Re: Section 490 Application - Without Notice, 2022 ABPC 100
[43] The mandate of the Provincial Court is sufficiently broad in relation to protecting the secrecy of ongoing investigations to suggest a legislative intention to implicitly confer jurisdiction and power on the Provincial Court to delay notice and to proceed on an in camera and ex parte basis for the purposes of supervising the detention of seized items while also protecting the covert nature of criminal investigations where necessary. For example, the Criminal Code allows the Court to delay notice of a covert search [section 487.01(5.2)], to issue sealing orders to protect ongoing investigations [section 487.3(2)(ii)], and to order non-disclosure, for a specific period of time, of a preservation demand or a preservation order, or a production order [section 487.0191(1)].
[44] The jurisdiction sought is necessary because the Criminal Code does not address, through expressly granted powers, a scenario in which an investigation will be materially jeopardized by complying with the notice requirements of section 490(2).
[45] There is no indication that Parliament addressed its mind to the issue and decided against conferring on the Provincial Court the power to delay notice to interested parties for the purpose of protecting an ongoing criminal investigation which surpasses the three-month mark where no charges have yet been laid.
[46] Considering all of the above, I am of the view that the Provincial Court of Alberta does have the implied jurisdiction to delay the notice requirement in section 490(2). In other words, this implicit power under s. 490 of the Criminal Code to delay notice to interested parties is practically necessary for the Provincial Court to fulfill its mandate of supervising the ongoing detention of seized items while protecting the covert nature of criminal investigations and those involved.
[47] Whether an in camera proceeding without notice to interested parties is warranted will depend on the circumstances of each case.
[53] I note that the issue which is before me was also before the Nova Scotia Provincial Court in Application to extend period of detention of items seized, 2021 NSPC 51. In that case, Chief Judge Williams concluded, at paragraph 10 of her Reasons, that the Rules of the Nova Scotia Provincial Court gave her “authority to dispense with the notice requirement under section 490(2) of the Criminal Code and order an in-camera proceeding.”
[54] I am also aware that Justice Schultes, in Further Detention of Things Seized (Re), supra, when a similar rules-based submission was made to him, said (in obiter):
…I am doubtful that a court-instituted rule, which forms a part of what is essentially a case management regime under delegated powers, can function as the equivalent of a missing Code provision on the substantive issue of detention of seized property, despite the expansive language in the Code provision that permitted its enactment.
[61] The Criminal Code, by necessarily implication, provides to the Provincial Court of Alberta the power to hear an ex parte application under section 490(2), in camera, and to delay providing notice of that application to the owners of the items seized and to the persons from whom the items were seized.
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