Justice Terry Schultes must decide if Kaiden Mintenko meant to murder the 17-year-old boy he stabbed in the chest on a Surrey bus last year, or find him guilty instead of the lesser crime of manslaughter.

Final submissions are being heard from the Crown and defence this week. Mintenko, 21, of Burnaby pleaded not guilty to second-degree murder in the April 11, 2023 stabbing at the outset of the with Schultes presiding, in B.C. Supreme Court in New Westminster.

The victim was stabbed in the right upper chest while riding on a Route 503 bus in the 9900-block of King George Boulevard and died in hospital. Schultes imposed publication bans on information that would identify the teen and two Crown witnesses. He also ordered a temporary publication ban on the identity of a fourth person. 

Mintenko did not testify.

First up, defence lawyer Mark Swartz argued Wednesday that the Crown hadn't proven its case for a murder conviction and his client should instead be found guilty of manslaughter.

"The position of the defence has been clear at the outset of these proceedings that this is not a situation that the Crown is able to prove the requisite intent for murder and the court should find Mr. Mintenko not guilty of second-degree murder but guilty of the lesser included offence of manslaughter," Swartz told Schultes. "The requirement is the Crown must establish beyond a reasonable doubt that Mr. Mintenko either meant to cause death or he means to cause bodily harm where he knows that it's likely to cause death and is reckless whether death ensues or not."

Swartz noted the intent required for a murder conviction is that Mintenko himself had the subjective foresight that death would occur, "and it's not looked at that the accused knew it could cause death but the accused knew that the injury is likely to cause death.

"Likely to cause death is meant to convey the notion of a substantial or real chance, as distinct from a mere possibility, and that it is not sufficient for the Crown to established that the accused foresaw only a danger of death," he argued. 

The trial heard that Mintenko admitted to police that he killed the teen but had also sobbed to the officers "he wasn't supposed to die, I didn't want it at all, I didn't want to kill him, I didn't want to, I wasn't trying to."

When a police officer then asked Mintenko what he thought was going to happen then, Mintenko replied, "I wasn't thinking."

A forensic pathologist testified a knife with a single edge was thrust 17 centimetres (6.69 inches) into the victim, through the hardest bony part of his third rib into his right lung, damaging his pulmonary artery and pulmonary vein.

Swartz noted in his final submissions that Mintenko told the police, "I just, I mean like, it wasn't supposed to go that deep either."

The defence lawyer pondered why someone who intends to kill someone with a knife on a bus would try to start a fist fight first? 

He said the problem is that "if it's your intent to kill at the outset and you start with a fist fight, is that you're on a bus with a number of passengers. I don't think it's unreasonable to think that some point someone may intervene in terms of a fist fight amongst two young persons. And so your goal of carrying through with a murder is subject to failure if there's intervention."

Swartz told the judge Mintenko acted impulsively and this, along with his consumption of alcohol and marijuana, his "youthfullness whereas his frontal lobes which involve the decision-making processes are not fully developed, his reduced of maturity and lack of life experience" and Mintenko's developmental and cognitive problems should lead him to find a reasonable doubt as to his client being guilty of murder. 

"This clearly was impulsive in nature, not well thought out."

The Crown will start its final submissions on Thursday.