Judge was right to keep Rafferty's laptop out of the trial - Macleans.ca

Judge was right to keep Rafferty’s laptop out of the trial

His Google searches and downloads–however sick–were not the point


Dave Chidley/CP

A new villain is emerging in the wake of the Tori Stafford trial: Judge Thomas Heeney.

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.

Jesse Brown is the host of TVO.org’s Search Engine podcast. He is on Twitter @jessebrown


Judge was right to keep Rafferty’s laptop out of the trial

  1. Thanks for this Jesse, I read The Star article about an hour ago and it’s been bugging me ever since for some of the reasons you articulate nicely here.

  2. Very well presented argument. Crimes such as this one inflame passions but it is the duty of the judge to remain dispassionate as much as possible. He’s not just protecting the accused, he’s protecting our rights collectively. And good on him for doing so…

  3. I had to take a deep breath when the news of the laptop contents came out, and remind myself that if the police made a procedural error, then it had to be handled this way.

    If some way had been found to include this evidence, it would have dominated the headlines and become the focus of the trial. And the guilty verdict could have suffered a taint of illegitimacy as a result of its source.

    Far better now to have a squeaky clean trial with an undeniably just result, and a human monster deprived of excuses to crawl back into court.

  4. Excellent article, and something an unfortunate number of Canadians need reminding on.

  5. Thanks for presenting your thoughts so articulately. I`ve been having the same discussion with people like Rosie DiManno and nobody will hear me out. This was very well presented and speaks to each point. Hopefully more people will open their eyes and see the bigger picture and what the hard-drive being used as evidence could have presented.

  6. Rafferty’s fate was so obviously decided before he was ever arrested. There’s a strategy that wasn’t used by the defence. When it wasn’t used I thought this was decided a long time ago. The Lawyers and Judge were just playing their parts. Rafferty should get an extra life sentence for being an uneducated Psychopath

  7. Seriously, Jessie Brown? Do you, yourself, actually believe the stuff I just read in your article? A consistent string of searches for all things dealing with underage rape, child abduction, murder, psychopathic meanderings, has little other reason for being on someone’s laptop other than a pronounced interest and obvious predilection (which far exceeds the curiosity you speak of). Unless, he had some other legitimate reason for it related to research regarding school, employment, etc. We know there was no such legitimate correlation for him. Now, for argument’s sake, let’s change the actual computer evidence – what if it were photographs or videos of the actual crime in question – would they too be kept from the jury on the same legal grounds??? The secondary warrant was in flux at the time, so the law was open to interpretation, namely the interpretation of the judge. He made a poor decision and his vehemence in pronouncing the convicted a monster probably did much to console himself, for what could have, thanks to him, gone very wrong. I bet even Judge Heeney went home the night of jury deliberations and said to himself, “What the hell have I done?”

    Finally,it was unacceptable for the judge to use the courtroom as his pulpit to criticize reporters who disagreed with him. I loved Christie Blatchford’s May 15th article addressing the judge blowing a gasket – she said all I wanted to say, just wish it had been said to the judge directly.