Justice on Trial
The Walrus|June 2021
When Brayden Bushby was charged with the death of Barbara Kentner, Indigenous communities’ faith in Canada’s legal system would once more be put to the test
ON NOVEMBER 2, 2020, Brayden Bushby walked into a makeshift courthouse wearing a dark suit and a matching dark mask. He was heavyset, broad in shoulders and chest, but shorter than either of his lawyers, who bracketed him as they passed the media’s cameras.
It was the first day of his trial. There had been months of delays, ranging from routine legal considerations to the surreal: a pandemic and then an electrical fire that shut down the Thunder Bay courthouse. Now, finally, in a repurposed hotel ballroom divided by sheets of Plexiglas, Bushby’s case was called to order. The traditional phrases announcing the opening of a court of law (“Oyez! Oyez! Oyez!”) sat strangely alongside justice Helen Pierce’s apologies for any glitches in the technology zooming the trial to screens across the country. After the preliminaries, Bushby stepped out of his box to stand behind the defence table with his lawyers. A court official read out the two counts against him, to which Bushby was asked to plead guilty or not guilty. To the charge of manslaughter against an Anishinaabe woman named Barbara Kentner, Bushby responded, in a clear voice, “Not guilty.” His response was recorded, and then the clerk read out the second charge: aggravated assault against Kentner. “Guilty,” Bushby said.

“You have pleaded not guilty to count one and guilty to count two. Is this correct?”

Bushby agreed.

“Are you ready to proceed with your trial?”

“Yes,” he said.

And that was it. Bushby wouldn’t speak again on the record. His guilty plea to aggravated assault swept aside any disagreement over the basic events of January 29, 2017. By admitting his guilt, Bushby admitted that the crime involved a car full of teens and a night of aimless driving after a day that Bushby, for one, had spent drinking straight from a two-six of whisky. He admitted that, in the early hours of the morning in question, the vehicle had rolled down McKenzie Street, a quiet stretch of road in Thunder Bay. He admitted that he had climbed halfway out of the passenger window, clutching a trailer hitch he had stolen off a truck earlier that night. And that, as his friend had driven past two women walking on the road — Melissa Kentner first, followed by her sister Barbara —  Bushby had hurled the trailer hitch, striking Barbara in the stomach. And finally, that, as Barbara had doubled over in pain, she and her sister had heard him call out, “I got one.”

None of these details were being disputed, so the prosecution would not have to prove the facts of the attack. Bushby’s plea of not guilty to the charge of manslaughter, however, meant that the Crown would have to prove his role in what came afterward: Barbara Kentner’s decline over the following five months and her eventual death, on July 4. In the Canadian Criminal Code, manslaughter is classified as a form of homicide, but its incarnations range widely, from what may be termed near-accidents to near- murders. Typically, it involves an unlawful act that plays a significant role in a person’s death, where bodily harm from the act was foreseeable. It requires no planning or deliberation and no intent to kill. But it does require that a crime be committed. Accidentally hit and kill a pedestrian as you drive the speed limit, running no red lights? Not manslaughter. Punch someone in a bar brawl and their head strikes the edge of a table, sending them into a fatal coma? Textbook manslaughter.

Bushby and his legal team, however, didn’t accept that his actions had played a significant role in Kentner’s death. A criminal trial is about duelling narratives — the most convincing story wins. The story Bushby’s lawyers wanted to tell went like this: yes, their client had committed a terrible, violent act, but Kentner had come through it and had been on track to recover before dying of liver disease, a diagnosis that predated the attack. The prosecutors, for their part, wanted to counter with a story about an assault with cascading medical consequences from which Kentner never recovered. She would have lived longer, they would argue, if she had never crossed paths with Bushby.

The trial would be a mirror held up to Canadian society. Staring back was not only the broader colonial system of law and its consistent failure to provide justice for Indigenous people but also the way racism operates on a dangerous continuum: from contempt and derision to violence and murder. But, while the issues in play would be broad, the field of debate would be narrow. The trial would not turn on eyewitness testimony or incriminating documents. Instead, it would hinge on the story told by Barbara Kentner’s body.

BRAYDEN BUSHBY'S trial was the latest in a series of high-profile homicide cases featuring an Indigenous victim and a white defendant. The results — acquittal after acquittal — were devastating to many onlookers. In 2015, an Edmonton jury (described as “visibly white” by CBC News) found Bradley Barton not guilty of first-degree murder for the death of Cindy Gladue, a thirty-six-year-old Cree and Métis woman who had bled to death in Barton’s hotel room. Jurors could instead have found him guilty of the lesser charge of manslaughter, but they chose not to.

Then there was Tina Fontaine, a fifteen-year-old girl from Sagkeeng First Nation whose body was found in the Red River in 2014, wrapped in a duvet cover and a plastic bag and weighed down with rocks. The suspect in her killing — Raymond Cormier, charged with second-degree murder — was also found not guilty. The fact that Fontaine was supposed to be in the custody of Manitoba’s Child and Family Services when she died only drove home the inadequacy and abuse Indigenous children have too often received from Canadian institutions. Fontaine was, in fact, one of hundreds of missing and murdered Indigenous women and girls, and her death led to a national inquiry that toured the country collecting stories about cases that are too rarely fully investigated or vigorously prosecuted, stories of lives taken with impunity.

During the same week, in early 2018, that the Cormier trial began in Manitoba, yet another trial was underway one province west — a trial that would prove consequential for the prosecution of Barbara Kentner’s death. In North Battleford, Saskatchewan, a white farmer named Gerald Stanley stood accused of second-degree murder in the shooting death of a Cree man named Colten Boushie. At the time of his death, the twenty-two-year-old was sitting in a vehicle one of his friends had driven onto Stanley’s farm. That circumstance was explored in Storying Violence: Unravelling Colonial Narratives in the Stanley Trial. According to authors Gina Starblanket and Dallas Hunt, Boushie’s presence on Stanley’s property tapped into potent Prairie mythologies of soil and settlement, self-reliance and self-defense — the frontier notion of farmers defending “their” land against Indigenous incursion. Those mythologies fed public support for Stanley among white residents — and vitriol toward the victim. (“His only mistake was leaving three witnesses,” wrote one Facebook user, who turned out to be a rural municipal councillor in Saskatchewan. Then-premier Brad Wall wound up making a public plea for an end to racist online comments about the case.)

Stanley admitted the bullet that had struck Boushie in the head and killed him was fired from a gun he held, but he claimed that the discharge had been an accident. If they were not convinced of his deadly intentions, Stanley’s jurors, like Barton’s, had the option to convict him on the lesser charge of manslaughter. Instead, like Barton, Stanley walked free.

The result sparked anger across the country. Rallies were held in Saskatoon, Regina, Edmonton, and Toronto. Social media lit up with shock — even prime minister Justin Trudeau and then– justice minister Jody Wilson- Raybould tweeted their reactions to the verdict. In Maclean’s, Stanley’s acquittal was called “a great leap backward” for reconciliation and proof that “in the eyes of Canada’s justice system it is okay to shoot and kill an unarmed Indigenous man.” The uproar also increased the scrutiny of how Canadian juries are selected. Stanley’s defence team had purged all visibly Indigenous potential jurors from the pool using a mechanism called a peremptory challenge, which required no reason or rationale to be given for the dismissal and which could not itself be challenged or appealed. It was, effectively, a veto. Prosecution and defence each had a maximum of fourteen peremptories at their disposal; Stanley’s team needed only five to achieve an all-white jury.

The legal tool has been criticized in Canada for decades. In 1991, judges Murray Sinclair and Alvin Hamilton addressed the issue in the report of the Manitoba Aboriginal Justice Inquiry, which had been prompted, in part, by the discriminatory use of peremptory challenges during a 1987 trial for the brutal killing of a young Cree woman named Helen Betty Osborne (only one of the four men charged was ever convicted).

“Unfortunately, the jury selection process designed in our Criminal Code and Jury Act allows such practices to occur,” they wrote. “We believe that such practices should no longer be allowed.” More than twenty years later, retired Supreme Court judge Frank Iacobucci compiled a report on the justice system’s relationship to First Nations: what he found, he wrote, was “a crisis.” Among his recommendations was amending the Criminal Code to “prevent the use of peremptory challenges to discriminate against First Nations people serving on juries.” The pleas for change piled up, but no government acted on them.

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