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Hundreds of officers salute the arriving hearse at the funeral for OPP Const. Grzegorz (Greg) Pierzchala outside the Sadlon Arena in Barrie, Ont., on Jan. 4.Christopher Drost/The Canadian Press

A man who is accused of killing an Ontario Provincial Police officer while out on bail for previous alleged violent offences had been set free from jail primarily because he is Indigenous, a transcript of his bail review hearing shows.

Federal law requires judges to pay particular attention to the circumstances of Indigenous offenders at sentencing, in an attempt to reduce disproportionate rates of incarceration among Indigenous peoples. The Supreme Court and other courts have extended that principle to bail and other court proceedings.

Publication bans are automatically granted on most aspects of bail hearings if accused people ask for them. But in this case the man, who was represented by counsel, did not ask, the transcript shows. The result is a rare public glimpse at a release alleged to have led to deadly violence.

The accused, 25-year-old Randall McKenzie, of the Mississaugas of the Credit First Nation, is charged with first-degree murder in the death of rookie OPP officer Constable Grzegorz Pierzchala on Dec. 27. Police allege they received a call that a vehicle was in a ditch west of Hagersville, Ont., and that when Constable Pierzchala, who was 28, showed up to help, he was shot and killed. Brandi Stewart-Sperry, 30, was also charged with first-degree murder in the officer’s death.

Last month, in part because Mr. McKenzie was out on bail at the time of the alleged killing, all of the country’s provincial premiers sent a letter to the federal government demanding more restrictive bail laws, especially in cases involving gun crimes.

Even the judge at Mr. McKenzie’s June bail hearing, Ontario Superior Court Justice Harrison Arrell, acknowledged that his release was “iffy” and that the prosecution was justifiably concerned he would reoffend, according to the transcript, which was obtained by The Globe and Mail.

But Justice Arrell concluded that Mr. McKenzie’s Indigenous background hung heavily in the balance.

“The accused is Indigenous, and it is a well-known fact that such individuals are overrepresented in our prison system, especially in pre-trial custody, because of their challenges with poverty, lack of education and addiction issues,” he said. “All of these factors are present in this case.”

Justice Arrell said he was confident the public would accept the court’s plan of release: Mr. McKenzie’s mother would supervise Mr. McKenzie 24 hours a day. He would wear an electronic monitoring bracelet, be banned from using drugs or alcohol, report twice weekly to Indigenous police on the Six Nations of the Grand River reserve, and attend counselling sessions.

The right to bail is protected by the Charter of Rights and Freedoms. Bail can be denied only if a person is believed unlikely to show up for court, or is too dangerous to release, or if release would harm the justice system’s reputation. Justice Arrell cited four rulings from the Supreme Court of Canada that established that release is the rule, continued detention the exception.

The 60-page transcript sheds light on why an offender who had several characteristics that raise concerns in bail hearings – previous bail violations, an alleged violation of a weapons prohibition after being convicted of an armed robbery, and strong evidence against him – was able to obtain his release.

It also shows the details of the offences he is alleged to have committed, and for which he was released on bail.

On Dec. 16, 2021, in a mall parking lot, Mr. McKenzie encountered his former girlfriend’s new partner. He is alleged to have shattered the windshield of the man’s car by smashing it with a backpack, while the new partner was inside the car with two children, one of them Mr. McKenzie’s own child. Police say Mr. McKenzie then chased the man and stabbed him twice, causing superficial wounds, and, when he saw his ex-girlfriend, punched her in the head. He then allegedly head-butted a police officer. And he is alleged to have been found with an unloaded handgun.

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Later that month, a justice of the peace denied Mr. McKenzie bail, saying a woman who was supposed to be his surety did not know him well enough to take on the responsibility.

In June, after Mr. McKenzie had served seven months in pre-trial custody, his lawyer, Sayed Hafizi, obtained the bail review hearing with Justice Arrell. Mr. Hafizi offered a new release plan, with Mr. McKenzie’s 60-year-old mother as his surety. She promised she would inform authorities if Mr. McKenzie left the house and could not be found.

Mr. Hafizi said he was busy with other matters when The Globe reached him by telephone on Monday. He did not call back or return an e-mail. The Ontario Provincial Police Commissioner, Thomas Carrique, declined to be interviewed about the transcript. Steve Kim, an Ontario prosecutor at the bail hearing, also declined to comment, and so did the Ontario Ministry of the Attorney General.

Mr. McKenzie had two previous convictions for breaches of bail, including one when his mother was his surety. Justice Arrell asked her why she believed Mr. McKenzie would do as she told him this time.

“He’s talked to me and been very reasonable and very accepting of what I tell him,” she replied.

Mr. Kim, the prosecutor, opposed the release, saying the risk of Mr. McKenzie reoffending was too great, and that his release would bring the justice system into disrepute, given his criminal record.

Justice Arrell expressed his difficulty in putting an Indigenous person into extended pre-trial custody.

“I know your first position,” he told the prosecutor, “is he should not be released, he’s got a record, this was a gun case, this was a lot of violence in the middle of the daylight with his young son right there, a gun was involved, maybe a screwdriver and not a knife … and that he has breached conditions in the past.”

“But I do want to hear from you about what I’m supposed to do, since everyone is First Nations and … we both know native First Nations people are grossly overrepresented in the prison system, especially in pre-trial custody,” the judge continued.

He would later add: “I don’t mind telling you it’s a very iffy case, but I do feel my obligation is something I can’t ignore – being a status Aboriginal.”

Justice Arrell also noted that Mr. McKenzie had spent time in “difficult custody” during the pandemic, and had completed 15 hours of courses while in jail.

Mr. Kim acknowledged that, as Indigenous people, Mr. McKenzie and his mother had faced challenges that most Canadians had not. But he noted that Mr. McKenzie had a previous armed robbery conviction, and had been found to be in possession of a firearm on the new charges. Those factors, plus the “level of persistence” in the alleged assaults, the small children in the car and the five previous violations of court orders and bail on his record, should be enough to keep him in custody, Mr. Kim argued.

He added that he believed Mr. McKenzie’s mother was sincere, but that “the issue of compliance has to do with the accused.”

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