Pubdate: Mon, 25 Aug 2014 Source: Standard, The (St. Catharines, CN ON) Page: A4 Copyright: 2014 St. Catharines Standard Contact: http://www.stcatharinesstandard.ca/letters Website: http://www.stcatharinesstandard.ca/ Details: http://www.mapinc.org/media/676 Author: Alan Shanoff POLICE NOT WANTED SIGN GOES UP IN CLOUD OF SMOKE Timothy Lee Felger owned and operated a retail outlet, DaKine Store, in Abbotsford, British Columbia. The store sold marijuana-related products, not that there's anything wrong with that. But the store also had an unusual sign on its front window. It read: "No Police Officers Allowed In The Store Without A Warrant." In addition, Felger's lawyer sent a letter to the chief of the Abbotsford Police Department stating, "This letter serves as formal notification that no member of the Abbotsford Police Department is allowed onto this premise (Felger's store) without a warrant." So what were the police to do when they received a complaint Felger was selling marijuana to minors at the store? With only the complaint, police didn't have sufficient evidence to obtain a search warrant. So the police did what you'd expect them to do; they sent in undercover officers. Using fake identification, the undercover officers had no problem purchasing marijuana from Felger and a store clerk. The officers also observed sales to other customers. With the undercover evidence police were able to obtain and execute a search warrant and Felger and the clerk were charged with several counts of trafficking in marijuana. Felger and the clerk raised a Charter defence. They argued the evidence against them was tainted and should be tossed out since their right to be free from unreasonable search and seizure had been violated. Of course, this argument was predicated on the store sign and the lawyer's letter having created a reasonable expectation of privacy. In other words, it was argued the undercover evidence was tainted because police had ignored the lawyer's letter and the store sign warning them not to enter without a warrant. If the undercover evidence was tainted, then it could not have been legally used to obtain a search warrant. Surprisingly, the trial judge concluded Felger had a reasonable expectation of privacy and the undercover police activity violated his Charter rights. As well, by ignoring the sign, the undercover police were trespassing when they entered the store! So, any member of the public could enter the store, save for police. Acquittals against Felger and the clerk were issued. What a precedent! What wonderful news for criminals! Who knew you could obtain immunity from police undercover investigations merely by posting a sign or writing a letter to the police department? But this precedent did not have a long shelf life. Earlier this year, the British Columbia Court of Appeal reversed the decision, making the common sense observation that, "There is an element of artifice in the respondents' claim to privacy in a place where they were publicly and brazenly selling marijuana, conduct that is currently unlawful." To make it abundantly clear, the court added, "an objectively reasonable expectation of privacy in a retail store could not be achieved simply by posting a sign excluding law enforcement officers." Felger and the store clerk were therefore ordered to face a new trial but this time the police evidence would be admissible, notwithstanding the store window sign and the lawyer's letter. But Felger and the clerk filed an application for permission to appeal to the Supreme Court of Canada. Normally, such applications are handled in writing without any oral argument or appearance by lawyers. But earlier this month the Supreme Court made a rare ruling allowing the application for permission to appeal to be dealt with in an oral hearing with lawyers. I'm not sure what to make of that although it is doubtful the Supreme Court will overrule the BCCA and decide that the store sign and lawyer's letter effectively created a reasonable expectation that no police officers would ever enter the store without a warrant. At present, no one has been able to create a sign to provide effective immunization from legitimate police investigations. We'll have to wait for the Supreme Court decision to find out if that's no longer the case. - --- MAP posted-by: Jo-D