THUNDER BAY - Lawyers representing Brayden Bushby argue the presiding judge at the preliminary hearing, who committed the 20-year-old to stand trial for second-degree murder for his alleged role in the death of Barbara Kentner, erred in his ruling because the evidence in the case does not rise to the definition of second-degree murder.
In a Thunder Bay courtroom on Thursday, Toronto defense lawyer, Anthony Moustacalis, along with local lawyers George Joseph and Ryan Green, presented a certiorari application before Justice Bruce Fitzpatrick.
The application challenges the decision by Justice Frank Valente handed down in January that ruled there was enough evidence to commit Bushby to stand trial for second-degree murder following a five-day preliminary hearing held last September.
According to Moustacalis, Justice Valente failed to consider all the evidence presented during the preliminary hearing and disagreed with the ruling that a properly instructed jury could render a guilty verdict for the charge of second-degree murder beyond a reasonable doubt.
“There was no evidence to make the conclusions that he did,” Moustacalis told the court.
Moustacalis added the evidence in the case does not rise to the level of second-degree murder and the committal should have been on a charge of manslaughter.
Under the Criminal Code of Canada, murder is defined as an individual meaning to cause death or meaning to cause bodily harm that he or she knows is likely to cause death.
Manslaughter is defined as a homicide committed in the heat of passion or by sudden provocation where there was no intention to cause death but there may have been an intention to cause harm.
Crown prosecutor, Trevor Jukes, disagreed with the submission by the defense and argued that while Justice Valente’s wording in his ruling from the preliminary hearing could have been clearer, the evidence in the case is sound.
“The Crown suggests he did use the correct tests throughout and there was no jurisdictional error by Justice Valente and this submission should be dismissed,” Jukes told the court.
There is a publication ban in place on all evidence presented during the preliminary hearing and the certiorari application submission.
Bushby is accused of throwing a metal trailer hitch from a moving vehicle that struck Kentner in the abdomen on the night of Jan. 28, 2017 while she was walking in the Cameron Street area. Kentner died in hospital later that year on July 4. She was 34-years-old.
Originally charged with aggravated assault, Bushby was later charged with second-degree murder following a review of the case by the Crown and the Thunder Bay Police Service with help from the Regional Coroner’s Office.
Justice Fitzpatrick is expected to deliver a ruling on the certiorari application in June.
Bushby has been out on bail since November 2017.