A man who threw a trailer hitch at an Indigenous woman in Thunder Bay, Ont., has been found guilty of manslaughter in her death, with a judge saying the fatal outcome of his violent act was foreseeable.
Justice Helen M. Pierce said Monday that the Crown proved Brayden Bushby knew he would seriously injure Barbara Kentner when he threw the hitch at her from a moving car in January 2017.
Pierce said the Crown also proved beyond a reasonable doubt that Kentner’s injuries from the assault accelerated her death months later. Kentner died in July 2017 at age 34.
The trailer hitch that was entered into evidence at the trial “is heavy enough that it requires two hands to hold it securely,” Pierce said, adding that its impact would be intensified because the vehicle from which it was thrown was moving.
“This was not a snowball,” Pierce told the court.
“I find that it would have been foreseeable to Mr. Bushby that hitting a person with such a heavy object would cause serious injury.”
In delivering her decision, Pierce referenced witness testimony that Bushby said “I got one” after striking Kentner, that he laughed after throwing the hitch, and that he told friends earlier he wanted to throw it through the window of an acquaintance’s house.
Pierce said those accounts proved that Bushby knew the hitch could do significant damage, and that he was aiming to hit one of the women who were walking on the street as the vehicle he was in went past.
The trial heard from a forensic pathologist who testified that complications from an abdominal injury _ caused by the hitch assault _ were the main cause of Kentner’s death.
Dr. Toby Rose, who performed the autopsy on Kentner, testified that the woman’s death was hastened by deteriorating health conditions after her small intestine was ruptured by the hitch. Liver disease was a contributing factor in the death, Rose testified, but not the main cause.
Bushby, 18 at the time of the attack, admitted throwing the hitch and pleaded guilty to aggravated assault, but not guilty to manslaughter.
His lawyer argued at trial that Kentner’s underlying health condition cast doubt on the true cause of her death.
But Pierce said Monday that she accepted the Crown’s argument that Bushby is responsible for what happened to Kentner after he assaulted her, regardless of whether she was in poor health to begin with.
She also accepted evidence from Rose, who testified that Kentner’s health was clearly in rapid decline after the attack, according to medical records.
Pierce said the defence did not prove its argument that an intervening factor like delayed medical treatment may have ultimately caused Kentner’s death. She said that argument was based on speculation, not evidence.
She also noted that given the time of the attack _ which happened after 1 a.m. as Kentner and her sister Melissa were walking down the otherwise empty street_ and the fact that Bushby did not stop to offer help, it was foreseeable that his victim might not get medical treatment right away.
An account from Kentner herself was also played in court, in a videotaped statement she gave to police before she died.
She said she was hit with a force that brought her to her knees, and she struggled to breathe, sleep and walk before she went to the hospital and learned the extent of her injuries.
The case drew criticism about how the justice system deals with incidents involving Indigenous victims after Bushby’s second-degree murder charge was downgraded to manslaughter and aggravated assault.
The trial heard the change was made because space limitations made a jury trial impossible in Thunder Bay during the COVID-19 pandemic.
Crown lawyer Andrew Sadler said it was a priority for the trial to proceed this fall, and the “only way” for that to happen was to have a trial by judge alone, which “could not happen, in this case, on the charge of murder.”
National Chief Perry Bellegarde of the Assembly of First Nations said Monday that the verdict was “extremely welcomed.”
“Far too often, First Nations people don’t get justice. Today we did,” Bellegarde said in a tweet. “Rest In Peace, Barbara Kentner.”
A sentencing hearing for Bushby has been set for Feb. 9.
