Judge must 'feel the weight' of the trailer hitch used in assault on First Nations woman, Crown says
A decision in the trial of Brayden Bushby on the charge of manslaughter will be delivered Dec. 14
The judge in the manslaughter trial of a Thunder Bay, Ont. man was encouraged by the crown attorney to pick up the trailer hitch that is an exhibit in the case, to help her decide if Brayden Bushby could reasonably foresee that throwing it might kill someone.
Bushby has already admitted to throwing the hitch from a moving vehicle at Barbara Kentner, an Ojibway woman who was walking late one night with her sister in a residential neighbourhood.
Bushby's friends told the court he was getting to the "rowdy stage" after drinking all day and later laughed after striking Kentner with the hitch.
"You can pick it up for yourself and feel how heavy it is, "Crown Attorney Andrew Sadler told Justice Helen Pierce in his closing arguments on Thursday." It is the weight of Mr. Bushby's moral culpability."
The blow from the hitch ruptured Kentner's small intestine. The 34-year-old mother required surgery to repair it. Forensic pathologist Dr. Toby Rose testified that an infection from the injury or surgery led to Kentner's death, less than six months after the assault.
The defence cautioned the judge about "blind devotion" to Rose's expert testimony, saying that Kentner's underlying health conditions, including her end-stage liver disease make it impossible to draw a causal link between the assault and her death.
"I don't know what killed Barbara Kentner and neither does Dr. Rose," Joseph said, adding that every subsequent visit to hospital after Kentner's surgery was related to her end stage liver disease.
Sadler called that a 'thin skull' argument and said it is not legally sound.
"The accused must take the victim as they find them and if the victim is more susceptible to injury, or death from injury, that does not eliminate the culpability of the accused," he said.
Both lawyers also referred to anti-Indigenous racism in Thunder Bay as a back-drop for the assault, but not wholly relevant to the legal issues in the trial.
"Racism in Thunder Bay and in Canada is real," Sadler said as he began his remarks, adding that "why [Brayden Bushby] threw the hitch doesn't matter, what matters is whether that act contributed to Barbara Kentner's death."
Saddler said Bushby had to have known that throwing an object as weighty as a trailer hitch would cause harm, even if he did not intend to kill anyone.
Joseph, meanwhile, said he was "compelled to speak a little bit about race."
The National Inquiry into Missing and Murdered Indigenous Women and Girls "taught us that Indigenous and First Nations women are disproportionately victims of violent crimes," he said.
Following that, Joseph said, it is a "legitimate inference," that Bushby yelling, "I got one" after throwing the trailer hitch at Barbara Kentner referred to a First Nations person.
But he said an "equally legitimate inference" is that the phrase refers to "one of two individuals."
In the end, Joseph said he is not asking the judge to let Brayden Bushby "walk free. He will be found guilty on aggravated assault and he will be punished for it."
"I am asking you to determine if the act that Brayden Bushby committed, and will be punished for, ultimately resulted in Barbara Kentner's death."
Bushby pleaded guilty to the aggravated assault charge on Monday and not guilty to manslaughter. The charges were reduced from second-degree murder in a deal that saw the case proceed after years of delay as a judge-alone trial instead of a jury trial.
Read a full account of the trial from CBC reporter Jody Porter's Twitter feed.