COURT FILE NO.: CR-17-0062-000
DATE: 2021-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Mr. A. Sadler, Mr. T. Jukes for the Crown
- and -
Brayden Bushby
Mr. S. G. Joseph and Mr. R. Green, for the Accused
Accused
HEARD: February 12, 2020, at Thunder Bay, Ontario
Reasons for Sentence
Madam Justice H.M. Pierce
Introduction
[1] It is a serious matter to impose sentence on an individual for committing a crime, as Mr. Bushby has done. It is a process that every judge ponders.
[2] Judges are conscious that sentencing a person is a life-altering event, not only for the person being sentenced, but also for those close to him, those who have suffered a loss as a result of his criminal behaviour, and, indeed, for the broader community. We all have an interest in this sentence, and the messages that it sends.
[3] There will be those who think that this sentence is not harsh enough; others will think that it is too harsh. While the criminal law is not a forum to address the wrongs in society, it is a means of emphasizing the values of the community.
[4] In considering what sentence to impose, a judge is guided by many considerations, beginning with principles set out in the Criminal Code, R.S.C. 1985, c. C-46, and in the case law that courts have developed over the years. These reasons will set out the factors I have taken into account to arrive at Mr. Bushby’s sentence.
The Facts
[5] Around 1:00 a.m. on January 29, 2017, Mr. Bushby was a passenger in a car cruising the McKenzie Street area of Thunder Bay. He was 18 years of age. He had been drinking heavily that day. He told one of his friends that he wanted to drive around and yell at sex workers. The agreed statement of facts accepted at the sentencing hearing states:
At the time of the offence, McKenzie Street was a location in Thunder Bay where street level sex workers operated frequently.
[6] Earlier in the evening, Mr. Bushby retrieved a heavy trailer hitch with the stated intention of throwing it through the window of an acquaintance.
[7] While the car was moving, he boosted himself through the passenger window and heaved the trailer hitch at Melissa and Barbara Kentner, who were walking at the side of the road. The hitch struck Barbara Kentner in the abdomen with a force that caused her to drop to her knees in pain. Mr. Bushby was heard by the occupants of the car to say, “Yeah, I got one of them.” One of his friends heard him laugh.
[8] The force of the impact ruptured Ms. Kentner’s small bowel. Unfortunately, she had pre-existing health conditions that complicated her injury. Ms. Kentner was taken to hospital where she underwent emergency surgery to repair her bowel. She was treated in hospital for several days. A few days later, she returned to hospital to deal with complications from the injury.
[9] The forensic pathologist testified that the injury hastened her death. Barbara Kentner died on July 4, 2017. She was 34 years of age.
[10] Mr. Bushby pleaded guilty at trial to the charge of aggravated assault. In doing so, he admitted his involvement in injuring Ms. Kentner. After trial, he was found guilty of manslaughter.
[11] The legal issue at trial was not whether Mr. Bushby targeted Ms. Kentner because she was Indigenous. Instead, the defence challenged the Crown’s medical evidence that Mr. Bushby caused Ms. Kentner’s death. Ultimately, the court determined that the Crown had proven its case beyond a reasonable doubt based upon an evaluation of the medical evidence.
Positions of the Crown and the Defence
The Crown’s Position
[12] The Crown advocates that the prime considerations in sentencing Mr. Bushby should be denunciation and deterrence.
[13] While the Crown acknowledges that there are mitigating factors, it submits there are many more aggravating factors that should be considered in sentencing. It argues that this offence should be characterized as “near murder” on the continuum between accident and murder that manslaughter occupies. The Crown submits that Mr. Bushby should be sentenced to a penitentiary term of between 8 and 12 years.
[14] In addition, the Crown seeks the following orders:
a) that Mr. Bushby submit a sample of his DNA to the DNA Data Bank pursuant to s. 487.051(1) of the Criminal Code;
b) that he comply with a mandatory weapons prohibition of 10 years pursuant to s. 109 of the Criminal Code; and
c) that he not communicate with the Kentner family during the course of his sentence pursuant to s. 743.21(1) of the Criminal Code.
The Defence Position
[15] The defence submits that Mr. Bushby was a young, immature first-offender who acted out of character. It points to his remorsefulness, suggesting that he has excellent prospects for rehabilitation. Counsel submits that the sentence imposed should not crush him.
[16] The defence argues that Mr. Bushby should not be held accountable for the sins of others in the community who engage in abusive conduct towards Indigenous citizens. It advocates that a penitentiary term of four years will satisfy the objectives of denunciation and deterrence while demonstrating restraint, in view of Mr. Bushby’s youth and prospects for rehabilitation.
[17] The defence submits that the court can consider the difficulty in social distancing and the lack of programming in prison while the risk of contracting COVID-19 exists.
[18] The Crown and defence agree that Mr. Bushby should get enhanced credit against his sentence for 18 days of actual pretrial custody, equating to credit for one month served.
Impact on Those Close to Barbara Kentner
[19] Ms. Kentner’s family filed victim impact statements to help the court understand the effect of her death on their lives. Their pain spans at least three generations. Ms. Kentner was much loved and is much missed.
[20] Cheryl Kentner described her sister, Barbara, as a light in the darkness, a beautiful life, someone she could count on. The family miss hearing her voice. They miss her physical presence and the joy she brought to their lives.
[21] Ms. Kentner’s daughter, Serena, lost a supportive, nurturing mother. Serena left school to be with her mother when she was in hospital. Now that Serena is herself in hospital, she misses profoundly her mother’s love and support. Her mother motivated her to continue her education, helping her to set goals and celebrating her successes. Now that she is gone, Serena finds that her motivation is faltering.
[22] Serena was not the only child in the family whose education, nurture, and sense of security was affected by Barbara Kentner’s death. Melissa Kentner’s two youngest sons left Winnipeg for Thunder Bay when their aunt was injured. Markus lost his school year in the process. Isiah rarely leaves his home because he is afraid. The family does not go anywhere alone. They left Thunder Bay after Ms. Kentner died because of threats.
[23] Ms. Kentner’s aunt, Lana Kooshet, is the oldest member of the family. She explained that she felt compelled to assist the Kentner sisters and their children during Barbara’s ordeal. She travelled weekly to Thunder Bay from her home four hours away to offer financial and emotional support to the stricken family. She, too, is fearful of going out alone.
[24] As a group, the family experiences isolation, depression, anger, and fear. The legal proceedings and public attention to Ms. Kentner’s death have accentuated their pain.
[25] To the members of the Kentner family, and to Barbara’s friends, I acknowledge your anger and your grief. I am very sorry for your loss. Please accept the condolences of the court.
Impact on the Community
[26] The commission of criminal offences usually occurs in a context. That is the case here. Ms. Kentner, an Indigenous woman from Waabigon Saaga’igan Anishinabeg (Wabigoon Lake Ojibway Nation), was victimized when she walked peacefully on a city street. Understandably, her loss is felt keenly in the Indigenous community.
[27] The purpose of hearing community impact statements from the Indigenous community is to understand the context in which the offence occurred. This does not translate into a higher penalty on sentencing because Mr. Bushby has not been charged with committing a hate crime. He cannot be sentenced on that basis. The court must sentence him based on the evidence before it, in accordance with the framework set out in the Criminal Code, as it was at the time of the offence.
[28] Nevertheless, it is important to understand the far-reaching effect that Ms. Kentner’s death has had on the Indigenous community: that is a consequence of this offence.
[29] Section 722.2 of the Criminal Code provides for the filing of community impact statements as part of the sentencing process. In this case, three community impact statements were presented by Indigenous organizations. Meegwetch to these organizations for their thoughtful presentations about the ramifications of this offence.
[30] The Ontario Native Women’s Association described the place of Indigenous women in their culture in these words:
Indigenous women have the inherent role of not only life givers, but also the responsibility of ensuring Indigenous ways of knowing and being continue for future generations. They are the leaders in our families and communities.
[31] Art Solomon, Ojibwe Elder, put it this way:
Woman is the centre of the wheel of life. She is the heartbeat of the people. She is not just in the home, but she is the community, she is the Nation, one of our Grandmothers. The woman is the foundation on which Nations are built. She is the heart of her Nation…. The woman is the centre of everything.
[32] The Ontario Native Women’s Association observed that Indigenous women are disproportionately the victims of violence; that violence against Indigenous women is normalized and accepted. This includes throwing things at them on the street. Their statement concludes:
…Indigenous women cannot walk alone without fear of violence. Indigenous women cannot walk in groups in the city, regardless of time of day, without fear of violence. Indigenous women have no security and are not safe in Thunder Bay.
[33] The Indigenous Bar Association and the National Association of Friendship Centres presented a joint community impact statement on behalf of Indigenous communities across Canada, but particularly those living in the Thunder Bay area. Their purpose is to teach the court about the impact this offence has had on the wider Indigenous community, with a view to enhancing their access to justice.
[34] Their community impact statement is a mixture of anger and sadness. Among other commissions and studies, it references the report of the Office of the Independent Police Review Director. The Director determined that it was a common experience for Indigenous people in Thunder Bay to be targeted by objects thrown from vehicles: for example, eggs, drinks, garbage, and bottles.
[35] The joint statement concludes that these incidents are made worse by the lack of police response and a lack of emphasis on deterrence and denunciation when sentencing offenders for these crimes.
[36] The Indigenous Bar Association and the National Association of Friendship Centres conclude their statement with the following observations:
As a result of the senseless violence Barbara Kentner faced at the hands of Mr. Bushby, the Indigenous community has lost another soul. Our communities all suffer due to the loss of Barbara Kentner, an Indigenous woman who traditionally would have held a sacred and revered place in our communities. Each member of the IBA and the NAFC knows a ‘Barbara Kentner’ in their own communities. This kind of violence, especially against the women of our communities, is far too often experienced. That there is a ‘Barbara Kentner’ in every First Nation community across Canada is due to how our women are one of the most highly victimized populations in Canada. While to non-Indigenous people Barbara Kentner may represent another statistic amongst Canada’s missing and murdered Indigenous women, within the Indigenous community she was viewed as and represented a mother, a sister, an auntie and a friend stolen from those who knew her, lost to future generations.
[37] The statement continues:
The image of a wounded Barbara Kentner felled by a trailer hitch heavy enough to require the convicted to use two hands to accelerate her death, has struck at the hearts of the Indigenous communities across Canada as another example of how our lives – particularly the lives of our women and girls – are devalued to the point of being meaningless. The reports noted above vividly recount how prominent this devaluation is perceived by the non-Indigenous residents of Thunder Bay. Senseless, unjustified violence against our women and girls exacerbate and reinforce our communities’ sense that our people simply are not valued due to the social constructs of race and gender. We are made to feel unsafe in Thunder Bay, we are made to feel unsafe in our own communities, simply because we are Indigenous and simply due to the outward projection of gender. Indigenous women deserve a criminal justice system that values their human rights – our human rights – and Indigenous peoples’ right to life, liberty and security of the person. For Indigenous women and girls, the recognition of their humanness is especially paramount when they are victims of violence.
[38] The third community impact statement was presented by Nokiiwin Tribal Council on behalf of five First Nations and their members in the City of Thunder Bay and in the Robinson Superior Treaty Territory.
[39] Nokiiwin makes the point that Ms. Kentner’s death was not an isolated incident, but part of a pattern of normalized violence against Indigenous people in Thunder Bay. The violence is normalized because racism in Thunder Bay is normalized.
[40] It is a common experience for Indigenous people of every age to be subjected to racial slurs, sworn or spat at, or targeted by objects thrown from cars, such as eggs, drinks, bottles, bricks, garbage, or a trailer hitch.
[41] The Indigenous citizens of Thunder Bay feel devalued. This experience is described as follows in the Nokiiwin statement:
If your skin is brown or red, and you walk down the street, it doesn’t matter, you will be targeted. One member of our community recalls the day she heard about Barbara having a trailer hitch thrown at her, as she related that back to an incident that took place in 1983, when she was walking with some friends down the street and someone driving by threw a full can of Pepsi out the window and struck her friend. Her friend immediately fell to the ground and took a while to get up. She said she had grown up with eggs and rocks being thrown at her and her friends. She was disturbed that after all these years (34 years) this violent act was still happening to Indigenous people. She said, “My mother told us to be quiet, don’t be seen, don’t be heard and you will be safe.” This is not something I want to teach my children and I taught my children to use their voice and be seen and heard.
[42] Nokiiwin relates that very often violence against Indigenous persons in Thunder Bay is not reported because the victims feel they will be blamed for what happened to them. They feel that racism marginalizes their reports to police such that violence against them is minimized or not taken seriously.
[43] The words of Mr. Bushby, “I got one of them”, are disturbing to Indigenous people. Nokiiwin identifies the effect of the attack on Ms. Kentner in these words:
With this impact statement, we are saying, we are all “one of them.” When that trailer hitch hit Barbara, every Indigenous member of the community felt it. We felt that attack on ourselves. We felt the hate.
[44] Nokiiwin believes that racism killed Barbara Kentner.
[45] Its report also describes the fear that Indigenous people have for themselves and their children when walking or in parks. They are constantly on their guard against things being thrown at them. They do not feel safe. They do not feel they belong.
[46] The Nokiiwin statement concludes with the following reflections:
Hopefully this case and this guilty verdict can help bring about change and put value on Indigenous lives. Hopefully it can help stop minimizing us as humans, and stopping victim-blaming when we are assaulted, attacked and murdered.
It appears that what happened to Barbara is an acceptable act for many people in Thunder Bay. This case has shown that there is a need to shine a light on the ongoing racism in Thunder Bay. There needs to be a city-wide conversation about racism. There needs to be a reconciliation movement occurring in Thunder Bay. Our communities want to be part of it because Indigenous lives matter.
[47] To the members of the Indigenous community, I acknowledge with regret your anger, your fear and your sadness.
Circumstances of the Offender
[48] Because sentencing is an individualized process, the court must consider the circumstances of the offender. Mr. Bushby’s background and attitudes are set out in the pre-sentence report.
[49] At the time of the offence, Mr. Bushby was 40 days past his 18th birthday. He is now 22 years old. Although his parents separated when he was ten years old, he grew up with a caring and supportive relationship with both his parents and his grandparents. His grandparents lived nearby and sometimes cared for him and his older sister. He also enjoyed a relationship with his aunt. As both parents worked, the family was financially stable and was able to afford travel and outdoor activities.
[50] Mr. Bushby struggled with academic learning during his school years and was assessed with Attention Deficit Hyperactivity Disorder for which he received medication. Subsequently, his learning disabilities were identified. He is a hands-on learner, with recognized ability in mechanical skills. He won an award in a Northwestern Ontario skills competition.
[51] Mr. Bushby experienced bullying in elementary school; sometimes, the bullying led to physical fights with the bullies. After a time, his mother transferred him to another school. Although he was no longer bullied there, he did not adapt socially. He is three credits short of his high school diploma.
[52] As a teenager, Mr. Bushby experimented with alcohol in the company of peers, primarily on weekends. He indicated that he was so impaired by alcohol the night of the offence that he blacked out and cannot remember his actions.
[53] He advised his counsel that he has not used alcohol since this offence. Before this conviction, he had no criminal record. Despite being on bail for more than four years, he has not violated the terms of his release.
[54] Mr. Bushby left school to work in his father’s auto repair shop or to work seasonally as a machine operator. He last worked in 2020. Like many, his employment prospects have been affected by the pandemic.
[55] Mr. Bushby was especially close to his father, from whom he learned mechanical skills. They shared a love of the outdoors.
[56] When Mr. Bushby was nine years old, he and his father went on a hunting expedition. While driving, his father suffered a diabetic seizure. He brought his truck to a stop on the train tracks. Recognizing the danger, Mr. Bushby shut off the vehicle and ran to a nearby store to get help. Thereafter, Mr. Bushby became very protective of his father. His father died in 2019, which has been very hard for Mr. Bushby. He continues to mourn his father’s loss.
[57] Mr. Bushby recently became engaged. He and his fiancée have a mutually supportive relationship. They welcomed a child to their family in December 2020. Mr. Bushby is described as a “doting, caring and hands-on father” whom his fiancée describes as “compassionate, caring and reliable.” He has strong bonds with his own family and that of his fiancée. He assists his elderly grandparents with snowplowing, woodcutting, and other tasks.
[58] Mr. Bushby denies harbouring racial biases towards others, and his family concurs with this statement.
[59] His family believes that he has become significantly more mature in recent years. The birth of his child, the death of his father, and his involvement in the legal system have all had an effect.
[60] Mr. Bushby reports being verbally accosted in the community and abused on social media as a result of this case. He expects this will continue.
[61] When interviewed for the pre-sentence report, he expressed remorse for his actions. He stated:
I wish I could take it back and that things were different. I’m sorry they have to grow up without a mother and sister. I can see how it’s made a big impact on their life as well as mine.
Mr. Bushby’s Apology
[62] Mr. Bushby apologized at the sentencing hearing, taking responsibility for his actions and expressing remorse. He acknowledged that Ms. Kentner did not deserve what happened to her. He recognized that his actions left her daughter without a mother, especially when she needed her, and that her family felt shattered and in pain.
[63] To Barbara Kentner’s family and friends, he explained that even though they are very angry with him and may not accept his apology, he wanted them to understand that he is “incredibly sorry for the difficulties and impact” her death has had on them.
[64] Mr. Bushby also apologized to the community and to Indigenous people, saying that he was ashamed and embarrassed for the profound impact his actions have had.
[65] He concluded by saying, “Whatever the sentence is, I will carry the guilt the rest of my life. I hope to use this time in custody to be a better person.”
Sentencing Principles
[66] I will use certain legal terms in these reasons that bear some explanation, so that their meaning can be widely understood.
[67] “Culpability” means conduct that is deserving of blame in a legal sense. It usually means the responsibility attributable to the offender.
[68] “Denunciation” is a public condemnation of criminal behaviour. It is a statement that the court makes on behalf of the community about behaviour that is contrary to the law and unacceptable in a peaceful society.
[69] “Specific deterrence” is a message to the offender to dissuade him from repeating criminal behaviour for fear of being punished again.
[70] Finally, “general deterrence” is a message to the broader community that committing criminal acts may result in punishment. It is a reminder to members of the community not to break the law.
[71] The Criminal Code provides guidance to judges in sentencing. In considering what sentence to impose in this case, it is helpful to review the relevant principles.
[72] It is a fundamental principle of law that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. In other words, the punishment must fit the crime and the criminal.
[73] Section 718 sets out the following purposes of sentencing:
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[74] Section 718.2(a) enumerates aggravating and mitigating circumstances to be considered in sentencing. I will discuss these at greater length later.
[75] Section 718.2(b) of the Criminal Code describes a principle called sentence parity. This means that comparable sentences should be imposed for similar offences. It states:
[A] sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[76] Sections 718.2(d) and 718.2(e) deal with the principle of restraint: the notion that a sentence should be as short as possible while recognizing all factors to be considered.
[77] Because the range of sentences imposed in manslaughter cases is very broad, it is also helpful to consider principles developed in case law as they apply to manslaughter.
Principles in Manslaughter Cases
[78] There is no minimum sentence for the offence of manslaughter. The maximum sentence is life in prison. Central to determining a fit sentence for manslaughter is a determination of the level of moral culpability, even for impulsive killings: see R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 233.
[79] Ideally, comparing sentences imposed in similar cases would be helpful; however, the facts of this case are unique. There is no case like this one.
[80] Some cases cited by counsel are so dissimilar to this case that they are readily distinguishable: for example, cases involving Gladue factors, domestic violence, or sentences based on joint submissions. Accordingly, I will not consider sentences imposed in these types of cases as they are not sufficiently comparable.
[81] The range of sentence in manslaughter cases is affected by, but not limited to, the mens rea or mental element of the offender when the court assesses his moral blameworthiness. The Alberta Court of Appeal adopted a framework based on level of risk in R. v. LaBerge, 1995 ABCA 196, 165 A.R. 375, at paras. 6–11, (also cited as R. v. K.K.L., 1995 ABCA 196).
[82] In LaBerge, at para. 9, the court determined that there are three broad types of unlawful acts in manslaughter cases:
• those likely to put the victim at risk of, or cause, bodily injury;
• those likely to put the victim at risk of, or cause, serious bodily injury; and
• those likely to put the victim at risk of, or cause, life-threatening injuries.
[83] The court in LaBerge determined that the offender’s mental state at the time of the offence must then be evaluated in terms of the relative seriousness of the crime itself.
[84] Next, the sentencing judge must consider the personal characteristics of the offender, and whether they mitigate or aggravate the offender’s moral blameworthiness before comparing the offender with other offenders: LaBerge, at para. 10.
[85] At para. 6 of LaBerge, the Alberta Court of Appeal described the wide range of moral culpability in manslaughter cases. The court observed:
… the offence of unlawful act manslaughter covers a wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other.…Different degrees of moral culpability attach to each along a continuum within that spectrum….[Citations omitted.]
[86] The court held that the moral culpability of an offender can be assessed by examining the mens rea or mental element of the offender at the time of the offence. As the risk to the victim, viewed objectively, increases, so does the offender’s moral blameworthiness: LaBerge, at para. 17.
[87] Reasons for judgment in this case can be found at R. v. Bushby, 2020 ONSC 7780. When considering proof of the mental element required for manslaughter, I concluded that it would have been foreseeable to Mr. Bushby that hitting a person with such a heavy object thrown from a moving vehicle would cause serious injury: see paras. 64-66.
[88] Thus, his moral blameworthiness is in the mid-range of the spectrum. The defence concedes the gravity of the offence is significant.
[89] In this case, the Crown submits that the appropriate range for sentence is 8 to 12 years because Mr. Bushby’s moral blameworthiness for throwing a heavy trailer hitch approaches what the courts have sometimes called “aggravated manslaughter” or “near murder.”
[90] The Crown argues that even though Mr. Bushby was drunk, he was capable of leaving the vehicle to retrieve the trailer hitch; formulate a plan to throw it through the window of an acquaintance; summon enough coordination to hoist himself out the window of a moving car, and hurl the heavy hitch at Ms. Kentner, striking her. The Crown contends that Mr. Bushby had the highest level of awareness of the harm his actions would cause, just short of the intent for murder.
[91] I agree with the Crown’s submission that, even though drunk, Mr. Bushby demonstrated a high degree of awareness that his actions would cause harm.
[92] The Ontario Court of Appeal adopted the term, “aggravated manslaughter” in a sentence appeal called R. v. Clarke (2003), 2003 CanLII 28199 (ON CA), 172 O.A.C. 133 (C.A.). The court held that 8 to 12 years’ imprisonment was the appropriate range for such cases. However, in R. v. Tahir, 2016 ONCA 136, at para. 2, the court clarified that this range of sentence does not set maximums or minimums.
[93] In Clarke, the offender brutally stabbed his friend seven times in his own home. The friend was impaired by alcohol. The wounds were inflicted with considerable force; two of them could have caused the victim’s death. Clarke was charged with second degree murder but convicted by a jury of the included offence of manslaughter. Presumably, the jury accepted evidence of provocation or of alcohol consumption casting doubt on his intent to kill.
[94] The offender was 29 years old at the time of the offence. The victim was frail and unable to defend himself. The offender hid the knife used in the attack and waited 20 minutes before summoning medical help. The killing had a devastating effect on the victim’s family.
[95] Giving the offender credit for pretrial custody, a sentence of nine years was imposed.
[96] In the later case of R. v. Devaney (2006), 2006 CanLII 33666 (ON CA), 213 C.C.C. (3d) 264 (Ont. C.A.), the Ontario Court of Appeal considered whether, for purposes of sentencing, there is a sub-category of manslaughter called “aggravated manslaughter.” The court held that this was not a useful designation as it adds complexity to sentencing unnecessarily and detracts from a case-by-case approach: see paras. 33-34.
[97] In Devaney, the Court of Appeal affirmed an 11-year sentence for manslaughter. This, too, was a jury conviction for the lesser included offence of manslaughter based on the offender’s consumption of alcohol.
[98] The offender stabbed his landlady 107 times all over her body after she told him to move out. He was in his early 40s, unemployed, and had a significant alcohol problem but no criminal record.
[99] The Crown also cited the following cases in which sentences were imposed for offences characterized as “aggravated manslaughter.”
[100] In R. v. Cleyndert, 2006 CanLII 33851 (Ont. C.A.), a judgment released four days after Devaney, a different panel of the Court of Appeal also adopted the term, “aggravated manslaughter.” The court upheld a sentence of 12 years for an offender who inflicted multiple stab wounds with a concealed prohibited weapon. Several wounds were life-threatening. The offender also had a previous youth record for assault and uttering threats.
[101] The offence took place after a high school graduation. The offender, 19 years old at the time, was belligerent during the graduation party. His victim was unarmed and was expecting a fistfight.
[102] In R. v. Punia, 2018 ONCA 1022, the Court of Appeal approved a range of sentence of 8 to 12 years in an “aggravated manslaughter” case where a woman stabbed her sister-in-law in the neck, leading to considerable blood loss. She made no effort to summon medical help and concealed the death for three years. A sentence of 12 years was upheld.
[103] In R. v. Hall, [2008] O.J. No. 1965 (Sup. Ct.), two army reservists pleaded guilty to manslaughter in the brutal beating death of a homeless man. They also pleaded guilty to assault causing bodily harm to a citizen who tried to stop the attack. They were sentenced to ten years for the death and one further year for the assault.
[104] The offenders, in their early 20s, were intoxicated at the time, had no criminal records, and were otherwise of good character. They were remorseful and undertook alcohol treatment. Nevertheless, the court held that there were many aggravating factors, such that deterrence and denunciation were the primary sentencing principles.
[105] The courts have continued to use the term “aggravated manslaughter” to characterize a higher range of sentence for manslaughter that emphasizes denunciation and deterrence. Often, cases described as aggravated manslaughter involve particularly brutal killings in egregious circumstances. They seldom involve a single blow.
[106] Some may say that this is an arbitrary distinction. Yet the use of the term “aggravated manslaughter” may itself be seen as an arbitrary classification. The attack on Ms. Kentner was serious. It hastened her death. It involved the use of a weapon and was entirely unprovoked. However, the attack was not like cases involving multiple stab wounds or a savage beating.
[107] In my view, as the Court of Appeal concluded in Devaney, characterizing an offence as “aggravated manslaughter” invites the court to pigeonhole a case in a pre-determined range of sentence without considering all other applicable sentencing considerations. While it is necessary to determine the culpability of an offender, there are no shortcuts to sentencing. The sentencing court is still required to consider and balance all relevant factors in imposing sentence.
[108] The Crown submits that Mr. Bushby cannot claim intoxication as a mitigating factor in sentencing since he already had the benefit of having the charge of second degree murder reduced to manslaughter. I agree with this submission.
[109] In R. v. Salmon (1972), 1972 CanLII 1340 (ON CA), 10 C.C.C. (2d) 184 (Ont. C.A.), at p. 186, the Ontario Court of Appeal determined that the offender was not entitled to claim intoxication as a mitigating factor when convicted of manslaughter instead of murder because of drunkenness. This approach has been followed in subsequent cases cited by the Crown.
[110] The Crown submits that, based on the reasoning in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the court should take judicial notice of “local conditions” in order to denounce and deter others from racist behaviour, such as throwing objects at Indigenous persons.
[111] The defence argues that procedural fairness requires the Crown to seek a Lacasse hearing in advance of the sentencing hearing before asking the court to take judicial notice of local conditions.
[112] Here, the court has the advantage of community impact statements that discuss the impact of racist behaviour on the Indigenous community in Thunder Bay. These statements, accepted in evidence, discuss the lived experience of Indigenous citizens who are targeted by objects thrown from passing cars. Thus, it is not necessary to take judicial notice of these local occurrences.
The Crown’s Comparative Cases
[113] The Crown cited several cases that it submits are comparable to this case.
[114] In R. v. Roberts-Stevens, 2019 ONSC 257, a 21-year-old drug dealer shot his friend at close range with an illegal firearm. The victim bled to death. The offender, found guilty of manslaughter, was sentenced to 10.5 years.
[115] This sentence was imposed to denounce and deter gun violence. The court found the offender carried a gun to settle scores. Thus, this case is readily distinguishable from the case at bar.
[116] In R. v. Norman, [2005] O.J. No. 1073 (Sup. Ct.), the offender pleaded guilty to manslaughter. He attended at the home of his drug dealer while armed in order to buy drugs. A dispute ensued and the offender stabbed the victim, then beat him to death. The court noted the gratuitous and excessive violence. Norman fled the scene without obtaining aid for the victim.
[117] The offender was 31 years old at the time of the offence. He was remorseful. While in custody, he completed three high school courses to obtain an apprenticeship. Norman had an employment history, family support, and prospects of rehabilitation. The court sentenced the offender to a net sentence of eight years in prison. He had already served two years of pre-sentence custody.
Sentences for Youthful First Offenders
[118] The defence submits that the sentence imposed should be balanced with sentencing principles applicable to young and first offenders. To that end, it cited several cases. In my view, cases not involving a death are readily distinguishable because of a different emphasis on denunciation and deterrence, and because of the seriousness of this offence.
[119] In R. v. D.B., 2008 SCC 25, 2 S.C.R. 3, at para. 41, the Supreme Court discussed sentencing of young people. The court observed, “…because of their age, young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment.”
[120] In R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), the Court of Appeal reduced a sentence from seven years, nine months, to four years, two months, and gave credit for pretrial custody. The court held that the trial judge was wrong to focus primarily on denunciation and general deterrence for a 19-year-old serving his first penitentiary sentence.
[121] In Borde, the offender pleaded guilty to aggravated assault, possession of a loaded, restricted weapon, using a firearm to commit an indictable offence, and breach of recognizance. He was on probation when the offences were committed and breached an order that he not possess guns or ammunition. Borde came from a chaotic family background and had a substantial youth record that included crimes of violence.
[122] At para. 36, the court concluded that, apart from the seriousness of the offences committed, his youth was an overwhelming factor in sentencing. The court agreed that a penitentiary term was appropriate; however, it held that where an offender had not previously been to penitentiary or served a long adult term, the sentence imposed should be the shortest possible to achieve relevant sentencing objectives.
[123] In R. v. Kwakye, 2015 ONCA 108, the Court of Appeal reduced a sentence from ten to seven years in a manslaughter case.
[124] There is a lack of detail about Kwakye in the court’s endorsement. He was an 18- year-old first offender with a supportive family, a positive background, and significant prospects for rehabilitation.
[125] The offender and his partner were in the midst of a home invasion when the partner shot the victim. The court held that the offender was less culpable and that “rehabilitation remains an important consideration when sentencing an 18-year-old first offender on any offence”: Kwakye, at para. 3.
[126] In R. v. Rocchetta, 2016 ONCA 577, 352 O.A.C. 130, the Court of Appeal reduced a sentence from 21 months to 9 months in prison on a conviction for aggravated assault. A three year period of probation was upheld.
[127] The court held that the trial judge failed to consider the restraint principle in ss. 718.2(d) and 718.2(e) of the Criminal Code. The assault, which occurred at a drunken social event, destroyed the victim’s vision in one eye.
[128] The court concluded at para. 35:
…a first period of incarceration imposed on a young first offender should be as short as possible while giving adequate weight to the principles of general deterrence and denunciation.
[129] Rocchetta was a 23-year-old first offender. He and his brother, also charged, had operated a successful business for eight years. He was in a committed, long-term relationship, with no history of substance abuse or anger control issues. The court concluded that he was remorseful, that his conduct was an aberration, and that he was not a risk to reoffend.
[130] In R. v. Williams, 2018 ONCA 367, the Court of Appeal reviewed a sentence for two sets of drug and firearm offences. The offender was found guilty after trial on the first set of offences and pleaded guilty to the second.
[131] The offender was 23 years old when first charged. The court found that the sentence of 12 years, less credit of 5 years for time served, risked crushing the offender. It reiterated that a first penitentiary sentence should be the shortest possible while achieving relevant sentencing objectives: Williams, at para. 9. The sentence was reduced to nine years’ imprisonment less credit for pre-sentence custody.
[132] In R. v. Dirie, 2018 ONSC 5536, the court sentenced Mr. Ali on manslaughter. He was a 19-year-old with no criminal record. The court described the offence as at the higher end of manslaughter, close to murder. The offender acted as a party to the killing, facilitating the tracking and shooting of a victim on the street. His co-accused was convicted of first degree murder.
[133] Mr. Ali had a positive background. He was described as a “good son and brother, a good member of the community… who is serious about his education….” The court remarked at para. 41:
Were it not for Mr. Ali being a youthful first offender with a good background, I would not hesitate to impose a sentence of 12 years for this offence. But being a youthful first offender has a significant impact on the appropriate punishment.
[134] Justice Dambrot continued at para. 42:
… when a youthful first offender is sentenced for an extremely serious crime of violence for which a lengthy penitentiary term is warranted, all the principles of sentencing, including rehabilitation, remain important, but the objectives of denunciation and general deterrence gain prominence, and grow with the seriousness of the circumstances of the particular crime.
[135] Mr. Ali was sentenced to a term of nine years, less enhanced credit for pre-sentence custody.
The Defence Comparative Sentences
[136] The defence also filed several sentencing cases that it argues are comparable.
[137] In R. v. Shanks (1996), 1996 CanLII 2080 (ON CA), 4 C.R. (5th) 79 (Ont. C.A.), the Court of Appeal reduced a sentence for manslaughter from six years to two years less a day.
[138] The facts are peculiar, which is undoubtedly reflected in the sentence. Two neighbours got into a dispute over a fight between their cats. The victim’s wife told the offender that her husband had a history of strokes. The two men engaged in a brief consensual fight during which the victim was put on the ground. Then the fight stopped. The victim died later that night of a heart attack found to be causally connected to the fight.
[139] The court held that the sentencing judge gave too little consideration to prospects for rehabilitation. Following his arrest, the offender completed residential alcohol treatment and abstained thereafter. He was remorseful and exhibited a change in behaviour and attitude.
[140] In R. v. Hanifan (2001), 2001 CanLII 4000 (ON CA), 144 O.A.C. 110 (C.A.), the offender punched the victim in the face once with a force that knocked him to the ground, striking his head on the pavement. He died of head injuries.
[141] A sentence of six years for manslaughter was upheld on appeal. The court noted the tragic consequences of a severe blow and the offender’s criminal record. As there is little analysis of the sentence, this authority is not helpful.
[142] In R. v. Tabbara, 2009 CanLII 57453 (Ont. Sup. Ct.), a 21-year-old first offender was sentenced to two years less a day plus probation for manslaughter. Friends of the offender provoked the victim who walked away. The offender then struck a fatal blow to the back of his neck.
[143] The court held that the offence was not a case of “near murder” on the continuum of moral culpability. Specifically, no weapon was used, there was no planning or deliberation, and there was no gratuitous violence or brutality. The offender was remorseful and there were many other mitigating factors, including age, and efforts at rehabilitation and education.
[144] In R. v. Costa, [1996] O.J. No. 299 (Gen. Div.), a 21-year-old offender pleaded guilty to manslaughter. Justice Watt sentenced him to 14 months’ imprisonment.
[145] The victim and his friends were vandalizing cars when the offender and his friends intervened. The victim swung an object at the accused. The accused got control of the object and retaliated with a single, fatal blow to the victim’s head.
[146] The court characterized the offender’s conduct as “private law enforcement” against an intoxicated accused who was no threat to the offender. The offender had no history of violence, was steadily employed since the age of 16, upgraded his education, had the support of his family and employer, and was married and expecting a child. He was profoundly remorseful and posed no risk to others. The court held that rehabilitation and specific deterrence were not considerations for sentence.
[147] The case of R. v. Iozzo, [2004] O.J. No. 3641 (Sup. Ct.), involved a 22-year-old who pleaded guilty to manslaughter. The offender and his friends got into two minor fights with the victim and his friends. Later, the offender, armed with a bottle, and his friend, armed with a hockey stick, went to continue the fight. Iozzo struck the victim’s friend from behind with a bottle, which broke; then he hit the victim in the neck with the broken bottle, severing an artery. The second victim died.
[148] The offender was sentenced to three years in a penitentiary. The court found that he set out to injure, not to kill. He had no criminal record and no history of violence. He came from a stable family, was pursuing university studies, and otherwise led a constructive life. He was deeply remorseful.
[149] I agree with the Crown’s submission that there are more serious aggravating facts in the case at bar than in Shanks, Tabbara, Costa, and Iozzo.
[150] A sentence of six years, less time in pretrial custody, was imposed for manslaughter in R. v. Sahal, 2016 ONSC 6864, 368 C.R.R. (2d) 370. Sahal was a 22-year-old first offender who fatally shot the victim in the chest and fled with the weapon.
[151] The court balanced the need to denounce gun violence with the mitigating effects of the offender’s youth, lack of a criminal record, supportive family, efforts at employment, committed relationship with his pregnant fiancée, and positive reputation. The court indicated that, but for those mitigating factors, the sentence would have been significantly greater.
[152] In R. v. Yusuf, 2012 ONSC 2421, the offender pleaded guilty to manslaughter. He was sentenced to six and a half years, less time in pretrial custody. Yusuf was 20 years old at the time of the offence and intoxicated. He punched the victim in the head, knocking him off his bicycle, then repeatedly stomped and kicked him about the head and body. Then the offender’s friends stole from the victim as he lay on the ground.
[153] While the victim lay on the ground, convulsing, the offender returned to the bar, “high-fiving” his friends. Then, he left the city. He bragged to co-workers about “stomping” the victim.
[154] Three weeks after the attack, the victim died of complications from the head injury, having never regained consciousness.
[155] The attack was unprovoked. The court characterized the initial blow as impulsive, but it was followed by gratuitous additional violence against the unconscious victim.
[156] The court recognized the need for restraint in sentencing youthful first offenders, but held that denunciation, and general and specific deterrence were paramount since the offender, who showed no concern for the victim, had a high degree of moral culpability. The court disbelieved his expressions of remorse.
[157] Although he had a supportive family, he breached terms of bail repeatedly and did not appear for trial. He was sentenced to one additional year in custody for failing to appear at trial.
[158] Finally, R. v. Braune, 2006 ONCJ 50, is a decision from the Ontario Court of Justice. The offender was 18 when he pleaded guilty to manslaughter. He was sentenced to 16 months in addition to enhanced credit of 14 months for pretrial custody.
[159] The offender objected to remarks the victim made about his girlfriend. He punched him in the head. The force of the punch knocked the victim head-first into a wall. The single blow was fatal. The court described the first-time offender as at low risk to offend, remorseful, with a supportive family. He had made efforts at rehabilitation. In my view, this case is also distinguishable for its lack of aggravating factors and reduced culpability of the offender.
Aggravating and Mitigating Factors
[160] Section 718.2 of the Criminal Code instructs trial judges that a sentence “should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender.”
[161] An aggravating circumstance is one that makes the offence more troubling and suggests a harsher penalty. A mitigating circumstance moderates the severity of the offence, suggesting leniency in sentencing. In imposing sentence, the court is required to consider both aggravating and mitigating factors.
[162] If there is a dispute about an aggravating fact, the burden is on the Crown to prove it beyond a reasonable doubt: Criminal Code, s. 724(3)(e). Where there is a reasonable doubt, it must be resolved in favour of the offender.
[163] The Crown conceded that it cannot prove beyond a reasonable doubt that Mr. Bushby was motivated by bias towards Indigenous people when he attacked Ms. Kentner.
Aggravating Factors
[164] The list of aggravating circumstances at s. 718.2(a) of the Criminal Code is not exhaustive. However, two subsections of the list are relevant to this sentence:
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender orientation or expression, or any other similar factor; [and]
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
[165] The Crown argues that Mr. Bushby was motivated by bias towards women, specifically sex workers, at the time he attacked Ms. Kentner. It submits that the term, “bias” can be defined as “prejudice” or “preconceived judgment.”
[166] The defence disputes this allegation. Thus, the burden is on the Crown to prove bias towards women beyond a reasonable doubt before the Court can consider it as an aggravating circumstance.
[167] The Crown points to the following evidence:
a) On the night of the offence, Mr. Bushby told his friend, Nathan Antoniszyn, that he wanted to drive around and yell at “hookers.”
[168] In the context of the Antoniszyn evidence and the events that followed, I infer that Mr. Bushby meant female sex workers. Additionally:
b) Mr. Bushby acted on that bias by throwing the trailer hitch at the Kentner women who were walking together on McKenzie Street, a residential area of Thunder Bay where it is agreed that street-level sex workers operated frequently.
c) When he struck Ms. Kentner, Mr. Bushby exclaimed with satisfaction, “I got one of them.” One of the occupants of the vehicle heard him laugh.
[169] The defence argues that, in Mr. Bushby’s drunken condition, there is no evidence that he knew that the individuals he targeted on the dark roadside were women. It submits that the court can infer that Ms. Kentner was bundled up in winter clothing, making it impossible to determine her sex.
[170] The defence also argues that Mr. Bushby’s utterance, “I got one,” is ambiguous – that it is just as possible that he was expressing surprise rather than pleasure.
[171] I do not agree with the defence arguments for the following reasons.
[172] Mr. Bushby had expressed a wish to drive around and yell at sex workers, whom he called “hookers.” It is clear from the context that, in advance of the attack, he intended to behave in a rude, insulting, demeaning manner toward female sex workers in the area. I conclude that he showed bias towards these women.
[173] His plan gained momentum when he had a weapon to throw. Then he spotted women to target. Finally, he acted on his plan.
[174] He expressed his satisfaction at hitting Ms. Kentner by exclaiming, “I got one.” This was an expression of pleasure. There is a direct line between his plan to harass sex workers and throwing the trailer hitch at women walking in an area frequented by them. Had he been expressing surprise rather than pleasure at achieving his objective, I would not have expected him to laugh.
[175] Melissa Kentner testified at trial that she was wearing a few sweaters that night while Barbara Kentner was dressed in a thick winter jacket. Melissa Kentner was not bundled up as the defence suggests. There is no evidence that the sisters were wearing hats or scarves.
[176] Melissa Kentner also testified that the McKenzie Street area where they were walking was well lit and was frequented by sex workers. She also used the term, “hookers.”
[177] In Ms. Kentner’s videotaped statement, she indicated that her assailant, hanging out the passenger window of the passing car, was a man. If she was able to determine his gender when she was assaulted, I conclude that he was close enough to determine hers when he assaulted her.
[178] I find that the Crown has proven beyond a reasonable doubt that Mr. Bushby was attempting to hit a female sex worker with the trailer hitch. I find that this constitutes an aggravating factor pursuant to s. 718.2(a)(i) of the Criminal Code, proving that the offence was motivated by bias towards women.
[179] The Crown identifies the following additional aggravating factors for consideration:
a) Barbara Kentner was a physically vulnerable person on the street and unable to protect herself. The defence concedes this was so.
b) She was an unsuspecting victim, unaware that she was going to be attacked.
c) She was attacked at night when it was more difficult to perceive the danger and to secure help.
d) The offender used a dangerous weapon.
e) Mr. Bushby expressed pleasure in hitting his victim.
f) He was callously indifferent in committing a drive-by assault, leaving Ms. Kentner by the side of the road. Although one of the passengers urged the driver to circle back to the victim, there was no evidence that Mr. Bushby wished to return to render aid.
g) The nature of the attack, made at a distance, was de-humanizing.
h) The injury and ensuing death have been profoundly painful for Ms. Kentner’s family and for the Indigenous community.
i) Mr. Bushby’s moral culpability is high because he was aware of the consequences of striking Ms. Kentner. Nevertheless, by grasping the trailer hitch and boosting himself out of the open window of a moving car, he took significant effort to do so.
[180] The Crown also submits that it is an aggravating factor that the attack took place in public, where Ms. Kentner should expect to feel safe. I do not agree with this submission. On the street, Ms. Kentner could not control her surroundings, as this case has shown.
Mitigating Factors
[181] The defence identifies the following mitigating factors:
a) Mr. Bushby was young, just past his 18th birthday. The defence contends that he lacked a fully developed sense of maturity, moral judgment and reasoning.
b) Although he was entitled to challenge the medical evidence underpinning the manslaughter charge and did so, he pleaded guilty to the underlying act and took responsibility for the assault on Ms. Kentner.
c) He waived a jury trial during the pandemic, spared key witnesses from testifying, and saved court resources. In so doing, the trial was limited to the narrow legal issue of causation.
d) He apologized to the Kentner family and to the Indigenous community and expressed remorse for his actions.
e) Mr. Bushby has no criminal record. This is his first offence. Thus, he does not need to be separated from society for its protection.
f) He has matured as an individual since the attack, after losing his own father and becoming a father.
g) His positive pre-sentence report indicates a strong potential for rehabilitation and restoration to society.
h) He has a mechanical skillset that enhances his prospects of employment when he is released.
i) He was imprisoned under harsh conditions in the Thunder Bay District Jail for 18 days following his arrest. Then he complied with strict bail conditions for about four years.
j) The offence was an isolated event, out of character, and unlikely to recur.
k) Mr. Bushby has recognized the role that alcohol played in his offending and has stopped drinking.
l) He has the support of a loving family network that will continue throughout his incarceration and upon his release.
Collateral Consequences
[182] The defence also submits that there are two collateral consequences that mitigate sentence in this case, as described by the Supreme Court of Canada in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496.
[183] Firstly, Mr. Bushby has been harassed in the community and received threats of violence on social media.
[184] Vigilante justice is not acceptable in our society. It is not a substitute for policing. Nevertheless, I do not attach any weight to this submission. Given the notoriety of his crime, Mr. Bushby should not be surprised by the negative response his actions attracted.
[185] The second submission is that serving his sentence in prison will force Mr. Bushby into a communal living setting where he is at greater risk of contracting COVID-19.
[186] Exposure to COVID-19 is always of great concern. In this case, Court Services Division has made special efforts to protect participants in this trial from being exposed to infection. Mr. Bushby has been on bail during the height of the infection in the community. Every effort has been made to avoid imposing sentence at the height of infection in custodial facilities.
Reasons for Sentence
[187] In a sentencing hearing, it is the responsibility of the court to speak for the community. I do that now.
[188] What you did, Mr. Bushby, was not brave. It was not manly; it was not impressive. It did not make our community a better place.
[189] Something happens when you attack the dignity of another person: you lose your own in the process. That is what happened here.
[190] With your trailer hitch, you targeted a vulnerable woman on the street when she could not protect herself. You did it from the safety of a vehicle, so that you could just drive away.
[191] She was a stranger to you. You did not have to look her in the eye or find out who she was. You dodged the risk that she or her sister might pick up that trailer hitch and throw it back at you. You treated the Kentner women like they were disposable, their lives and dignity not worth your concern.
[192] When you threw that trailer hitch, the impact was both immediate and far-reaching. Let us consider, for a moment, the ripple effect of your actions.
[193] At the centre of the circle was Barbara Kentner. She was seriously injured. The complications from her injury caused her pain and hastened her death.
[194] As you now know, Mr. Bushby, the Kentner family and Barbara’s friends were shattered by her loss. You, too, lost someone that you loved since committing this offence. Perhaps you will now understand the loneliness that comes from losing a special person, the regret of time lost that can never be recovered.
[195] When death comes naturally, we feel sad. When death comes from pointless violence, we feel angry.
[196] Mr. Bushby, you will pay the penalty of a manslaughter conviction. While you are absent, your family will unfortunately share in that penalty with you.
[197] The Crown does not claim that you targeted Indigenous women because there is no evidence that you knew the Kentner women were Indigenous. Nevertheless, I have concluded that you knew you were aiming at women. By doing so, you have minimized women, disrespected them, and made them feel unsafe. Your actions are an affront to all women.
[198] The court has also been told that it is a common experience for Indigenous people in Thunder Bay to have objects thrown at them from passing cars: eggs, drinks, bottles, bricks, garbage. You have joined in this disgusting activity. Now we can add trailer hitches to that list. You perpetuated the feeling of distrust and insecurity that Indigenous citizens in the community feel when they are on the streets. You have confirmed that these assaults continue.
[199] Your actions have also been condemned by non-Indigenous citizens of Thunder Bay. Residents of this city are angry at what you have done. Fair-minded people are offended and embarrassed that each citizen in this community cannot walk safely on our streets. It is a small thing to expect, Mr. Bushby, of you and of individuals who think like you: to walk safely on the street.
[200] The ripples from your actions continued beyond the city. Your actions have signalled to Indigenous people across Canada that they cannot expect to be safe and that their lives are not valued. That’s what happened when you threw that trailer hitch.
[201] Mr. Bushby, there are no disposable people. Each person in this community has value. Each of us is entitled to be treated with dignity; to walk safely on the street, without fear.
[202] It is true that there are mitigating factors that point towards leniency in this case. Mr. Bushby is a young man and a first offender with strong family support. He has taken responsibility for his actions through his instructions to counsel in their conduct of this case.
[203] He has matured since this offence occurred. From his apology, it appears that he has gained insight into the far-reaching consequences of his actions. He has given up drinking. I do not believe that further emphasis on specific deterrence is required.
[204] However, I am persuaded that the seriousness of this offence calls for a sentence that emphasizes denunciation and general deterrence for the following reasons.
[205] Mr. Bushby bears a significant level of moral culpability for this offence. The violence was unprovoked and purely gratuitous, done for pleasure. He used a dangerous weapon to target a vulnerable and unsuspecting woman in a drive-by attack. The attack occurred at night, when Ms. Kentner and her sister were alone, on foot. Mr. Bushby exulted in hitting her, and made no effort to offer assistance, although he knew that she was injured. Ultimately, the injury he caused hastened her death, shattering her family and friends. His actions also caused distress to the Indigenous community and dismay in the non-Indigenous community.
[206] Were it not for the mitigating factors in this case, the sentence would be in the higher range suggested by the Crown.
Sentence
[207] Mr. Bushby, I sentence you to a term of eight years in penitentiary, which is reduced by credit of one month for time served in pretrial custody. Your net sentence is therefore seven years and eleven months.
Ancillary Orders
[208] In addition, you are subject to the following orders:
a) that you submit a sample of your DNA to the DNA Data Bank pursuant to s. 487.051(1) of the Criminal Code;
b) that you to comply with a weapons prohibition for ten years following your release pursuant to s. 109 of the Criminal Code; and
c) that you not communicate, directly or indirectly, with Serena Kentner; Melissa, Isiah, Markus or Roy Kentner; Connie Kentner; Cheryl Kentner; Amanda Boucher; Debbie Kakagamic, or Lana Kooshet during your sentence pursuant to s. 743.21(1) of the Criminal Code.
[209] This is the sentence of the court.
“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: June 7, 2021
COURT FILE NO.: CR-17-0062-000
DATE: 2021-06-07
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown
- and –
Brayden Bushby
Accused
REASONS FOR SENTENCE
Pierce J.
Released: June 7, 2021
/lvp