The BC Court of Appeal has ordered a new trial in a North Okanagan murder case.
Matthew Foerster of Cherryville was convicted in 2014 of the first degree murder of Taylor Van Diest in Armstrong.
The 18 year old was killed near some railway tracks on Halloween night 2011.
Foerster’s lawyers appealed the case to BC’s highest court last June, claiming errors were made by the judge in instructions to the jury.
In a ruling issued today, the three judge panel unanimously ruled there was two important errors in the judge’s charge that may have misled the jury. (CLICK HERE to read the judgement.)
One dealt with Foerster getting rid of a shoelace and flashlight after the crime, and another involved a text message Van Diest sent before she was attacked.
The appeal court ruled the errors may have affected the verdict, and ordered a new trial.
Here is an except from the final few paragraphs of the ruling by Mr. Justice Groberman, Madam Justice Kirkpatrick, and Mr. Justice Savage:
“The judge’s instructions on post-offence conduct might have led the jury to believe that it could treat Mr. Foerster’s act of disposing of the flashlight and shoelace as probative of an intention to kill Ms. Van Diest,” says the ruling. “The instruction appears to have been given inadvertently, as the judge had agreed with counsel that it would be corrected before delivery.
“Further, the judge failed to give the jury a careful limiting instruction to ensure that it did not use Ms. Van Diest’s last text message as evidence of Mr. Foerster’s state of mind. This failure was greatly exacerbated by the Crown’s misstatement of the evidence with respect to the context of the text message.”
“Unfortunately, these errors cannot be corrected on appeal, nor can it be said with assurance that they did not affect the verdict. Accordingly, I am of the view that the appeal must be allowed and a new trial ordered.”
Foerster has admitted he caused Van Diest’s death, but claims he was guilty of second degree murder or manslaughter, not first degree, which means it was planned and deliberate, and carries a mandatory 25 years in prison before parole eligibility.
Paul Albert, Taylor’s uncle and the brother of Taylor’s mother Marie, says the family is devastated.”How everybody feels today is very much angry. We feel that the system has failed terribly,” Albert tells Kiss FM.
Albert says the system doesn’t seem to care about the victim.
“All of the onus for rights are for him. There is no rights for the victim at all, and this is just another slap in the face to the family, a slap in the face to Canada, and to every human being.”
Albert says the Van Diest family plans to air its concerns about the system to the media.
“We want this national. We feel we have to do this. We can’t bring her back, but we can sure help other people that run into these circumstances. We’ve just had a enough of this,” adds Albert.
No dates have been set for a new trial.