Pot sting clouded in controversy

Photo: The Canadian Press. All rights reserved.

The Supreme Court of Canada in Ottawa on Tuesday, July 10, 2012. Lawyers for a B.C. bong shop owner and one of his employees will get a rare opportunity to present oral arguments as to why the Supreme Court of Canada should hear their appeal. THE CANADIAN PRESS/Sean Kilpatrick

OTTAWA - Lawyers for the owner of a British Columbia bong shop and one of his employees will get a rare opportunity to present oral arguments as to why the Supreme Court of Canada should hear their appeal.

It's a highly unusual move for the top court, which normally rules on leave-to-appeal applications based on written documents.

Then again, it's a highly unusual case.

Timothy Felger, the bong shop owner and a BC pot activist, expected undercover police officers to respect a posted sign ordering the cops to stay away.

Not surprisingly, they didn't.

Felger and his employee, Natasha Healy, were charged after a sting operation at the shop in Abbotsford, in 2009.

Undercover officers bought marijuana on five separate occasions and also saw other customers making similar purchases.

Felger and Healy argued at trial that a posted sign instructing police to stay out without a warrant meant the sting amounted to an unreasonable search.

The trial judge ruled the evidence could not be used and acquitted the pair in 2012, but the BC Court of Appeal has ordered a new trial.

The appeals court said in a written decision that the store was a public place, meaning the police were free to investigate marijuana sales there.

"An objectively reasonable expectation of privacy in a retail store could not be achieved simply by posting a sign excluding law enforcement officers," wrote Justice Nicole Garson in a unanimous judgment.

Felger and Healy's lawyers asked the Supreme Court for leave to appeal the decision.

On Thursday, the Supreme Court took the rare step of granting them an oral hearing.

Oral hearings can be granted in criminal cases involving an indictable offence if the appeal court set aside an acquittal and ordered a new trial.

"This is a very rare thing at the Supreme Court," said Adam Dodek, a University of Ottawa law professor.