Pubdate: Tue, 26 Aug 2014
Source: Winnipeg Sun (CN MB)
Copyright: 2014 Canoe Limited Partnership
Contact: http://www.winnipegsun.com/letter-to-editor
Website: http://www.winnipegsun.com/
Details: http://www.mapinc.org/media/503
Author: Alan Shanoff
Page: 9
Bookmark: http://mapinc.org/people/Felger

LAW GOES TO POT?

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: Jay Bergstrom