Marie Van Diest (left) and Kirstie Van Diest, Taylor’s mother and twin sister, were relieved when a jury of 12 came back with a first degree murder verdict. Image Credit: Kathy Michaels

Marie Van Diest (left) and Kirstie Van Diest, Taylor’s mother and twin sister, were relieved when a jury of 12 came back with a first degree murder verdict. Image Credit: Kathy Michaels

UPDATED: Man convicted of 2011 killing of Armstrong teen granted retrial

Matthew Foerster will get a retrial for the 2011 killing of Taylor Van Diest

The family of slain Armstrong teenager Taylor Van Diest is set to relive a nightmare.

In a B.C. Appeal Court decision released Tuesday morning, it was announced that Matthew Foerster will be granted a retrial for the 2011 killing.

Justice Harvey Groberman wrote that 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.”

RELATED: VAN DIEST FAMILY REACTS TO GUILTY VERDICT

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.

Today’s ruling did not sit well with Van Diest’s family.

“I had a gut feeling this was going to happen,” said Van Diest’s mother, Marie. “This is a nightmare I wish I could wake up from.

“Our justice system needs fixing. This is cruel and unusual punishment for the victims. There are far too many rights for the bad guys.”

Foerster was convicted in 2014, before a judge and jury, of first-degree murder for killing Taylor Van Diest near Armstrong, B.C. Halloween night in 2011. He admitted criminal responsibility for the 18-year-old’s death, but contended that he was only guilty of manslaughter or of second-degree murder.

At the trial, the court heard that Van Diest had planned to meet up with friends on the evening of Oct. 31, 2011, and then go trick-or-treating. She was dressed in jeans, and a white shirt. Over top of the white shirt was a loose purple shirt, which, along with makeup, made up her “zombie” Halloween costume. At 5:45 p.m., she left her house and headed down a shortcut, along a set of railway tracks. As she walked, she was texting, sending a total of 10 text messages to friends while en route, and receiving seven in return.

Her last message, sent at 6:02 p.m., was to her boyfriend. It said merely “Being creeped”.

When she failed to answer text messages or to show up to meet her friends, family and friends started to search for her.

At about 8 p.m., a group of teenagers found her phone along the railway tracks. The search became focussed on that area and they found her in some bushes not far from the tracks. A police officer who was also searching the area arrived very shortly thereafter, followed by emergency medical personnel, who arrived at about 9 p.m.

The teen was breathing but was unresponsive when found. Her zombie makeup and the darkness made it somewhat difficult to discern her wounds, and her positioning concealed some of the injuries, but it was evident that she was gravely injured.

She had many cuts and bruises, and was bleeding. Her clothing, however, was completely intact – her belt and zipper were done up, and her jacket was on. There was no physical evidence suggestive of a sexual assault. Later forensic investigation also failed to turn up any evidence of an assault of a sexual nature.

Van Diest died because of bleeding in the brain caused by a series of blunt force injuries to the back of her head. The blows to her head left six separate, long, irregular lacerations of the scalp, and a comminuted skull fracture.

The forensic pathologist who performed the autopsy was of the opinion that the injuries were most likely caused by forceful blows from a heavy, hard object with a linear elongated shape. He was of the opinion that each laceration was caused by a separate blow to the head. He considered that any of the blows, standing alone, could have rendered her unconscious.

Together, they were probably unsurvivable, even if Van Diest had been attended to immediately after the injuries were inflicted, reads the appeal document.

Foerster’s DNA was detected on a fingernail sample taken from the teen while she was treated in hospital. Cell phone records showed that Foerster was in the area where Van Diest was found at around the time she sustained her injuries.

Apart from the DNA and cell phone evidence, most of the evidence incriminating Foerster came from answers that he gave to police during prolonged interrogation after he was taken into custody.

From his statements, investigators determined that Foerster travelled from Enderby to Armstrong on the afternoon of Oct. 31, 2011. He parked his truck in Armstrong, and was walking around town.

At approximately 6 p.m., he was walking on a road near railway tracks when he noticed Van Diest. He followed her to the tracks.

He claims to have talked to her for what “seemed like a few minutes”. He then pushed her to the ground, telling her to keep quiet. She did not comply with this demand and Mr. Foerster “just freaked out”.

“Foerster gave limited details of the assault on Van Diest, though he admitted that he caused her injuries,” reads the decision.

“He did state that he hit her more than once with a sturdy metal flashlight, and that he was involved in what he called a “scuffle” with her that took them away from the railway tracks to the bushes where she was found. He also admitted that he choked her, first with his hands (something which would have been expected to cause bruising, but of which the forensic pathologist found no evidence), and then with a shoelace.”

He then fled the scene, leaving Van Diest injured, and almost certainly unconscious. At some later point – it is not clear when – Foerster disposed of the flashlight, the shoelace, and his coat in a dumpster in Vernon, several kilometers from Armstrong.

Foerster’s lawyer appealed the verdict for three further reasons that the appeal court did not see merit in.

First, that the judge’s opening reference to an unconstitutional provision of the Criminal Code was inconsequential.

Next that the Crown’s reference to the absence of any statement by the accused concerning his level of intoxication did not breach his right to silence. That right was impacted by the Crown’s reference to the accused’s failure to deny he had an intention to kill the victim, but the Crown’s statement did not prejudice the accused.

Lastly, the judge’s instructions on attempted sexual assault did not mislead the jury.

No date has been fixed for a new trial.

“Hopefully we have this as quick as possible, and move this on and done is a timely fashion,” said Marie Van Diest.