Justice Heeney has been upbraided in a Globe and Mail masthead editorial and by the Toronto Star’s Rosie DiManno for not allowing into evidence the results of an improper search of Michael Rafferty’s computer. The Globe argues that Heeney had the authority to fudge the rules and let the evidence in, and therefore he should have. DiManno calls Heeney “stupid,” and suggests that if Rafferty had walked, it would have been Heeney’s fault. They’re both wrong. Justice Heeney made the right call, both in terms of delivering justice for Tori Stafford and her family, and with regards to his duty to the law.
As the Globe itself has reported, police fumbled the case by failing to obtain the secondary warrant they needed to search Rafferty’s computer. They had warrants to search his house and car, but to search Rafferty’s hard drive as well, they would have needed a warrant specific to that purpose. The Justice of the Peace and an O.P.P. forensic detective explicitly told investigators this, and there’s no question that they would have received the needed warrant if they had just asked for it. But they didn’t.
Had Justice Heeney ignored this and let the laptop in, he might have introduced an element of vulnerability into Rafferty’s conviction upon appeal. He could have put the crown’s case at risk and opened it up to legal challenge by accepting evidence the defence could have argued was inadmissible. The judge erred on the side of caution, and it’s hard to fault him for that.
Even if the laptop had been legally searched, one has to wonder whether the Crown should have been permitted to use the evidence gleaned from it. Let’s consider the implications of Judge Heeney allowing the jury to hear the Crown’s argument that by Googling search terms like “underage rape,” Michael Rafferty was actively planning his crimes. I might very well Google “murder” when planning a murder–and in the Shafia trial, that was indeed the case–but there are limitless other reasons why I might do so.
Rafferty’s searches were more specific, but proving that they were done in order to plan his crimes, rather than say, out of a deviant erotic interest, is very problematic. The Google searches, just like the child porn police found on his laptop, would have provided jurors with damning evidence about Rafferty’s character, but little proof of his guilt in this specific crime. In other words, they would have succeeded in characterizing Rafferty as an absolute scumbag- the kind of guy you don’t mind sending up the river, whether or not you’re absolutely certain that he did it. As Judge Heeney ruled, their value as proof–their “probative value”–was “minimal,” but their capacity to prejudice the jury huge.
It would have cost us all something more. Our justice system needs to be very careful about setting precedents around using Internet histories as evidence. The Internet is where we go to explore out of curiosity, often (erroneously) thinking ourselves anonymous. Drawing connections between our online wanderings and our physical actions takes us on a slippery slope. Rafferty’s interest in disgusting sexual crimes is a moral abomination, and the possession of child pornography a crime in and of itself. But both are a very different thing than the crime he was convicted for.
The Star‘s Rosie DiManno disagrees. She writes that it was “crucial” for the jury to know that Rafferty “had an unhealthy interest in child pornography and bestiality” (as opposed to a “healthy” interest in them?). How was this crucial? What mattered was not Rafferty’s movie collection or his Google history. What mattered was that he raped and killed Tori Stafford.