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File photo shows Barbara Kentner lying in St. Joseph's Hospital in Thunder Bay, Ont., days before she died on July 4, 2017, as her sister Melissa watches over her.

Willow Fiddler/Courtesy of APTN

The sister of an Anishinaabe woman who was hit with a trailer hitch as she walked down a Thunder Bay street says she was blindsided by the Crown’s plan to drop a second-degree murder charge against the man accused of killing her sibling.

Brayden Bushby was initially charged with aggravated assault days after the attack on Barbara Kentner in January, 2017. After Ms. Kentner’s death six months later, her sister, Melissa Kentner, was hopeful the charge would be upgraded to manslaughter. When Mr. Bushby was charged with second-degree murder, it was welcome news for the Kentner family.

But three weeks before Mr. Bushby’s murder trial was scheduled to start, Thunder Bay’s district Crown attorney Andrew Sadler asked an Ontario court to downgrade the murder charge to manslaughter in a move that has outraged many in the region and across the country.

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At a Zoom trial management case conference last Friday, Thunder Bay Ontario Superior Court Justice Helen Pierce agreed to convene a trial for charges of manslaughter and aggravated assault against Mr. Bushby. He was set to face a jury on Oct. 5 in a trial that was expected to last three weeks. Mr. Bushby’s new trial is scheduled to start Oct. 13 in front of a judge only and expected to last four days.

Mr. Sadler provided little explanation for the change other than to say it was “as a result of pretrial discussions."

“That’s what I hate about our justice system," Melissa said. She said that if Mr. Bushby had been Indigenous, she believes he would be in jail facing a murder charge. And her family wasn’t properly kept informed about the case, she said.

Mr. Bushby, 20, is accused of throwing a metal trailer hitch out a car window as it drove past Barbara and Melissa Kentner, who were walking along a Thunder Bay street on a cold January night in 2017. The trailer hitch hit Barbara in the stomach, and Melissa, who was walking in front of her sister, recalled someone yelling, “I fuckin' got one!” Barbara required emergency surgery for internal injuries and just over six months later, on July 4, 2017, she died in hospital with her family by her side.

The three other occupants of the vehicle did not face any charges in the investigation and Mr. Bushby was granted bail.

Melissa says the family had a conference call with the Crown attorney and a victim-witness worker earlier last week but the connection was bad and they couldn’t make out what was being said. She says someone from the courthouse was supposed to follow up with them but no one ever did and they weren’t even aware that a trial management case conference had taken place on Sept. 11 – and the murder charge would be downgraded – until she read a local news report on Facebook.

Melissa says she is furious with the decision, particularly when the judge in the preliminary hearing decided there was enough evidence to proceed with a murder trial.

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Brayden Bushby, right, exits the Thunder Bay Courthouse accompanied by his parents after the ruling that he would stand a three week murder trial, on Jan. 21, 2019,

DAVID_JACKSON/The Globe and Mail

Gerri Wiebe, a criminal defence lawyer in Winnipeg and president of the Criminal Defence Lawyers Association of Manitoba, says very little evidence is needed to get through a preliminary hearing and that higher charges are often used by the Crown as a negotiating tool to get a conviction with a lesser charge.

Ms. Wiebe says the main difference between a murder and manslaughter charge is significant in terms of whether the accused had the intention to cause death or kill the victim.

“They would have to prove that they were knowing – either intending to kill them – or knowing that it was likely to cause death and being reckless as to whether or not death ensued,” Ms. Wiebe said.

The violent attack and death of Barbara Kentner drew national attention during a time when Thunder Bay was under heavy scrutiny for how Indigenous people were being treated in the Northern Ontario city. The police service and police board were also under investigation by the province’s police watchdogs for how it investigated and policed Indigenous people. Senator Murray Sinclair and former Office of the Independent Police Review director Gerry McNeilly both concluded in their reports that systemic racism was embedded within the ranks and administration of the service and its board.

Barbara’s family, particularly her 19-year-old daughter Serena, who was recently diagnosed with leukemia, says the grieving process is difficult as they wait and hope for justice. She will likely miss the trial as she heads to Ottawa for a bone marrow transplant later this month.

Riley Yesno, a member of Eabametoong First Nation and former member of the Prime Minister’s Youth Council, says the lesser charge that Mr. Bushby now faces is a sharp reality check that despite reconciliation efforts in recent years, “Indigenous lives continue to be of lesser value” in Canada’s justice systems because of its embedded racism.

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She’s calling on Crown attorney Mr. Sadler, Ontario’s Attorney-General and Thunder Bay MP Patty Hajdu to “do all in your power to change this decision and fight for justice for Barbara Kentner and the lives of all Indigenous people in this country" in letter templates she’s developed and posted online for people who want to voice their concerns.

Ms. Yesno, who grew up in Thunder Bay and now studies Indigenous studies and political science at the University of Toronto, says there’s been a lot of talk about reconciliation in the justice system since the deaths of Colten Boushie and Tina Fontaine – two young First Nations people from Saskatchewan and Manitoba, respectively, whose accused attackers were both acquitted in their murder trials, spurring nationwide protests and calls for justice.

“People say Colten Boushie and Tina Fontaine’s name as if they’ve learned something,” Ms. Yesno said.

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