Recovery of a Seized Aminal (POA)

Provincial Offences Act, R.S.O. 1990, c. P.33

159 (1) When, under paragraph 3 of subsection 158.2 (2), a thing that has been seized is brought before a justice or a report in respect of it is made to a justice, he or she shall, by order,

(a) detain the thing or direct it to be detained in the care of a person named in the order; or

(b) direct it to be returned. 2002, c. 18, Sched. A, s. 15 (5); 2006, c. 19, Sched. B, s. 15 (3).

(1.0.1) A direction to return seized items does not take effect for 30 days and does not take effect during any application made or appeal taken in respect of the thing. 2009, c. 33, Sched. 4, s. 1 (61).

(1.1) The justice may, in the order,

(a) authorize the examination, testing, inspection or reproduction of the thing seized, on the conditions that are reasonably necessary and are directed in the order; and

(b) make any other provision that, in his or her opinion, is necessary for the preservation of the thing. 2002, c. 18, Sched. A, s. 15 (5).

(2) Nothing shall be detained under an order made under subsection (1) for a period of more than three months after the time of seizure unless, before the expiration of that period,

(a) upon motion, a justice is satisfied that having regard to the nature of the investigation, its further detention for a specified period is warranted and he or she so orders; or

(b) a proceeding is instituted in which the thing detained may be required. R.S.O. 1990, c. P.33, s. 159 (2).

(3) Upon the motion of the defendant, prosecutor or person having an interest in a thing detained under subsection (1), a justice may make an order for the examination, testing, inspection or reproduction of any thing detained upon such conditions as are reasonably necessary and directed in the order. R.S.O. 1990, c. P.33, s. 159 (3).

(4) Upon the motion of a person having an interest in a thing detained under subsection (1), and upon notice to the defendant, the person from whom the thing was seized, the person to whom the search warrant was issued and any other person who has an apparent interest in the thing detained, a justice may make an order for the release of any thing detained to the person from whom the thing was seized where it appears that the thing detained is no longer necessary for the purpose of an investigation or proceeding. R.S.O. 1990, c. P.33, s. 159 (4).

(5) Where an order or refusal to make an order under subsection (3) or (4) is made by a justice of the peace, an appeal lies therefrom in the same manner as an appeal from a conviction in a proceeding commenced by means of a certificate. R.S.O. 1990, c. P.33, s. 159 (5).

Brock (Township) v. White, 2007 CarswellOnt 6972

APPLICATION by dog owners to quash ex parte order that dogs be kept in pound pending decision on township's application to have dogs destroyed, and for order returning dogs to them.

...

16 The Dog Owner's Liability Act does not specify a time limit for detention of seized. Again, I agree with the Crown's submission that when a specific provincial act, like the Dog Owner's Liability Act, is silent on an issue, the Provincial Offences Act applies by default.

17 The Provincial Offences Act provides for a maximum detention of three months for seized items, unless the warrant or court order provides otherwise. If the hearing in this matter proceeds on September 13 th , 2007, that is within three months from the seizure of the dogs.

...

19 However, it's simply unfair that a person's property can be seized without notice, and that the person has no means to promptly object to the seizure and request return of his property.

20 This may be even more true with respect to the seizure of a dog. Many people are very attached to their dogs, and dogs are often an important part of peoples' lives, often regarded as members of the family.

21 In the present case, the owners have never had the opportunity to object to seizure of their dogs. While the hearing of the Township's application is scheduled for September 13 th , 2007, the presiding Justice of the Peace may not make an order that day, or the hearing might not proceed that day for a variety of unknown reasons.

22 The Dog Owner's Liability Act does not appear to provide for interim review of an order that a dog be seized. No section of the Provincial Offences Act was pointed out to me that provided for such interim review.

23 In order to be fair, the owners of property, that is seized without notice to them, should have the opportunity for a review of any such seizure order.