When the police seize property as evidence in a criminal case, they can only keep it for as long as necessary for the investigation and legal proceedings. If the officer in charge believes that the property needs to be held, they must bring it before a judge within three months. The Crown must then explain to the judge why the continued detention of the evidence is still necessary based on the nature of the investigation. If the Crown fails to demonstrate this, the property must be returned.
If the judge agrees that the evidence should be held for further investigation or legal proceedings, it can be detained for more than three months in two situations. First, if legal proceedings have started and the evidence is needed for the trial, it can be held until the accused person is ordered to stand trial. Second, the judge can specifically order the continued detention of the evidence for a specified period. Multiple orders can be issued, but the total detention period cannot exceed one year unless a higher court judge decides that due to the complexity of the investigation, more time is necessary. The complexity assessment considers factors like the remaining work, estimated completion time, and whether the work should have been done earlier. A complex investigation involves many interconnected parts and is difficult to fully understand without careful study and analysis.
However, just because an order has been made to detain the evidence does not mean it can be held for the entire duration of the order. If the period ordered has not yet expired but the evidence is no longer needed, it must be returned to its rightful owner.
The police have taken my property. How do I get it back?
If the police have seized your property as evidence and you want it returned to you, there are two options available.
First, you can make an application for an order of return under. The application must be made after the expiration of the period of detention ordered by the judge, unless the judge is satisfied that not allowing the application would result in hardship to you. The Attorney General must be given three clear days of notice as well.
Second, you can make an application by the lawful owner. These applications can be made at any time, so long as the Attorney General is given three clear days of notice. A judge can then order that the evidence be returned (or that you be compensated for its value if that is not possible), if they are satisfied that you are the lawful owner of the evidence and either:
- That the period of detention ordered has expired, or
- That the continued detention of the evidence is not required for the purposes of any investigation or legal proceedings.
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