



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Felger,









2014 BCCA 34




Date: 20140129

Docket: CA040495

CA040496

Between:

Regina

Appellant

And

Timothy Lee Felger
and Natasha Kaye Healy

Respondents




Before:



The Honourable Madam Justice Newbury

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Garson




On appeal from:  An
order of the Supreme Court of British Columbia, dated October 26, 2012 (
R.
v. Felger
, 2012 BCSC 2078, Chilliwack Docket 58401-3).




Counsel for the Appellant:



P.A. Eccles





Counsel for the Respondent Felger:



K.R. Beatch

R.P. Thirkell





Counsel for the Respondent Healy:



D.F. Henderson





Place and Date of Hearing:



Vancouver, British
  Columbia

December 13, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 29, 2014









Written Reasons by:





The Honourable Madam Justice Garson





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Mr. Justice Frankel








Summary:

The
Crown appeals the acquittals of the respondents on charges of trafficking in
marihuana and possession for the purposes of trafficking. The respondents
operated a store that sold marihuana paraphernalia. The store had a posted sign
that said police officers were not allowed entry without a warrant. Undercover
officers attended the store and purchased marihuana from the respondents. This
evidence was excluded on the basis that it constituted a search that infringed
the respondents rights under s. 8 of the Charter.

Held:
Appeal allowed, acquittals set aside and a new trial ordered. Section 8 of the
Charter protects a reasonable expectation of privacy. This has both a
subjective and objective component. In this case the sign could not serve to
create a reasonable expectation of privacy where it was otherwise unreasonable.
There was no search pursuant to s. 8.

Reasons
for Judgment of the Honourable Madam Justice Garson:

I.        Introduction

[1]

These Crowns appeals raise the question of 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.

[2]

For the reasons that follow I would allow the appeal and direct a new
trial. The sign prohibiting entry by police officers did not operate to create
privacy rights under s. 8 of the
Charter
. The trial judge erred in
finding that the police officers entry to the retail premises and their purchase
of marihuana from the respondents was a breach of their rights to privacy, and
in finding that the evidence of their observations of what took place there was
not admissible.

Background Facts

[3]

The Crown appeals the acquittal of Mr. Felger and Ms. Healy on
joint charges of trafficking in marihuana, and with respect to Mr. Felger,
a charge of possession for the purposes of trafficking.

[4]

Mr. Felger owned and operated the DaKine Store located in
Abbotsford, British Columbia. The store 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.  On November 28, 2005, Mr. Felgers lawyer wrote to the Chief of
Abbotsford Police Department instructing that no police officers were permitted
to enter the store without a warrant.

[5]

On December 28, 2005, the Chief Constable responded in writing, in part,
as follows:

However, as you are aware, there are occasions when police
officers are in fact allowed to enter premises without a search warrant, such
as under certain statutory authority or under common law such as the
Godoy
case. There may also be provisions in some of the City By-laws or under any
Good Neighbour Agreement that Mr. Felger may be a party to, which may
allow access to this premises by the policy without a warrant.

The Abbotsford Police Department
works within the law and the Charter of Rights, but to imply to Mr. Felger
that the police can only enter into his premises with a search warrant may lead
to some misunderstanding. I trust that you will clarify the situation with your
client.

[6]

Having received information that marihuana was being sold to minors,
undercover officers entered the store and purchased marihuana on five separate
days:  May 6, 7, 8, 12 and 13, 2009. In the course of their investigation the
officers also observed other individuals purchase marihuana from the
respondents.

[7]

The respondents were jointly charged with three counts of trafficking in
marihuana. Mr. Felger was charged with three additional counts of
trafficking in marihuana and one count of possession of marihuana for the
purpose of trafficking.

[8]

Following a
voir dire
the judge refused to admit any of the
evidence tendered by the Crown on the basis that it had been obtained in breach
of s. 8 of the
Canadian Charter of Rights and Freedoms
. The
respondents were acquitted of all charges.

II.       Reasons for Judgment on the
Voir Dire
:  2012 BCSC 2078

[9]

The admissibility of the officers evidence was determined in a
voir
dire
. The respondents argued that the officers breached their s. 8
rights to privacy by entering retail premises from which the owner had
explicitly barred their entry. Thus, the question on the
voir dire
was
whether, by restricting police entry to the store, the respondents could be
said to have an expectation of privacy in an otherwise publicly accessible
retail premises.

[10]

The trial judge held that both Mr. Felger and Ms. Healy had a
reasonable expectation of privacy with respect to the store. As lessee, Mr. Felger
was in possession of the property and had the right to exclude any person or
persons from the premises unless they had some lawful authority to enter (at para. 48).
Mr. Felger was also present each time the police officers entered the
store. As an employee, Ms. Healy had the right to enforce her employers
policies regarding who could and could not enter the store, and also had a
personal reasonable expectation of privacy (at paras. 48−49).

[11]

According to the trial judge, the central issue was the extent to which
the respondents reasonable expectation of privacy in the store had been waived
(at paras. 50−51):

Where individuals have a reasonable expectation of privacy
with respect to premises, they may alter their reasonable expectation of
privacy by their actions. They may waive, reduce or modify their reasonable
expectation of privacy, either expressly or impliedly.

To put it another way,
individuals who have an expectation of privacy with respect to premises may
grant another person a licence to enter the premises, either by express grant
or by implication. In my view, it is this issue of waiver or licence that is of
fundamental importance in this case.

[12]

The implied waiver in this case was the fact that DaKine was a retail
store open for business to the public. At paras. 69−71, the trial
judge determined that Mr. Felger had, by posting a sign and sending a
letter to the police department, limited this waiver and maintained his privacy
rights in the premises with respect to police officers:

Defence submits that in the present case the
prima facie
implied waiver was subject to an important restriction and that the reasonable
expectation of privacy was expressly maintained with respect to police
officers.

In my opinion, it was open to Mr. Felger to limit his
implied invitation by barring a class of persons, namely, police officers who
could enter the Store unless they were otherwise authorized. Mr. Felger
made his prohibition of police entering without a search warrant known to the
APD through the letter to the Chief Constable. He also posted a Sign in large
letters next to the front door making it apparent to any police officer who
attended at the door. The restriction was imposed not just on uniformed police
officers or persons who Mr. Felger knew or believed to be police officers.
It was a restriction imposed on all police officers.

It is my view that Mr. Felger
expressly maintained and asserted a reasonable expectation of privacy by
delivering the letter and posting the Sign. I do not think his reasonable
expectation of privacy was diminished or negated because the undercover
officers may have neglected to read the Sign or because the Chief Constable
neglected to inform all police officers.

[13]

At the
voir dire
, the Crown argued that the actions of the
undercover police officers did not fall within s. 8 because they did not
constitute a search. The officers only entered the store to purchase
marihuana, which the store sold to members of the public, and did not engage in
any activities beyond that.

[14]

The trial judge did not accept this argument. He found that the actions
of the undercover police officers did constitute an unreasonable search of the
premises in breach of s. 8 of the
Charter
. The trial judge
summarized his findings at paras. 86−87:

In the present case, as I have indicated, the police officers
did not have any invitation to enter the premises. They were expressly
prohibited from doing so. Further, the undercover police officers did not go to
the Store for the sole purpose of purchasing marihuana. They went to the Store
for several purposes in addition to buying or attempting to buy marihuana. They
intended to and did make observations for the purpose of gaining evidence
inside the Store relating to an investigation into the suspected offences of
possession of marihuana for the purpose of trafficking in marihuana and
trafficking. They intended to and did make observations of what appeared to be
sales of marihuana inside the Store. They made note of the smell of burning
marihuana. They made observations when they were in the front part of the Store
into the rear part, watching Mr. Felger weighing quantities of marihuana.
I am satisfied that these actions by the undercover police officers do
constitute an intrusion into the reasonable privacy interests of the accused
and are searches within the meaning of s. 8 of the
Charter
. They
were not authorized and constitute unreasonable searches in my opinion.

The evidence as to the
observations made once inside the Store, visual and olfactory, is evidence
that, in my view, was obtained in a manner that infringed s. 8 of the
Charter
.
It is evidence that must be expunged from the Information to Obtain a Search
Warrant under which the further searches and seizures were made and it is
subject to scrutiny under s. 24(2) of the
Charter
.

[15]

As for the evidence of the marihuana purchases, the trial judge
acknowledged that this might not have been a search or seizure
per se
,
but that it was inextricably tied to the other evidence collected in breach
of s. 8 (at para. 89).

[16]

The Crown made no arguments that the evidence should nevertheless be
admitted under s. 24(2) of the
Charter
and the respondents were
acquitted.

III.       Issues on Appeal

[17]

The overarching issue in this case is whether the trial judge erred in
finding an unreasonable search had taken place within the meaning of s. 8
of the
Charter
. Embedded within this issue are the following questions:

a)

Did the
undercover officers intrude on the respondents reasonable expectation of
privacy?  If the answer is no, then there was no search and there cannot have
been a s. 8 breach.

b)

If the answer to
the first question is yes, was the intrusion reasonable or justifiable?

[18]

This reflects the two distinct inquiries that must be made under a
s. 8 analysis:
R. v. Edwards
, [1996] 1 S.C.R. 128 at para. 45.

[19]

This appeal focusses on the first inquirythe respondents reasonable
expectation of privacy. As I see it, the question is whether an individual may
shape his or her right to privacy in a personal, subjective and individual way.

IV.      Discussion

A.       Position of the Crown Appellant

[20]

The Crown summarizes its position on appeal at para. 23 of its
factum:

It is the Crown Appellants position
that the trial judge erred in holding that the state action in this case
intruded on any recognized privacy interest of the Respondents and constituted
a search within the meaning of s. 8 of the
Charter
. The police
actions did not breach any objectively reasonable expectation of privacy the
Respondents held in their business premises: by inviting the public at large
to enter and purchase the items they had on offer they waived any reasonable
expectation of privacy they may have held in these publicly accessible areas of
their business. The police did not exceed the limits of that invitation when
they entered the business premises and purchased marihuana from the
Respondents. These purchases did not constitute a search within the meaning of
s. 8 of the
Charter
.

[21]

The Crown argues that the limit the respondents sought to place on
police officers entering the premises could not apply to undercover police
officers and that, The trial judges unprecedented finding that it does, guts
the ability of the state to investigate a multitude of criminal activities,
including drug trafficking, a factor [the judge] never turned his mind to.

[22]

The Crown says storekeepers can undoubtedly bar certain individuals or a
defined class of individuals from entering their place of business. However, no
court has accepted the proposition that someone can immunize himself or herself
from investigation of criminal acts by posting a sign saying No police allowed.

[23]

The Crown relies on jurisprudence from Canada and the United States to
support the proposition that an undercover operators entry into private
premises at the invitation of an accused, implied or express, for the purposes
of arranging a drug transaction does not breach a persons reasonable
expectation of privacy and is therefore not a search within the meaning of
s. 8:
Hoffa v. U.S.
, 385 U.S. 293 (1966);
Lewis v. U.S.
, 385
U.S. 206 (1966);
R. v. Fitt
(1995), 96 C.C.C. (3d) 341 (N.S.C.A.), affd
[1996] 1 S.C.R. 70;
R. v. Contant
, 2008 QCCA 2514, 63 C.R. (6th) 133,
leave to appeal refd [2009] 1 S.C.R. vii;
R. v. Gallaugher
, 1999 CanLII
2242 (Ont. C.A.); [1999] O.J. No. 174;
R. v. Roy
(18 November 2008),
Kelowna 63075 (B.C.S.C.), affd 2010 BCCA 448. The Crown argued that the
respondents extended an invitation to the public to enter the store, and that
invitation included undercover officers posing as members of the public.

[24]

In conclusion, the Crown says the undercover investigation did not
intrude on any legally recognizable privacy interest. To warrant
Charter
protection the Crown says, the privacy right asserted must be objectively
reasonable.

[25]

Finally, the Crown argues, in the alternative, that if the evidence is
found to have been obtained in breach of s. 8, it should nevertheless be
admitted pursuant to s. 24(2) of the
Charter
.

B.       Position of the Respondents

[26]

The respondents say the trial judge did not err in finding that evidence
was obtained in a manner that breached their
Charter
rights.

[27]

Mr. Felger relies on the trial judges finding that his expectation
of privacy was enhanced by the provisions of the
Trespass Act
,

R.S.B.C.
1996, c. 462 (at para. 77). He argues that where an individual seeks
to maintain his privacy, for whatever reason, the police are still free to
engage in any lawful method of investigation that does not breach the
individuals expectation of privacy. But he maintains that there is no
principled reason why an individual cannot preserve a general prohibition against
police entering private property without permission (or without some other
lawful authority). He does not distinguish between uniformed or undercover
officers in this regard.

[28]

Mr. Felger does not dispute the proposition that when police
officers are invited onto private property or into a residence to carry out an
undercover drug transaction they are not engaged in a search:  see
Contant
,
Gallaugher
. However, Mr. Felger contends that the undercover police
officers entered the store both to conduct a search and to buy marihuana. He
also argues that, importantly, the trial judge found the evidence surrounding
the purchase of marihuana was obtained in a manner that breached his rights
even if obtaining that evidence did not actually involve a search.

C.       Legal Principles

[29]

The respondents contend that this appeal involves findings of fact made by
the trial judge and that this Court cannot intervene absent a palpable and
overriding error.

[30]

While it is true that the issue of whether the police have breached a
persons reasonable expectation of privacy is a question of fact, the issue of
whether the trial judge identified and applied the proper legal test is a
question of law. In my view, this case is about the proper legal test for
establishing a reasonable expectation of privacy and the application of that
test to the facts of this case. A standard of correctness applies to both.

[31]

Section 8 of the
Canadian Charter of Rights and Freedoms
, spells
out the right to privacy:

Everyone has the right to be
secure against unreasonable search and seizure.

[32]

Section 8 recognizes the longstanding right of every person to the
control and enjoyment of his or her own property. In
R. v. Colet
, [1981]
1 S.C.R. 2, Ritchie J., writing for the Court, recognized and described these
longstanding rights (at 8):

In the final analysis this appeal raises the all important
question of whether the property rights of the individual can be invaded
otherwise than with specific statutory authority. It is true that the appellants
place of residence was nothing more than a shack or shelter which no doubt was
considered inappropriate by the City of Prince Rupert, but what is involved
here is the longstanding right of a citizen of this country to the control and
enjoyment of his own property, including the right to determine who shall and
who shall not be permitted to invade it. The common law principle has been
firmly engrafted in our law since
Semaynes
case [77 E.R. 194, 5 Co.
Rep. 91 a] in 1604 where it was said That the house of every one is to him as
his castle and fortress, as well for his defence against injury and violence,
as for his repose .... This famous dictum was cited by my brother Dickson in
the case of
Eccles v. Bourque
[[1975] 2 S.C.R. 739] in which he made an
extensive review of many of the relevant authorities. He was there dealing with
a case of police officers entering private property for the purpose of
effecting an arrest and in so doing he made reference to the limitation of the
extent of the general application of
Semaynes
case at p. 743
saying:

But there are occasions when the interest of a private
individual in the security of his house must yield to the public interest, when
the public at large has an interest in the process to be executed. The criminal
is not immune from
arrest
in his own home nor in the home of one of his
friends.

And later on the same page he observed:

Thus it will be seen that the broad basic principle of
sanctity of the home is subject to the exception that upon proper demand the officials
of the King may break down doors
to arrest
.

[Emphasis in original.]

[33]

In
R. v. Kokesch
, [1990] 3 S.C.R. 3, Justice Sopinka for the
majority held that police officers had violated the accuseds rights under
s. 8 by conducting a warrantless search of the perimeter of a dwelling
house. At the time, the police did not have reasonable grounds for believing
that the place contained illegal drugs. In the absence of lawful authority,
the perimeter search was held to be unreasonable within the meaning of s. 8.
Sopinka J. explained the historical roots of, and reasons for, the constitutional
recognition of the right to privacy (at 29):

From the point of view of individual privacy, which is the
essential value protected by s. 8 of the
Charter
, this illegal intrusion
onto private property must be seen as far from trivial or minimal. Even before
the enactment of the
Charter
, individuals were entitled to expect that
their environs would be free of prowling government officials unless and until
the conditions for the exercise of legal authority are met: see
Eccles v.
Bourque
, [1975] 2 S.C.R. 739; and
Colet v. The Queen
, [1981] 1
S.C.R. 2. The elevation of that protection to the constitutional level
signifies its deep roots in our legal culture. La Forest J. put it this way in
Dyment
,
[[1988] 2 S.C.R. 417], in words that commend themselves to me (at pp. 427-28):

Grounded in mans physical and moral autonomy, privacy is
essential for the well-being of the individual. For this reason alone, it is
worthy of constitutional protection, but it also has profound significance for
the public order. The restraints imposed on government to pry into the lives of
the citizen go to the essence of a democratic state.

[34]

In
R. v. Evans
, [1996] 1 S.C.R. 8, police received a tip that the
accused was in possession of marihuana for the purpose of trafficking. They did
not have sufficient grounds to obtain a search warrant. They knocked on the
accuseds front door and, on its being opened, smelled marihuana. They
immediately arrested the accused. The Supreme Court held that the search was
unreasonable within the meaning of s. 8. In his concurring reasons for
judgment Sopinka J. noted that there is an implied invitation to permit entry
onto private property to knock on the door, but that waiver of privacy rights
is only to the extent of permitting convenient communication with the occupant
of the dwelling. In discussing whether the knock on the door constituted a search,
Sopinka J. wrote at paras. 11 and 15:

What then is the purpose of s. 8 of the
Charter
?
Previous decisions of this Court make it clear that the fundamental objective
of s. 8 is to preserve the privacy interests of individuals. As this Court
stated in
Hunter v. Southam Inc.
, [1984] 2 S.C.R. 145, at p. 160,
the objective of s. 8 of the
Charter
is to protect individuals
from unjustified state intrusions upon their privacy. Clearly, it is only
where a persons reasonable expectations of privacy are somehow diminished by
an investigatory technique that s. 8 of the
Charter
comes into
play. As a result, not every form of examination conducted by the government
will constitute a search for constitutional purposes. On the contrary, only
where those state examinations constitute an intrusion upon some reasonable
privacy interest of individuals does the government action in question
constitute a search within the meaning of s. 8.



In my view, the implied
invitation to knock extends no further than is required to permit convenient
communication with the occupant of the dwelling. The waiver of privacy rights
embodied in the implied invitation extends no further than is required to
effect this purpose. As a result, only those activities that are reasonably
associated with the purpose of communicating with the occupant are authorized
by the implied licence to knock. Where the conduct of the police (or any
member of the public) goes beyond that which is permitted by the implied
licence to knock, the implied conditions of that licence have effectively
been breached, and the person carrying out the unauthorized activity approaches
the dwelling as an intruder.

[35]

In
R. v. Edwards
, [1996] 1 S.C.R. 128, the Supreme Court had an
opportunity to further refine its articulation of privacy rights. In this case,
without a warrant, the police had searched the apartment of the accuseds
girlfriend. The accused asserted that he had s. 8 privacy rights over that
apartment. In holding that the accused could not assert his own privacy rights
over the property of a third party, Cory J. (for the majority) held first that
there are two distinct questions which must be answered in any s. 8
challenge. The first is whether the accused had a reasonable expectation of
privacy. The second is whether the search was an unreasonable intrusion on that
right to privacy. At para. 45, Cory J. set out a framework for a
subjective/objective analysis to determine if there was a s. 8 breach:

A review of the recent decisions of this Court and those of
the U.S. Supreme Court, which I find convincing and properly applicable to the
situation presented in the case at bar, indicates that certain principles
pertaining to the nature of the s. 8 right to be secure against
unreasonable search or seizure can be derived. In my view, they may be
summarized in the following manner:

1.

A claim
for relief under s. 24(2) can only be made by the person whose
Charter
rights have been infringed. See
R. v. Rahey
, [1987] 1 S.C.R. 588, at
p. 619.

2.

Like all
Charter
rights, s. 8 is a personal right. It protects people and not places. See
Hunter
,
supra
.

3.

The right
to challenge the legality of a search depends upon the accused establishing
that his personal rights to privacy have been violated. See
Pugliese
,
supra
.

4.

As a
general rule, two distinct inquiries must be made in relation to s. 8.
First, has the accused a reasonable expectation of privacy. Second, if he has
such an expectation, was the search by the police conducted reasonably. See
Rawlings
,
supra
.

5.

A
reasonable expectation of privacy is to be determined on the basis of the
totality of the circumstances. See
Colarusso
,
supra
, at p. 54,
and
Wong
,
supra
, at p. 62.

6.

The
factors to be considered in assessing the totality of the circumstances may
include, but are not restricted to, the following:

(i)         presence at the time of
the search;

(ii)        possession
or control of the property or place searched;

(iii)       ownership
of the property or place;

(iv)       historical
use of the property or item;

(v)        the
ability to regulate access, including the right to admit or exclude others from
the place;

(vi)       the
existence of a subjective expectation of privacy; and

(vii)      the objective
reasonableness of the expectation.

See
United States v. Gomez
,
16 F.3d 254 (8th Cir. 1994), at p. 256.

7.

If an accused person establishes a reasonable expectation of privacy,
the inquiry must proceed to the second stage to determine whether the search
was conducted in a reasonable manner.

[36]

In
R. v. Tessling
, 2004 SCC 67,

[2004] 3 S.C.R. 432,
Binnie J. applied and further refined the description of privacy rights from
Edwards
.
He noted that s. 8 protects people, not places, but used the notion of
place as an analytical tool to evaluate the
reasonableness
of a persons
expectation of privacy (at para. 22). The issue before the Court in
Tessling
was whether the use of FLIR technology to fly over a house in order to detect
heat generated by marihuana grow operations was an unreasonable search. In
concluding that it was not, Binnie J. considered the competing demands of
privacy and security. At one end of the spectrum he described the midnight
knock on the door [as] the nightmare image of the police state, but stated
that [a]t the same time, social and economic life creates competing demands. He
noted, The community wants privacy but it also insists on protection. Safety,
security and the suppression of crime are legitimate countervailing concerns. Thus
s. 8 of the
Charter
accepts the validity of
reasonable
searches and seizures. A balance must be struck ... (paras. 14 and 17,
emphasis in original).

[37]

In striking that balance Binnie J. further noted that not every form of
examination would constitute a search (at para. 18):

 On the contrary, only where
those state examinations constitute an intrusion upon some reasonable privacy
interest of individuals does the government action in question constitute a search
within the meaning of s. 8;
Evans
,
supra
, at para. 11.
It is only [i]f the police activity invades a reasonable expectation of
privacy, [that] the activity is a search;
R. v. Wise
, [1992] 1 S.C.R.
527, at p. 533.

[38]

Finally, Binnie J. tailored the totality of the circumstances test
considered in
Edwards
to the circumstances of the case before him. At para. 32
he set out a modified version of the
Edwards
test:

(1)
Did the Respondent Have a
Reasonable Expectation of Privacy?

[32]

On the facts of this case, we need to
address:

1.

What was the subject matter of the FLIR image?

2.

Did the respondent have a direct interest in the subject matter of the
FLIR image?

3.

Did the respondent have a subjective expectation of privacy in the
subject matter of the FLIR image?

4.

If so, was the expectation
objectively
reasonable? In this
respect, regard must be had to:

a.

the place where the alleged search occurred;

b.

whether the subject matter was in public view;

c.

whether the subject matter had been abandoned;

d.

whether the information was already in the hands of third parties; if
so, was it subject to an obligation of confidentiality?

e.

whether the police technique was intrusive in relation to the privacy
interest;

f.

whether the use of surveillance technology was itself objectively
unreasonable;

g.

whether the FLIR heat profile exposed any intimate details of the
respondents lifestyle, or information of a biographical nature.

[39]

The Court then went on to address each factor in turn. This analytical
framework was also used in
R. v. Patrick
, 2009 SCC 17, where Binnie J.
held that Mr. Patrick had not had a reasonable expectation of privacy in
the contents of the garbage bags he left in the laneway for garbage collection.
Binnie J. therefore concluded that it was not a search within the meaning of
s. 8 when the police took those bags.

[40]

Before I apply the
Edwards
/
Tessling
test to the facts of
this case there are two further overlapping lines of authority that need to be
addressed. The first is a line of authority to the effect that there is no
expectation of privacy in a publicly accessible place of business. The second line
holds that where an undercover police officer is invited to a place that is
normally private, such as a home, the invitation, even though it is unknowingly
extended to an undercover officer, waives any expectation of privacy.

[41]

Roy
demonstrates both principles. Mr. Roy was convicted of
trafficking in marihuana after inviting an individual into his home for the
purpose of conducting a drug transaction. That individual turned out to be an
undercover officer. Lowry J.A. writing for the Court first noted that the
question was whether the appellant had waived or abandoned his expectation of
privacy such that no search or seizure occurred. He continued at paras. 28,
32−33:

Here, in much the same way as in
Contant
and
Joseph
,
the undercover officer attended the residence of the accused for the purpose of
concluding a drug transaction. The appellant had refused to complete one aspect
of the transaction -- viewing the purchase money -- in any location other than
his private residence. By so doing, the appellant converted his residence to a
place of business and thus altered his reasonable expectation of privacy in his
home.



The appellants argument that the police exceeded his
invitation to view the purchase money by virtue of the ulterior purpose of
collecting evidence against him is without merit. This case differs from
Evans
in which the police had two purposes for knocking on the accuseds door -- to
speak with the accused and to conduct a search by sniffing the air for
marihuana -- only one of which was authorized by the implied invitation to
knock. The infringement in
Evans
occurred because the police pursued the
unauthorized
purpose of searching for marihuana. Here, the complaint is
with respect to how the police chose to use the information they obtained
through pursuing an
authorized
purpose. These two situations are
distinct. Police do not require authorization to use information they properly
obtain through undercover operations.

In the absence of the appellant
having established that the police violated the reasonable expectation of
privacy that, in the absence of his express invitation, he would have had,
there was no s. 8 search and seizure conducted. It follows that it is then
unnecessary to go on to the second stage of the analysis and consider whether
any search or seizure was unreasonable.

See also
Contant
at paras. 22−35;
Gallaugher
; and
Patrick
.

[42]

R. v. Fitt
(1995), 96 C.C.C. (3d) 341 (N.S.C.A.), affd [1996] 1
S.C.R. 70, Hallett J.A. for the Court held at 345:

A business establishment that is
open to the public with an implied invitation to all members of the public to
enter has no reasonable expectation of privacy from having a police officer
enter the area of the premises to which the public is impliedly invited [citations
omitted].

D.       Application to the Facts of this Case

[43]

I now return to the
Edwards
/
Tessling
factors (modified to
fit this case) in order to determine whether, in the totality of these
circumstances, the respondents had a reasonable expectation of privacy. As seen
above, there is both a subjective and objective aspect to the analysis. For the
purposes of this case I have largely adopted the factors as they were set out
in
Patrick
at para. 27:

1.

What was
the subject matter of the evidence gathered by the police?

2.

Did the
respondents have a
subjective
expectation of privacy in the
information that was collected?

3.

If so, was
the expectation
objectively
reasonable? This includes a
consideration of:

a.

the place where the alleged search occurred and
whether there is public access to the premises;

b.

whether the subject matter of the search was in
public view;

c.

whether the information that marihuana was available
for purchase was known to members of the public;

d.

whether the search methods were intrusive
in relation to the privacy interest.

[44]

The subject matter of the evidence gathered by the police was the
information that marihuana could be purchased by members of the public, the
purchased marihuana itself, and various observations including the smell of
burned marihuana, and the respondents weighing marihuana and retrieving it from
the back of the store. The information the police intended to obtain was
whether marihuana was being sold at the store.

[45]

There is no difficulty in finding a subjective expectation of privacy in
the information that was collected, at least with respect to the police. The
business was owned and operated by Mr. Felger and he had demonstrated a
subjective intention to exclude all police officers from the premises. I will
assume that his employees had the same intention and that the respondents
subjectively expected that they would be able to carry on their business free
from the eyes of the police.

[46]

The next question is whether this subjective intention to exclude all
police officers was objectively reasonable. I do not believe that it was. The search
occurred in a retail premises that was open to the public. Both Mr. Felger
and Ms. Healy, his employee, were present operating the retail premises
when the police attended. Although the trial judge found that there were living
quarters in the store, there is no evidence that the observations made by the
officers extended to these quarters. The expectation of privacy in a publicly
accessible store during business hours is obviously lower than in a dwelling
place.

[47]

At this point I will also address the respondents reliance on the tort
of trespass. The question of whether the undercover officers trespassed does
not resolve the s. 8 issue. Trespass is a property law concept that is
based on identifiable physical boundaries. The property right of exclusion does
not require a consideration of broader societal interests, and need not be
reasonable, unlike the analysis in s. 8. In fact, courts have
emphatically rejected any requirement of a connection between the rights
protected by s. 8 and a property interest in the premises searched (
Edwards
,
at 146). A proprietary interest is neither necessary nor sufficient to
establish a reasonable expectation of privacy. Rather, it is one factor that
might be relevant to consider in the totality of the circumstances.

[48]

Turning to the next factor, the information the police sought to obtain
was available to any member of the public who sought out this information. While
it may be that not every member of the public who came into the store knew that
marihuana was available for purchase, it is clear that this information was
publicly accessible.

[49]

The final factor in determining whether the respondents had a reasonable
expectation of privacy looks at the search methods employed by the police. The
evidence of the activities of the undercover officers in entering the store and
purchasing drugs from the respondents is summarized in the information to
obtain. These facts are not in dispute on this appeal. On five different days,
undercover officers attended the store and bought marihuana. While they were
making these purchases they made various observations about the store, the
respondents and other patrons in the store. Both respondents freely and readily
engaged in conversation about the drug transactions with the officers and with
other members of the public purchasing drugs. The police were not intrusive and
did not seek to obtain, nor did they obtain, any information that was not
already available to the public.

[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.

[51]

There is no evidence as to whether Ms. Healy was aware of Mr. Felgers
attempts to exclude police officers from the store. However, it is unnecessary
to consider if Ms. Healy had a different subjective expectation given my
conclusion about the lack of an objective expectation of privacy.

[52]

As there was no reasonable expectation of privacy in the retail
premises, it is unnecessary to answer the second question of whether any search
or seizure was unreasonable.

[53]

I would allow both appeals, set aside the acquittals, and direct a new
trial.

The Honourable Madam Justice Garson

I agree:

The
Honourable Madam Justice Newbury

I agree:

The Honourable Mr. Justice Frankel


