Crown counsel has not approved charges in connection with the stabbing death of an 18-year-old last year on a Surrey transit vehicle.

Jamie Kehoe, 18, was reported to have been trying to intervene to stop an altercation on the bus on October 7, 2011.

In a statement issued today, the criminal justice branch in the Ministry of Attorney General declared that following a review of the police investigation report, officials have "concluded that there is no substantial likelihood of conviction on any homicide related charges in connection with Mr. Kehoe’s death".

"The Branch recognizes that this tragic death has had a profound effect on Mr. Kehoe’s family and friends," the statement reads. "The Branch also appreciates that the case has generated public attention and concern."

The statement acknowledged the existence of "circumstantial evidence that reasonably supports an inference that the male suspect identified by police is the person who delivered the fatal stab wound".

However, the document adds that "this same evidence does not provide a sufficient basis for the Crown to prove that the stabbing meets the essential legal elements for culpable homicide under the Criminal Code—either a murder or manslaughter."

The following is the "clear statement" issued by the branch to justify the decision not to charge the suspect:

On the evening of October 7, 2011 Jamie Kehoe suffered a fatal stab wound during an altercation on a bus in Surrey between friends of Mr. Kehoe and another couple on the bus. Based on the investigative material that police have provided to the Criminal Justice Branch for the purpose of charge assessment, there is no clear evidence to what degree, if at all, Mr. Kehoe himself was involved in this altercation, and no reliable direct evidence of how the fatal wound was inflicted or who was responsible for it.

While circumstantial evidence reasonably supports an inference that the male suspect identified by police (the “suspect”) is the person who delivered the fatal stab wound, this same evidence does not provide a sufficient basis for the Crown to prove that the stabbing meets the essential legal elements for culpable homicide under the Criminal Code—either a murder or manslaughter.

The statements of witnesses, both those who were involved in the altercation and those who simply observed it, provide an incomplete and at times contradictory picture of events on the bus the night in question. Some witnesses gave multiple statements to police which were inconsistent with each other on material points. The weight of the available evidence raises a realistic possibility, perhaps even a probability, that the suspect likely stabbed Mr. Kehoe, either intentionally or inadvertently, in response to an attack on the suspect by a male companion of Mr. Kehoe.

The male companion had a collapsible metal baton in his possession and was using it to strike the suspect. It is unclear what weapon was used to stab Mr. Kehoe and there is conflicting evidence about when it was produced. However, it appears from the evidence of some witnesses that it was produced in response to the baton attack. A number of other witnesses are uncertain when the suspect resorted to using a weapon.

While the circumstantial evidence reasonably supports an inference that the suspect was responsible for the stabbing of Mr. Kehoe, the Crown is not able to establish to the criminal standard of proof beyond a reasonable doubt that the suspect was not at the time defending himself against the attack with the metal baton, a device capable of causing death or grievous bodily harm. As a result, the Crown has concluded that the charge assessment standard has not been met for proceeding with any charges in the case. Based on the material provided to the Criminal Justice Branch by police, there is no substantial likelihood of conviction.

The Legal Context

In fulfilling the charge assessment responsibility, Crown Counsel must fairly, independently and objectively examine the available evidence to determine:

1. Whether there is a substantial likelihood of conviction; and, if so,

2. Whether a prosecution is required in the public interest.

A substantial likelihood of conviction exists where Crown Counsel is satisfied there is a strong solid case of substance to present to the Court. In determining whether this standard is satisfied, Crown Counsel must determine:

1. what material evidence is likely to be admissible;

2. the weight likely to be given to the admissible evidence; and

3. the likelihood that viable, not speculative, defences will succeed.

To prove a murder in the circumstances of this case, the Crown must be able to show, beyond a reasonable doubt, that the person who is alleged to have caused the death of Mr. Kehoe intentionally committed the act that led to death and either intended to kill the victim, or intended to cause the victim bodily harm that he knew was likely to cause death and was reckless as to whether death ensued or not.

To prove the offence of manslaughter, the Crown must be able to show, beyond a reasonable doubt, that the person who is alleged to have caused the death of Mr. Kehoe intentionally committed the act that led to death and bodily harm to the victim was objectively foreseeable.

As a matter of law, the offences of murder and manslaughter can be proved based on circumstantial evidence (as opposed to direct, eyewitness observation of the details on how an act unfolded). However, the test for doing so is very stringent. Where the Crown’s case is based on circumstantial evidence, the judge or jury can only convict if they are satisfied beyond a reasonable doubt that there is no other rational explanation for the act that led to death other than guilt.

Furthermore, where the circumstances of a case raise a realistic possibility of self-defence on behalf of the accused, the Crown must be able to prove beyond a reasonable doubt that self-defence does not apply.

In deciding whether someone is guilty of an alleged criminal offence, a judge or jury must consider the whole of the evidence that is tendered in court, not only pieces of it. The accused is presumed innocent until proved guilty beyond a reasonable doubt and if he testifies in his own defence, his version of events does not have to be believed to raise a reasonable doubt. A judge or a jury can disbelieve the accused’s testimony, but still be left in a reasonable doubt by it. It is the Crown’s burden to prove each element of the alleged offence beyond a reasonable doubt and where self-defence is raised (even if only on the Crown’s evidence), the prosecution must prove that self-defence does not apply.

The Evidence

The evidence gathered by police shows that during the evening of October 7, 2011, Mr. Kehoe and three companions, a male and two females, consumed a quantity of whisky. While all appear to have been under the influence of alcohol, the evidence varies as to their degree of intoxication. Both males appear to have been significantly affected.

At approximately 11:50 p.m., the four individuals boarded a bus at 72 Avenue and 134 Street in Surrey. The suspect and his girlfriend reportedly boarded the bus several minutes earlier at the Newton bus exchange located a few blocks to the east.

Mr. Kehoe and his companions sat in an elevated rear area of the bus, with Mr. Kehoe seated in the last row on the extreme left-hand (driver’s) side. The ensuing confrontation in which he was stabbed occurred in a confined area at the rear of the bus.

One of the females with Mr. Kehoe apparently recognized the suspect. In a statement given to police in the early morning hours on October 8, 2011, she advised that as her group passed the suspect she said “Hi (name removed) you little piece of shit”. The witness stated that at one point the female with the suspect turned around and Mr. Kehoe’s female companion said to her “What the fuck are you looking at?” She stated that the female with the suspect kept giving her dirty looks. When the suspect and this same female exited the bus at 72 Avenue and 128 Street, the witness said “bye bitch” to the female.

In a second statement to police, the evidence of this witness changed. She told police that what she had said to the suspect was “Hi (name removed). How are you?” She said that in response to the female giving her dirty looks, she then said “can you stop giving me dirty looks please?” She was consistent in stating that when the female went to get off the bus she said “bye bitch.”

Other witnesses are unclear about what, if anything, took place initially between Mr. Kehoe’s female companion and the suspect’s female companion, but a number of witnesses confirm hearing Mr. Kehoe’s companion call the other female a “bitch” as she was getting off the bus.

In response to this latter comment, the suspect’s female companion got back on the bus and hit the other female in the face, precipitating a fight between them on the bus.

The suspect got back on the bus as well, and from the evidence of some witnesses appears to have been trying to get his female friend out of the fight and off the bus. According to one witness, Mr. Kehoe’s male companion started yelling “let it happen, let them fight” but the suspect re-entered the bus and said “she’s my girlfriend let me break it up.”

Exactly what followed and the sequence in which the events occurred remains uncertain. Witnesses were either not paying complete attention to what was taking place, were not in a physical position to reliably see and hear what was happening between the parties, or were in a state of intoxication.

While numerous witnesses were on the bus, none is able to provide a clear account of everything that occurred, or reliably explain exactly how Mr. Kehoe suffered the fatal wound to his neck. It is clear that Mr. Kehoe’s male companion produced and extended a collapsible metal baton and began striking the suspect with that weapon. On the evidence of a number of witnesses, this appears to have happened before the suspect produced some form of weapon that led to the stabbing.

One witness described the suspect being struck four or five times with the baton before swinging overhand with some small, unidentified object held in a closed fist. Another witness said that the suspect had been struck in the head with the baton and was bleeding before he pulled out a knife or something, although he did not actually see anything in the suspect’s hands.

A third witness gave a statement indicating that the suspect only produced a weapon after the other male had produced the baton and hit him with it. This witness later claimed to have seen the suspect stab Mr. Kehoe, but in two previous statements had denied seeing the suspect stab anyone. In the first statement given to police this witness said Mr. Kehoe had punched the suspect, but in a later statement claimed not to have seen Mr. Kehoe fighting at all.

Another witness described hearing the male with the baton saying that the suspect was “f’ing dead”, although it is not completely clear when this statement was allegedly made.

There is no clear, reliable evidence establishing that the suspect produced a weapon before he was attacked and beaten with the collapsible metal baton. In fact, the preponderance of the evidence supports the opposite conclusion. Police ultimately recovered this weapon, which weighs 568 grams (1¼ pounds), and measures 64.1 cm (25 ¼ inches) when extended. The baton has a rubber grip on one end and a metal knob with a 5 cm (2 inch) circumference on the other end. It is a weapon capable of causing death or grievous bodily harm.

The individual who struck the suspect with the metal baton gave a series of statements to police. In these statements, he concealed information relating to his own involvement in the altercation and only acknowledged possessing the baton and using it during a fourth interview given almost two days after the event.

It cannot be said with any degree of certainty how Mr. Kehoe was stabbed. No witness provides a clear, reliable description of how it took place in the confusion at the back of the bus. While a reasonable inference can be drawn, based on the circumstantial evidence, that the suspect stabbed Mr. Kehoe, there is no evidence to establish whether he was intentionally striking out at Mr. Kehoe, whether he was striking out at the person hitting him with the baton and inadvertently struck Mr. Kehoe, or whether he was striking out blindly and inadvertently struck Mr. Kehoe.

There is no clear reliable evidence establishing that Mr. Kehoe and the suspect were ever directly involved in a confrontation with each other.

Mr. Kehoe suffered two cuts to the skin and soft tissue of his right forearm and the fatal stab wound to the front and right side of the base of his neck. While he may have been intervening or trying to intervene in the altercation when he was stabbed, the evidence does not clearly establish that was the case.

The Governing Criminal Code Provisions

The central issue in this case is whether there is a substantial likelihood of conviction on a charge of either murder or manslaughter, and whether self-defence could raise a reasonable doubt.

The provisions of the Criminal Code that must be taken into account in the analysis include:

• Section 222 - Homicide

• Section 229 - Murder

• Section 234 - Manslaughter

• Section 34 - Self-defence against unprovoked assault

• Section 37 - Preventing Assault

In assessing whether there is a likelihood that viable, not speculative, defences will succeed in this case, the Crown must consider whether an accused is entitled to the protection of any of the Criminal Code self defence provisions. As noted earlier, an accused person does not have to prove that he was acting in self defence, the onus is on the Crown to prove beyond a reasonable doubt that an accused person was not acting in self defence.

Although Mr. Kehoe suffered a fatal wound in this incident, and the circumstantial evidence reasonably supports an inference that the suspect was responsible for the wound, this same evidence does not provide a sufficient basis to establish beyond a reasonable doubt that the suspect intentionally stabbed Mr. Kehoe, that he meant to cause Mr. Kehoe’s death, or that he meant to cause him bodily harm that he knew was likely to cause his death, and was reckless as to whether death ensued or not.

The available evidence also does not provide a sufficient basis to prove that the suspect intended to cause death or bodily harm to another person and while attempting to do so, caused the death of Mr. Kehoe by accidentally or mistakenly stabbing him. There is therefore no substantial likelihood of the suspect being convicted of murder.

In order to secure a conviction for manslaughter, the Crown would need to prove that the suspect committed an unlawful act which resulted in the death of Mr. Kehoe and bodily harm to the victim was objectively foreseeable. Again, the circumstantial evidence in this case falls short. It is equally possible, and on the available evidence perhaps even probable, that the wound was caused by the suspect acting lawfully in self defence.

The force used by an accused in response to violence that is leveled or threatened against him must be assessed on an objective basis; however, the courts have previously ruled that an accused is not required to “measure with nicety the degree of force necessary to ward off the attack” and that “detached reflection cannot be demanded.” Self defence is available even if death or bodily harm results from the actions of an accused, subject to the specific circumstances of the case.

Even in circumstances where it can be proved that an accused meant to cause death or grievous bodily harm, this action can be justified if the accused acts under a reasonable apprehension of death or grievous bodily harm to himself from the violence with which the assault on him is being pursued, and he reasonably believes that he cannot otherwise protect himself.

An accused is not required to testify to establish a claim of self defence. Circumstantial evidence that is tendered by the Crown can support inferences as to the state of mind of an accused.

In this case, the investigative material gathered by police raises a realistic possibility, perhaps even a probability, that when the stabbing occurred, the suspect was acting to defend himself from an attack with a collapsible metal baton, a device designed and being used as an impact weapon. It is unclear exactly how the initial fight between the two females escalated into a confrontation between the males involving weapons, however the evidence does not establish that the suspect was the first to resort to a weapon, and in fact he appears to have done so only after having been struck several times with the metal baton. There is evidence that he was attempting to extricate his female friend from the initial fight and leave the bus, prior to being struck with the baton.

After the fight had broken out, in the ensuing confusion Mr. Kehoe somehow suffered the fatal wound. It is impossible to determine whether the suspect and Mr. Kehoe were intentionally engaged with each other or not. While the evidence can reasonably establish who inflicted the wound based on inferences, the Crown is not able to prove beyond a reasonable doubt that he was not acting in self defence at the time. As a result, there is no substantial likelihood of conviction and therefore no charge is approved in relation to Mr. Kehoe’s death.

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