Ontario Superior Court Justice Helen M. Pierce reserved decision and reasons until May 4 at the Brayden Bushby sentencing hearing for the death of the late Wabigoon Lake citizen Barbara Kentner.
The Crown had called for a sentence of eight to 12 years and the defence a sentence of four years at the Feb. 17 sentencing hearing at the Thunder Bay Courthouse. Bushby was found guilty of manslaughter in Kentner’s death on Dec. 14 by Justice Pierce after he pleaded guilty to one count of aggravated assault and not guilty of manslaughter at his judge-only trial in early November at the Courthouse Hotel in Thunder Bay.
The sentencing hearing heard impact statements from Kentner’s daughter and other family members as well as from the Nokiiwin Tribal Council, Indigenous Bar Association and Ontario Native Women’s Association. Bushby also delivered an apology for his actions in the death of Kentner as well as the impacts on her family during the hearing.
The hearing was heard at the Thunder Bay Courthouse, which was closed for about four months due to a fire in an electrical unit. The hearing included submissions from Bushby’s lawyer and the Kentner family.
Pierce states at the beginning of her decision, which is posted online at: www.canlii.org/en/on/onsc/doc/2020/2020onsc7780/2020onsc7780.html, that Section 268 of the Criminal Code defines aggravated assault as wounding, maiming, disfiguring or endangering the life of another.
“By pleading guilty to aggravated assault, Mr. Bushby has admitted that the Crown can prove beyond a reasonable doubt that he intentionally applied force to Ms. Kentner to which she did not consent, and to which he knew she did not consent,” Pierce states. “While the indictment does not specify the result of his actions, the evidence supports that he wounded her and endangered her life when he did so.”
Pierce states in her decision that it is not disputed that Kentner was seriously injured when, in the early morning hours of Jan. 29, 2017, she was struck with a heavy trailer hitch that Bushby threw at her from a moving car.
“She was struck in the abdomen with a force that perforated her small bowel,” Pierce states. “Ms. Kentner was taken to hospital later that day where she underwent surgery. At the time of her injury, Ms. Kentner was seriously ill with liver disease. She died some five months later.”
Pierce states in her decision that the Crown submits that it has proven beyond a reasonable doubt that Bushby committed the unlawful act of throwing a trailer hitch at Kentner, striking her, and causing her death as defined by law and therefore submits that a conviction on manslaughter should follow.
“The defence argues that: a) the Crown has not proven, beyond a reasonable doubt, that Mr. Bushby caused Ms. Kentner’s death as defined by law; b) alternatively, the defence contends that there was an intervening cause that broke the chain of causation, such that, in law, Mr. Bushby was not morally responsible for her death,” Pierce states.
Pierce states at the end of her decision that Bushby is still responsible if he injures a person whose health, social and psychological condition makes it less likely that she will recover.
“On the facts of this case, I find that the Crown has proven, beyond a reasonable doubt, that there was no intervening act that displaces his responsibility in law for Ms. Kentner’s injury and ensuing death,” Pierce states. “For the foregoing reasons, I find that the Crown has proven, beyond a reasonable doubt, that by an unlawful act, Brayden Bushby injured Barbara Kentner, accelerating and causing her death, and further, that the Crown has met its burden to disprove intervening causes.
Therefore, I find Brayden Bushby guilty as charged of the offence of manslaughter.”