Truth—the whole truth—should be the foundation of justice -

Truth—the whole truth—should be the foundation of justice

Judges must balance rendering appeal-proof cases with introducing risky, but relevant evidence

Truth—the whole truth—should be the foundation of justice

Dave Chidley/CP

A peculiar type of crime story shows up with alarming regularity in Canada. One that is guaranteed to inflame common sense and sensibilities, even as it satisfies lawyers, judges and the legal community. It is the “what the jury didn’t hear” story.

In the wake of nearly every sensational murder trial in recent memory?Robert Pickton, the Shafia family, Paul Bernardo plus many lesser-known cases?once the jury begins its deliberations readers inevitably discover shocking and highly relevant facts that were never revealed in court. The jury is thus expected to arrive at a proper verdict with less information than is available to the general public. Is this sort of imposed ignorance appropriate for a modern legal system?

The controversy surrounding excluded evidence has never been starker than in the recently concluded trial of Michael Rafferty. This week Rafferty was sentenced to life in prison for the murder of eight-year-old Tori Stafford of Woodstock, Ont. The physical and forensic evidence against him was substantial and justice was done. Relief at this outcome, expressed in the moving victim impact statements of Tori’s immediate family at the sentencing hearing, was palpable. As was the permanent loss. “Not one person can say they feel the same way as me,” wrote Tori’s older brother Daryn. “My sister was the only person I had to talk to.”

And yet it was only after the trial concluded that journalists were allowed to tell Canadians the full story. On Rafferty’s computers, which the police discovered following a proper warrant executed on his house and cars, were a wealth of child porn, torture movies and Internet searches displaying very specific interests, such as “real underage rape pictures” and “necrophilia videos.” Much of this was accumulated mere weeks before Tori was abducted and suggests a remarkable degree of interest in the crime in question. None of it was admissible in court.

At issue initially was the fact police failed to obtain a secondary warrant for Rafferty’s electronic devices. This is an evolving and controversial area of Canadian jurisprudence, with the legal system gravitating to the position that a cellphone or computer is so rich in personal information it requires a separate warrant. None of this was settled at the time police seized Rafferty’s laptop, however. In fact, Ontario Superior Court Judge Thomas Heeney noted the “Herculean” effort of the police in assembling the first warrant.

Beyond the technical nature of the warrant issue, however, Heeney still could have chosen to admit the electronic data. He did not, arguing it amounted to “bad character evidence,” and would tend to prejudice the jury against Rafferty. “It would be hard for the jury to resist the temptation to conclude that [Rafferty] is a sexual deviant who is therefore more likely to have committed the rape and murder of the victim,” the judge declared. Of course it’s worth mentioning that sexual deviant is an entirely precise description for Rafferty.

It is the premise of our court system, and rightly so, that defendants must be judged on the facts of the case against them rather than an assessment of their character. The Charter of Rights and Freedoms further protects everyone from unlawful searches. This ensures the presumption of innocence all Canadians enjoy. But there’s a balancing act to be considered here. Justice must not only be done, it must also be seen to be done. Some judges in Canada appear to have become so focused on rendering their cases appeal-proof they now exclude a wealth of relevant evidence for purely precautionary reasons.

It is well and good to preside over airtight trials, but throwing out evidence suggesting a clear disposition toward the abduction, rape and murder of a young girl, not to mention a progressive approach to planning such a crime, strikes a blow against common sense. This was a crime of sexual gratification, after all. Decisions of this sort inevitably estrange Canadians from their legal system.

If society is prepared to trust juries with the monumental task of deciding the guilt or innocence of their peers, it should be prepared to trust them to consider the entirety of the evidence relevant to the case. And if not, why bother with jury trials at all? Truth, in whatever form, must surely be the ultimate foundation for justice.

In the end, thankfully, the exclusion of the incriminating evidence against Rafferty had no bearing on the outcome of his trial. The jury made the correct decision regardless. But what happens when a judge someday strays too far on the side of caution and excludes evidence of such necessity that a jury makes the wrong decision and sets a notorious child killer free? What would this do to the public’s faith in Canadian justice? We can only hope that day never comes.


Truth—the whole truth—should be the foundation of justice

  1. What this judge excluded was not prejudicial “evidence of bad character” like say, mugging a little old lady, irrelevant to the case, but part of the predator’s preparations for the rape and murder of his eventual victim. This could have ended very badly if even one member of the jury were as pedantic as the judge. Funny how judges’ and lawyers’ interpretation of what would bring justice into disrepute with the public and the public’s perceptions are so different. The utter lack of justice in the Karla Homolka judgment still rankles.
    She did not hold up her end of the plea bargain and it should have been
    called off on that basis. Where there is legitimate doubt not between guilt and innocence but between two opposing legal views dancing on the head of a pin, the public want that benefit of a doubt to go to the victim and their family, not the perpetrator. This is the difference between common sense and technocrats.

    • Thank you for proving the judge right.

      • And thank you for proving how wrong the judge was.

        • It’s time you and Minaka give it up. you are both clueless.

    • Where is your EVIDENCE that shows beyond a reasonable doubt that Rafferty’s watching the movies were part of Rafferty’s “preparations for the rape and murder”. That’s your opinion, it’s proof of nothing.
      The jury came up with the right decision based on the evidence presented proving he committed the crimes he was charged with under the Criminal Code and not on anything else.

  2. All Canadians DO NOT enjoy the protection of a presumption of innocence when accused of a crime.
    In cases of domestic disputes where a woman accuses a man of abuse [threatening, assault, sexual assault etc.] the accused man will, based on the evidence of that woman’s statement alone, be charged jailed and then prosecuted for the aledged offences.
    Once charged he will be known as the offender and she as the victim.
    Judges often convict on the word of the woman alone.
    Crown Attorneys are instructed in the Crown Policy Manual on Domestic Violence to maintain prosecutions against men even when there is no credible evidence for conviction. They are told to try to get a plea from the man or offer him a deal to accept a peace bond or anything that could be seen as a conviction. Many men, though not guilty, accept a peace bond to escape the huge legal costs and emotional trauma involved in a trial.
    Arbitrary arrest and imprisonment and malicious prosecution are what men in Canada face when ACCUSED of domestic violence by a woman and it also identifies a tyrranical government. It does not matter if you feel your cause is noble when your methods are unjust.
    Fighting “Violence Against Women”, though a noble cause, has resulted in the enactement of extemely unjust and anti-male laws and policies by our government and has thoroughly corrupted the Canadian justice system and our government.
    In the case of someone accused of a crime, like Rafferty, it is essential to maintain basic rights to fairness and justice in our courts and to train the police in how to gather evidence in a way that is consistant with basic human rights. It helps to ensure that innocent people are not convicted and jailed. Better trained police might help to avoid future situations of this kind.
    Based on the evidence against Rafferty he should be jailed for the rest of his life, in my opinion. So too should his partner.

    • Agreed on all fronts. Further, in sexual assault cases the alleged victim has the benefit of anonymity, whereas the accused only has this protection if knowing the identity risks revealing the victim’s.
      Given society’s particular abhorrence of sex crimes, a wrongly accused person whose name is made public will forever have the stigma, regardless of the outcome of the trial. It seems to me that in this instance the accused, as well as the accuser, should be given the protection of anonymity until convicted, unless the Crown can show cause as to why revealing the name is important for public safety or the administration of justice.
      (And yes, I personally know of at least two men who were falsely accused – the accusers admitted so in court – and had their careers destroyed.)

  3. The lack of process means the evidence may or may not have been factual. That’s the point. Media commentary has tried to take the place of proven procedure. That’s nonsense.

  4. The judge was right, Blatchford and the media were wrong. End. of. story.

    • You again going on about Blatchford and the media—put it to rest. It could have gone the other way due to the judge’s wrong decision and thankfully it didn’t because of the hard work of the police force, crown attorneys and the common sense of the jury. To disallow evidence claiming it shows bad character is a joke, when it clearly showed motive and intent which led to the eventual rape and killing of a CHILD. You just don’t get it, Rafferty ended up getting more than a fair trial…more than what he deserved even to this day and going into the future…a lot more than his DECEASED VICTIM. End of story.

      • Sorry JM you don’t have a clue what you are talking about. Rafferty was charged with murder and rape, NOT being of bad character because it could be shown that he watched child porn. The only thing watching these movies prove is … that Rafferty watched these movies.
        If the judge allowed into evidence that Rafferty watched this stuff and was convicted of the rape and murder his lawyer would immediately appeal, and without a doubt such appeal would have succeeded. Rafferty would have been granted a new trial. By NOT allowing the extraneous and highly prejudicial material into evidence, the defence was foreclosed from a ground of appeal.
        “Hard work of the police force” well that is their job from the beginning, to bring forth all the Evidence related to the charges (you remember, murder and rape) and they did just that and Rafferty was rightfully convicted.
        The law has long been settled on this which is that introduction of the movie watching would be highly prejudicial to the accused, and would have absolutely no probative value in relation to the charges whatsoever.
        Blatchford and you got it all wrong.

  5. JM would be happiest had the judge allowed the evidence, Rafferty had filed a successful appeal and was free pending a new trial!

    Way to go JM, protecting the innocent