Pubdate: Mon, 25 Aug 2014
Source: Observer, The (CN ON)
Page: A4
Copyright: 2014, Sarnia Observer
Contact: http://www.theobserver.ca/letters
Website: http://www.theobserver.ca
Details: http://www.mapinc.org/media/1676
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.  
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MAP posted-by: Jo-D