02-19 Report to a Justice/Return to a Search Warrant/Order for Continued Detention Flashcards
What is the Rationale?
The management of all property seized by members of the Toronto Police Service (Service) is an integral part in the administration of justice. Officers have a legal requirement to complete and submit documentation for items seized during the execution of a criminal or provincial search warrant and/or during an arrest, or otherwise during the lawful execution of duties. Documentation is still required even in circumstances where no items were seized after the execution of a judicial authorization or where a warrantless seizure was conducted.
A Report to a Justice (Form 5.2) is required by the Criminal Code (CC) pursuant to s. 489.1 every time property is seized by a peace officer with or without warrant.
Section 12.1 and 13 of the Controlled Drugs and Substances Act (CDSA) required that a Form 5.2 be completed for drug seizures.
Pursuant to s. 158.2 of the Provincial Offences Act (POA), a Return to a Search Warrant (POA 0838) is required for property seized under the authority of a search warrant, or when property is seized in a warrantless search during the performance of an officer’s duties under a Provincial Offences Statute, and where no procedure for dealing with the seized thing is otherwise provided by law.
A Form 5.2 is an official document, presented during a hearing to a Justice, indicating the results of a search conducted (with or without warrant) and/or property seized. The Justice will determine the disposition of property seized and will hear requests for an Order for Continued Detention.
Subsection 489.1 of the Criminal Code (CC) legislates that a Form 5.2 is required as soon as is practicable every time property is seized by a peace officer, with or without warrant:
- in the execution of duties under the CC, or
- any other Act of Parliament
This includes the seizure of drugs or any motor vehicle, with or without a warrant. Any delay may result in the evidence being excluded from trial. All Form 5.2’s SHALL be included in the related eReport no later than fourteen (14) days from the date the property was seized
The only exception to this is when drugs are purchased from a suspect during the course of an undercover investigation. The Public Prosecution Service of Canada (PPSC) has given guidance which states that _____Undercover drug purchases are not considered searches as those who engage in drug trafficking have no reasonable expectation of privacy in their dealings with customers.
In circumstances where a search warrant was executed and no items were seized, officers are still required to complete and submit a Form 5.2
undercover drug purchases are neither searches nor seizures within the meaning of s. 8 of the Constitution Act, Part I, Canadian Charter of Rights and Freedoms (Charter).
Disposition of Property
The police officer may elect to manage seized property in the following manner
- return the property to the lawful owner, if no charges have been laid and there is no dispute as to who is lawfully entitled to possession of the thing seized
- hold for further investigation, where charges are pending, or no charges laid and includes abandoned property
- continued detention of seized property where charges are laid, and the seized property is required for further investigation, preliminary inquiry, trial or other proceeding
The police officer SHALL consult with a crown attorney for direction on the return of property that was seized as evidence and obtain an order of disposition of things seized pursuant to s.490(1) CC, prior to returning any property to the lawful owner.
Retention of Found Property
Police officers are advised that found property is governed by the Community Safety and Policing Act (CSPA). The following are the retention periods for found property.
- Motor vehicles as defined in the Highway Traffic Act (HTA) or a bicycle: thirty (30) consecutive days
- all other general property: ninety (90) consecutive days
Finders of property listed above are able to claim the found property within a seven (7) consecutive day grace period, provided the retention period has expired and the lawful owner cannot be ascertained.
Members who may file a Report to a Justice (Form 5.2)
When a search warrant had been executed, the officer completing the Form 5.2 and attending a Report to a Justice Hearing may include:
- an involved officer such as the seizing officer, or
- common informant
- A common informant must be a peace officer who has been appropriately informed regarding the investigation and seizure. Examples may include
the affiant of the search warrant
the case manager
the exhibit officer - Members authorized to submit a Form 5.2 do not include special constables who are members of Court Services.
Asset Forfeiture / Offence – Related Property
In all instances where property, including cash, is seized as proceeds of crime or offence–related property, officers SHALL
contact the Organized Crime Enforcement – Financial Crimes – Asset Forfeiture (Asset Forfeiture section) as soon as possible. When seizing property as proceeds of crime or offence–related, the corresponding forfeiture forms must be completed and scanned into the related eReport for eBrief disclosure.
________section will co–ordinate and provide expertise in cases involving the seizure of monies and other assets obtained through criminal activity.
Officers from_____ who have large seizures at major crime scenes SHALL submit an exhibit list to the case manager listing all property seized. The case manager SHALL ensure that a Form 5.2 is subsequently completed and filed in court.
The Asset Forfeiture
Detective Operations – Forensic Identification Services (FIS)
Continued Detention Order
an Order for Continued Detention is no longer required when:
Once seized property has
- been entered as an exhibit at a preliminary inquiry, trial or other legal proceeding or
- where charges are laid
an Order for Continued Detention is no longer required.
The detention of seized property where no charges are laid SHALL not exceed
three (3) months from the date of seizure.
When further detention of the seized property is required beyond the three (3) month period,
a TPS 143 SHALL be completed after three (3) days’ clear notice was served to the person from whom the item detained was seized, via a TPS141. The cumulative period of detention SHALL not exceed one (1) year from the date of the seizure.
Where possible, all applications for the continued detention of seized property SHALL be made
before a Justice in the court location where the search warrant was issued and/or the Form 5.2 was filed.
In circumstances where it is necessary to detain property beyond one (1) year, an application for continued detention SHALL be s.
made before a Superior Court Justice. Such applications will be made through the Office of the Crown Attorney. Legal Services (LSV) is available to provide assistance and direction to the case manager on this process.
Member
- After seizing property with or without warrant, the police officer seizing the property SHALL
- complete the applicable electronic
o Form 5.2 – CC, or
o Form 5.2 – POA - Complete a Report to a Justice (POA 0838) if the electronic submission method is unavailable.
- When property has been seized as a result of the execution of a search warrant and
- charges laid, or
- no charges laid, or
- charges are pending
- whenever possible, the police officer who obtained the search warrant and the officer signing the Form 5.2 with warrant SHALL be the same person
- whenever possible, the Report to a Justice Hearing SHALL be submitted to a Justice in the same court location where the search warrant was issued
- Officers may use a common informant to file the Form 5.2 when property has been seized without a warrant and
- the accused is held for a show cause hearing
- the accused is released on an Appearance Notice (Form 9) or Undertaking (Form 10); or
- charges are laid and/or proceeding by way of a Criminal Summons, or
- charges are pending, or
- a search warrant has been executed, and it is not possible to return to the original Justice who signed the search warrant
- There is no requirement to complete a Form 5.2 when abandoned property is seized without warrant and
no arrest is made or charges laid, or - there are no charges pending.
- In the case of a telewarrant or a eTelewarrant SHALL submit the Form 5.2 in the
same jurisdiction where the search warrant was executed as soon as is practicable, but not exceeding seven (7) days from the date the property was seized.
- When submitting a Form 5.2 to a Justice of the Peace SHALL
- complete a crown envelope and/or eBrief. Attach a copy of
o the search warrant and appendices
o the synopsis from the eReport outlining
o the location of the search
o the date and time of the search and seizure
o the accused name, a list of charges laid, or the name of the suspect, if known and a list of charges pending
o the connection between any property seized and charges laid or charges pending
o the disposition of property seized, including the reason any property is required to be held - when a search warrant was executed, complete a Form 5.2 with warrant, and appendices if applicable, forthwith
- when property is seized without warrant, complete a Form 5.2 without warrant or Form 5.2 without Warrant – Common Informant, and appendices if applicable, forthwith
- When completing and submitting the Form 5.2, in addition to the above items listed in the crown envelope and/or eBrief, may be asked to produce
- the original search warrant and appendices, if applicable
- a copy of the original Information to Obtain a Search Warrant (Information), if applicable
- the seized property when directed by a Justice
- Where it is not feasible to transport the seized property to the courthouse SHALL
photograph or videotape the evidence.
- Drugs and dangerous materials SHALL NOT be
taken to court.
- Once the Justice and the member have signed and dated the Form 5.2 and copies SHALL
- scan copy of the signed Form 5.2 into the applicable eReport for eBrief disclosure
- verify that the case manager has been notified
- update the Property Disposition Inquiry (PDI) application for each related piece of property
- comply with Appendix A
- After seizing property under the authority of the POA SHALL comply with
applicable items 2 to 9, substituting POA 0838 for the Form 5.2, as applicable.
- In circumstances where a Justice refused to sign a Form 5.2, including unacceptable time delay, SHALL
- complete a TPS 649 outlining the date and time, court location, name of the Justice and the circumstances, and submit to the Unit Commander through the next level supervisor to
o the Unit Commander
o Property & Video Evidence Management Unit (PVEMU) - Consult with the Crown to determine how to proceed
