After he was forced off a Winnipeg Transit bus at its final stop nearly two years ago, a 24-year-old man has conceded he caused the death of the 58-year-old bus driver. But Brian Kyle Thomas's lawyer argued Wednesday it was the driver, Irvine Jubal Fraser, who first brandished a blade before Thomas picked it up and stabbed him to death.
Thomas has pleaded not guilty to second-degree murder in Fraser's February 2017 death, and he's arguing a jury should find him not guilty because he was defending himself from Fraser, who died after he was stabbed six times. Twelve jurors heard closing arguments from Crown prosecutors and defence lawyers Wednesday, each of whom explained their theories in a case that has prompted public memorials and displays of support from transit drivers across the city.
Crown prosecutor Keith Eyrikson urged jurors to convict Thomas, arguing the accused was already armed with a knife when he goaded Fraser into a fight. Defence lawyer Evan Roitenberg argued the victim, Fraser, was the aggressor, and that his client's actions were reasonable as a way to defend himself.
"This was a tragedy — a tragedy for his (Fraser's) family, and no one deserves to meet their end this way," Roitenberg told the jury. "But the Crown must satisfy you beyond all reasonable doubt that on this evidence, in these circumstances, that Brian's actions were unreasonable..."
Thomas's defence hinges on whether jurors believe, based on a shadow cast on the ground under streetlights, that Fraser was initially the one holding the weapon.
"The shadow casts a very large shadow of a doubt," Roitenberg argued.
Frame by frame, videos of the Feb. 14, 2017 incident were played repeatedly for the jury Wednesday, as lawyers on both sides parsed out differences and asked jurors to see for themselves. The defence argues the shadow of a weapon can be seen in Fraser's left hand in the seconds after he ran out of the bus after Thomas, and that Fraser caused a cut on Thomas's right ear that required three stitches.
The videos were taken from transit cameras inside the bus Fraser was driving and from another bus that pulled up to the same stop on the University of Manitoba campus while Fraser and Thomas were fighting outside the bus.
The fight began, the videos show, after Fraser repeatedly asked Thomas to get off the bus and eventually pushed him out the door. It was nearly 2 a.m., Fraser was at the end of his shift, and Thomas was intoxicated and had been sleeping before the bus reached its last stop. He asked Fraser about the whereabouts of his friend with whom he'd boarded the bus, asked to use a phone and said he didn't know where he was. The exchange grew heated and Fraser ultimately grabbed Thomas, who was holding on to the bars at the front of the bus, and pushed him out the open door.
Thomas tried three times to punch Fraser, who stood in the doorway and dodged the blows. Thomas then "taunted" the driver, prosecutors argue, and spat in his face. That's when Fraser ran out of the bus and the physical struggle ensued.
"It would be easy to think, in the calm confines of this courtroom, that we can look at the behaviour of Mr. Fraser and say that he should’ve acted much differently, that he should’ve been more patient and he should’ve been less aggressive. And simply, that may be true. I’m not standing before you today to try to justify his actions. But at the end of the day, what Mr. Fraser did when he got the accused off the bus did not justify in any way, shape or form what happened to him," Eyrikson said.
Crown prosecutors argue there is no evidence to show that Fraser kicked, punched or struck the man who would later be accused of killing him. They argue the bus driver was gripping the younger man by the shoulders, trying to get him under control, when Thomas began repeatedly stabbing him. The struggle lasted only about 14 seconds, and prosecutors told the jury that wasn't enough time for Thomas to think about defending himself. They argue he'd already planned to use a knife.
"Getting kicked off a bus, how ever rudely and with force, shouldn’t engender murderous rage," Eyrikson said. "We say that the expectations of our society are higher than that."
What kind of weapon was used isn't an issue since Thomas concedes he was responsible for Fraser's death, but Roitenberg questioned why the jury wasn't given more information about a pair of scissors that were turned in to police in the aftermath of the stabbing. A medical examiner previously testified Fraser's fatal wounds were caused by a single blade that could have been a knife or a pair of broken or open scissors.
Katie May reports on courts, crime and justice for the Free Press.