Ontario Court of Justice
Date: January 21, 2022
Case Name: R. v. N.E.N.
Order Type: Section 490(1) Order - Order of Disposition of Items Seized Pursuant to s. 490(1) of the Criminal Code
Before: J. Ziegler J.P.
[1] Detective Constable S. Burnham #1350 submitted a second report to justice on December 29, 2021 requesting detention of clothing purchased by credit card and clothing worn by the defendant on November 24, 2021, as well as a gold wallet chain worn by the defendant on the offence date.
[2] The accused is 29 years old and was charged with the criminal offence of sexual assault on a female youth on November 24, 2021 contrary to section 271 of the Criminal Code and with the offence that he did for a sexual purpose touch a person under the age of sixteen years with a part of his body, to wit his lips and hands contrary to section 151 of the Criminal Code.
[3] The Officer has surveillance video and a copy of the receipt and photographs of the purchased items from the mall store where the new clothing was purchased. The Officer has video of the 36 minute ride on GRT Light Rail train ride where the accused is seen wearing the clothes later seized and having conversation with the complainant, kissing her and putting his hands down the victim’s pants and digitally penetrating her.
[4] The accused and the complainant had, prior to the train ride while on the platform, exchanged cellphone information with each other and the accused’s phone number was logged on the complainant’s phone. This interaction was captured on surveillance video on the platform.
[5] This is the second request for detention of the items seized and provides further detail of the circumstances of the events that transpired which resulted in the criminal charges.
[6] The request is to detain the new clothing just purchased and the older clothing and gold wallet chain worn by the accused at the time of the offence.
[7] I was the Justice of the Peace who ordered the return of all clothing, new and worn and the wallet chain, stating “No grounds indicated to justify continued holding/custody of clothes or wallet chain” on December 13, 2021.
[8] The Officer has listed in Appendix B, four things to be detained, the first two are items of Ecko clothing purchased just prior to the event, the third is an Orange hoodie worn during the alleged altercation, and the fourth is the gold wallet chain worn during the time of interaction. The seized items have been lodged at Central Division and are to be photographed by an Identification officer.
Case Law
[9] The Case Law on section 490 is clear that my function in determining whether or not to order detention on seized items is limited to the question of whether they are necessary either for further investigation or legal proceedings.
R. v. Bellinger
[10] R. v. Bellinger, 2017 ONSC 1639 at paragraph 27, states: “… the Justice of the Peace may not disregard the provision [the statutory scheme established under 490(1)] or give consideration to factors outside the ambit of the statutory scheme.”
[11] At paragraph 28: “The only issue for the Justice of the Peace was whether the peace officer satisfied her ‘that the detention of the thing seized is required for the purposes of any investigation or preliminary inquiry, trial or other proceeding’.”
R v. Kawecki
[12] R. v. Kawecki, 2014 ONSC 3584 at paragraph 35 states: “… neither does section 490(1) allow for the holding of a hearing by the justice of the peace as to the merits of the evidence from the peace officer that the thing seized should be detained or returned ….”
[13] At paragraph 37: . “… I understand these two sections to mandate how a peace officer acting in execution of his duties is to decide on restitution or detention of the thing seized (s. 489.1) and to require him to report to a justice on his decision made pursuant to section 489.1 to return or detain and to obtain an order from the justice, on the basis of Form 5.2 and any other evidence he may choose to give to the justice, to either return or detain ( s. 490(1) ).”
[14] At paragraph 42: “The justice’s limited statutory duty under section 490(1) was to make either an order for return or an order for detention for the vehicle based on the officer’s Report to Justice in Form 5.2 and as was the situation in the present case, to order its detention if satisfied its detention was required for an ‘other proceeding.’ ”
[15] At paragraph 43: “I agree with the applicant that the Form 5.2 in the present case could have expressly and more clearly stated that the vehicle was to remain detained until the completion of all proceedings and for the purposes of an “other proceeding,” tracking the wording in the subsection, namely a forfeiture hearing. Instead, there was no mention made of detention being required for an “other proceeding’.”
Conclusion
[16] The case law establishes that some information is required to justify detention of seized property for the proceedings and if the materials provided by the officer don’t do that then the default position under the section is to order them returned.
[17] The officer has provided more narrative regarding the alleged circumstances of the offence but has not expressly or clearly stated the objects seized are required for trial or for the purpose of an “other proceeding”.
[18] I therefore order the seized items to be returned.
Respectfully
His Worship James Ziegler
West Region
Please attach a copy this written decision to any future application. JJZ