An accused Victoria drug dealer’s application for a mistrial was dismissed on Jan. 17 in the Supreme Court of Canada, but a hearing will be reopened to examine a number of complaints after he fired his lawyer.
Horst Francisco Schirmer faces seven charges relating to the possession of illicit substances and trafficking. During a blended voir dire hearing, taking place last February, to address a number of pre-trial challenges — including allegations of police using excessive force during his arrest — Schirmer dismissed his lawyer.
The current case has yet to go to trial, as Schirmer filed an application for a mistrial on the basis of receiving incompetent legal representation due to his former counsel’s health challenges interfering with his ability to represent the accused.
According to Canadian law, a mistrial will only be granted if the consequences cannot be remedied by other measures.
Schirmer’s main complaints relate to his former counsel failing to object to questions asked of Schirmer during cross-examination that centred around the path he took to get to a bike store where he was arrested. According to Schirmer, police used excessive force in his arrest that led to a leg injury.
Crown’s theory states that Schirmer jumped out of a van, ran through various backyards, jumped fences and along the way dumped a satchel in a backyard. In answering questions during cross, Schirmer took himself away from the route where the bag was found.
Schirmer stated he didn’t see the bike rack, which the judge reasoned opened him up to the Crown’s questions.
“Former counsel’s failure to object was therefore not ineffective, it was correct. The questions were relevant and within the scope of the voir dire. There was nothing to object to,” wrote Justice Catherine Murray, in her reasons for judgment posted online.
Another one of Schirmer’s complaints comes from his former counsel’s failure to file a section 10 (b) Charter notice, which deals with a detainee’s right to retain and instruct counsel without delay and to be informed of that right. His former lawyer testified that he had intended to file the notice, but in the midst questioning police officers the judge had to stop the proceedings to point out there was no charter notice filed.
“In my view, there is a prospect of success as Mr. Schirmer was not afforded the right to call counsel until four hours after his arrest. It then falls on the Crown to justify such a delay,” wrote Justice Murray. Her remedy was to allow Schirmer to file the notice now and to reopen the voir dire.
“In my view, the trial has not been fatally wounded by the issues raised in this application,” she wrote. “Any prejudice or potential prejudice caused by the ineffective representation of counsel can be remedied by measures less drastic than a mistrial, as ordered.”