Posting a Sign (“No Police Officers Allowed”) Does Not Prevent Police Investigations

It seemed like such a brilliant idea.  If you can post “No Trespassing” or “No Weapons” signs, why not just prohibit the police?

Thanks to Judge Wayne Gorman, there is an interesting case from British Columbia:

In R. v. Felger, 2014 BCCA 34, January 29, 2014, the accused Mr. Felger owned and operated a store (DaKine) located in Abbotsford, British Columbia, which “sold a variety of marihuana-related products.  Mr. Felger employed Ms. Healy at the store.  On his store window, adjacent to the door, Mr. Felger posted a sign which read”:

No Police Officers Allowed In The Store Without A Warrant. Especially Badges #315 & 325.

Undercover police officers entered the store and purchased marihuana on five separate days.  Mr. Felger and Ms. Healy were jointly charged with three counts of trafficking in marihuana.

At trial, the accused were acquitted. The trial judge held that Mr. Felger had by posting the sign maintained “his privacy rights in the premises with respect to police officers” despite operating a store to which the public had access.  The trial judge concluded that the evidence obtained by the undercover officers should be excluded because it had been obtained in breach of section 8 of the Canadian Charter of Rights and Freedoms.

The Crown appealed. The British Columbia Court of Appeal indicated that the question raised by the appeal was “whether an individual may create a right to privacy under s. 8 of the Charter, in a publicly accessible retail establishment, by posting a sign prohibiting entry by police officers.”

The appeal was allowed and a new trial ordered. The British Columbia Court of appeal concluded that the accused “had no reasonable expectation of privacy in conducting the business of the DaKine store, regardless of whether Mr. Felger had excluded police officers from the premises or not” (at paragraph 50):

As noted already, the question of the reasonableness of the expectation of privacy also incorporates a balancing of societal interests in privacy with the legitimate interests of law enforcement (Tessling, at para. 17). In my view, in balancing those societal interests, an objectively reasonable expectation of privacy in a retail store could not be achieved simply by posting a sign excluding law enforcement officers. This would give too much weight to the subjective aspect of the s. 8 analysis. Privacy for the purposes of s. 8 must be assessed on an objective basis: would an objective observer construe the activities as being carried out in a private manner?  In this case, and considering that s. 8 “protects people not places”, the overwhelming evidence is that the activity of selling drugs was done in a public setting. There is an element of artifice in the respondents’ claim to privacy in a place in which they were publicly and brazenly selling marihuana, conduct that is currently unlawful. I conclude that the respondents had no reasonable expectation of privacy in conducting the business of the DaKine store, regardless of whether Mr. Felger had excluded police officers from the premises or not.

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