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Service d'actualité juridique LAW/NETMC

Case Name:
R. v. Felger

Between
Regina, Appellant, and
Timothy Lee Felger and Natasha Kaye Healy, Respondents

[2014] B.C.J. No. 130
2014 BCCA 34
Docket: CA040495
CA040496

British Columbia Court of Appeal
Vancouver, British Columbia
M.V. Newbury, S.D. Frankel and N.J. Garson JJ.A.

Heard: December 13, 2013.
Judgment: January 29, 2014.
(53 paras.)

Court 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.

Appeal From:

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:

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.


Reasons for Judgment

       The judgment of the Court was delivered by

       N.J. GARSON J.A.:—

I. Introduction

 1      These Crown's 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. Felger's 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 employer's 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 inquiry -- the 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 Appellant's 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 Respondent's 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 judge's 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 operator's 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 person's 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.), aff'd [1996] 1 S.C.R. 70; R. v. Contant, 2008 QCCA 2514, 63 C.R. (6th) 133, leave to appeal ref'd [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.), aff'd 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 judge's 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 individual's 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 person's 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 appellant's 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 Semayne's 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 Semayne's 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 accused's 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 man's 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 accused's 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 person's 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 accused's 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 person's 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 respondent's 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 appellant's 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 accused's 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.), aff'd [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. Felger's 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.

N.J. GARSON J.A.
M.V. NEWBURY J.A.:— I agree.
S.D. FRANKEL J.A.:— I agree.

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