired and no proceedings have been instituted, the applicant must seek disposition under s. 490(9) or continued detention under the exceptional authority in s. 490(9.1).
Case Law Regarding Jurisdiction Under s.490(2)(a)
There does not appear to be extensive Ontario authority directly addressing whether jurisdiction is lost where a s. 490(2)(a) application is not returnable before a justice within the existing detention period. However, New Brunswick and British Columbia courts have considered the issue in several decisions. Those decisions are not binding in Ontario, but they provide helpful guidance.
In R. v. Thériault, 2015 N.B.J. 276, the New Brunswick Provincial Court addressed when jurisdiction is preserved under s. 490(2)(a). The court held that a party seeking further detention must file the notice of application, obtain a hearing date, and serve the person from whom the things were seized with at least three clear days’ notice, all before the expiry of the previous detention order. If those steps are completed before expiry, and the application is returnable within the existing detention period, the matter may be adjourned without loss of jurisdiction.
22 The second issue raised that is relevant to the jurisdiction of the Court is whether the requirements of section 490(2) were complied with by the Attorney General. According to section 490(2), a party seeking further detention needs to:
1- file a summary Notice of Application with the Court;
2- obtain a hearing date; and
3- serve the person from whom the things detained was seized with the Notice at least three clear days before the date of the hearing;
all of this before the expiration of the previous detention order.
In R. v. R.H., 2021 BCPC 31, the court dealt with a situation where the Crown had lost its statutory right to seek further detention summarily under s. 490(2) and then reapplied under s. 490(9.1). The court treated s. 490(9.1) as a post-expiry mechanism requiring the court to consider whether continued detention might reasonably be required and whether continued detention was in the interests of justice.
In Further Detention of Things Seized (Re), 2021 BCSC 567, the British Columbia Supreme Court reached a similar conclusion. The court held that jurisdiction was lost where the application was not returnable before the existing detention order expired.
43 A review of the authorities referred to in Thériault supports the conclusion of the PCJ that jurisdiction was lost when the application was not returnable before the existing order expired.
- In R. v. Booth, 2021 BCPC 169, the court held that an application under s. 490(2)(a) must be filed before the expiry of the existing detention order, three clear days’ notice must be given to the person from whom the thing was seized, and the hearing must begin before the existing detention order expires.
35 In light of the law as it currently stands, the Crown must be vigilant to ensure that once their s. 490(2)(a)application is filed in the Court Registry:
The hearing is set to begin within the detention period allowed for by the Detention Order for Things Seized;
The person from whom the thing detained was seized is given three clear days' notice of the date and time for the hearing; and
The hearing actually begins within the detention period allowed for by the Detention Order for Things Seized.
Analysis
Issue 1: Was there jurisdiction to proceed by way of s.490(2)(a)?
The first issue is whether there remained jurisdiction to proceed by way of a further detention hearing under s. 490(2)(a).
The ordinary route to extend an active detention order is s. 490(2)(a). That provision requires a summary application to a justice, after three clear days’ notice to the person from whom the thing was seized. The justice must then be satisfied that, having regard to the nature of the investigation, further detention for a specified period is warranted.
The authorities reviewed above support the conclusion that the s. 490(2)(a) process must be properly engaged before the existing detention authority expires. It is not enough that police request a future hearing date. The application must be filed, notice must be given, a returnable date must be obtained, and the matter must be properly before a justice within the existing detention period.
In this case, the earliest detention order was set to expire effective 22 April 2026. Court Services sought direction on 21 April 2026 because the existing detention authority was nearing expiry and the next available Criminal Hearings Court date for a s. 490(2)(a) application was 20 May 2026.
That date fell after the expiry of the earliest detention order. It also fell after the expiry of the remaining detention orders, including the latest order, which was set to expire on 8 May 2026.
The timing of the Orders for Continued Detention is important. The Orders for Continued Detention were signed on 23 April 2026 at 9:00 a.m. EST. By that time, the earliest detention order had already expired. The other orders had not all expired, but they were set to expire before the next available Criminal Hearings Court date.
I am not satisfied that jurisdiction under s. 490(2)(a) could be preserved simply by assigning the matter to a hearing date that fell outside the operative detention period. The next available hearing date did not preserve the existing detention authority. It fell outside it.
I also do not accept that s. 490(2)(b) answered the timing concern. No substantive proceedings had been instituted in which the seized items may be required. In my view, the request for a s. 490 detention hearing was not itself a proceeding within the meaning of s. 490(2)(b).
Section 490(2)(b) is better understood as applying where separate substantive proceedings have been instituted, such as criminal charges, a preliminary inquiry, trial, forfeiture proceeding, or another proceeding in which the seized item may be required. It does not convert the s. 490(2)(a) application itself into the proceeding contemplated by s. 490(2)(b).
Accordingly, I find that the ordinary s. 490(2)(a) route was not practically or legally available to preserve detention of the seized items in this matter. In relation to the earliest order, the detention authority had already expired. In relation to the remaining orders, the available court date fell after their expiry. The matter therefore had to be addressed under the post-expiry provisions of s. 490.
Issue 2: Did a Justice have authority to issue orders under s.490(9.1)?
The second issue is whether a justice had authority to issue Orders for Continued Detention under s. 490(9.1) in these circumstances.
Section 490(9.1) is framed as an exception to the ordinary post-expiry result under s. 490(9). It applies where the periods of detention provided for or ordered under s. 490(1) to (3) have expired, but proceedings have not been instituted in which the thing may be required.
The provision authorizes a judge or justice to order that the thing continue to be detained for the period considered necessary, provided the statutory criteria are met.
I recognize that s. 490(9.1) is not the ordinary extension mechanism for an active detention order. If an existing detention order remains active, and a s. 490(2)(a) application can properly be brought before a justice before expiry, that is the ordinary route.
However, that was not the situation before me. The earliest detention order had already expired by the time the continued detention orders were signed. The remaining detention orders were set to expire before the next available Criminal Hearings Court date. No substantive proceedings had been instituted, and s. 490(2)(b) did not apply.
In those circumstances, the matter had entered the post-expiry framework contemplated by s. 490(6), s. 490(9), and s. 490(9.1), or would do so before the matter could lawfully be heard. The issue was no longer whether the matter could be conveniently scheduled under s. 490(2)(a), but whether continued detention could be authorized under the exceptional post-expiry authority in s. 490(9.1).
I am satisfied that s. 490(9.1) provided statutory authority for a justice to make the Orders for Continued Detention in these circumstances.
Issue 3: Were the criteria under s.490(9.1) met?
Section 490(9.1) requires two findings. First, the judge or justice must be satisfied that continued detention might reasonably be required for a purpose mentioned in s. 490(1) or s. 490(4). Second, the judge or justice must be satisfied that continued detention is in the interests of justice.
I am satisfied that continued detention might reasonably be required for a statutory purpose. The Reports to Justice and supporting materials disclosed an ongoing investigation into the sudden death of an infant. The preliminary cause of death remained undetermined, further testing and studies were outstanding, and the investigation had the potential to result in criminal charges.
The seized items were connected to the live investigative issues. They included items relating to the infant’s care, feeding, physical condition, medical information, and the circumstances surrounding the infant’s death. The cellular telephones were also potentially relevant to communications or other information bearing on the care of the infant and the events under investigation.
I am also satisfied that continued detention was in the interests of justice. This was a serious investigation involving the death of an infant in circumstances that remained medically and factually unresolved. The materials before me supported the conclusion that the investigation was ongoing and that the seized items were not peripheral or speculative. I
I have also considered the fairness of proceeding under s. 490(9.1) in the absence of the ordinary s. 490(2)(a) notice process. In the circumstances, any prejudice was limited. The orders preserved the status quo for a defined period. They did not finally determine ownership, forfeiture, admissibility, or the ultimate disposition of the property.
The orders also maintained judicial supervision over the seized items and did not prevent an affected owner or person entitled to possession from later seeking return or further direction through the statutory process.
Against that limited prejudice, the interests of justice favoured preserving potentially relevant evidence in a serious and ongoing investigation. Continued detention under s. 490(9.1) avoided the seized items remaining in police custody without proper statutory authority while the investigation remained active.
I am therefore satisfied that both criteria under s. 490(9.1) were met.
Issue 4: Are the Orders for Continued Detention presumptively valid?
Once issued, a judicial order remains presumptively valid and operative unless and until it is varied, set aside, or quashed by a court with jurisdiction to do so.
A police service may properly raise a concern about the process followed or the validity of an order. However, the legal effect of a judicial order is not determined by the police service. If the validity of the order is challenged, that challenge must proceed through the proper legal process.
In this case, I was satisfied that s. 490(9.1) provided statutory authority to make the Orders for Continued Detention, and that the criteria under that section were met. Accordingly, the Orders for Continued Detention remain valid and operative unless and until set aside by a court with jurisdiction.
Conclusion
I do not accept the position that the Orders for Continued Detention were invalid solely because they were not made following a noticed hearing under s. 490(2) of the Criminal Code.
The notice requirement relied on by the Detective Sergeant applies to the ordinary further detention process under s. 490(2)(a). That process remains the usual route where an existing detention order is active, no substantive proceedings have been instituted, and a further period of detention is sought before expiry.
This matter arose in a different procedural context. The existing detention authority had either expired or was set to expire before the matter could be brought before a justice through the ordinary s. 490(2)(a) process. The next available Criminal Hearings Court date was 20 May 2026, which fell after the expiry of each relevant detention order, including the order expiring 8 May 2026.
In those circumstances, jurisdiction under s. 490(2)(a) was not preserved. A request for a future hearing date did not, by itself, keep the matter within the ordinary further detention stream. Once the matter could not be properly brought before a justice within the existing detention period, the s. 490(2)(a) route was no longer available.
I also do not accept that s. 490(2)(b) preserved detention in these circumstances. No substantive proceedings had been instituted in which the seized items may be required. A request for a further detention hearing is not, in my view, itself a proceeding within the meaning of s. 490(2)(b).
I recognize that s. 490(9.1) is framed in post-expiry terms. It was not relied on merely because expiry was approaching, nor as a routine substitute for the ordinary s. 490(2)(a) notice process. It was relied on because the matter presented a genuine post-expiry problem: without further judicial authorization, the continued detention of the seized items would fall outside the ordinary detention framework before the matter could be heard.
Having reviewed the Reports to Justice and supporting materials, I was satisfied that continued detention might reasonably be required for an investigative purpose and that continued detention was in the interests of justice.
Accordingly, the absence of a s. 490(2)(a) hearing did not invalidate the Orders for Continued Detention. The orders remain presumptively valid unless and until varied, set aside, or quashed by a court with jurisdiction. I conclude that the orders were validly made under s. 490(9.1) of the Criminal Code.
Signed: Justice of the Peace, Jesse A. Soloway