R. v. Garcia-Machado, 2015 ONCA 569
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[14] Section 489.1(1) applies to both warrantless common law seizures and seizures pursuant to a warrant: R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754, 194 C.C.C. (3d) 1 (C.A.), at paras. 113, 115.
[15] Importantly, s. 489.1(1) is the gateway to s. 490. As Rosenberg J.A. explained in Backhouse, at para. 112:
Section 490 provides that where things have been brought before a justice or a report made to a justice in respect of anything seized under s. 489.1, there is an obligation on the justice to supervise its detention. The section also sets out an elaborate scheme to facilitate the return of items seized to their lawful owners.
[16] If a peace officer fails to file a report under s. 489.1(1), the property seized is not subject to judicial supervision during the investigation under s. 490. The real importance of s. 489.1(1) is its link to s. 490.
[17] In R. v. Raponi, [2004] 3 S.C.R. 35, [2004] S.C.J. No. 48, 2004 SCC 50, at para. 28, McLachlin C.J.C. described s. 490 as "purporting to provide a complete scheme for dealing with property seized in connection with crime". Section 490 is lengthy. To provide context for my analysis below, I outline some of its principal provisions, although in very broad terms. The interpretation of these provisions is not at issue on this appeal.
[18] Under s. 490(1), the justice to whom a report is made under s. 489.1(1)(b) is required to order the return of the property to the lawful owner or a person lawfully entitled to possession of [page742] the item unless the justice is satisfied that detention of the item is required "for the purposes of any investigation or a preliminary inquiry, trial or other proceeding". In that case, the justice may order the item detained for up to three months.
[19] Under s. 490(2) and (3), if the justice is satisfied that, "having regard to the nature of the investigation", the detention of the item for a further period is warranted, the justice may extend the detention for successive periods, but not for more than a year in total. Importantly, notice of each application to the justice for further detention must be given to the person from whom the thing detained was seized.
[20] Section 490(3) requires an order from a judge of a superior court1 to detain the item for more than a year, unless proceedings have been instituted in which the thing detained may be required.
[21] Section 490(4) provides that if the accused is ordered to stand trial, the justice is required to forward anything detained to the clerk of the court.
[22] Section 490(7) and (8) permit the person from whom the item has been seized to apply for the return of the item seized after the expiry of the detention period or, in the case of hardship, before the expiry of the detention period.
[23] Section 490(10) permits a person (other than the person from whom the item was seized) who claims to be the lawful owner or a person lawfully entitled to possession of the thing seized to apply for an order to return the thing.
[24] Section 490(13) permits the Attorney General, the prosecutor, the peace officer, or other person having custody of a document to make and retain a copy of the document before bringing it before a justice or returning it to a person.
[26] At para. 54, he cited S. Hutchison, et al., Search and Seizure Law in Canada, looseleaf (Toronto: Carswell, 2005), at p. 18-1:
[I]t is often only during the ongoing detention that the governmental intrusion into the privacy interests of the individual are realized. It is detention which allows examination, copying, and forensic testing. These aspects of the seizure, as much as the initial search itself, would seem to engage the interests of the individual which s. 8 of the Charter was intended to protect. As such, the ongoing detention should meet the same constitutional standard that the original seizure is measured against, that is, reasonableness.
Did the constable's failure to file a timely report to a justice pursuant to s. 489.1(1) of the Criminal Code in relation to lawfully seized items breach s. 8 of the Charter?
[39] Section 8 of the Charter provides that: "Everyone has the right to be secure against unreasonable search or seizure." Section 8 of the Charter protects an individual's reasonable expectation of privacy: R. v. Dore, 2002 CanLII 45006 (ON CA), [2002] O.J. No. 2845, 166 C.C.C. (3d) 225 (C.A.), at para. 42.
[40] In Colarusso, at pp. 61, 63-64 S.C.R., the Supreme Court of Canada made it clear that s. 8 continues to apply to protect a person's privacy rights in seized items during detention of those seized items.
[41] In that case, a coroner, acting under the Coroners Act, R.S.O. 1980, c. 93, seized a driver's blood and urine samples from a hospital in order to decide whether to hold an inquest into a death. The police eventually took the evidence to use against the driver in a criminal proceeding. The Supreme Court concluded that the seizure, which was reasonable as long as the coroner seized the evidence, was unreasonable from the point at which the police took the evidence. At para. 91, La Forest J., writing for the majority, said this:
[I]t must be understood that the protection against unreasonable seizure is not addressed to the mere fact of taking. Indeed, in many cases, this is the lesser evil. Protection aimed solely at the physical act of taking would undoubtedly protect things, but would play a limited role in protecting the privacy of the individual which is what s. 8 is aimed at, and that provision, Hunter [v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145] tells us, must be liberally and purposively interpreted to accomplish that end. The matter seized thus remains under the protective mantle of s. 8 so long as the seizure continues.
(Emphasis added)
[42] To the extent this court's decision in Church of Scientology held that s. 8 of the Charter does not apply to the act of detention, it was overtaken by Colarusso.
[43] This court has already determined that detention of property in breach of s. 489.1(1) is unlawful: Backhouse, [page746] at para. 115. However, as Rosenberg J.A., writing for the court, added, at para. 115:
It does not necessarily follow, however, that the continued unlawful detention violated the appellant's Charter rights. The initial search and seizure was lawful and complied with the Charter. I need not decide whether the subsequent failure to comply with s. 489.1 could render the initial lawful seizure unreasonable. However, see Re Church of Scientology et al. and the Queen. (No. 6) (1987), 1987 CanLII 122 (ON CA), 31 C.C.C. (3d) 449 (Ont. C.A.) at 543-547.5 Even if the detention of the clothing did violate the appellant's rights under s. 8, I would not exclude the evidence obtained by the analysis of the appellant's jacket.
[44] The question on this appeal is whether the Constable's failure to comply with the requirements in s. 489.1(1) to make a report to a justice as soon as practicable also rendered the continued detention of a seized item unreasonable and therefore contrary to s. 8 of the Charter.
[45] I conclude that the answer to that question is yes. As I have explained, it is clear that an individual retains a residual, post-taking reasonable expectation of privacy in items lawfully seized and that Charter protection continues while the state detains items it has taken. Sections 489.1(1) and 490 govern the continued detention by the state of the items seized and, I conclude, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting privacy interests. The constable's post-taking violation of s. 489.1(1) by failing to report to a justice for more than three months after seizure of the blood and hospital records compromised judicial oversight of state-detained property in which the appellant had a residual privacy interest. It therefore rendered the continued detention unreasonable and breached s. 8. The fact that a person may have a diminished reasonable expectation of privacy after a lawful, initial police seizure and that in a particular case there may have been virtually no impact on that expectation will be important factors in the analysis under s. 24(2) of the Charter. However, they will not render continued detention after a clear violation of the requirement in s. 489.1(1) to report to a justice as soon as practicable reasonable.
[46] It is established law that in order to be reasonable, a seizure must be authorized by law: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, [1987] S.C.J. No. 15, at p. 278 S.C.R.; R. v. Caslake, 1998 CanLII 838 (SCC), [1998] 1 S.C.R. 51, [1998] S.C.J. No. 3, at para. 10. If seized property is detained without complying with s. 489.1(1), then its continued detention is not authorized by law: Backhouse, at para. 115. [page747]
[47] Although one could conceive of provisions governing retention that would not relate to the protection of privacy, ss. 489.1(1) and 490 were enacted to "regulate state activity that interferes with privacy interests", as Rosenberg J.A. explained in Backhouse, at para. 110:
Although s. 489.1 was an early enactment after proclamation of the Charter it reflects Charter values and principles. It favours judicial supervision. It is part of a scheme that includes s. 490 and that is designed to regulate state activity that interferes with privacy interests.
(Emphasis added)
[48] As I explain below, the requirement in s. 489.1(1) to report to a justice as soon as practicable plays a role in protecting an individual's residual, post-taking reasonable expectation of privacy. I therefore conclude that the constable's clear failure to comply with that obligation breached s. 8.
[49] One indicator of the privacy-related role of s. 489.1(1) is the fact that the form of the warrant authorizing the initial seizure required the peace officer to comply with s. 489.1(1) ("[T]his is to authorize and require you . . . to bring [the seized things] before me or some other justice to be dealt with according to law").
[50] A second indicator is the substance of the provision itself. Section 489.1(1) requires a peace officer who wishes to detain a thing seized to bring the thing before a justice or report to a justice that he or she has seized the thing. It engages judicial oversight of state-held property in which privacy interests subsist. It also ensures that a record is made of what was actually seized. Such a record may be critical if a person seeks to assert that the initial seizure was overly broad or that the state does not need the item seized for its investigation.
[51] A third indicator of the role of s. 489.1(1) is the nature of the rights s. 490 provides to individuals whose property has been taken. Two aspects of that section are particularly important.
[52] First, s. 490(2) requires the state to give notice to the person from whom the detained thing was seized if the state wishes to obtain an extension beyond the initial three-month detention period. Notice gives the affected person the opportunity to argue that the nature of the investigation does not warrant further detention of the item seized. If the state does not need the item for the purpose envisaged when it seized it, and the state's continued detention of the property is not otherwise legally justified,6 the [page748] individual's privacy interest should prevail. Moreover, notice under s. 490(2) may be the only way an affected individual learns exactly which items the state has taken. For example, as the result of a peace officer's failure to make a return on the warrants, the defendants in Guiller were not fully apprised of what was seized until the items were introduced at trial.
[53] In R. v. Tse, [2012] 1 S.C.R. 531, [2012] S.C.J. No. 16, 2012 SCC 16, the Supreme Court highlighted the importance of notice where privacy is at issue. Section 184.4 of the Code (the emergency intercept provisions) did not provide after-the-fact notice to individuals whose communications the police had intercepted without prior judicial authorization. The court held, at para. 85, that s. 184.4 violated s. 8 because it did not include post-intercept notice or any other specific mechanism to permit supervision of police intercept activity. Moldaver and Karakatsanis JJ., writing for the court, adopted this statement, at para. 83: "The right to privacy implies not just freedom from unreasonable search and seizure, but also the ability to identify and challenge such invasions, and to seek a meaningful remedy." Although made in a different context, this comment is apposite. Notice under s. 490(2) may provide an affected individual with the ability to challenge the necessity of the continued detention of items seized.
[54] A second important aspect of s. 490 is that it provides the lawful owner of the item seized, a person lawfully entitled to possession of the item seized, or the person from whom the item was seized the right to apply for return of the item -- the meaningful remedy that Tse adverts to. Return of the seized items reduces or eliminates the risk that the state will violate the person's residual privacy interest. As Rosenberg J.A. noted, at para. 113 of Backhouse, s. 490's relatively summary procedure is much preferable to a more cumbersome and expensive replevin action in civil court.
[55] The recording of the items seized, the right to notice and the right to apply for return of things seized confer important protections on people whose items the state holds in detention. Compliance with s. 489.1(1) is the gateway to all of these protections. The appellant failed to report to a justice for over three months after the blood and hospital records were seized. Effective judicial oversight of property in which the appellant maintained a residual privacy interest was compromised. I conclude therefore that the constable's clear failure to comply with the requirement in s. 489.1(1) that he report to a justice as soon as practicable breached s. 8 of the Charter. I leave for another day whether any other breach of s. 489.1(1) or any breach of s. 490 -- even if so minor or technical as to have no real impact on the [page749] judicial oversight contemplated by the sections -- would breach s. 8 of the Charter.