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Winnipeg Free Press - ONLINE EDITION

Teen admits to home invasion, cleared of murder

By: Mike McIntyre

Posted: 01/5/2012 5:07 PM

WINNIPEG - A Winnipeg gang member has admitted to a violent home invasion - but he has been cleared of committing a random murder just moments later.

The 20-year-old, who was just 17 at the time of the September 2009 incident, was given the maximum youth sentence Thursday of two years custody and one year of supervision in addition to more than two years of time already served.

But he faced the prospect of an even longer penalty if not for the fact a fellow gang member recently accepted responsibility for the killing in which he was a suspect.

A 17-year-old pleaded guilty last month to second-degree murder, admitting he shot 26-year-old Scott McGillivary to death as the man stood outside his Flora Avenue home. He was then given the maximum youth sentence of four years custody and three years supervision.

Crown attorney Mick Makar told court Thursday the youth who admitted to the home invasion was initially believed to be the gunman, based on evidence provided by a key witness. However, the woman later changed her story and doubt began to creep in about who really pulled the trigger.

The Crown has now stayed the murder charge against the youth after the other teen, who was 15 at the time, confessed to being responsible.

Court heard McGillivary was an innocent victim who was in the "wrong place at the wrong time." McGillivary had just stepped outside for a late-night cigarette when he spotted two unknown teens hiding in his yard, disguised with bandanas and clearly up to no good. He had no idea they had just pulled off a home invasion inside a suspected drug house down his street and were trying to dispose of their weapon. Nor did he stand a chance when one of them raised the 22-calibre weapon, pulled the trigger and shot him directly in the heart.

McGillivary died almost instantly, despite efforts by his wife to save him. Their five-year-old son was also in the home at the time.

Makar told court Thursday the two teens had plotted to rob the drug house because they wanted money. They burst into the residence armed with the rifle, which was being held by the older teen. He ordered all six occupants to the ground and repeatedly threatened to shoot if they didn’t comply.

"It must have been a terrifying circumstance. There must have been panic," said Makar.

As they fled the home, the older boy tripped and dropped the gun. That’s when the younger teen picked it up and, moments later, fired the shot which killed McGillivary. McGillivary’s wife recalls asking him to come lie down with her to watch a movie moments before he was killed.

"He told her he was just going to go have a smoke outside, that he’d be right in. You can see how tragic that decision was in retrospect," Makar said. She heard a series of voices outside the home, including her husband yelling at the intruders to get out of his yard.

Defence lawyer Josh Weinstein told court Thursday his client suffers from extreme fetal alcohol syndrome, which has left him unable to understand some of the most basic elements of life, such as days of the week or time. He said they briefly considered fighting the home invasion charges on the grounds his client might be not criminally responsible because of his condition.

"This is a case of pure tragedy all the way around. He is an individual with very few, essentially no tools at all, on how to cope," said Weinstein. The young man has an extensive criminal record, mostly for car theft and breaching court orders, and will now face adult sanctions should he re-offend.

"There really isn’t a lot of cause for optimism here," said provincial court Judge Dale Schille.

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