12-04 - charge assessment decision announced in death of jamie kehoe

7/31/2019 12-04 - Charge Assessment Decision Announced in Death of Jamie Kehoe

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Criminal Justice Branch HQMinistry of Attorney General Mailing Address:PO Box 9276 Stn Prov GovtVictoria, BC V8W 9J7

Office Location:9

thFloor, 1001 Douglas Street

Victoria, BC V8W 9J7Telephone: (250) 387-3840Fax: (250) 387-0090

May 10, 2012 12-04

Charge AssessmentDecision Announced in Death of Jamie Kehoe

Victoria - The Criminal Justice Branch of the Ministry of Justice today announced thatno charges have been approved in connection with the stabbing death of Jamie Kehoeon a bus in Surrey, B.C. on October 7, 2011. Following a thorough review of theinvestigative report prepared by police into this incident, the Branch has concluded thatthere is no substantial likelihood of conviction on any homicide related charges inconnection with Mr. Kehoes death.

A detailed Clear Statementexplaining the Branch decision is attached to thisStatement. The Branch recognizes that this tragic death has had a profound effect onMr. Kehoes family and friends. The Branch also appreciates that the case hasgenerated public attention and concern.

However, in fulfilling the charge assessment responsibility in any case Crown Counselmust fairly, independently and objectively examine the available evidence to determinewhether the standard for approval of criminal charges has been met.

While there is circumstantial evidence that reasonably supports an inference that themale suspect identified by police is the person who delivered the fatal stab wound, thissame evidence does not provide a sufficient basis for the Crown to prove that thestabbing meets the essential legal elements for culpable homicide under the CriminalCode either a murder or manslaughter.

Media Contact: Neil MacKenzieCommunications CounselCriminal Justice Branch(250) 387-5169

MEDIA STATEMENTCRIMINAL JUSTICE BRANCH


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Clear Statement Media Statement 12-04

On the evening of October 7, 2011 Jamie Kehoe suffered a fatal stab wound during analtercation 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 forthe 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 fatalwound was inflicted or who was responsible for it. While circumstantial evidence reasonablysupports an inference that the male suspect identified by police (the suspect) is the personwho delivered the fatal stab wound, this same evidence does not provide a sufficient basis forthe Crown to prove that the stabbing meets the essential legal elements for culpable homicideunder the Criminal Code either a murder or manslaughter.

The statements of witnesses, both those who were involved in the altercation and those whosimply observed it, provide an incomplete and at times contradictory picture of events on thebus the night in question. Some witnesses gave multiple statements to police which wereinconsistent with each other on material points. The weight of the available evidence raises arealistic possibility, perhaps even a probability, that the suspect likely stabbed Mr. Kehoe, eitherintentionally or inadvertently, in response to an attack on the suspect by a male companion ofMr. Kehoe. The male companion had a collapsible metal baton in his possession and wasusing it to strike the suspect.

It is unclear what weapon was used to stab Mr. Kehoe and there is conflicting evidence aboutwhen it was produced. However, it appears from the evidence of some witnesses that it wasproduced in response to the baton attack. A number of other witnesses are uncertain when thesuspect resorted to using a weapon.

While the circumstantial evidence reasonably supports an inference that the suspect wasresponsible for the stabbing of Mr. Kehoe, the Crown is not able to establish to the criminalstandard of proof beyond a reasonable doubt that the suspect was not at the time defendinghimself against the attack with the metal baton, a device capable of causing death or grievousbodily harm. As a result, the Crown has concluded that the charge assessment standard hasnot been met for proceeding with any charges in the case. Based on the material provided tothe 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 andobjectively 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 strongsolid case of substance to present to the Court. In determining whether this standard issatisfied, Crown Counsel must determine:

1. what material evidence is likely to be admissible;2. the weight likely to be given to the admissible evidence; and3. 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, beyonda reasonable doubt, that the person who is alleged to have caused the death of Mr. Kehoeintentionally committed the act that led to death and either intended to kill the victim, or intendedto cause the victim bodily harm that he knew was likely to cause death and was reckless as towhether death ensued or not.


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To prove the offence of manslaughter, the Crown must be able to show, beyond a reasonabledoubt, that the person who is alleged to have caused the death of Mr. Kehoe intentionallycommitted 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 oncircumstantial evidence (as opposed to direct, eyewitness observation of the details on how anact unfolded). However, the test for doing so is very stringent. Where the Crowns case isbased on circumstantial evidence, the judge or jury can only convict if they are satisfied beyonda 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 onbehalf 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 mustconsider the whole of the evidence that is tendered in court, not only pieces of it. The accusedis presumed innocent until proved guilty beyond a reasonable doubt and if he testifies in hisown defence, his version of events does not have to be believed to raise a reasonable doubt. A

judge or a jury can disbelieve the accuseds testimony, but still be left in a reasonable doubt byit. It is the Crowns burden to prove each element of the alleged offence beyond a reasonable

doubt and where self-defence is raised (even if only on the Crowns evidence), the prosecutionmust prove that self-defence does not apply.

The Evidence

The evidence gathered by police shows that during the evening of October 7, 2011, Mr. Kehoeand three companions, a male and two females, consumed a quantity of whisky. While allappear to have been under the influence of alcohol, the evidence varies as to their degree ofintoxication. 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 inSurrey. 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 seatedin the last row on the extreme left-hand (drivers) side. The ensuing confrontation in which hewas 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 topolice in the early morning hours on October 8, 2011, she advised that as her group passed thesuspect she said Hi (name removed) you little piece of shit. The witness stated that at onepoint the female with the suspect turned around and Mr. Kehoes female companion saidto her What the fuck are you looking at? She stated that the female with the suspect keptgiving 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 thatwhat she had said to the suspect was Hi (name removed). How are you? She said that inresponse to the female giving her dirty looks, she then said can you stop giving me dirty looksplease? She was consistent in stating that when the female went to get off the bus she saidbye bitch.

Other witnesses are unclear about what, if anything, took place initially between Mr. Kehoesfemale companion and the suspects female companion, but a number of witnesses confirmhearing Mr. Kehoes companion call the other female a bitch as she was getting off the bus.


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In response to this latter comment, the suspects female companion got back on the bus and hitthe 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 tohave been trying to get his female friend out of the fight and off the bus. According to onewitness, Mr. Kehoes male companion started yelling let it happen, let them fight but thesuspect re-entered the bus and said shes 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 aphysical position to reliably see and hear what was happening between the parties, or were in astate of intoxication.

While numerous witnesses were on the bus, none is able to provide a clear account ofeverything that occurred, or reliably explain exactly how Mr. Kehoe suffered the fatal wound tohis neck. It is clear that Mr. Kehoes male companion produced and extended a collapsiblemetal baton and began striking the suspect with that weapon. On the evidence of a number ofwitnesses, this appears to have happened before the suspect produced some form of weaponthat 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 witnesssaid that the suspect had been struck in the head with the baton and was bleeding before hepulled out a knife or something, although he did not actually see anything in the suspectshands.

A third witness gave a statement indicating that the suspect only produced a weapon after theother male had produced the baton and hit him with it. This witness later claimed to have seenthe suspect stab Mr. Kehoe, but in two previous statements had denied seeing the suspect stabanyone. In the first statement given to police this witness said Mr. Kehoe had punched thesuspect, 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 fing

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 hewas attacked and beaten with the collapsible metal baton. In fact, the preponderance of theevidence supports the opposite conclusion. Police ultimately recovered this weapon, whichweighs 568 grams (1 pounds), and measures 64.1 cm (25 inches) when extended. Thebaton has a rubber grip on one end and a metal knob with a 5 cm (2 inch) circumference on theother 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 topolice. In these statements, he concealed information relating to his own involvement in thealtercation 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 witnessprovides 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 thesuspect stabbed Mr. Kehoe, there is no evidence to establish whether he was intentionallystriking out at Mr. Kehoe, whether he was striking out at the person hitting him with the batonand inadvertently struck Mr. Kehoe, or whether he was striking out blindly and inadvertentlystruck Mr. Kehoe.


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There is no clear reliable evidence establishing that Mr. Kehoe and the suspect were everdirectly 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 stabwound to the front and right side of the base of his neck. While he may have been interveningor trying to intervene in the altercation when he was stabbed, the evidence does not clearlyestablish that was the case.

The Governing Criminal CodeProvisions

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

The provisions of the Criminal Codethat 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 inthis case, the Crown must consider whether an accused is entitled to the protection of any ofthe Criminal Codeself defence provisions. As noted earlier, an accused person does not haveto prove that he was acting in self defence, the onus is on the Crown to prove beyond areasonable doubt that an accused person was not acting in self defence.

Although Mr. Kehoe suffered a fatal wound in this incident, and the circumstantial evidencereasonably supports an inference that the suspect was responsible for the wound, this sameevidence does not provide a sufficient basis to establish beyond a reasonable doubt that thesuspect intentionally stabbed Mr. Kehoe, that he meant to cause Mr. Kehoes death, or that he

meant to cause him bodily harm that he knew was likely to cause his death, and was recklessas to whether death ensued or not.

The available evidence also does not provide a sufficient basis to prove that the suspectintended 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 thereforeno substantial likelihood of the suspect being convicted of murder.

In order to secure a conviction for manslaughter, the Crown would need to prove that thesuspect committed an unlawful act which resulted in the death of Mr. Kehoe and bodily harm tothe victim was objectively foreseeable. Again, the circumstantial evidence in this case fallsshort. 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 himmust be assessed on an objective basis; however, the courts have previously ruled that anaccused is not required to measure with nicety the degree of force necessary to ward off theattack and that detached reflection cannot be demanded. Self defence is available even ifdeath or bodily harm results from the actions of an accused, subject to the specificcircumstances of the case.


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

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

In this case, the investigative material gathered by police raises a realistic possibility, perhapseven a probability, that when the stabbing occurred, the suspect was acting to defend himselffrom an attack with a collapsible metal baton, a device designed and being used as an impactweapon. It is unclear exactly how the initial fight between the two females escalated into aconfrontation between the males involving weapons, however the evidence does not establishthat the suspect was the first to resort to a weapon, and in fact he appears to have done so onlyafter having been struck several times with the metal baton. There is evidence that he wasattempting to extricate his female friend from the initial fight and leave the bus, prior to beingstruck 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 intentionallyengaged with each other or not. While the evidence can reasonably establish who inflicted thewound based on inferences, the Crown is not able to prove beyond a reasonable doubt that hewas not acting in self defence at the time. As a result, there is no substantial likelihood ofconviction and therefore no charge is approved in relation to Mr. Kehoes death.

12-04 - charge assessment decision announced in death of jamie kehoe

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