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New Year, new thread. I have some thoughts on how differently our justice system is treating those responsible for the death of Sgt Andrew Harnett than those who killed Barbara Kentner. I believe it is systemic racism at work. Let me explain why.
First, it needs to be said that both their deaths are awful tragedies. Their lives mattered. They both deserved to live. In comparing how they have been treated, I am not suggesting otherwise.
I am suggesting that to our justice system, their lives do not have equal value. In what follows, I am trying to show that our system contains structural features that assign greater value to the life of a (white, male) police officer than that of an Indigenous woman.
Having said that, let’s look at the similarities and differences in the two cases, based on what we know so far.
Barbara Kentner was killed by Brayden Bushby when he threw a trailer hitch at her from a moving car. While she was not killed immediately, she ultimately died of complications from the blunt force trauma she experienced.
Brayden Bushby was originally charged with second-degree murder. Murder requires proof of either (a) specific intent to kill, or (b) intent to cause bodily harm that you know is likely to cause death. (b) is called “constructive intent”. More on this later.
Intent is hard to prove. How do you know what is in a person’s mind? We can draw inferences from the surrounding circumstances—a person typically intends the natural consequences of their actions—but sometimes you just never know.
Bushby’s charge was reduced to manslaughter before trial, likely over intent concerns. This caused outrage in the community. Without commenting on the merits, it seems the Crown was concerned about how they could ever prove what was inside his mind when he threw the hitch.
As far as I am aware, Brayden Bushby was a passenger in the moving vehicle. The driver was not charged. (I don’t know for sure—if anyone does I would welcome the correction.)
Now, let’s examine what we know so far about the killing of Sgt Harnett. He was conducting a traffic stop on New Year’s Eve when two teens tried to flee. “During the traffic stop, the vehicle fled, striking the officer in the process.” He died as a result.
The two teens have been located, arrested, and charged with first degree murder. (It appears from pictures police drove a tank in a residential neighbourhood and flooded it with tactical officers to effect at least one of the arrests.)
First degree murder is a lot more serious than manslaughter. It carries a mandatory minimum penalty of imprisonment for life without parole eligibility for 25 years. Normally, it is proven by showing subjective intent to kill *plus* planning and deliberation.
Why does Sgt Andrew Harnett’s death attract a first degree murder charge, when Barbara Busby’s attracted only manslaughter? Lots unknown here still, but we can make some educated guesses.
I might be wrong about this, but I find it highly unlikely that the teens planned and deliberated to intentionally kill a police officer on NYE. No specific intent to kill. No planning and deliberation. So how were they charged with 1st?
I think two reasons. First, as mentioned earlier, intent for murder can be “constructive intent”: intent to cause bodily harm that you know is likely to cause death. Police believe constructive intent was present in this case.
As mentioned, even constructive intent is hard to prove. But some deaths cry out for an answer. Some defendants are less likely to attract the benefit of the doubt from those responsible for laying charges. I suspect this dynamic is at work here.
Even with constructive intent though, that only gets us to second degree murder. The final step to first comes from section 231(4) of the Criminal Code. The second reason why the teens were charged with 1st is because Sgt Harnett is a police officer.
Police officers belong to a class of persons specified in the Criminal Code for whom any intentional killing is *automatically* first degree murder, whether or not it was planned and deliberated: s. 231(4)(a).
So what is probably a reckless and stupid accident becomes first degree murder in law by virtue of constructive intent plus a protected class of victim.
To take a step back, we have two deaths that were plausibly the result of reckless and stupid accidents. On the one hand, a white man causes the death of an Indigenous woman. On the other, two teens (at least one of whom is a POC) causes the death of a white police officer.
The first case our system treats as manslaughter. “Who can know what was in Bushby’s mind?”, we say. In the second case our system has no trouble inferring intent from circumstances. And because the victim is a police officer, the second case is further elevated to first degree.
This is structural racism at work, in my opinion. Both cases can plausibly be said to be reckless and stupid accidents. (Though Bushby’s ‘accident’ is much less plausible, frankly.)
But charging discretion is exercised in favour of the accused, where the victim is an Indigenous woman, and against the accused, where the victim is a (white, male) police officer.
This is an example of how facially neutral discretion in our system flows according to the discriminatory grooves dug by our society. In our justice system, some deaths cry out for an answer. Sgt Harnett’s death is among them. Barbara Kentner’s was not.
I do not think the answer here is to throw Brayden Bushby in jail for the rest of his life. Nor am I saying that the teens should not be held accountable for their role in Sgt Harnett’s death.
But I think the differences in the way our justice system treats them speak volumes about whose lives matter and whose don’t in our society. To examine them closely is to gaze into a collective mirror; I personally don’t like what I see.
