Aggravating Factors at Sentencing - Alisen Kotyk

I first wrote about Brayden Bushby in my previous blog, “Factual and Legal Causation.” Bushby was found guilty of manslaughter in late 2020 for the death of Barbara Kentner. Ms. Kenter was a young mother, from Wabigoon Lake Ojibway Nation, living in Thunder Bay. She was visibly Indigenous. On the night the offence occurred, Ms. Kentner was out walking with her sister, on their way home after visiting a family member. A witness testified that Bushby had wanted to “drive around and yell at hookers.”

The road on which the assault took place—Mackenzie Street—is well known to locals: “Indigenous women in the city are wary of that stretch of road, where sex workers are known to await customers.” As a whole, the culture of Thunder Bay is one of pervasive racism. Ms. Kentner’s sister reported being subjected to constant racial slurs. Ms. Kenter’s daughter described incidents of racial profiling and excessive force by police. Both women have had objects thrown at them from vehicles. Worse still was an incident in which mother and daughter were arguing publicly: “[a] passerby shot video of the resulting fight. It was posted to the now-defunct website Thunder Bay Dirty, where some Thunder Bayites posted cruel pictures of Indigenous men and women, many of them battling homelessness and addiction. [The] video was titled “Zombies Fighting on Brodie Street”. Unsurprisingly, Statistics Canada has twice designated this city as the hate crime capital of the country. When Bushby threw the trailer-hitch that ultimately killed Ms. Kentner, he yelled “I got one”. The inference to be drawn from his words has not gone unnoticed. He is scheduled to be sentenced on February 17, 2021.

Assessing racial motivation

There are a number of factors that can be aggravating at sentencing. For example, evidence of a breach of trust, the abuse of a minor, or intimate partner violence. Section 718.2(a)(i) of the Criminal Code (“the Code”) provides that a court consider the following aggravating factors when imposing a sentence: “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 identity or expression, or on any other similar factor.”

This section came into force in 1996 in response to a notable uptick in racially motivated offenses. However, racial motivation remains difficult to establish due to the criminal standard of proof. The Crown must demonstrate evidence beyond a reasonable doubt that racial motivation was a factor in the offense. Three points must be taken into consideration when assessing whether this has been established:

• that “bias” or “prejudice” is sufficient, and motivation need not meet the threshold for “hatred” set out in section 319(2);

• that section 718.2(a)(i) broadens the “class of potential victims, particularly when compared to the hate propaganda sections of the Code”; and

• that there must be a causal connection between the commission of the offence and the “offender’s hatred, bias, or prejudice.”

A clear case of racial motivation

Depending on the case, evidence of racial motivation can be quite explicit or sometimes more obscure. There are nine categories of evidence that judges have relied on at sentencings in which racial motivation was established as being causally connected to the offence. From even the most cursory assessment, it is evident that Bushby meets at least four of these.

The first can be found in “statements made by the offender before or during the offence”, such as racial epithets or other derogatory terms. Bushby’s comments, earlier in the day of the offence as well as immediately following the offence, both fit this criteria. Although his statement “got one” is not explicitly racialized, it is not a stretch to surmise that he meant an Indigenous person.

The second pertains to the offender identifying the victim as a member of a minority group, whether real or simply perceived. That Ms. Kentner was visibly Indigenous makes this part obvious, but it’s also plausible Bushby mistook her for a sex worker. For one, Bushby had intended to “drive around and yell at hookers.” In addition, Mackenzie Street was known to be an area frequented by sex workers. Because section 718.2(a)(i) of the Code broadens the class of potential victims, it’s arguable that sex workers—a vulnerable group by any objective measure—would (or should) be included in that protected class.

The third and fourth, that the offender must have targeted “the victim to the exclusion of non-minorities” and that there is the “absence of an alternative motive”, were both also arguably present. When judges have considered these categories of evidence at sentencing, typically more than just one are present. However, racial motivation has been inferred when offending epithets or terms are coupled with the absence of alternative motive.

Racial motivation standard is hit-and-miss

I find there to be a number of issues with the application of section 178.2(a)(i), or, more accurately, the lack thereof. My first concern is with the Crown attorney responsible for prosecuting Bushby, Andrew Sadler. His statement during closing arguments evinces the problem: “[W]hy [Brayden Bushby] threw the hitch doesn't matter”. Mr. Sadler is mistaken; it does matter. In R v Miloszewski (“Miloszweski”), a similar case involving a manslaughter that elicited intense media interest, “[t]he Crown attempted to establish that the offence had been racially motivated, and its submissions on sentencing advocated imprisonment for life”. To be clear, I am not advocating for Bushby’s life imprisonment, only that the Crown in this matter consider pursuing the same option. That Mr. Sadler would not even attempt to demonstrate racial motivation on Bushby’s part is confounding.

This confusion leads into my next issue: the degree of aggravation that must be demonstrated for a finding of racial motivation. If a sufficient degree is shown then what are the implications on sentencing range? Trial judges are not offered much in the way of direction “with no presumptive or even advisory guidelines”. Only a handful of cases have ever distinguished this specific aggravating factor from the remainder of the sentence.

My foremost issue with section 718.2(a)(i) of the Code, however, is with the criminal standard of proof. The trial judge overseeing Bushby’s matter, Justice Pierce, wrote about this requirement: “[p]roof beyond a reasonable doubt is a high test. It is has [sic] been made intentionally high so that individuals charged with offences are not wrongfully convicted.” As stated above, the Crown must demonstrate evidence of racial motivation beyond a reasonable doubt. Like Justice Pierce notes, this threshold is set so high in order to avoid wrongful convictions. But racial motivation does not determine conviction, it is an ancillary consideration to it. In instances where the accused has already been convicted, justice may be better served by reducing the threshold to a balance of probabilities. As it stands for the moment, section 718.2(a)(i) of the Code is, at best, hit-and-miss.

Predicting a light sentence

Sentencing ranges for manslaughter vary from probation to life imprisonment. Coupled with the minimal guidance respecting section 718.2(a)(i), predicting a sentence is difficult. In two of the cases where sentencing was broken down—base time plus time added for the aggravating factor—the sentence at least doubled. However, it does not appear that racial motivation as an aggravating factor will be considered by Justice Pierce. A founding member of the Indigenous Bar Association, Donald Worme, commented that judges need to recognize issues within their communities: “local history of acts targeting the Indigenous community could be considered”. This pattern of violence in Thunder Bay is not exclusive to Ms. Kentner’s family. Many Indigenous residents report having objects thrown at them from vehicles, although bricks and crowbars are more aptly described as weapons. Of all the sentencing principles, presumably denunciation and deterrence will be the focus in this matter. These objectives were codified in section 718.04 of the Code, which instructs adjudicators to “give primary consideration to the objectives of denunciation and deterrence” when the offence involves an Indigenous female. Unfortunately, this section came into effect two years after the offence was committed and as such is not applicable. All things considered, I do not expect Bushby to receive a sentence of more than six years.

While I hope that the court will focus most on the protection of Indigenous women, I am not confident it will do so. There have been too many instances where families of victims are left feeling as if justice is not a viable option for their communities. Section 718.2(a)(i) of the Code would serve as an acknowledgment that racial motivation is often an underlying facet in the harms Indigenous women disproportionately experience. However, if the judge fails to consider racial motivation, there have been a number of cases where “the Crown has successfully appealed the sentence imposed at trial”. That being said, I do not find it likely that the Crown would do so in this instance. Whether this section is relied on at all will be determined later this week.