An I.T.O. or Information To Obtain, is a document filed by a police officer to a Judge seeking authorization to obtain a search warrant, often to look for evidence of drug offences. This document is accompanied by an affidavit of the officer. The affidavit, a document he swears to be true, lists out the reasons the officer is seeking the search warrant. A Judge reviews the ITO, and the affidavit, and decides whether or not to issue the search warrant.
In mid-December, a colleague of mine, Jon Doody, wrote a blog post regarding the rights of police to search a residence when conducting an investigation, such as into drug offences. He outlined the ways in which police may enter a person's residence and search. A common way for the police to search a residence is by obtaining a search warrant, which Mr. Doody explained was a document that the police obtain from a judicial officer.
In a drug investigation, as with other kinds of investigations, there are three ways that a police officer may enter your home: (1) with your permission, (2) with a warrant, or (3) in certain emergencies. These rules generally only apply to entering your house, not on to your property. There exists at law an implied consent for anyone, including the police, to walk on to your property for the purpose of talking to you at your front door. As long as the police have a legitimate purpose to be on your property, including to talk to you, than they are allowed to walk up to your door. You, however, are not required to open the door to a police officer, nor are you required to speak to them at your door.
In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone from a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. McGuffie walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun. The detaining officer placed McGuffie in the back of another officer's police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He removed him from the cruiser and did another search and he found "a package of white powder in a rectangular shape" identified as cocaine. McGuffie was also strip searched back at the station. The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. The Court addressed the issue of 24(2).
Drug offences are a unique set of offences in Canada, and are criminalized under the Controlled Drugs and Substances Act (CDSA) as opposed to the Criminal Code like most other criminal offences. This also means that drug offences are prosecuted not by the local provincial Crown's office, but rather by Federal Crowns from the Public Prosecutions Services of Canada (PPSC).
The Supreme Court recently released a judgment in Lloyd striking down as unconstitutional a minimum sentence for drug trafficking. The Court found the minimum sentence, a one-year mandatory minimum where the offender has been convicted of a previous drug offence within the last 10 years, violates section 12 of the Charter because it doesn't allow for judicial discretion based on the circumstances of the particular conduct and the individual offender. The mandatory minimum sentence amounted to cruel and unusual punishment.
A recent Court of Appeal decision ruled that a man who ran a garden supply store utilized by various marijuana grow-ops. At trial he had been convicted for aiding and abetting the people with the grow-ops, as well as conspiring with them. The Court of Appeal dismissed the conspiracy charges, but also un-stayed the aiding and abetting charges and imposed the same sentence. While the end result is the same for the accused - 20 months incarceration - the Court's decision provides some guidance on the issue of to what degree of criminality can be attached to someone selling supplies to a grow-op.
The Province of Ontario has filed the final regulations dealing when police officers can stop people in public and ask them to identify themselves - normally called "carding" or "street checks." This new legislation will come into effect on January 1st, 2017.
There have been some serious amendments to drug offences in Canada in the last year, with substantial changes made to sentencing. Harper's conservative government brought in a series of mandatory minimum sentences, including for marijuana offences. While this change reflects the Conservative's "tough on crime" agenda, it is often increasing sentences beyond what would otherwise be an appropriate sentence. Since these new sentences are mandatory, the only way to avoid jail is to successfully defend the charge. This often means hiring competent and skilled counsel.