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PROCEDURE - Trial judge's duties - Charge or directions

Monday, April 10, 2017 @ 10:45 AM  


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Appeal by Foerster from conviction before a judge and jury for first degree murder. The 18-year-old victim failed to meet her friends as scheduled. She had sent and received several text messages while en route. A search ensued and the deceased was found unresponsive in a bushed area. Foerster died from her injuries the following morning. The cause of her death was determined to be diffuse bleeding in the brain caused by a series of blunt force injuries to the back of her head. Evidence of a hemorrhage in one of the victim's eyes was consistent with strangulation. Foerster's DNA was detected on a fingernail sample. Cell phone records showed that Foerster was in the area where the victim was found at around the time she sustained her injuries. The Crown and Foerster agreed that the last text message the victim sent to her boyfriend read "Beeing crreped", but was meant to read "Being creeped". Foerster admitted that he caused the victim's injuries. He stated that he hit her more than once with a metal flashlight and that he was involved in a scuffle with her that took them to the bushes where she was found. He also admitted that he choked the victim with a shoelace before fleeing the scene. He further admitted that he subsequently disposed of the flashlight, the shoelace and his coat in a dumpster several kilometers away. While Foerster admitted that he was guilty of culpable homicide, he contended that he was only guilty of manslaughter or second degree murder, and that the trial judge made numerous errors in charging the jury.

HELD: Appeal allowed. There were two important errors in the judge's charge to the jury. First, the judge's 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 the victim. Unfortunately, the charge on post-offence conduct was not in the form counsel and the judge had agreed upon. The judge ought to have instructed the jury that it could not draw any adverse inferences from the disposal of the weapons, apart from an inference as to the degree to which Foerster may have been intoxicated. Second, the judge failed to give the jury a careful limiting instruction to ensure that it did not use the victim's last text message as evidence of Foerster's state of mind. This failure was greatly exacerbated by the fact that the Crown invited the jury to use the message improperly, both by referring to it as probative of Foerster's state of mind, and by seeking to have the jury accept that the victim's message should be interpreted as a statement that she was being menacingly stalked. If the jury was to treat the message as being admissible for the truth of its contents, the jury ought to have been carefully instructed not to treat the message as meaning anything more than what the victim's boyfriend described in his testimony; namely, that someone was looking at the victim in a way that she perceived as showing a sexual interest in her. These errors precluded the application of the curative proviso contained in s. 686(1)(b)(iii) of the Criminal Code. Accordingly, a new trial was ordered.

R. v. Foerster, [2017] B.C.J. No. 432, British Columbia Court of Appeal, P.A. Kirkpatrick, H. Groberman and J.E.D. Savage JJ.A., March 7, 2017. Digest No. TLD-Apr102017002