BARRIE, Ont. - The arresting officer violated the rights of a deer hunter who fatally shot a hiker in a central Ontario forest three years ago, a Superior Court judge ruled Thursday.
Provincial police Const. Rick Tarnowski arrested Frederick Thomas of Keswick, Ont., at the shooting scene in Simcoe County on Nov. 6, 2006.
Thomas is charged with manslaughter in the death of Marianne Schmid, 67, of Adjala-Tosorontio Township.
Schmid was hit in the stomach by a buckshot pellet fired from Thomas's 12-gauge shotgun while she took an afternoon walk in the forest northwest of Toronto.
Tarnowski testified he arrested Thomas in the bush as paramedics worked on Schmid, who was pronounced dead soon after.
Tarnowski read Thomas his rights, but when asked if he wanted to call a lawyer, Thomas said: "I don't know any lawyers. I've never been in trouble before."
Tarnowski told Justice Peter Howden he took that to mean Thomas had waived his right to counsel and proceeded to take down Thomas's utterances as evidence against him.
Defence lawyer Leo Kinahan argued the constable deliberately set out to gather evidence against "a distraught and unsophisticated" man before he could get a lawyer.
Howden found that Thomas had not waived his right to a lawyer and ruled that statements made by Thomas to the officer at the time of the arrest cannot be used at trial.
Howden noted it was disturbing that the officer testified that his actions were based on his police training.
Howden also said he found it disturbing that the officer felt that unless the accused answered "yes" to wanting counsel, he waived his right to one.
The defence has admitted that Thomas fired the shot that killed Schmid, but said the hunter was firing at a buck deer and at no time saw the woman.
Closing arguments in the trial by judge alone were scheduled for Friday.
Howden is expected to reserve his verdict on whether Thomas is guilty or innocent on the manslaughter charge.
