R. v. Floward Enterprises Ltd. (H. Williams and Co.)

R. v. Floward Enterprises Ltd. (H. Williams and Co.) Collection Decisions of the Court of Appeal Date 2017-06-02 Neutral citation 2017 ONCA 448 Docket numbers C61163 Judges Gillese, Eileen E.; Huscroft, Grant; Trotter, Gary T. Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Floward Enterprises Ltd. (H. Williams and Co.), 2017 ONCA 448 DATE: 20170602 DOCKET: C61163 Gillese, Huscroft and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Floward Enterprises Ltd. o/a H. Williams and Co. Applicant (Respondent) and The Estate of Martin Winberg (Appellant) Paul Adam, for the appellant, the Estate of Martin Winberg Jordan Green, for the respondent, Floward Enterprises Ltd. Michael Fawcett, for the respondent, Her Majesty the Queen Heard: May 1, 2017 On appeal from the order of Justice Nola E. Garton of the Superior Court of Justice, dated September 21, 2015. Gillese J.A.: OVERVIEW [1] As part of a criminal investigation, Toronto police seized a valuable diamond from a pawnbroker, believing it was stolen property. They retained the diamond for the duration of the criminal proceedings. [2] When the criminal proceedings were over, the pawnbroker successfully brought an application under ss. 490(7) and (9)(c) of the Criminal Code, R.S.C. 1985, c. C-46 for the return of the diamond. Section 490 of the Code contains a comprehensive set of rules for the detention and disposition of property seized by peace officers in the execution of their duties. [3] The estate of the individual from whom the diamond had been stolen appeals, pursuant to s. 490(17). It was not given notice of the application and says that it was entitled to participate in the application, given its ownership interest in the diamond. [4] For the reasons that follow, I would allow the appeal. BACKGROUND IN BRIEF [5] On August 4, 2011, Martin Winberg bought a diamond from Guildhall Diamond Investments Inc. for approximately $40,000. At Mr. Winberg’s request, an acquaintance agreed to store the diamond at his home. [6] Sometime in the spring of 2012, the acquaintance told Mr. Winberg that his friend, Brian Colyer, had stolen the diamond. Apparently, Mr. Colyer had stolen other things as well. The thefts were promptly reported to the Toronto Police Service. [7] The police investigated and soon arrested and charged Mr. Colyer. During the police investigation, the police located the diamond at Floward Enterprises Ltd., operating as H. Williams & Company (the “Pawnbroker”). The police believed that Mr. Colyer had stolen the diamond and then pawned it to the Pawnbroker. [8] Accordingly, on July 5, 2012, the police took possession of the diamond from the Pawnbroker. It was assigned Property Receipt #N956247. The police retained the diamond throughout the criminal proceedings against Mr. Colyer. [9] Martin Winberg died on February 19, 2015. [10] Around the time that the criminal proceedings against Mr. Colyer were concluded, the Pawnbroker learned from the police that an individual named Martin Winberg had a potential interest in the diamond because he was the person from whom the police believed the diamond had been stolen. [11] The Pawnbroker wrote letters to the police demanding the immediate release of the diamond to it, asserting its entitlement to the diamond. The police did not comply. [12] Instead, in a letter dated June 1, 2015, addressed to both the lawyer for the deceased and the lawyer for the Pawnbroker, the police explained that the prosecution against Mr. Colyer was complete, the police no longer needed the diamond, and there were “at least two adverse claims” to it. In the letter, the police also explained that they were not in a position to adjudicate the competing claims to the diamond and that the diamond would not be released without either a waiver jointly issued by the parties or a court order. [13] There was communication between counsel for Martin Winberg’s estate (the “Estate”) and counsel for the Pawnbroker about entitlement to the diamond. [14] By letter dated July 6, 2015, counsel for the Pawnbroker advised counsel for the Estate that it would commence legal proceedings without further notice if it did not hear from the Estate within 10 days’ time. [15] On July 20, 2015, counsel for the Pawnbroker again wrote to the police demanding the immediate return of the diamond. The police responded with a letter to both parties in which the police refused to release the diamond, reiterated that there were two competing claims to it, and asked that the parties use the s. 490 process to settle the dispute. [16] Michael Winberg is the deceased’s brother. He was appointed the Estate trustee by a certificate of appointment of estate trustee with a will annexed, issued on September 11, 2015. [17] By application dated September 14, 2015, and brought under ss. 490(7) and (9)(c) of the Code (the “Application”), the Pawnbroker sought a court order requiring the police to return the diamond to it. The Pawnbroker did not give the Estate notice of its Application. The written material filed on the Application was brief and did not mention the Estate or the fact that the Estate was laying claim to the diamond. [18] The Application was heard on September 21, 2015. The Pawnbroker did not tell the court that there was another interested party who might challenge the return of the diamond to it. Instead, counsel for the Pawnbroker stated: So what we have here is a simple application for return property under s. 497 [sic] and 499(c) [sic]. The property was a diamond. It was seized by police almost three years ago and held for investigation. I understand that the investigation is now complete and we just want the property returned. It was, it was against a third party that it was seized for the investigation. [19] Counsel for the Crown appeared on the Application. She took no position on it but offered the court background information about the underlying theft investigation. She advised the court that the diamond had been taken from the deceased and pawned to the Pawnbroker, from whom the police had seized it. She also advised the court that she had seen some letters that morning which suggested that counsel for the Pawnbroker had attempted to contact the deceased’s brother. [20] Counsel for the Pawnbroker then made the following comment to the court: If it pleases the court, under this application no notice is required to be given to the brother. That being said, out of abundance of caution, we have contacted counsel for the [E]state and have received no reply and let them know that we would be proceeding for return of the property. [21] The Application was granted and by order dated September 21, 2015 (the “Order”), the police were required to release the diamond to the Pawnbroker. [22] The police forwarded a copy of the Order to the Estate. The Estate moved quickly to bring this appeal. THE PARTIES’ POSITIONS [23] The Estate claims that it was entitled to participate in the Application, given its ownership interest in the diamond. It says that, in the circumstances, the application judge erred in law in deciding the Application without requiring that notice be given to it. The Estate also filed fresh evidence on the appeal. On the basis of the fresh evidence, the Estate asks this court to order that the diamond be returned to it. [24] The Pawnbroker says that the appeal should be dismissed because the Estate failed to assert its interest in the diamond with diligence and it should be estopped from asserting any interest now. The Pawnbroker, too, filed fresh evidence to explain the factual circumstances leading up to the Application and to buttress its claim to entitlement to the diamond. [25] The Crown took a limited role on the appeal. It took no position as to which party is the rightful owner of the diamond nor did it take a position on the factual disputes between the claimants. Its sole interest is “to protect the integrity of the s. 490 process”. The Crown submits that the Pawnbroker failed to make full and frank disclosure in its Application and, as a result, it asks this court to set aside the Order. THE ISSUES [26] The central issue on this appeal is whether the Order must be set aside as a result of the Application being decided in the absence of full and frank disclosure by the Pawnbroker. If so, the court must also decide whether to accede to the Estate’s request for an order that the diamond be returned to it. THE RELEVANT LEGISLATIVE PROVISIONS [27] Section 490 is set out in full in Schedule “A” to these reasons. Sections 490(7), (9) and (10) are the most critical provisions for the disposition of this appeal. They read as follows: (7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order under paragraph (9)(c) that the thing seized be returned to the applicant. … (9) Subject to this or any other Act of Parliament, if (a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law. … (10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7), who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 may, at any time, on three clear days’ notice to the Attorney General and the person from whom the thing was seized, apply summarily to (a) a judge referred to in subsection (7), where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order that the thing detained be returned to the applicant. ANALYSIS [28] To resolve the issue raised on this appeal, one must consider the notice requirements in s. 490. Before doing so, however, it is necessary to consider ss. 489.1 and 490 of the Code more broadly. [29] Sections 489.1 and 490 contain a comprehensive set of rules for preserving and disposing of property seized by peace officers in the execution of their duties. Section 489.1 governs the “front end” of the process, in that it sets out the obligations on a peace officer who has seized property. Section 489.1 is not directly relevant to the matters in issue in this appeal. Section 490 provides for the judicial supervision of the continued detention and ultimate disposition of the seized property. [30] In R. v. Backhouse (2005), 194 C.C.C. (3d) 1, at paras. 98-114, this court sets out the history, scheme and legislative context of ss. 489.1 and 490. One objective in adding s. 489.1 and changing the wording of s. 490 was to “facilitate the return of items seized to their rightful owners” (para.107). 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 court to supervise its detention (para. 112). Furthermore, s. 490 is “an elaborate scheme to facilitate the return of items seized to their lawful owners” (para. 112). [31] The overall purpose of s. 490, as reflected in s. 490(1), is to ensure that, subject to judicial supervision, police return a seized item to the lawful owner or person lawfully entitled to its possession when its continued detention is not required for the purposes of an investigation or court proceeding. [32] Subsection 490(10) gives anyone claiming to be the lawful owner or a person lawfully entitled to possession of seized property the right to apply for its return: (10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7), who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily to (a) a judge referred to in subsection (7), where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order that the thing detained be returned to the applicant. [Emphasis added.] [33] On a plain reading of s. 490(10), an application brought pursuant to it requires that notice be given both to the Attorney General and to “the person from whom the thing was seized”. [34] Where the applicant is the person from whom the thing was seized, the application may be brought pursuant to s. 490(7). The relevant parts of s. 490(7) read as follows: (7) A person from whom anything has been seized may, … on three clear days’ notice to the Attorney General, apply summarily to (a) a judge of a superior court of criminal jurisdiction …or (b) a justice … for an order under paragraph (9)(c) that the thing seized be returned to the applicant. [Emphasis added.] [35] On a plain reading of s. 490(7), where the person from whom the thing has been seized makes the application, that person need give notice only to the Attorney General. Application to the Present Case [36] In this case, the Pawnbroker brought the Application pursuant to ss. 490(7) and 490(9)(c). Because the Pawnbroker was the person from whom the diamond had been seized, it was entitled to bring its application under those provisions. As noted above, s. 490(7) required the Pawnbroker to give notice only to the Attorney General. It did so. [37] I have taken pains to explain the notice provisions in s. 490 to address the question of whether the Application was made on an ex parte basis. The Estate and the Crown have referred to the Application as being made on an ex parte basis, to which the Pawnbroker takes exception. The Pawnbroker says that s. 490(7) required it to give notice to the Attorney General and it did so. Therefore, it contends, it is not appropriate to treat the Application as if it were made on an ex parte basis. [38] I agree with the Pawnbroker that it met the notice requirements in s. 490(7). However, in my view, the Application was made on an ex parte basis. [39] In Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at para. 25, the Supreme Court of Canada held: Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party. [40] In this case, the proceeding (Application) was taken at the instance of the Pawnbroker and for its benefit only. Notice was given to the Attorney General. However, the Attorney General was not an adverse party – it was a neutral third party. No adverse party had notice and none was present to argue at the Application. Therefore, in my view, the Application was brought and decided on an ex parte basis. [41] Consequently, as the Supreme Court stated at para. 27 of Ruby, the Pawnbroker was under a duty of “utmost good faith” in the representations that it made to the court: In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. [Citations omitted.] [42] The need for an applicant to make full and frank disclosure in a s. 490 application is acute. On such an application, the court is tasked with providing judicial oversight to achieve the ultimate goal that a thing seized by peace officers is returned to the lawful owner or person lawfully entitled to its possession when the thing is no longer required for any criminal investigation or proceeding. By its own terms, the application process is done “summarily”. Furthermore, as I have explained, the process under s. 490(7) is an ex parte one. As the Crown points out, absent the requirement of full and frank disclosure, an application under s. 490(7) would allow a party to assert its claim unchallenged, while concealing information about others who would assert their claims if given an opportunity. [43] Although made in the context of a motion for a Mareva injunction, the comments of Sharpe J. (as he then was) in United States of America. v. Friedland, [1996] O.J. No. 4399, 1996 CarswellOnt 5566 (Ont. C.J. (Gen. Div.)), at para. 26, reproduced in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf (Rel. Nov. 2016), 4th ed. (Toronto: Canada Law Book, 2012), at para. 2.40, are apposite: It is a well-established principle of our law that a party who seeks the extraordinary relief of an ex parte injunction must make full and frank disclosure of the case. The rationale for this rule is obvious. The Judge hearing an ex parte motion and the absent party are literally at the mercy of the party seeking injunctive relief. The ordinary checks and balances of the adversary system are not operative. The opposite party is deprived of the opportunity to challenge the factual and legal contentions advanced by the moving party in support of the injunction. The situation is rife with the danger that an injustice will be done to the absent party. [44] In order for the court to properly fulfill its supervisory role and achieve the purpose of s. 490 – to see that seized things are returned to their lawful owners or those lawfully entitled to their possession once they no longer are required for any criminal investigation or proceeding – judges hearing applications under s. 490(7) must be able to rely on applicants to have made full and frank disclosure. Only through such disclosure can the court make informed decisions about, among other things, whether other interested parties must be given notice of the proceeding. [45] In my view, there is no question that the Pawnbroker failed to make full and frank disclosure. In its written materials and oral submissions on the Application, the Pawnbroker failed to disclose material facts to the court, including: the Estate’s claim of an interest in the diamond; the Estate’s intention to assert its claim; its own unsuccessful attempts to secure the diamond’s release from police; the police’s refusal to release the diamond because of “two adverse claims to the property”; and, that the Estate had confirmed its interest in the diamond to the police. [46] Accordingly, the Order must be set aside. THE REMEDY [47] For the reasons given, I would allow the appeal. However, I would not order that the diamond be returned to the Estate. There are serious, complicated factual and legal disputes between the Estate and the Pawnbroker that must be resolved to determine entitlement to the diamond. The record before this court is wholly inadequate to make such a determination. DISPOSITION [48] Accordingly, I would allow the appeal and set aside the Order. [49] Both the Estate and the Pawnbroker sought costs of the appeals in their factums. Neither addressed the matter of costs at the oral hearing of the appeal. If the parties wish to pursue the matter of costs, they shall file written submissions within fourteen days of the date of the release of these reasons, such submissions to be no more than four pages in length and to include a statement of this court’s jurisdiction to make an award of costs in the circumstances of this case and the test for awarding the same. Released: “EEG”June 2, 2017 “E.E. Gillese J.A.” “I agree. Grant Huscroft J.A.” “I agree. G.T. Trotter J.A.” SCHEDULE A: Criminal Code, R.S.C. 1985, c. C-46, s. 490 Detention of things seized 490 (1) Subject to this or any other Act of Parliament, where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2), anything that has been seized is brought before a justice or a report in respect of anything seized is made to a justice, the justice shall, (a) where the lawful owner or person who is lawfully entitled to possession of the thing seized is known, order it to be returned to that owner or person, unless the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the detention of the thing seized is required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding; or (b) where the prosecutor, or the peace officer or other person having custody of the thing seized, satisfies the justice that the thing seized should be detained for a reason set out in paragraph (a), detain the thing seized or order that it be detained, taking reasonable care to ensure that it is preserved until the conclusion of any investigation or until it is required to be produced for the purposes of a preliminary inquiry, trial or other proceeding. Further detention (2) Nothing shall be detained under the authority of paragraph (1)(b) for a period of more than three months after the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless (a) a justice, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied that, having regard to the nature of the investigation, its further detention for a specified period is warranted and the justice so orders; or (b) proceedings are instituted in which the thing detained may be required. Idem (3) More than one order for further detention may be made under paragraph (2)(a) but the cumulative period of detention shall not exceed one year from the day of the seizure, or any longer period that ends when an application made under paragraph (a) is decided, unless (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, on the making of a summary application to him after three clear days notice thereof to the person from whom the thing detained was seized, is satisfied, having regard to the complex nature of the investigation, that the further detention of the thing seized is warranted for a specified period and subject to such other conditions as the judge considers just, and the judge so orders; or (b) proceedings are instituted in which the thing detained may be required. Detention without application where consent (3.1) A thing may be detained under paragraph (1)(b) for any period, whether or not an application for an order under subsection (2) or (3) is made, if the lawful owner or person who is lawfully entitled to possession of the thing seized consents in writing to its detention for that period. When accused ordered to stand trial (4) When an accused has been ordered to stand trial, the justice shall forward anything detained pursuant to subsections (1) to (3) to the clerk of the court to which the accused has been ordered to stand trial to be detained by the clerk of the court and disposed of as the court directs. Where continued detention no longer required (5) Where at any time before the expiration of the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized, the prosecutor, or the peace officer or other person having custody of the thing seized, determines that the continued detention of the thing seized is no longer required for any purpose mentioned in subsection (1) or (4), the prosecutor, peace officer or other person shall apply to (a) a judge of a superior court of criminal jurisdiction or a judge as defined in q section 552, where a judge ordered its detention under subsection (3), or (b) a justice, in any other case, who shall, after affording the person from whom the thing was seized or the person who claims to be the lawful owner thereof or person entitled to its possession, if known, an opportunity to establish that he is lawfully entitled to the possession thereof, make an order in respect of the property under subsection (9). Idem (6) Where the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required, the prosecutor, peace officer or other person shall apply to a judge or justice referred to in paragraph (5)(a) or (b) in the circumstances set out in that paragraph, for an order in respect of the property under subsection (9) or (9.1). Application for order of return (7) A person from whom anything has been seized may, after the expiration of the periods of detention provided for or ordered under subsections (1) to (3) and on three clear days notice to the Attorney General, apply summarily to (a) a judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order under paragraph (9)(c) that the thing seized be returned to the applicant. Exception (8) A judge of a superior court of criminal jurisdiction or a judge as defined in section 552, where a judge ordered the detention of the thing seized under subsection (3), or a justice, in any other case, may allow an application to be made under subsection (7) prior to the expiration of the periods referred to therein where he is satisfied that hardship will result unless the application is so allowed. Disposal of things seized (9) Subject to this or any other Act of Parliament, if (a) a judge referred to in subsection (7), where a judge ordered the detention of anything seized under subsection (3), or (b) a justice, in any other case, is satisfied that the periods of detention provided for or ordered under subsections (1) to (3) in respect of anything seized have expired and proceedings have not been instituted in which the thing detained may be required or, where those periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), he shall (c) if possession of it by the person from whom it was seized is lawful, order it to be returned to that person, or (d) if possession of it by the person from whom it was seized is unlawful and the lawful owner or person who is lawfully entitled to its possession is known, order it to be returned to the lawful owner or to the person who is lawfully entitled to its possession, and may, if possession of it by the person from whom it was seized is unlawful, or if it was seized when it was not in the possession of any person, and the lawful owner or person who is lawfully entitled to its possession is not known, order it to be forfeited to Her Majesty, to be disposed of as the Attorney General directs, or otherwise dealt with in accordance with the law. Exception (9.1) Notwithstanding subsection (9), a judge or justice referred to in paragraph (9)(a) or (b) may, if the periods of detention provided for or ordered under subsections (1) to (3) in respect of a thing seized have expired but proceedings have not been instituted in which the thing may be required, order that the thing continue to be detained for such period as the judge or justice considers necessary if the judge or justice is satisfied (a) that the continued detention of the thing might reasonably be required for a purpose mentioned in subsection (1) or (4); and (b) that it is in the interests of justice to do so. Application by lawful owner (10) Subject to this or any other Act of Parliament, a person, other than a person who may make an application under subsection (7), who claims to be the lawful owner or person lawfully entitled to possession of anything seized and brought before or reported to a justice under section 489.1 may, at any time, on three clear days notice to the Attorney General and the person from whom the thing was seized, apply summarily to (a) a judge referred to in subsection (7), where a judge ordered the detention of the thing seized under subsection (3), or (b) a justice, in any other case, for an order that the thing detained be returned to the applicant. Order (11) Subject to this or any other Act of Parliament, on an application under subsection (10), where a judge or justice is satisfied that (a) the applicant is the lawful owner or lawfully entitled to possession of the thing seized, and (b) the periods of detention provided for or ordered under subsections (1) to (3) in respect of the thing seized have expired and proceedings have not been instituted in which the thing detained may be required or, where such periods have not expired, that the continued detention of the thing seized will not be required for any purpose mentioned in subsection (1) or (4), the judge or justice shall order that (c) the thing seized be returned to the applicant, or (d) except as otherwise provided by law, where, pursuant to subsection (9), the thing seized was forfeited, sold or otherwise dealt with in such a manner that it cannot be returned to the applicant, the applicant be paid the proceeds of sale or the value of the thing seized. Detention pending appeal, etc. (12) Notwithstanding anything in this section, nothing shall be returned, forfeited or disposed of under this section pending any application made, or appeal taken, thereunder in respect of the thing or proceeding in which the right of seizure thereof is questioned or within thirty days after an order in respect of the thing is made under this section. Copies of documents returned (13) The Attorney General, the prosecutor or the peace officer or other person having custody of a document seized may, before bringing it before a justice or complying with an order that the document be returned, forfeited or otherwise dealt with under subsection (1), (9) or (11), make or cause to be made, and may retain, a copy of the document. Probative force (14) Every copy made under subsection (13) that is certified as a true copy by the Attorney General, the person who made the copy or the person in whose presence the copy was made is admissible in evidence and, in the absence of evidence to the contrary, has the same probative force as the original document would have if it had been proved in the ordinary way. Access to anything seized (15) Where anything is detained pursuant to subsections (1) to (3.1), a judge of a superior court of criminal jurisdiction, a judge as defined in section 552 or a provincial court judge may, on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained. Conditions (16) An order that is made under subsection (15) shall be made on such terms as appear to the judge to be necessary or desirable to ensure that anything in respect of which the order is made is safeguarded and preserved for any purpose for which it may subsequently be required. Appeal (17) A person who feels aggrieved by an order made under subsection (8), (9), (9.1) or (11) may appeal from the order (a) to the court of appeal as defined in section 673 if the order was made by a judge of a superior court of criminal jurisdiction, in which case sections 678 to 689 apply with any modifications that the circumstances require; or (b) to the appeal court as defined in section 812 in any other case, in which case sections 813 to 828 apply with any modifications that the circumstances require. Waiver of notice (18) Any person to whom three days notice must be given under paragraph (2)(a) or (3)(a) or subsection (7), (10) or (15) may agree that the application for which the notice is given be made before the expiration of the three days. R.S., 1985, c. C-46, s. 490; R.S., 1985, c. 27 (1st Supp.), s. 73; 1994, c. 44, s. 38; 1997, c. 18, s. 50; 2008, c. 18, s. 14.