Matthew Foerster is inching toward his next trial.
Foerster is charged with first degree murder for killing Armstrong teenager Taylor Van Diest Halloween night 2011, as she made her way to a friend’s house. He was convicted on the charge in 2014, but in March the B.C. Appeal Court granted him a retrial.
Since then the courts have been trying to arrange a trial date, but various issues have impeded progress. In particular, it seemed as though Foerster couldn’t get a lawyer.
That has now been squared away and during a Monday court date Roger Thirkell and Ken Beatch were said to be taking on the case, though they still have to review the file, find time in their schedule to try the case and secure payment for the work ahead.
As such, plans to fix a court date were pushed off again until May 15.
The retrial was granted because, as Justice Harvey Groberman wrote, there were two errors in the trial judge’s 2014 charge to the jury and that may have affected their decision to find Foerster guilty of first degree murder, not a lesser charge.
“(Justice Peter Rogers) instructions on post-offence conduct might have led the jury to believe that it could treat Foerster’s act of disposing of the flashlight and shoelace as probative of an intention to kill Ms. Van Diest. The instruction appears to have been given inadvertently, as the judge had agreed with counsel that it would be corrected before delivery,” reads Groberman’s decision.
“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, said Groberman, these errors cannot be corrected on appeal, nor can it be said with assurance that they did not affect the verdict, thus the need for a new trial.
