Thunder Bay: A Case for Denunciation and Deterrence

Essay, Government, Anil Anand

The Thunder Bay Police Services Board (TBPSB) was disbanded in 2018 after an investigation by Senator Murray Sinclair found the board had failed to deal with the “clear and indisputable pattern” of violence and systemic racism against First Nations people in the city.1

Sinclair’s report (Thunder Bay Police Services Board investigation) noted that “The board’s failure to act on these issues in the face of overwhelming documentary and media exposure is indicative of willful blindness.” The report added that the board itself had perpetuated systemic discrimination that directly impacted First Nations people in Thunder Bay.2

Sinclair’s investigation between July 21, 2017, and October 31, 2018, was conducted in response to concerns raised by First Nations leaders from Nishnawbe Aski Nation, Grand Council Treaty 3, and the Rainy River First Nations regarding the TBPSB’s oversight of police services following a series of deaths and race-based violence against Indigenous people in Thunder Bay.

The report found that negative perceptions of the Thunder Bay Police Service (TBPS) among the Indigenous community had been exacerbated over the years by incidents in which unmistakable racism was evident and displayed by individuals in the TBPS. These incidents ranged from well-documented public mockery and the dissemination of racist stereotypes, to use of excessive force against and humiliation of Indigenous individuals, to disturbing deaths in custody.

Sinclair noted that the issues of racism were not the result of individual racists’ behaviours, which could be addressed through disciplinary, staffing, and training measures. Instead, they are indicative of a broader, deeper, and more systemic level of discrimination in which an unacceptable status quo is viewed as the normal state of affairs, maintained and perpetuated by the structure and operations of organizations and agencies mandated to oversee them. 

Despite the goodwill and best intentions of individual members of the TBPS and of the TBPSB, dealing with the symptoms of systemic racism will do little to address the fundamental challenge.

Barbara Kentner’s case was one of those that led to Sinclair’s investigation. Kentner had been walking with her sister, Melissa, on the sidewalk of an east-end residential street in the early morning hours of January 29, 2017 when a trailer hitch, thrown from a passing vehicle by Brayden Bushby, struck her in the abdomen.   

The NDP MPP who represents the predominantly Indigenous riding of Kiiwetinoong in northwestern Ontario, says the justice system continues to fail Indigenous people.

Kentner’s murder is not a single incident, but part of a long-standing pattern of several cases in Thunder Bay. Bushby was convicted of manslaughter on December 14, 2020, a technically appropriate yet disputably lesser charge than second-degree murder. However, most Canadians would likely agree that anyone who knowingly targets another by throwing a hitch at that person from a moving vehicle, leading to her death, has done nothing less than murder her.

One of the vehicle’s occupants heard Bushby laughing after he threw the hitch out the window and struck Kentner. Both Kentner, a 34-year-old mother from Wabigoon Lake Ojibway Nation, and her sister heard Bushby say that he “got one.” Not only did he target an innocent pedestrian, he did so in a manner that suggests he targeted Kentner because of her race, which is a hate crime.  

Technically, his utterances did not identify Kentner by the terms required to meet the standards of hate-based crime. Perhaps there was insufficient pre-meditation to prove that Bushby deliberately took the hitch with him to target another person, which would have assisted the police and prosecutor to press charges of first-degree murder or homicide. However, the circumstantial indicators of Bushby’s mindset should be fairly clear to most observers. 

Sinclair’s report was released in 2018, and Kentner’s death occurred in 2017, but the wounds and scars from decades of racism, systemic racism, and a culture of other-ization are no less part of the past than the persistently high violent crime rates Thunder Bay reports annually.

In 2019, Thunder Bay (145.9) ranked among the top four violent Census Metropolitan Areas in Canada, just below Winnipeg (174.0) and ahead of Saskatoon (134.7) and Regina (132.6). From 2005 to 2019, Thunder Bay reported among the three highest values every year for the past nine years.3 

Thunder Bay also reported the third-highest violent crime rate (1,619 violent incidents per 100,000 population) in 2019, behind Lethbridge (1,858) and Moncton (1,785).4 

Thunder Bay, with more homicides in 2019 than in 2017, had the highest rate of all homicides at 6.38 victims per 100,000 population, almost four times the national average and the average rate for all CMAs throughout the country. 2018 marked the third year in a row Thunder Bay reported the highest homicide rate. 

Although Thunder Bay has the third-smallest population of all CMAs, there were eight homicides reported in 2018, which was more victims in one year than three of the 11 CMAs with populations over 500,000. Sixty-three percent of victims were male and 75 percent were Indigenous.5

Thunder Bay Police acknowledged the city has a high violent crime index, but say they believe it is still a safe place for most residents. Insp. John Fennell praised officers for their response to the year’s homicides. “Their clearance rates (compared to) national stats are very, very high,” he said. “All (of the cases) are solved, all are currently before the courts.”6

That’s a typical police-performance perspective. The problem, however, is that 63 percent of victims were male and 75 percent were Indigenous.7 It is all well and good that TBPS has a laudable clearance rate, but Thunder Bay is consistently among the most violent cities in Canada, and despite the focus on racism and on the treatment of First Nations communities, the majority of the victims are Indigenous.  

Thunder Bay has seen a reduction in hate-related crimes over the past five years, down from 27 per 100,000 in 2015 to 5.6 per 100,000 in 2019. This is a promising statistic, but statistics are only a part of the story. Police-reported crime statistics only provide a perspective from the view of the police and not that of the community. The reality remains that Thunder Bay is a highly divided community, with a history of antagonism and conflict between Indigenous and non-Indigenous people, and where racism has stigmatized the very systems designed to serve and protect its citizens. It is far more likely that the statistics under-represent the reality of hate crimes. It is also far more likely that many citizens have simply stopped reporting crimes or relying on the TBPS.

Until 2015, almost one-third of reported hate crimes in Canada in which Indigenous people were the victims occurred in Thunder Bay. Although Thunder Bay has undertaken a number of initiatives to address and mitigate crime in the city, the underlying issues that contribute to violent and hate crimes remain.8  

This is the context within which Ontario Superior Court Justice Helen Pierce delivered her ruling against Bushby, following a four-day trial. “I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Bushby’s action, in striking Ms. Kentner with the trailer hitch, was a contributing cause of her death that is not trivial or insignificant and which accelerated her death,” Pierce said, in giving her reasons for the judgment.9

Pierce also expressed her condolences to Kentner’s family. “I understand she is greatly missed. I am truly sorry for her loss,” she said. This apology is in fact a sorry expression of the failure of the criminal justice system.10

Pierce described the throwing of the trailer hitch as an “objectively dangerous” act that would have been known to cause injury. She referenced testimony that Bushby had picked up the trailer hitch originally intending to throw it through somebody’s window. “He knew the hitch was heavy enough to cause damage,” she said.11

Law enforcement and prosecution services are there to initiate justice, to ensure that crimes are investigated effectively and thoroughly, and that evidence is collected and provided to the prosecution to present to the judiciary for adjudication. This is not as formulaic a process as those in the system would like us to believe. Procedures, protocols, and precedents guide the process, but the system also allows extensive latitude for discretionary decisions.  

Among these are the principles of denunciation and deterrence (specific and general deterrence), principles that should be heightened in a community such as Thunder Bay.  The change in Bushby’s charge from aggravated assault to manslaughter sends a terrible message, or no message at all. That throwing a hitch from a moving vehicle at two unsuspecting pedestrians could result in death is common sense, and is fundamentally no different than shooting a firearm or an arrow from a moving vehicle at an unsuspecting person. In both latter examples, the accused would likely have been charged with attempted murder. Bushby was tried on the lowest possible charge under the circumstances. Manslaughter would perhaps have been an acceptable charge if Bushby had thrown the hitch out of the truck, with no knowledge or expectation that it would strike anyone and with no intent, but this was not the case.

The prosecution’s position was likely based on pursuing a certain conviction, rather than risking a not-guilty outcome by pursuing an assured conviction. So far, the justice system has failed in conveying either specific or general deterrence. It is now up to Pierce to ensure that the principles of both types of deterrence are met, when she sentences Bushby on February 9.  

Manslaughter carries a potential life sentence; however, Pierce will be largely inclined to be guided by case law in passing sentence, and by an aversion to a potential appeal of her decision. These are natural inclinations, but ones that disregard the legislation’s intent and potential regarding sentencing and justice. The tools are there in the legislation; Pierce has the legal authority to pass a sentence up to and including life. She can also balance the requirements of general deterrence, specific deterrence, and precedence. But that balancing should be done within the context, condition, and circumstances of the community in which the crime occurred and not by expediency.  

Thunder Bay has been among the most racially conflicted, most violent communities in Canada. The message that the sentence conveys to the community must be based on that reality and not the fear of appeal.  

Pierce will certainly consider the nature of the crime, the target group, the knowledge of the pertinent sanctions, certainty of punishment, celerityor swiftnessof punishment, severity of the sanction, and perceptions of the risk of incurring the sanction.

Pierce should make the tough, even unpopular, decision. Even at the risk of appeal to a higher court, that is the right and just decision a judge should take under these circumstances

This is an opportunity for Pierce to fulfill several obligationsto be fair, to speak to specific and general deterrence, and to administer justice for its purpose. She must assure the community of the value of standards, along with the individual’s responsibility to the community and vice-versa.  

 

Anil Anand is a research associate with the Frontier Centre for Public Policy. Anil served as a police officer for 29 years; during his career some of his assignments included divisional officer, undercover narcotics officer, and intelligence officer. He has worked in professional standards, business intelligence, corporate communications, the Ipperwash inquiry (judicial public inquiry), and Interpol.

Photo by Jaime Dantas on Unsplash.

 

”SeeEndnotes”

  1. Sinclair, Murray. Thunder Bay Police Services Board Investigation. Safety, Licensing Appeals and Standards Tribunals Ontario, 2018.  http://www.mmiwg-ffada.ca/wp-content/uploads/2019/02/18-12-14-Written-Closing-Submisions-Mishkeegogamang-First-Nation-3-3.pdf   Accessed: December 15, 2020.
  2. Ibid.
  3. Moreau, Greg, Jaffray, Brianna, and Armstrong, Amelia. “Police-reported crime statistics in Canada, 2019,” Canadian Centre for Justice and Community Safety Statistics October 29, 2020, https://www150.statcan.gc.ca/n1/pub/85-002-x/2020001/article/00010-eng.htm Accessed: December 15, 2020.
  1. Ibid.
  2. Roy, Joel,  and Marcellus, Sharon. “Homicide in Canada, 2018,” November 27, 2019, https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00016-eng.htm Accessed: December 15, 2020.
  3. TbNewsWatch.com, “Thunder Bay homicide rate steady in 2019: City has had highest rate in country three years straight,” January 4, 2020, https://www.tbnewswatch.com/local-news/thunder-bay-homicide-rate-steady-in-2019-1999146, Accessed: December 15, 2020.
  1. Roy, Joel,  and Marcellus, Sharon. “Homicide in Canada, 2018,” November 27, 2019, https://www150.statcan.gc.ca/n1/pub/85-002-x/2019001/article/00016-eng.htm Accessed: December 15, 2020.
  2. CBC News, “Thunder Bay had almost one-third of Canada’s reported anti-Indigenous hate crimes in 2015: StatsCan,” June 13, 2017. https://www.cbc.ca/news/canada/thunder-bay/statscan-hate-crimes-2015-1.4158366 Accessed: December 15, 2020.
  3. CBC News, “Man who threw trailer hitch at Indigenous woman found guilty of manslaughter,” December 14, 2020, https://www.cbc.ca/amp/1.5840583 Accessed: December 15, 2020.
  4. Ibid.
  5. Ibid.

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