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