A judge who granted bail to a man later accused of killing an Ontario Provincial Police officer noted his Indigenous background and the overrepresentation of Indigenous people in the correctional system before he decided to release the man from custody, according to an audio recording of the proceeding.
In the audio of the bail hearing last June, obtained by The Canadian Press through the courts, Justice Harrison Arrell said he understood concerns about Randall McKenzie's violent criminal record at the time but was obligated to give careful consideration to his Indigenous background.
"First Nations people are grossly overrepresented in the prison system, especially in pre-trial custody," Arrell said.
“I don’t mind telling you, it’s a very iffy case. I do feel my obligation is, something I can’t ignore is, being a status Aboriginal.
"I appreciate your concern is not that and all the past violence in his record and I understand that. But part and parcel of that ... is probably to do with his native background and education opportunities and employment opportunities and poverty.”
McKenzie was released on bail six months before he allegedly killed OPP Const. Greg Pierzchala in an ambush near Hagersville, Ont., in late December and he is one of two people facing a charge of first-degree murder in the officer's death.
He was first denied release in late December 2021 as he awaited trial in a case where he was accused of assault and a number of weapons charges in an incident involving his son's mother and her boyfriend.
Arrell then reviewed that decision and granted McKenzie's release in June under strict conditions, including 24-7 house arrest under the supervision of his mother and the surveillance of a GPS monitor, court records indicate. McKenzie was only permitted to leave his mother's house for medical emergencies, for meeting with his lawyers or for counselling.
Records indicate a judge issued a warrant for McKenzie's arrest in August when he failed to show up for a scheduled court date.
The OPP would not comment on Friday. The force also declined to answer a question about what efforts, if any, it took to arrest McKenzie after the warrant was issued.
The audio recordings offer insight into the issues Arrell weighed before making his decision. (While an accused can ask for a publication ban on a bail proceeding, court records and audio recordings indicate McKenzie did not request a ban.)
The Crown's arguments for denying bail included the serious accusations McKenzie faced, his criminal record and his history of breaking bail conditions. It was the Crown's position that there remained a substantial likelihood he would commit further offences.
The defence, meanwhile, argued that rather than his girlfriend acting as surety, as proposed in the first December bail hearing, his mother would step in this time and offer constant supervision along with the GPS monitor.
Arrell at one point indicates he would add a number of conditions proposed by the defence and suggested the Crown could suggest some too, “that might make us all even a little more comfortable.”
The Ontario Ministry of the Attorney General and McKenzie's defence lawyer did not immediately respond to requests for comment Friday.
Stemming from a court decision in 1999, judges must apply Gladue principles when making a bail and sentencing decision – meaning they need to consider the unique circumstances of an Indigenous person, such as the impacts of colonization, including family separation.
McKenzie is from the Onondaga First Nations of the Six Nations of the Grand River Territory, a 2021 parole document says. At that time, he was serving a nearly three-year sentence, the document shows, after he robbed a restaurant at gunpoint and then stole the owner's vehicle in 2017 before turning himself in a month later.
The board said it was evident McKenzie had suffered "the negative impacts of colonialism," parole documents show. He suffered from abuse and addiction, and was adopted out of the care of his biological parents at age two.
The news that McKenzie had been released before he allegedly killed Pierzchala led to immediate calls for bail reform from the OPP commissioner, provincial premiers and federal Conservative Leader Pierre Poilievre.
Earlier this week, federal Justice Minister David Lametti said he is giving "serious consideration" to reforming Canada's bail laws in response to a request from the premiers to make changes.
But experts have said there is no evidence to suggest a “tough on crime” approach to bail increases public safety.
Bail is a constitutional right, and the Supreme Court has noted pre-trial release is the "cardinal rule," while detention is "the exception."
A 2020 Supreme Court decision acknowledged widespread problems continued to exist with the ongoing imposition of bail conditions that are "unnecessary unreasonable, unduly restrictive" and "effectively set the accused up to fail.''
That decision also restated the law requires a bail judge to pay particular attention to the circumstances of accused persons who are Indigenous or those who belong to a vulnerable population overrepresented in the criminal justice system.
Ontario's bail system is characterized by conditions and surety releases that eroded the presumption of innocence and the right to bail, according to a 2022 study published by the Cambridge University Press reviewing hundreds of decisions. However, the authors noted there had been some shifts since the Supreme Court of Canada reaffirmed bail principles in a 2017 decision.
David Milward, an associate professor in law at the University of Victoria, said he understands why there is outrage over Pierzchala's death, but noted judges have to keep the presumption of innocence top of mind.
"And even when people are saying that we should bring Gladue principles into the bail phase, they're more nuanced about it," said Milward, who co-authored a handbook on the principles.
"It's not like anyone's just saying, 'Oh, if someone's Indigenous, that Indigenous person automatically should never be in detention pending trial or sentencing.'"
Milward, who is a member of the Beardy's & Okemasis First Nation in Saskatchewan, said he does not think it's reasonable to use McKenzie's case to argue for bail reforms.
"I do understand (Pierzchala's) case is really tragic," said Milward. " ... It's not something that anyone would or should wish on anyone.
"I don't mean to downplay this tragedy, but I'm not convinced that this particular case should operate to amend the law to make bail more difficult for Indigenous offenders."
— With files from Jessica Smith
This report by The Canadian Press was first published Feb. 10, 2023.
Jordan Omstead, The Canadian Press
