VERNON - The nightmare isn’t over for the family and friends of murdered Armstrong teen Taylor Van Diest.
Matthew Foerster, the man convicted in 2014 of first degree murder in relation to the 18-year-old’s death, has been granted a new trial.
In a decision released this morning by the B.C. Court of Appeal, Justice Harvey Groberman said a new trial is necessary because of two errors that were made in Foerster’s trial.
The first is that trial judge Peter Rogers did not properly instruct the jury when it came to Foerster’s post-offence conduct — his actions after the murder. At trial, court heard that Foerster got rid of the murder weapons — a shoelace and a flashlight — before fleeing to Ontario. Prior to Rogers’ final instructions, he met with Crown and defence lawyers in the absence of the jury to present his draft instructions. Crown counsel suggested the charge to the jury be modified to ensure the jury was not left thinking they could use the disposal of the flashlight and shoelace to infer consciousness of guilt, however Rogers never made the change.
“Unfortunately, it appears that the judge forgot to make the proposed change to the jury instructions,” Groberman said.
The usual practice in a jury trial is for the judge and counsel to have discussions after the charge to the jury so that if the judge misspoke or has inadvertently failed to make an agreed modification to the charge, the error can be corrected before the jury commences deliberations.
“For reasons that are not clear, the judge in this case did not follow the usual practice,” Groberman said.
The other issue centres around a text message sent by Van Diest to her boyfriend that stated she was ‘being crreped.’ The text was entered as evidence in the trial and interpreted as meaning she was “being creeped.”
On appeal, Foerster argued the statement was only evidence of Van Diest’s state of mind and cannot be used by the jury to determine the accused’s state of mind or intentions.
“The text message in this case was terse. It is difficult to attach any clear, precise meaning to the words “Being creeped”, such that their reliability can be assessed,” Groberman said.
Groberman said the judge had a duty to ensure the jury did not attach any improper prejudicial effect to the text message, and in particular, he should have ensured the jury was aware it could not use the text message as evidence of Foerster’s mental state.
“This became critical when the Crown chose to make the message an important part of its closing. The Crown invited the jury to use the message improperly, both by referring to it as probative of Mr. Foerster’s state of mind, and by seeking to have the jury accept that Ms. Van Diest’s message should be interpreted as a statement that she was being menacingly stalked,” Groberman said.
To find Foerster guilty of first degree murder, the jury had to conclude he killed her while committing, or attempting to commit, a sexual assault. Groberman said the evidence of the text message could have affected the jury’s decision.
“Unfortunately, it is not possible to treat this error as harmless. While there was strong evidence suggestive of a sexual motive for the assault, it is impossible to say that the inappropriate submissions respecting the text message could not have affected the verdict,” Groberman said.
Foerster argued three other grounds of appeal as well, but those were rejected.
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