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w w w . c a n a d i a n l a w y e r m a g . c o m J A N U A R Y 2 0 1 9 65 experts suggest that some of its inherent qualities, being immutable, for example, can lead to advances in privacy. Time will tell which direction it goes, but it is exciting that it has the potential to be a privacy-enhancing technology." In the meantime, a growing number of jurisdictions, 16 U.S. states at last count, have slowly begun to leave their legis- lative imprint on blockchain technology or crypto-currencies. Most significantly, Delaware, home to more than 50 per cent of all publicly traded corporations in the U.S., amended its General Corporation Law to allow Delaware corporations to use blockchain to create and maintain corporate records, including the corporation's securities register. The ramifications are enormous, says Donald Johnston, co-chairman of the technology, privacy and data security group at Aird & Berlis LLP. Delaware companies can now cryptographically link shares of stock to an owner in a manner that cannot effectively be challenged thanks to the "more or less bulletproof nature of modern cryptography," says John- ston. "That has the capacity to change the whole model of shareholder democracy. That could change a lot of the govern- ance at the annual general meeting and transfer power from brokers to individual shareholders in a way that could be quite a shock." Public companies may be rattled because they may no longer be able to influence individual shareholders in the way they were able to with big brokers. And big brokers may end up being flustered because "they used to have the voting power to do what they want at the general meeting, and now they don't," says Johnston. Blockchain technology certainly appears to have the poten- tial of shaking things up. Apart from crypto-currencies, litiga- tion over legal issues raised by blockchain technology is still way off, though blockchain-enabled smart contracts seems fertile ground for legal actions. Time will tell how the courts will address the plethora of complex issues. A move afoot by industry associations to develop standards will likely end up helping the courts. So, too, will clearer guidance by regulatory authorities who so far have struggled to provide lucid answers. "The first few cases are going to be seminal," says Ahmad. "They are going to set the tone for everything that is going to happen." Perhaps, though, it is time for nations to put their heads together to fashion agreements that will establish legal frame- works to deal with questions raised by blockchain technol- ogy, says Toronto-based blockchain lawyer Chetan Phull. "This is an area ripe for international treatment," said Phull of Smartblock Law PC. "Blockchain technology is necessar- ily multi-jurisdictional in most cases, and it is very difficult to litigate a blockchain case, let alone enforce a blockchain case, when you don't know what set of rules applies. What we need and what I anticipate will happen is that there will be treaties and then individual countries will clarify and fill in the gaps." L E G A L R E P O R T Benefit from this legal research tool focused on the scope and exercise of police powers Available risk-free for 30 days Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Order # A20212-18-65203 $197 Annual subscription newsletter – Print Email delivery of electronic version available upon request A20212-18 Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Get a comprehensive look at important jurisprudential developments relevant to the scope and exercise of police powers. Discover the latest trends in Police Powers • Explore key topics regarding powers of detention, arrest, and search and seizure in light of the Charter • Stay current with trends in police powers by accessing relevant articles and case commentaries • Get helpful case law, and learn about modifications to police procedure through timely legislative updates Also available on CriminalSource Police Powers Newsletter Justice Michelle Fuerst, Scott K. Fenton, and Susan Magotiaux © 2018 Thomson Reuters Canada Limited 00254GN-94253-NP JUSTICE MICHELLE FUERST, SCOTT FENTON AND SUSAN MAGOTIAUX SEPTEMBER 2018 | ISSUE 9 1. ODOUR OF FRESH MARIJUANA, PRIOR CONVICTION dence to permit the issuing justice to find reasonable and proba- INSUFFICIENT GROUNDS TO OBTAIN SEARCH ble grounds to believe there would be evidence of an offence. WARRANT As stated in R. v. Shiers, 2003 NSCA 138, 2003 CarswellNS 434, in the context of an application for a search warrant under Facts: Police were called to a rural, residential property in re- the Controlled Drugs and Substances Act, the question is sponse to a complaint about trespassing pigs. The investigation whether there was material in the ITO from which, the issuing shifted to encompass allegations of assault and threats. Police justice, drawing reasonable inferences, could have concluded attended at the home of the appellant to arrest him. The officers that there were reasonable grounds to believe that controlled spoke with a woman standing in the open doorway of the appel- substances, offence-related property, or any thing that would lant's garage. While speaking with her, the officers detected a afford evidence of an offence under the act, was at the location strong smell of fresh marihuana. The officers observed a closet specified in the warrant. in the garage emanating light. On entering the garage and open- ing the closet door, police discovered 42 marihuana seedlings. The strong smell of marihuana can be one of the grounds for The officers determined not to charge the appellant with any issuing a search warrant: R. v. Lao , 2013 ONCA 285, 2013 offences as a result of the presence of the seedlings as they CarswellOnt 5105. However, the smell of marihuana, on its own, recognized that the search may not have been lawful. Instead, may not be sufficient. In Lao, there was evidence of additional the officers applied for a warrant to search the appellant's hallmarks of a grow-op, including that the house appeared to be property. uninhabited, as the windows were covered and the shingles were peeling and the house consumed large quantities of elec- The officers advised the lead investigator that the smell in the tricity in a repeated cycle, consistent with high-intensity grow garage was "much stronger" than the odour emanating from the lights. See also R. v. Wiley , [1993] 3 S.C.R. 263, 1993 Car- seedlings, prompting the further investigation and application for swellBC 504, R. v. Grant, [1993] 3 S.C.R. 223, 1993 CarswellBC the search warrant. The Information to Obtain ("ITO") the search 1168, and R. v. Plant, [1993] 3 S.C.R. 281, 1993 CarswellAlta warrant detailed the seizure of the 42 seedlings and information 94, in which the strong odour of marihuana was but one factor from police databases, including that in 2007, the appellant was for the issuing judge to consider, along with information obtained suspected of cultivating marihuana. The ITO also disclosed that from confidential informants and/or information with respect to in 2009, in a different jurisdiction, the appellant was again sus- electricity consumption at the property. pecting of running an indoor marihuana grow-op and in 2009, was convicted of possession. Accordingly, the ITO contained The trial judge erred in dismissing the appellant's application the statement that "it is evidence that [the appellant] has a long under s. 8 of the Charter as the ITO failed to disclose sufficient history involving illicit drugs, in particular marihuana, dating back evidence of a grow-op. The only information provided in addition nearly 20 years." to the odour of marihuana was dated information, mined from police databases. With respect to the appellant's 2009 convic- The execution of the search warrant lead to the seizure of eight tion for possession, there was no information that property asso- marihuana plants and some dried marihuana. At trial, the appel- ciated with a grow-op was seized along with the marihuana, nor lant alleged a breach of his rights under s. 8 of the Charter, in was there any information that the marihuana seized were that the ITO failed to disclose sufficient grounds for the issuance plants and not dried. Accordingly, the trial judge erred in failing of the warrant and sought the exclusion of the evidence seized to find a breach under s. 8 of the Charter. under s. 24(2). The trial judge disagreed, the appellant was convicted, and appealed. Turning to the test in R. v. Grant , 2009 SCC 32, 2009 Carswell- Ont 4104, the evidence ought to be excluded. The breach in this Held: Appeal allowed, acquittals entered. case was serious, given the defective grounds underpinning the As detailed in R. v. Garofoli, [1990] 2 S.C.R. 1421, 1990 Cars- warrant. The officers involved over-valued the information avail- wellOnt 119, and R. v. Morelli, 2010 SCC 8, 2010 CarswellSask able via the database searches, without subjecting it to more 150, the ITO had to contain sufficient credible and reliable evi- careful scrutiny. Moreover, the conclusory statement with re- Publications Mail Agreement # 40065782

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