Guides / BC criminal process

Can police keep my phone after seizing it?

Not forever, and not on their own say-so. When police in BC seize your phone, section 490 of the Criminal Code puts them on a clock: three months to start, and every day past that has to be justified to a justice, with notice to you and reasons that hold up.

That surprises most people. The seizure itself feels final. An officer takes the phone at the roadside, or during a search of your home, and it disappears into an evidence locker. But the law treats detention of your property as something the state has to keep earning. Police do not get to keep a thing merely because they took it. The question is never whether they would like to keep your phone. The question is whether they can point to a specific legal basis for keeping it today, and then again three months from now, and then again after a year.

Here is how the clock runs.

How long can police keep my phone before anyone is charged?

Three months. That is the starting position under section 490.

When police seize property, whether a phone, a computer, cash, or documents, they are required to report the seizure to a justice. From there, the default detention period is three months from the day of the seizure. If no charges are laid in that time and no extension is granted, the property is supposed to go back to the person it was taken from. Not as a courtesy. As the rule.

Two things change that timeline. First, if charges are laid, or in the language of the Code, if proceedings are instituted in which the thing may be required, the property can be held for the case. Second, police or Crown can apply to keep the phone longer without charges, but that requires a hearing, and it requires them to satisfy a justice that the continued detention is warranted. Usually that means showing the investigation is complex enough that three months was not sufficient.

Notice matters here. Before a justice can extend the detention, the person the phone was taken from is generally entitled to notice of the application. You have the right to show up, with counsel, and put the police to their proof. In my experience, that hearing is often the first time anyone independent has asked the investigator a plain question: what exactly have you done with this phone since you took it, and what is left to do?

What happens when police ask a judge for more time?

They have to prove the case for keeping it, and the further out they go, the harder that gets.

Extensions within the first year go before a justice. Past the one-year mark, the bar rises: continued detention generally requires an order from a judge of the Supreme Court of British Columbia, and the judge has to be satisfied that the complexity or nature of the investigation requires it, or that proceedings have been instituted. A vague assertion that the file is still open does not meet that standard. The application has to explain what investigative work remains and why the phone is still needed for it.

This is where these applications are won and lost, because the Crown's own materials often make the defence case. If the affidavit says the phone has sat in an exhibit locker for eighteen months waiting for a forensic examination that has not started, that is not a complex investigation. That is an unfinished one, and the delay belongs to the state, not to you. A judge is entitled to ask when the examination will happen, and if nobody can say, the phone should come back.

How do I get my phone back?

You do not have to wait for the clock to run out. Section 490 lets the person the property was taken from apply for its return, and it lets a court order return on terms: returning the phone, for example, while police keep a forensic copy of its contents, where a copy is all the investigation needs.

Here is what I do on these files. First, find out where the seizure stands: whether it was reported to a justice, when the three months expires, and whether any detention order exists. Seizures are sometimes left in limbo, and property held without a valid detention order is being held unlawfully. Second, put the Crown on notice that the detention is contested, so no extension slips through unopposed. Third, if an application to further detain is coming, oppose it on the record the police themselves have created: what they swore to, what they have done, and what they have left undone.

A phone is more than an exhibit. It is your banking, your photos, your work, your contact with your kids. The law recognizes that the state's interest in holding it has limits, but those limits do not enforce themselves. Someone has to stand up and hold the clock to the police.

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