Reasonable Doubt: The road to justice is paved with tough decisions

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      The long, horrible court ordeal for the family of Tori Stafford is finally over. Michael Rafferty has been convicted of first-degree murder, kidnapping, and sexual assault causing bodily harm. I can’t even begin to imagine the pain and suffering of the family, to have to sit there every day and listen to the horrific details of what was done to their little girl. Despite the now-obvious fact that yes, justice is still well and alive in Canada, there was and still remains a lot of criticism of how the case unfolded.

      The most heated comments have to do with the exclusion of evidence regarding Rafferty’s deviant sexual proclivities. After a search of Rafferty’s laptop, it was revealed that in the months leading up to Tori Stafford’s murder, Rafferty had done Google searches for “underage rape”, “read underage rape” and “best program to download child porn”. He also possessed substantial amounts of child pornography. Is this disturbing? Absolutely! Would it have assisted the jury in coming to the conclusion that they did in a proper legal manner? Probably not. And that was a risk the trial judge wisely decided not to take. He found that the material was obtained in a manner that breached Rafferty’s section 8 Charter right against unreasonable search and seizure. As well, the evidence was impermissible bad character evidence.

      Mr. Justice Heeney has taken the extraordinary step of addressing the social backlash in his sentencing decision. I am not going to copy out the whole of the text but I do encourage you to read it in full. His comments are found online at a number of sources. I am going to highlight the following which I think are very eloquent and powerful:

      “There has been a great deal of negative media comment over the past few days relating to evidence of bad character that was excluded during this trial. Much of the criticism demonstrates a fundamental misunderstanding of some basic concepts upon which our criminal justice system operates. Since people tend to believe what they read, this has the potential to undermine public confidence in the administration of justice. It is, therefore, important that I take a moment, at the outset of my comments on sentencing, to explain these basic concepts, and thereby correct any misapprehension that may exist….

      " [Rafferty] has received a fair trial. Some believe it was too fair. His trial was fully respectful of the rights that are guaranteed to him under our Charter as a citizen of this great country. Mr. Rafferty was not convicted based on his character, he was convicted based on his conduct…."

      The law in this country has long recognized that admitting evidence of this kind has enormous potential to lead a jury to conclude that a person is guilty of the crime even if the evidence proving that person’s actual involvement is lacking. Such is the power of character evidence. It can, and has in the past, lead to wrongful convictions.”

      I applaud Mr. Justice Heeney for addressing these issues. If he hadn’t excluded the evidence, Rafferty would have stronger arguments for appeal than he currently does. It was an extremely tough decision, one that Mr. Justice Heeney was able to make because he is not an elected official, subject to the whims and desires of the electorate. Instead, he is a judge who was appointed based on his professionalism, legal acumen, and career.

      I take great offense to the vitriolic words spewed by reporters such as Christie Blatchford, who reports on crime despite her limited knowledge of how our justice system actually works. In her May 10 “Full Comment” article, she accused the judge of not wholly trusting the jury’s intelligence or judgment, blamed the system for not trusting the jurors with the volume of information about Rafferty because “they weren’t smart like lawyers or judges”, and described Mr. Justice Heeney’s treatment of them “not only as slightly simple civilians, but as delicate flowers.”

      Near the end of her article, Blatchford states, “As ever, the jurors were tougher, smarter and more resilient than the system credited. They deserved more than the judicial equivalent of a pat on the head.” In my view, the accused, regardless of the terrible crimes he was accused of, deserved a fair trial according to all the rules of evidence that go along with it. And the jury deserved the professionalism with which Mr. Justice Heeney handled them.

      Reasonable Doubt appears on on Fridays. The column's writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at

      A word of caution: Don't take this column as personal legal advice, because it's not. It is intended for general information and entertainment purposes only.