a judge who later granted bail to a man accused of murder Ontario Provincial Police According to an audio recording of the proceedings, the officer noted his Indigenous background and the overrepresentation of Indigenous peoples in the correctional system before deciding to release the man from custody.
In audio of a bail hearing last June, which was obtained by the Canadian press through the courts, Justice Harrison Errell said he understood concerns about Randall McKenzie’s violent criminal record at the time, but his Indigenous background were forced to consider carefully.
“First Nations people are overrepresented in the prison system, particularly in pre-trial detention,” Errell said.
“I don’t mind telling you, it’s a very difficult matter. I feel I have an obligation, one thing I cannot ignore, the status of being an Aborigine.
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“I appreciate your concern that this and that he does not have all past violence on his record and I understand that. But part and parcel of it… probably has to do with their native background and education opportunities and employment opportunities and poverty.
McKenzie was released on bail six months before he allegedly murdered the OPP constable. Greg Pierzchala in an ambush near Hagersville, Ontario in late December and he is one of two men facing first-degree murder charges in the officer’s death.
He was first denied release in late December 2021 as he awaits trial in a case that alleges assault and multiple weapons charges in an incident involving his son’s mother and her boyfriend Was.
Errell then reviewed that decision and granted McKenzie’s release in June under strict conditions, which included 24-7 house arrest and GPS monitor monitoring under the supervision of her mother, court records show. McKenzie was only allowed to leave her mother’s home for medical emergencies, to meet her lawyers, or for consultations.
Records indicate that a judge issued a warrant for McKenzie’s arrest in August after he failed to appear for a scheduled court date.
The OPP would not comment on Friday. The force declined to answer a question about efforts made to arrest McKenzie after the warrant was issued.
The audio recording provides insight into the issues Arel weighed before making a decision. (While an accused can ask for a publication ban on bail proceedings, court records and audio recordings indicate that Mackenzie did not request the ban.)
The Crown’s arguments for refusing bail included the seriousness of the charges against McKenzie, his criminal record and his history of breaching bail conditions. It was the Crown’s position that there was a substantial likelihood that he would commit further offences.
Meanwhile, the defense argued that instead of his girlfriend acting as surety, as was proposed at the December 1st bail hearing, his mother would step in this time and offer constant supervision with a GPS monitor. .
At one point Errell indicates that he would combine several of the conditions proposed by the defense and suggested that the Crown might also suggest something, “that might make us all a little bit more comfortable.”
The Ontario Ministry of the Attorney General and defense counsel for McKenzie did not immediately respond to requests for comment on Friday.
Stemming from a court ruling in 1999, judges must apply the Gladew principles when deciding bail and sentencing _ which means they need to consider an Indigenous person’s unique circumstances, such as the effects of colonization, including Family separation is also included.
The 2021 parole document states that Mackenzie is from the Onondaga First Nations of the Six Nations of the Grand River Territory. At the time, he was serving a nearly three-year sentence, the document shows, after robbing a restaurant at gunpoint and then stealing the owner’s vehicle in 2017 before turning himself in a month later.
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The board said it was clear that McKenzie had suffered “the negative effects of colonialism”, parole documents show. He suffered from abuse and addiction, and was taken out of the care of his biological parents at the age of two.
The news that McKenzie was released before he allegedly killed Pirzchala led to immediate calls for bail reform from OPP commissioner, provincial premier and federal Conservative leader Pierre Poilievre.
Earlier this week, federal Justice Minister David Lamentie said he is “seriously considering” reform of Canada’s bail laws in response to a request from the premier 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 that while pre-trial release is the “cardinal rule”, detention is the “exception”.
A 2020 Supreme Court ruling acknowledged that widespread problems exist with enforcing bail conditions that are “unnecessarily unreasonable, unduly restrictive” and “effectively set the accused up to fail.”
That decision also states that the law requires a bail judge to pay special attention to the circumstances of accused persons who are Indigenous or who belong to a vulnerable population that is over-represented in the criminal justice system.
According to a 2022 study published by Cambridge University Press reviewing hundreds of decisions, Ontario’s bail system is characterized by conditions and bail releases that eliminate the presumption of innocence and the right to bail. However, the authors note that some changes have occurred since the bail principles were affirmed by the Supreme Court of Canada in a 2017 decision.
David Millward, an associate professor of law at the University of Victoria, said he understood why there was outrage over Pierzachala’s death, but noted judges need to keep the presumption of innocence in mind.
“And even when people are saying we should bring the Gladew principles into the bail phase, they’re being more subtle about it,” said Millward, co-author of a handbook on the principles.
“It’s not like someone is just saying, ‘Oh, if someone is Indigenous, that Indigenous person shouldn’t automatically be in detention pending trial or sentencing.'”
Millward, who is a member of the Beardies and Okamasis First Nation in Saskatchewan, said he does not think it is appropriate to use Mackenzie’s case to argue for bail reforms.
“I think (Pierschla’s) case is really sad,” Millward said. “…It is not something that anyone needs or should wish upon anyone.
“I don’t mean to diminish this tragedy, but I am not convinced that this particular case merits amending the law to make bail more difficult for Indigenous offenders.”
With files from Jessica Smith