‘I hope I’m right’: Behind the decision to let accused cop killer out on bail

It was a difficult decision. And I hope I'm right."

With those words, Justice Harrison Arrell released Randall McKenzie on bail.

Six months later, McKenzie was charged with the first-degree murder of OPP Const. Greg Pierzchala, 28, who was shot while helping with a car stuck in a ditch near Hagersville.

In hindsight, it seems clear the Superior Court judge was wrong.

But in the John Sopinka Courthouse on June 27, 2022, Arrell struggled to balance competing factors: unique circumstances of a repeat Indigenous offender; the Supreme Court's direction to release accused on bail whenever possible; the duty to protect the public; and the need to make a decision acceptable to the public.

I believe that if the situation is fully explained to the public, they would accept the proposed release plan," Arrell explained. The accused is Indigenous. And it is a well-known fact that such individuals are overrepresented in our prison system, especially in pretrial custody, because of their challenges with poverty, lack of education and addiction issues. All of these factors are present in this case."

Arrell's decision collided with a significant change within Hamilton Police Service.

Weeks before Pierzchala was gunned down, Hamilton police quietly disbanded its specially trained bail enforcement unit, which monitored compliance and tracked down fugitives. It redeployed those officers to understaffed front lines.

Brandi Stewart-Sperry, 30, was also charged with Pierzchala's first-degree murder. She was wanted on a 30-month-old arrest warrant at the time of the shooting.

Police, lawyers and politicians are calling for changes to Canada's bail system. Some want an overhaul. Others want more resources to support what already exists.

Canada's premiers wrote to Prime Minister Justin Trudeau demanding more restrictive bail measures in gun cases, and the provincial government's Standing Committee on Justice Policy held a two-day hearing this month to examine bail reform for firearms offences.

The outcry doesn't untangle the competing priorities Arrell faced the day he overturned an earlier bail decision and released McKenzie, of the Mississaugas of the Credit First Nation.

Multiple justices of the peace (JPs), federal and provincial Crowns, two defence lawyers and Arrell were involved in the case over the 18 months from McKenzie's arrest to his release.

Police leaders want bail hearings to be heard by judges, not JPs. Opponents argue JPs, who preside over most bail matters, are better qualified because they routinely run bail hearings.

It was a JP who denied McKenzie bail. A Superior Court judge let him out.

McKenzie is arrested Dec. 1, 2021, in connection to a violent domestic assault. Police allegedly found an unloaded handgun strapped to his chest.

The next day he makes his first court appearance.

McKenzie, 24 at the time, had a history of domestic violence and a record for possessing guns.

He was already on a lifetime weapons prohibition. That meant his bail hearing would be reverse onus. Usually, the onus is on the Crown to prove an accused should not get bail. In McKenzie's case, because he was charged with gun offences while already bound by a weapons prohibition, he would need to convince a JP to grant him bail.

Politicians and police leaders want reverse onus for possession of a loaded, prohibited or restricted firearm and intimate partner violence. In many cases, like this one, those provisions already exist.

The Crown is seeking detention and the JP tells McKenzie to apply for legal aid and get a lawyer.

McKenzie stays in jail and returns to court in a few days.

The Canadian Civil Liberties Association says 77 per cent of inmates in Ontario's jails are awaiting trial and the fundamental right to be presumed innocent is undermined by those statistics. That trend clogs our detention centres and is costly to taxpayers, money that would be better spent providing more services to address the root causes of criminal behaviour.

In worst-case scenarios, innocent people may plead guilty to get out of jail faster. Those detained have an increased risk of dying in custody. According to Nicole Myers, associate professor at Queen's University, detention makes it more likely a person will offend in the future.

On Dec. 7, McKenzie appears again in court.

He still doesn't have legal aid or a lawyer - a situation more common with Indigenous offenders, according to the Ontario Bar Association.

McKenzie's gun prohibition coupled with his new gun charges makes him ineligible for the free advice of duty counsel. He must retain his own lawyer.

The bail hearing is pushed to Dec. 16 in front of justice of the peace Eileen Walker.

The Crown opposes bail on secondary grounds," because McKenzie will potentially reoffend and is a safety risk.

His charges include: possession of drugs, assault, assault with a weapon, mischief, possession of substance, unauthorized possession of a firearm, knowledge of unauthorized possession of a firearm, careless use/transport/storage of a firearm, possession of a firearm with altered serial number, possession contrary to a prohibition order, possession of counterfeit bills, assault a peace officer.

The charge sheet says ammunition for the gun was found during the arrest, but other court documents indicate no ammunition was found.

His most recent conviction was in January 2018. He was sentenced to 35 months in custody for armed robbery using a restricted firearm.

McKenzie failed to comply with court orders on five occasions.

Police leaders say the criminal record of repeat offenders is often incomplete. Charges for failure to comply are routinely dropped because they slow the court process. That means during a subsequent bail hearing, the judge and lawyers don't have the whole criminal history.

For the first time, the court hears the allegations against McKenzie, which have still not been tested in court.

McKenzie and a woman have a son. She now lives with her current boyfriend.

McKenzie and the woman have three incidents of domestic violence on file with Hamilton police.

On Wednesday, Dec. 1, 2021, the woman was inside Walmart on Barton Street. Her boyfriend was waiting in the car with McKenzie's five-year-old son.

McKenzie allegedly appeared suddenly and shattered the windshield with a backpack. He called the boyfriend out to fight, then allegedly pulled a knife.

The woman ran to the car and was allegedly punched in the head by McKenzie.

The boyfriend fled into a pizza shop across the road. He held the door shut and told staff to call 911 as McKenzie tried to get in.

Eventually, the boyfriend left the shop and was allegedly stabbed twice in the torso, causing minor injuries.

McKenzie took off on a bicycle and was chased by police until surrendering at a dead end.

McKenzie allegedly tried to head butt the arresting officer.

I'm scared of Randall. I know he has guns," the woman stated to police.

A new girlfriend is put forward as a possible surety.

She lives alone in an apartment on Hamilton Mountain and works full-time from home for a call centre. She collects a disability payment because she has borderline personality disorder.

My plan is to have Randall come move in with me," she says.

If McKenzie tries to leave the apartment without her, she vows to call police. She was a surety once before for someone, but pulled the bail within a week" because he didn't listen to her.

She promises to get McKenzie into addiction and anger management classes and says he is sober in jail.

I've never heard him speaking about weapons or guns."

McKenzie was adopted, she says, and identifies as Indigenous, although he is not connected to any of the Indigenous programs."

I see a lot of potential in him. And I see he needs help. I don't see that he needs to be in jail."

The Crown disagrees.

He showed up at a Walmart in the middle of nowhere with a gun and a knife. This seems to be an escalating pattern of behaviour."

The gun has nothing to do with the allegation before us today," counters his lawyer, James Orme. Bail should not be set on the fact that he did have the gun on him. That's not a part of this procedure whatsoever."

Walker's decision is swift.

The circumstances of this particular offence are quite disturbing," she says, describing McKenzie as an individual who goes around the city of Hamilton with a gun strapped to his body."

I think it's only by chance that gun was not pulled out and also used in the events," she says.

Walker denies bail.

Six months later, June 27, 2022, McKenzie is before Justice Harrison Arrell for a bail review hearing.

McKenzie has been in pretrial custody for 209 days.

The backlogged justice system has inmates waiting months for a bail hearing, which they are legally entitled to have within 24 hours of arrest. It can take months more to get to trial. Serious cases are being tossed out for exceeding the legal time limits imposed by the Supreme Court.

An application to overturn the earlier bail denial has been made by McKenzie's new lawyer, Sayed Hafizi.

Hafizi is proposing a new bail plan with a new surety and a GPS monitor.

Assistant Crown attorney Steve Kim argues a new surety is not a material change in circumstances. The GPS ankle bracelet was an option at the first hearing, but wasn't suggested by the defence. Furthermore, McKenzie is likely to reoffend and poses a risk to public safety. It would damage the public's confidence in the justice system if bail was granted.

Arrell rules there has been a material change in circumstance and orders the review to proceed so he can make a decision based on the merits" of the case.

McKenzie's mother wants to be her son's surety, despite doing so once before only to have him breach.

She does not work and collects disability payments, which she has been eligible for since 1988 due to a head injury. She is willing to pledge $2,000 on her son's behalf, which she would not have to pay upfront. Sureties rarely make cash deposits.

Some justice advocates say demanding a deposit discriminates against Indigenous and marginalized communities.

McKenzie would live with his mother at her house on Six Nations.

He could participate in anger management, drug addiction and parenting programs at the Native Friendship Centre on Ottawa Street, she proposes.

She promises if her son doesn't abide by the court's rules, she'll revoke her surety. If he does something wrong, she will call police. But not Six Nations Police.

On the reserve where I live, usually they're so busy and they take hours and hours so that might not be the quickest recourse."

She would call the OPP instead.

She has heard about her son having guns.

A lot of gossip and rumours. But I've never, ever seen a gun in his hand or witnessed any form of weaponry in his hands."

Arrell turns to the Crown.

What am I supposed to do?" he asks. He cannot ignore the Gladue factors involved, which is the legal principle compelling judges to pay particular attention to unique circumstances of Indigenous offenders.

I don't mind telling you," Arrell says, it's a very iffy case."

The Crown says the seriousness of the charges should convince the judge to detain McKenzie. The public would be of the view that Mr. McKenzie should remain in custody."

Arrell retires to his chambers for 22 minutes. He returns with his decision.

Bail is granted.

I am confident the public would conclude that the current strict plan of house arrest, supervised by the accused's mother, with independent monitoring and counselling is a reasonable restraint on the accused's liberty until trial," Arrell says.

McKenzie is to be under house arrest, attend programs, not contact anyone involved in the case and have access to his son only with a court order. He is to be fitted with an ankle monitor before leaving jail, report to Six Nations Police twice weekly and have no alcohol or drugs in the house.

Arrell asks McKenzie if he understands and promises to obey his conditions.

McKenzie says yes.

This is your last chance," says Arrell. Take it, or you're done."

It was a difficult decision. And I hope I'm right."

The right to bail is protected by the Charter of Rights and Freedoms. Since 2019, after a Supreme Court case called R. v. Antic and a new federal law, Bill C-75, judges were directed to take a laddered approach," meaning they must start with the least-restrictive detention possible.

The change was intended, in part, to reduce the number of Indigenous people in custody.

Critics, however, call it catch and release."

Since then, the number of accused on bail has risen dramatically.

McKenzie was released from jail last July and ordered to appear in court in August.

He didn't show up, removed his GPS tracker, and a warrant was issued for his arrest.

There were numerous attempts by the police service of jurisdiction (Hamilton) to locate him, with no starting point because there was no GPS signal," OPP Commissioner Thomas Carrique told the Justice Policy hearing.

It is unclear if McKenzie's mother forfeited the $2,000 she pledged for his bail. Several police leaders have said estreatment hearings are seldom held to have a surety pay up.

In November, while McKenzie was on the lam, Hamilton police disbanded its bail compliance unit (BCU), which was supposed to be searching for McKenzie. A month later, Pierzchala was killed.

The BCU once consisted of two full-time officers and a cadet.

The BCU will actively search for and arrest those offenders who are breaching court imposed conditions," police said in a 2018 report.

That year, 152 arrests were made for bail breaches, with 28 per cent involving a firearm.

Bail enforcement is a patchwork system across the province that includes police, probation officers and other agencies, with no clear oversight or consistency.

An Ontario-wide bail unit funded by the province may be one path to reforming a bail system mandated by the federal government but enforced by the province.

Another solution is a police database that would allow information on chronic, violent offenders to be shared across jurisdictions. It is already in use by Toronto and Durham police and is expected to expand.

The Ontario Provincial Police Association told the Justice Policy hearing more funding needs to be put into Crime Stoppers, so the public can anonymously report breaches.

Concerns regarding bail are not new.

The devastating murder of Pierzchala has made the conversation louder.

One thing all sides seem to agree on is improvements can be made. And the sooner the better.

Susan Clairmont is a justice columnist at The Spectator. sclairmont@thespec.com