Bushby manslaughter sentencing hearing could consider factors such as racism, community behaviour

A founding member of the Indigenous Bar Association said that during the sentencing hearing for a Thunder Bay, Ont., man convicted of killing an Indigenous woman by throwing a trailer hitch from a moving vehicle, the judge can consider whether that was done as an act of prejudice or hate. 

On Monday, the 21-year-old Bushby was found guilty of manslaughter  for throwing a trailer hitch from a passing vehicle and striking Barbara Kentner in January 2017. Kentner, a 34-year-old mother from Wabigoon Lake Ojibway Nation, died less than six months later on July 4, 2017.

A manslaughter conviction has a maximum sentence of life in prison, but does not carry a mandatory minimum.

Donald Worme, a lawyer in Saskatoon, who is also a member of Saskatchewan's human rights tribunal, said there are six guiding principles that are considered during any criminal sentencing, including an attempt to denounce the crime and deter others. 

As well, Canada's criminal code provides for harsher sentences for crimes motivated by bias, prejudice or hate against identifiable groups.    

Though the four-day trial did not question Bushby's motivation, with no direct evidence that the act was intentionally racist, Worme said the local history of acts targeting the Indigenous community could be considered.

"The courts are also part of the community. The courts are citizens within the community and they have a realization of what's going on within the community," Worme said, citing a pattern in Saskatoon where violent offences involving knives began resulting in higher sentences due to a rash of incidents.

"Thunder Bay has been in the spotlight for the past little while because of numerous racist incidents, particularly items have been reported as being thrown from moving vehicles — garbage and such — at individuals, particularly Indigenous individuals merely walking on the street."

Worme said "very few cases" are directly cited to have dealt with the offender motivated by prejudice or hate based on race or ethnic origin.

Recommendations from the National Inquiry into Missing and Murdered Indigenous Women, which released its final report in 2019, have led to changes in sentencing in crimes against Indigenous women.

"It has given impetus to the provision within the Criminal Code to deal with Aboriginal women as a vulnerable segment of society," and therefore deserving of stiffer sentences,  Worme said. 

"I have no doubt that the findings of that particular commission ought to be reflected, at least in the submissions that are made before the court, and the court would certainly deal with them."

A sentencing hearing has been scheduled for Feb. 9, 2021, with submissions from both the Crown and defence, as well as victim impact statements. Superior Court Justice Helen Pierce has said she does not expect to reach a decision on that day.