Canada’s courts are barely hiding their disdain for Indigenous people

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We are bracing ourselves again, hoping against hope that perhaps this time there will be justice for Barbara Kentner, the 34-year-old Anishinaabe mother who was hit in the stomach with a metal trailer hitch thrown from a passing car in Thunder Bay in January, 2017. Ms. Kentner died months later.

We have been here before, inside a Canadian courtroom, listening to lawyers rip apart our families, our women and our histories as we wait for a justice that never comes.

We were here after a white man shot Red Pheasant Cree Nation youth Colten Boushie in the back of the head on a Saskatchewan farm in 2016. Farmer Gerald Stanley was found not guilty.

We were here after a white man, Raymond Cormier, was charged in the second-degree murder of 15-year-old Tina Fontaine in August, 2014, her body tossed into the Red River. He was acquitted.

And we were here after the horrific death of Métis mom Cindy Gladue in 2011, who bled to death in an Edmonton hotel and then was violated again when the remnants of her vagina were used as evidence in the court. Bradley Barton, who was acquitted of first-degree murder, will face a new manslaughter trial scheduled to begin this month, according to APTN.

And now we’re watching the old familiar sequence play out in Thunder Bay. The accused, 21-year-old Brayden Bushby, admitted at his trial this week that he threw the sharp-edged, heavy hitch out the window that January night. The court heard evidence from the others in the car, who said Mr. Bushby was drunk and wanted to drive around and “yell at hookers.” He pled guilty to the charge of aggravated assault.

But Mr. Bushby’s judge-only trial is only about the charge of manslaughter, after the Crown’s withdrawal of a second-degree murder charge in September. One of the reasons: space limitations that made a jury trial impossible during the pandemic.

This decision is disgusting. COVID-19 has forced the courts to adjust their standard processes, but choosing to pursue a lesser punishment even partly because there isn’t a big enough room to hold the trial indicates the absolute disdain that the “justice” system has toward First Nations people. The message it sends is that First Nations people are less than worthy victims.

This disrespect is painfully familiar for Indigenous people in Thunder Bay. The start of the inquest into the deaths of seven First Nations students who lost their lives between 2000 and 2011 was scheduled in a courtroom so small that it could not hold any family members. Only public pressure forced it to be moved into a larger room.

This time, though, the actions of the Crown aren’t just about disrespecting grieving loved ones. They’re signalling that an Indigenous woman deserves less justice.

Do not kid yourself: If the accused in this case was a Black or Indigenous man and the victim was a white woman, he would be “looking down the dark side of a six- to 10-year sentence,” in the words of Toronto criminal defence lawyer Reid Rusonik. “Why the charge isn’t second-degree murder," he added, "is beyond me.”

And at Mr. Bushby’s trial, the Crown even detailed Ms. Kentner’s medical and psychiatric history. Why her mental-health records have any bearing on the trial of the man accused of deliberately throwing a metal object that caused what a forensic pathologist called a “traumatic rupture” is beyond me. It was enough to prompt Ms. Kentner’s family to leave.

What message does this all send to the next person to consider such a horrible deed? What message does it send to us First Nations people, who are consistently forced to see the double standards in the justice system that’s supposed to serve us all? The overwhelming message is that we apparently aren’t good enough for equal justice under Canada’s laws, but we are damn good enough to jail – and once we’re there, First Nations and Black people are disproportionately left there, according to an investigation into the racial biases in inmate risk assessments by The Globe and Mail’s Tom Cardoso.

In his opening statement, defence lawyer George Joseph argued that his client did not commit a racially motivated crime, “despite media attempts to characterize this offence as such.” But there was no need for Mr. Joseph to fall back on this tired old defence: that the media – those pesky outsiders, trying to point out something that many in Thunder Bay continue to deny, that systemic racism built and permeates the city – is to blame for the racism problem. Watching this trial through First Nations eyes, we can see for ourselves that there is no evidence that Canada sees us as worthy victims. And so all we can do is brace ourselves, once more, for the outcome.

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