An Abbotsford marijuana advocate charged with drug trafficking was acquitted Monday when a judge tossed out the evidence after ruling a police search violated the accused's Charter rights.
Pot activist Tim Felger was charged with one count of possession and six counts of drug trafficking after Abbotsford Police raided his Da Kine shop on Essendene Avenue in Abbotsford on May 13, 2009.
Chilliwack Supreme Court Justice Brian Joyce had ruled on Oct. 26 that Abbotsford Police had conducted an unlawful search at Da Kine, but reserved his decision about what evidence, if any, from the search would be allowed.
However, on Monday Joyce stated he was excluding all the evidence and dismissed the charges against Felger. The Crown did not make any submissions and is expected to appeal the ruling. Joyce will provide his reasons for the decision at a future date.
Prior to the decision, court heard that Abbotsford undercover police officers originally entered the store without a warrant.
This despite the fact Felger had informed the APD and posted signs on the door of his store warning that police were not welcome on the property without a warrant.
Following the initial warrantless search, officers used their observations to obtain a warrant for a second search.
After the police search was deemed illegal, Felger's defence lawyer, Ken Beatch, emphasized the importance of case in limiting the power of the police to search a person's store or residence without prior judicial authorization. The case is also significant because it touches on citizens' expectation of privacy in their homes and private businesses under the Charter, he said.
At the time of his arrest, the APD alleged Fel-ger had been selling pot to minors. However, no evidence was presented at trial that suggested Felger was peddling drugs to youth.
Natasha Healy, Felger's co-accused, had her three counts of trafficking dismissed as well on Monday.
Felger said that he and his lawyer "made law the hard way" and it clarifies property rights with regard to searches.
"It confirms that if a police officer enters your property without a warrant and you ask them to leave, then they are trespassing if they do not immediately leave," he said.
Felger plans to head to civil court in an effort to regain possession of the Da Kine building, his business licence in Abbotsford and address the APD's allegations he was selling marijuana to teens.
He also wants possessions such as a computer and camera seized in the Abbotsford raid returned.
Felger has unsuccessfully run for government office on a platform to legalize drugs. His Da Kine store, which displayed signs calling for an end to drug prohibition, was closed following a protracted battle with the city. He moved his operations to Mission in the fall of 2010, opening the Das Bhang Convenience Store and Political Office on Horne Street.
He was arrested and charged with a second set of drug trafficking charges after Mission RCMP arrested him in February 2011.
Similar to the APD operation, the Mounties used an undercover officer to set up a sting and arrested Felger for allegedly selling pot out of the Das Bhang store.
The Mission charges will likely not proceed in court until there is a decision on the appeal in the Abbotsford case, said Beatch.