Local pot activist Tim Felger will undergo a new trial into drug charges in Abbotsford after a B.C. Court of Appeal panel today (Wednesday) set aside his 2012 acquittal.
Crown counsel appealed the decision from December 2012, in which B.C. Supreme Court Justice Brian Joyce ruled that Felger’s charter rights had been breached and evidence gathered at his store in 2009 was not admissible at his trial.
Felger was acquitted of seven charges – six counts of trafficking in marijuana and one count of possession for the purpose of trafficking – that were laid in relation to his former Da Kine store on Essendene Avenue in Abbotsford.
Felger’s lawyer had argued that undercover officers had repeatedly come into the store prior to a drug warrant being served and Felger being arrested in May 2009.
Joyce ruled that police had trespassed on Felger’s property by ignoring signs he posted that stated “no police officers allowed in the store without a warrant.”
Court documents indicate that undercover officers purchased marijuana inside the store on five separate days and also observed other people buying pot.
Joyce stated that such evidence was collected illegally.
But the three judges on the B.C. Court of Appeal panel were in agreement that although the charter protects a “reasonable expectation of privacy,” the sign did not entitle Felger to those privacy rights.
Crown argued that although storekeepers can ban certain people from entering their business, “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.’ “
Appeal Court Justice Nicole Garson stated that the “expectation of privacy in a publicly accessible store during business hours is obviously lower than in a dwelling place.”
“The police were not intrusive and did not seek to obtain, nor did they obtain, any information that was not readily available to the public,” she said of their visits to Felger’s store.
Felger’s co-accused, Natasha Healy, also receives a new trial after her acquittal was set aside on three charges of trafficking in marijuana.
A trial date has not yet been set for either Felger or Healy.
The City of Abbotsford cancelled Felger’s business licence in 2009 after the drug charges were laid against him.
Following the decision, Felger kept Da Kine open, saying it was a political office for the use of his campaign to legalize marijuana.
He was evicted from the location in April 2010 by court order after the owner of the building alleged that Felger owed him about $53,000 in back rent.
Felger also went on trial for drug charges in Mission, and had most of the charges thrown out last May in regards to the sign he posted outside that location.