R. v. Schirmer

R. v. Schirmer

Portions of the extraction report that are communications or parts of strings where a message body shows they are to or from identifiers linking to the accused (Frank/Franky/Franklin/Francisco H. or person at 10-741 Admirals Road) meet the Canada Evidence Act authentication and integrity thresholds and are admissible as identification evidence for the jury to assess under the documents in possession rule; however trafficking-related messages and photographs lack sufficient probative nexus to the charged incident (last device use Feb 10, 2017; charges relate to May 4, 2017), are highly prejudicial and constitute inadmissible prior discreditable conduct and must be excluded; integrity was...

Citation
2020 BCSC 2260
Parties
Crown: Regina; Accused: Horst Francisco Schirmer
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
9 November 2020
Procedural Posture
Criminal Possession for the Purpose of Trafficking (controlled Drugs and Substances Act) / Voir Dire (admissibility of Cellphone Extraction Report)
Outcome
Admit limited identification portions of the redacted extraction report; exclude trafficking messages and controlled-substances/scale photographs as inadmissible (prejudicial and lacking probative value)
Legal Topics
Authentication, Integrity, Best Evidence Rule, Documents in Possession Rule, Hearsay Exceptions, Prior Bad Acts/prior Discreditable Conduct, Probative Vs Prejudicial Assessment, Cellphone Data Extraction
Source Language
English
Criminal Law Evidence Electronic Evidence Drugs Law Authentication Integrity Best Evidence Rule Documents in Possession Rule +4 more

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Parties

Regina

Crown

Horst Francisco Schirmer

Accused

Procedural Posture

Criminal Possession for the Purpose of Trafficking (controlled Drugs and Substances Act) / Voir Dire (admissibility of Cellphone Extraction Report)

Legal Issues

  1. 1 Whether the extraction report meets Canada Evidence Act requirements for authenticity and integrity
  2. 2 Whether the extraction report is admissible under the documents in possession rule as circumstantial evidence of possession or as an exception to hearsay by recognition/adoption
  3. 3 Whether the probative value of trafficking-related messages and photographs outweighs prejudicial effect given prior bad acts doctrine and temporal gap

Ratio Decidendi

Portions of the extraction report that are communications or parts of strings where a message body shows they are to or from identifiers linking to the accused (Frank/Franky/Franklin/Francisco H. or person at 10-741 Admirals Road) meet the Canada Evidence Act authentication and integrity thresholds and are admissible as identification evidence for the jury to assess under the documents in possession rule; however trafficking-related messages and photographs lack sufficient probative nexus to the charged incident (last device use Feb 10, 2017; charges relate to May 4, 2017), are highly prejudicial and constitute inadmissible prior discreditable conduct and must be excluded; integrity was...

Court Disposition

Admit limited identification portions of the redacted extraction report; exclude trafficking messages and controlled-substances/scale photographs as inadmissible (prejudicial and lacking probative value)

Orders

  • Redact the extraction report to remove all content that is not messages or parts of message strings to or from Frank, Franky, Franklin, Francisco H., or to or from a person residing at 10-741 Admirals Road, Esquimalt, B.C., before tendering to the jury
  • Exclude all trafficking-related messages and all photographs of controlled substances and scales from evidence