A man serving a six-year prison sentence for drug trafficking has had his conviction overturned due to the involvement of a former Victoria police officer in the case.
The VicPD officer, Robb Ferris, was a key witness at the trial of Horst Schirmer, but has since been found to have committed misconduct.
Schirmer was convicted on Feb. 1, 2019, of possessing cocaine, heroin, fentanyl, MDMA and methamphetamine for the purposes of trafficking.
On Tuesday, his conviction was overturned in the B.C. Court of Appeal after the Crown conceded Schirmer received ineffective counsel at trial, because his lawyer did a poor job of challenging Ferris’s evidence, said Brent Anderson, Schirmer’s lawyer for the appeal.
Anderson called the Crown’s concession “exceedingly rare.”
“It’s very, very rare that the Crown will concede an appeal, but it’s even more rare that the Crown will concede that a defence lawyer was ineffective. I’ve never seen it in my career,” Anderson said.
Ferris resigned from VicPD before he could be fired as a result of 19 substantiated counts of misconduct against him in 2021, the department said in February. That’s when news broke that charges had been stayed against three men once considered the top of the fentanyl-trafficking pyramid in B.C. because of Ferris’s involvement in the cases.
The investigation had led to the seizure of $30 million in drugs, firearms and cash, but charges were stayed after Supreme Court Justice Catherine Murray found VicPD obscured the role of Ferris, who was at the time under criminal investigation.
VicPD had called in the RCMP anti-corruption unit to investigate Ferris after determining he might be involved in “corrupt practices,” the department said.
Despite the allegations against him, VicPD allowed Ferris to participate in the trafficking investigation so as not to alert him that he was under investigation.
Ferris was arrested in June 2020 after the RCMP investigation found his actions “inconsistent with his duties as a police officer,” such as providing sensitive information to suspects of police investigations, VicPD said.
Victoria police officers restarted the drug-trafficking investigation with the same team, minus Ferris.
Ferris was a key witness in Schirmer’s trial, testifying that after Schirmer’s arrest, he found keys in Schirmer’s bedroom, which he took to the house of the co-accused, John Turner.
One of the keys unlocked a safe in Turner’s home, according to Ferris and another officer who testified at trial. The safe contained a large amount of drugs and $1,000 in cash.
Justice William Ehrcke said in his 2019 judgment he was satisfied that Schirmer’s possession of one of two keys that could open the safe established he had the necessary control of the safe’s contents to establish possession of the drugs.
“That was the sole basis upon which Schirmer was convicted, is Ferris’s say-so that he allegedly seized this key linking Schirmer to the drugs in a separate location,” Anderson said.
The warrant used to search Schirmer’s home did not authorize the seizure of a key and Ferris did not follow required procedure to seek authorization to detain items, but the defence lawyer at trial did not challenge Ferris on those issues, Anderson said.
A new trial was ordered for Schirmer, but there is no prospect it will go ahead, because it would require Ferris coming to court and testifying, Anderson said.
The Public Prosecution Service of Canada said Dec. 5 it is not aware of any other appeals involving Ferris and it does not expect other past convictions to be affected.
The prosecution service does not intend to pursue a new trial, because the case no longer meets the test for approving charges.
Schirmer received an eight-year sentence in 2021 for other drug-trafficking offences, which was to be served following his sentence in this case, handed down in July 2019.
With credit for time served in pre-trial custody, Schirmer was to spend three years and two months in prison on the now-overturned conviction.
Anderson said corrections authorities will need to determine whether Schirmer’s release date has changed.
Victoria Police Chief Del Manak said in a statement the department is disappointed by the overturned conviction, but can’t speculate on whether other convictions involving Ferris might also be voided.
“It’s clear that the impact of one officer’s choices and actions can be profound and long-lasting. That’s why it’s so important that we have high standards and take quick action when we discover an officer who is not meeting those standards, as we did in this case,” Manak said.
Note to readers: This story was updated on Dec. 6 to include comment from the Public Prosecution Service of Canada.
