THUNDER BAY, Ont. — The trial of a man who threw a trailer hitch at an Indigenous woman will hinge on the question of whether evidence proves that his actions contributed to her death, a court in Thunder Bay, Ont., heard Monday.
Brayden Bushby, 21, is charged with manslaughter and aggravated assault in the death of 34-year-old Barbara Kentner five months after she was injured in the January 2017 incident.
Bushby's lawyer said his client was pleading guilty to assault, but not guilty to manslaughter.
The first day of the trial heard testimony from Melissa Kentner, who was walking with her sister Barbara in the early morning of Jan. 29, 2017 when the assault happened.
The court also heard from Barbara Kentner herself. She described being hit in the stomach with the trailer hitch in a recorded video of a sworn statement she gave to police before she died.
"I couldn't breathe, fell to my knees and I looked at the car and I (saw) some guy put his head out of the window say, 'Yeah, I got one of them,' and they sped off," Barbara said in the video.
She described the pain after being struck, saying she couldn't breathe or sleep and could barely walk before she went to the hospital and learned the extent of her injuries.
Melissa Kentner also recounted the attack, testifying on Monday that she didn't see her sister being struck, but saw someone hanging out of the vehicle say, "I got one of them."
Crown attorney Andrew Sadler began his opening statement referencing those remarks by Bushby.
Sadler said the court will hear testimony from witnesses and a medical expert that will prove that even though Kentner had underlying health conditions, the injuries from Bushby's attack contributed to her death on July 4, 2017.
"The Crown must not prove that being struck with the trailer hitch was the primary cause of Barbara Kentner’s death," a copy of Sadler's opening statement said. "Hastening death is enough. We must only prove that being struck with the trailer hitch was a contributing factor."
Defence lawyer George Joseph said the question before the court is whether there is a legal link between Bushby's actions and Kentner's death, as opposed to a medical link.
Joseph also argued that there is no evidence that the attack was motivated by racism, even if media reports have framed it that way.
"While the public is free to speculate on how and why things happened, the rest of us in this courtroom are governed by the rule of law and the evidentiary foundation in which to apply that principle," Joseph's opening statement said.
"To put it as simply as possible it is the position of the defence that Brayden Bushby is guilty of aggravated assault but not guilty of manslaughter."
Bushby was charged with second-degree murder after Barbara Kentner’s death but that was later changed to manslaughter and aggravated assault. Sadler told the court that was done due to space limitations that made a jury trial impossible in Thunder Bay during the COVID-19 pandemic.
"It became apparent to the Crown that the only way to ensure that this trial could proceed this fall would be before a judge sitting without a jury," Sadler said in his opening statement. "It was also apparent that this could not happen, in this case, on the charge of murder."
Transcripts from two witnesses who were with Bushby when he threw the trailer hitch were also entered into evidence on Monday.
The trial will resume Tuesday with testimony from the doctor who performed a post-mortem examination on Kentner.
This report by The Canadian Press was first published Nov. 2, 2020.
By Holly McKenzie-Sutter in Toronto
The Canadian Press