New trial after court quashes 2020 murder conviction

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This article was published 10/06/2022 (1188 days ago), so information in it may no longer be current.

MANITOBA’S highest court has ordered a new trial for a man convicted of committing a premeditated killing when he was 16.

The now 21-year-old man was convicted in 2020 of first-degree murder in the January 2017 shooting death of 26-year-old Tyler Kirton and sentenced as an adult to life in prison with no chance of parole for 10 years.

In a written decision released this week, the Manitoba Court of Appeal quashed the man’s conviction, ruling the sentencing judge erred in admitting evidence obtained after police seized the teen’s cellphone — a seizure the appeal court said arose from a statement police obtained from him in violation of his Charter rights.

Court heard at trial the boy admitted ownership of the phone before he had been advised of his charter rights, including his right to a lawyer. Queen’s Bench Justice David Kroft found police violated the boy’s charter rights, but admitted his statement and the evidence found on his cellphone.

“Accordingly, the exclusion of that evidence would take away from the trial judge some important evidence which he used for the purposes of reaching his conclusion that the (accused) was guilty of first-degree murder,” Justice Marc Monnin wrote on behalf of the appeal court.

“The exclusion of the evidence does not mean that there is necessarily a lack of evidence to convict the (accused) of either first- or second-degree murder,” Monnin said. “It would require a rebalancing of all of the evidence which would be available in a second trial. This may include evidence which was not brought forward as a result of the Crown’s reliance upon the improperly admitted statement and the contents of the cellphone.”

Court heard at trial Kirton believed he and the teen were going to have a consensual fight when Kirton, accompanied by two acquaintances, was lured to the 400 block of Thames Avenue.

Instead, Kirton was shot in the chest and left to die on the road.

Evidence at trial included a cellphone video recorded by one of Kirton’s acquaintances that showed the shooting, but not the identity of the shooter.

The accused teen claimed he had arranged for Kirton to fight a third man and it was another, unidentified suspect who shot Kirton.

The Crown’s evidence against the man was largely circumstantial, including a bullet casing found at the scene similar to ammunition later found in the teen’s bedroom. A picture posted on his Facebook page showed a .22-calibre rifle lying on a quilt matching the quilt found on his bed the day of the killing.

Text messages recovered by police after the killing show the teen telling his sister not to say his name if police question her and to delete their conversation.

Later, in a handwritten note to his sister during trial, the teen coached her how to answer questions in court about the incriminating text messages and told her to deny knowing if he sold drugs or had guns.

“If they ask something like, ‘Do you think he would do something like what he is accused of?’ Obviously, you don’t, because I am your brother and you can’t see me doing something like that,” he wrote.

A new trial date has not been set.

dean.pritchard@freepress.mb.ca