Manitoba

Man acquitted in 'tragic and senseless' stabbing that killed teen outside Winnipeg 7-Eleven

A man who got into a fight that left a teenager dead outside a Winnipeg 7-Eleven store in 2021 has been acquitted of second-degree murder.

Clayton Marcano was charged with 2nd-degree murder in 2021 death of Andy Joseph McKay, 17

A police cruiser near a crime scene behind a 7-Eleven store.
During closing arguments last month, court heard the altercation that led to the death of Andy Joseph McKay on July 28, 2021, began after McKay and two friends went to a Salter Street convenience store to buy drinks. (Jeff Stapleton/CBC)

WARNING: This story contains disturbing details.

A man who got into a fight that left a teenager dead outside a Winnipeg 7-Eleven store in 2021 has been acquitted of second-degree murder.

Court of King's Bench Justice Joan McKelvey said while she was satisfied Clayton Marcano's actions during the "tragic and senseless" incident led to the death of 17-year-old Andy Joseph McKay, she was convinced that Marcano, now 41, was acting in self-defence.

"His actions were carried out in order to defend himself from the use or threat of force by McKay brandishing a knife," the judge said in a written decision delivered Wednesday.

"Marcano's life was at risk, and I am satisfied he had reason to defend himself, in a manner that constituted a proportionate response to McKay's aggressive actions."

During closing arguments last month, court heard the July 28, 2021, altercation began just after 1 a.m., when McKay and two friends went to the vendor window of the Salter Street convenience store to buy drinks.

Court heard McKay and his friends struck up a conversation with Marcano, a stranger who was already waiting outside the window.

But within minutes, McKay was chasing Marcano with a knife — though nothing was said during the preceding conversation that would have caused that, defence lawyer Saul Simmonds said, citing testimony from one of McKay's friends who was there that night.

Video evidence presented during the trial showed Marcano then backing away from the group and McKay, along with the others in his group, following Marcano around the corner of the store.

Crown attorney Colin Soul said the video shows Marcano running away and McKay returning toward the store, which he said should have ended the incident. 

But Soul said the video shows Marcano returning with a firearm — which court heard was actually just a pellet gun — and chasing the group with it before searching through vehicles, which the prosecutor alleged was an attempt to find McKay.

Soul said the video showed that when Marcano spotted McKay, the accused chased the group while brandishing the pellet gun, then fired three shots — one of which hit McKay's friend's shoe.

The video then shows McKay and Marcano falling to the ground together, where they struggled and rolled around for less than a minute before McKay, who had been stabbed with the knife, was left lying motionless on the ground.

Prosecutors argued Marcano escalated the situation instead of turning away when he had the chance, while defence lawyers contended he took proportionate action to save his own life.

That included choosing to pull a pellet gun out of his backpack instead of a knife he also had, which demonstrated he only intended to scare the group away, the defence argued.

Justice McKelvey said Marcano's judgment that night was questionable, especially given he was an adult dealing with a person much younger than him.

However, "when attacked unexpectedly in the dark, I am satisfied that the nature and proportionality" of his response was reasonable during an altercation "where adrenaline and fear would be flowing," she said.

She also said she concluded Marcano didn't have the state of mind at the time of incident needed to be convicted of second-degree murder — so if she made an error in acquitting him, "this matter would constitute a manslaughter and not the offence of second-degree murder."

ABOUT THE AUTHOR

Caitlyn Gowriluk has been writing for CBC Manitoba since 2019. Her work has also appeared in the Winnipeg Free Press, and in 2021 she was part of an award-winning team recognized by the Radio Television Digital News Association for its breaking news coverage of COVID-19 vaccines. Get in touch with her at caitlyn.gowriluk@cbc.ca.

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