Impact statements focus on racism, lawyers argue length of imprisonment during Bushby sentencing hearing

Brayden Bushby should spend several years behind bars at a federal prison for his role in the death of Barbara Kentner of Wabigoon Lake Ojibway Nation, both Crown and defence lawyers agreed at his sentencing hearing on Wednesday.

But the decision as to how long of a sentence Bushby should receive rests with Superior Court Justice Helen Pierce, who has reserved her judgment to May 4. 

Lawyers for the Crown argued for a sentence of eight to 12 years, while Bushby's lawyers said a sentence that long would be "too crushing" and suggested, in turn, a sentence of four years.

As for the family of Barbara Kentner, they don't have a number or a length of time they want to see Bushby behind bars. They want justice for the death of their sister in 2017, and they want Thunder Bay, Ont. to be a safe place for Indigenous people.

Brayden Bushby was convicted of manslaughter in the death of Kentner after he threw a metal trailer hitch from a moving car that struck the 34-year-old Indigenous mother while she was walking with her sister through a residential area in January 2017. She died six months later.

Standing outside the courthouse with family around her, sister Connie Kentner pointed across the street.

"We were born and raised here. Even this little park here, we have so many memories with our sister right there, even before it was a courthouse. We used to hang out and have fun, and it's not like that no more."

Melissa Kentner, another of Barbara's sisters, added this history of people throwing things at Indigenous people from moving cars in the city needs to stop.

"Stuff like that doesn't get recognized around here [as racist] and it's pretty sad that it had to happen with a blunt object in order for people to see what is going on. And this is not the first time that stuff like this has been done, but I hope it is the last time."

She said, "I hope the city does do something to make it a little safer."

Impact statements focused on racism in Thunder Bay

The sentencing hearing began with nine impact statements being presented before the court, including six from Barbara's family members.

Barbara's only daughter Serena, who is in Ottawa undergoing treatment for cancer, wrote she's lost interest in her education, she misses her mom's cuddles and being able to talk to her best friend.

Barbara's sister Cheryl Kentner addressed Bushby directly in her statement, writing that one day she will have to forgive him for his actions, but "today I only hold contempt for you."

She added, "from this day on, you will be known as a killer … you will have to live with the shame of what you've done."

We've lost our ability to walk down the street without fear.- Audrey Gilbeau, executive director of Nokiiwin Tribal Council

Three community impact statements were then presented before the court, with an explicit focus on the racism that is "woven into the social fabric of Thunder Bay."

Audrey Gilbeau, the executive director of Nokiiwin Tribal Council, told the court story after story of people throwing garbage and bottles at Indigenous people from their car.

"We've lost our ability to walk down the street without fear," Gilbeau said. "When racism is left unchecked, it leads to death."

One of the founding members of the Indigenous Bar Association, Donald Worme, then spoke of the racism endemic to the justice system broadly, but also in Thunder Bay specifically, as set out in a number of national and local inquests, commissions and reports.

Then the Ontario Native Women's Association addressed the racialized and gendered motivations of violent acts, reminding the court that Indigenous women are the most vulnerable population group in Canada, and the continued racial discrimination they face exacerbates their vulnerability.

All three community impact statements — which only became possible to do in 2015 and are not commonly submitted in Canada — argued that the racism that pervades Thunder Bay must be considered as context for Bushby's actions and the resulting sentence.

Brayden Bushby offers an apology

Brayden Bushby then addressed the court and told Kentner's family, "I accept all responsibility for my actions. It is my fault and my fault only. She did not deserve what happened to her."

He added, "whatever the sentence is, I will carry the guilt forever."

But shortly after, Melissa and Connie Kentner said that apology wasn't enough.

"What was going through his head when he was doing it. That's what I want to know, and that's what I've been saying. He just said, yeah he takes full responsibility. But what led him to do it, that's what I want to know," said Melissa Kentner.

Crown looking for eight- to 12-year sentence

Seeking a sentence of eight to 12 years, lawyers for the Crown centred their arguments on the facts that Bushby knew his actions could cause life-threatening injuries, that his actions were motivated by bias and prejudice toward women, and that Bushby's actions have made Indigenous women in Thunder Bay feel less safe.

"The actions of throwing things from a moving vehicle requires a denunciative sentence. While Bushby is not the first person to throw things at Indigenous people, he should be the last," said Assistant Crown Attorney Trevor Jukes.

The lawyers reminded the court that manslaughter is a spectrum from near accident to near murder, which is why options available to the presiding judge range from suspended sentence to life in prison.

The Crown lawyers suggested that Bushby could have been convicted of murder, if sober, but his intoxication when throwing the trailer hitch meant he could not have had the awareness necessary for a murder conviction. They said his drunkenness should not play a role in reducing his sentence.

They concluded by saying that Bushby should "get credit" for pleading guilty to aggravated assault and for showing remorse for his actions and the court should take his youth into account when sentencing. Yet, the Crown lawyers said the primary consideration must be clearly denouncing these actions.

Notably absent from the arguments was that race was a motivating factor for Bushby's actions.

Bushby's lawyers focus arguments on his character, ability to rehabilitate

The defence lawyers spent most of their energies painting a picture of Brayden Bushby as a young man, a new father and caring fiancee that deserves the opportunity to atone for his actions, be rehabilitated and reintegrated into the community.

They argued that Bushby's arrest, incarceration, restricted movement for the past four years and public labelling as a criminal are enough deterrence to stop Bushby from committing another such offence.

The lawyers said his youth and lack of criminal record must be considered in the sentencing, adding that he should not receive a jail sentence that is "too crushing." They also disputed whether a bias or prejudice toward women as a motivating factor for Bushby's actions could be proven beyond a reasonable doubt.

Justice Pierce said she would reserve her judgment on the sentence until May 4, when a decision is expected.