Principles Governing Property Retention
- Evidence for Trial:
- If personal property, such as a laptop, is deemed evidence crucial to the prosecution’s case against the individual, it is unlikely to be returned.
- For instance, a laptop containing evidence of a crime, like possession of child pornography, becomes integral to the trial and won’t be handed back.
- Forfeiture to the Crown:
- In situations where property is not only evidence but also subject to forfeiture (e.g., purchased with proceeds from criminal activity), the Crown may seek permanent retention of the belongings.
- For example, a car used in drug-related activities might be forfeited to the Crown after a conviction.
- Return of Non-Evidentiary Property:
- Personal items, like wallets or cell phones, brought into the station during the arrest but not integral to the evidence, are generally returned promptly.
- Exceptions may occur if, for instance, the cell phone itself becomes evidence in the case, revealing criminal patterns or content relevant to the trial.
- Negotiations in Plea Deals:
- Individuals may agree to forfeit certain property as part of negotiated plea deals, especially if it contributes to securing a favorable outcome in the case.
- Forfeiture Application:
- Post-conviction, the Crown decides whether to initiate a forfeiture application, preventing the return of personal belongings to the accused.
- This decision hinges on factors such as the nature of the property, its connection to criminal activities, and legal considerations. For example, if child pornography was found on a person’s laptop or cell phone, it will definitely be forfeited to the Crown.
Conclusion
In summary, the fate of personal property seized by the police hinges on its role in the case – whether it serves as crucial evidence, faces forfeiture, or is unrelated to the charges. Understanding these principles helps individuals navigate the complexities surrounding the retention and potential return of their belongings in the criminal justice process. For personalized legal advice tailored to your specific situation, consult with our legal team.Video Transcription:
Thank you for joining me today. The question I pose today is can the police keep your property when you are arrested, and you have personal property in your possession? Can they retain it and never return it to you? What are the obligations of the police in this scenario? Well, the bottom line is as follows: if your property is not part of the evidence that is going to be used against you at your trial, the police are likely to return your property to you right away upon your release on bail conditions. However, if your property is part of the evidence against you, your property will not be returned to you. For example, let’s say you have a laptop which shows an alleged crime was committed by you such as possession of child pornography or some other type of crime, that is part of the evidence against you. IN this scenario, your laptop is not going to be returned to you. The laptop and the evidence contained within the laptop is going to be used by the crown at your trial to prove the case against you. Furthermore, it’s likely never to be returned to you because it is going to be forfeited to the Crown. So, at the end of the case, assuming you have been convicted of the crime, the Crown has to decide whether they bring a forfeiture application to prevent the accused from having his or her personal belongings returned to them. For example, let’s say you were dealing drugs and you plead guilty, and the Crown is able to prove that your car was purchased with drug proceeds and that was the car that was seized as part of the crime essentially. Drugs were found in the car and there was also other evidence in the car. So, that is the answer to this question. Therefore, in many instances if it is part of the evidence, your personal property will not be returned to you and may have to be forfeited to the crown. You may have also agreed to forfeit it as part of the negotiations if you decide to plead guilty as you were offered a good deal. For other factual situation, if your personal belongings were simply found on you by the police and they are not part of the evidence against you and you just brought them into the station at the time of your arrest, such as your wallet or cell phone, these items will usually be returned to you right away. Unless, of course, the cell phone is to be used as evidence against you at your trial. The example I gave was where there was child pornography on your phone or a pattern of phone calls and text messages showing you are a drug dealer which is another common example. Thank you very much for joining me today.
Michael Kruse is a seasoned criminal defence lawyer with more than 36 years of experience in Ontario. A former Assistant Crown Attorney, Mike brings decades of courtroom and trial experience to the defence of serious criminal charges. He leads Kruse Law Firm with a strategic, practical approach focused on strong advocacy and achieving the best possible outcome for every client.
