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 — Schirmer fired his lawyer. (Black Press Media file photo)

Court rejects mistrial for accused Victoria drug dealer who fired his lawyer

Horst Schirmer filed a mistrial application on basis of receiving incompetent representation

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.

RELATED: Victoria drug trafficker gets six-year jail term

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.

RELATED: Convicted drug trafficker asks Victoria courtroom for chance to ‘turn this around’

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.”



kendra.crighton@blackpress.ca

Follow us on Instagram
Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Saanich police arrest suspect in arson spree near Camosun College Lansdowne campus

Calgary man in police custody waiting for a tele-bail hearing, constable says

VIDEO: Man breaks up Saanich road rage fight

Two men were throwing punches on Tillicum Road

Saanich Peninsula Hospital to host new COVID-19 testing facilities

It is not clear yet when they will go into action

Three impaired drivers stopped in Saanich over one weekend

Drivers receive 90-day driving prohibition, month-long vehicle impound

‘We will get through this’: B.C. sees new COVID-19 death, but 57% have recovered

A total of 1,066 people have tested positive for the novel coronavirus

POLL: Will you be able to make your rent or mortgage payment this month?

With the COVID-19 delivering a devastating blow to the global economy, and… Continue reading

Couple celebrates 61st anniversary through Vancouver Island seniors’ home window

Frank and Rena Phillips marked occasion at Nanaimo Seniors Village this week while social distancing

A look at some of the B.C. inventors creating life-saving tools in fight against COVID-19

Groups across B.C. are working together to create what they hope will help people affected by the pandemic

‘There can be no ambiguity’: Travellers brought home to B.C. must self-isolate

Health Minister Adrian Dix said the mandatory isolation must be abided by

Association launches French-language games, online tools for families learning at home

Games, culture and vocabulary included in new virtual resources

Belle from ‘Beauty and the Beast’ entertains home-bound kids in Cowichan Bay

Alora Killam, 16, played the part in musical two years ago

55+ BC Games cancelled amid COVID-19 concerns

Greater Victoria set to host 2021 event

BC Hydro offers three-month bill ‘holiday’ for those affected by COVID-19

Industrial customers can defer half of their power bills

Most Read