THUNDER BAY - A judge has dismissed an application by counsel representing Brayden Bushby arguing the presiding judge at the preliminary hearing committing him to stand trial for second-degree murder for his alleged role in the death of Barbara Kentner erred in his ruling.
“I am not persuaded by the defense’s argument,” said Justice Bruce Fitzpatrick, who read his reasons to dismiss the application in a Thunder Bay Courtroom on Tuesday.
In May, Toronto defense lawyer, Anthony Moustacalis, along with local lawyers George Joseph and Ryan Green, presented a certiorari application to Justice Fitzpatrick.
The application challenged the decision by Justice Frank Valente, the presiding judge at the preliminary hearing held last September, who ruled in January that there was enough evidence to commit Bushby, 20, to stand trial for second-degree murder.
Moustacalis argued there was no evidence for Justice Valente to reach the conclusions that he did, that the evidence did not rise to the level of second-degree murder, and the committal should have been on a charge of manslaughter.
The Crown countered the submission by arguing Justice Valente used the correct tests on the evidence and there was no jurisdictional error in his ruling.
“I agree with the position of the Crown,” Justice Fitzpatrick said. “I do not see how Justice Valente exceeded his jurisdictions when drawing his conclusions.”
Justice Fitzpatrick also agreed with the Crown’s statements in May that Justice Valente’s wording in his ruling could have been clearer, but added “brevity should not be confused for lack of proper consideration.”
“The argument did not persuade me that Justice Valente committed a jurisdictional error,” Justice Fitzpatrick added. “His reasons were cogent and complete.”
Bushby is accused of throwing a metal trailer hitch from a moving vehicle that struck the 34-year-old Kentner in the abdomen on the night of Jan. 28, 2017 in the Cameron Street area. She later died in hospital on July 4.
Bushby was originally charged with aggravated assault but the Crown and the Thunder Bay Police Service upgraded the charge to second-degree murder following a review of the case with assistance by the Regional Coroner’s Office.
There is a publication ban in place on all evidence presented during the preliminary hearing.
Bushby has been released on bail since November 2017.
