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Michael Rafferty appeal: In reasons for nixing child killer’s appeal, top Ontario court lauds trial justice’s ‘exemplary’ job

By Randy Richmond, The London Free Press

Michael Rafferty.

Michael Rafferty.

London’s Superior Court Justice Thomas Heeney did an “exemplary” job handling the difficult first-degree murder trial of Michael Rafferty, Ontario’s highest court concludes.

“The trial judge made none of the errors that (Rafferty) has raised,” the Ontario court of appeal states in the written reasons dismissing his appeal, released Thursday. “On the contrary, his handling of a difficult trial, was, in our view, exemplary.”

The three-member court panel rejected on Oct. 24 Rafferty’s appeal of his first-degree murder conviction of Victoria (Tori) Stafford, stating that written reasons would follow.

Rafferty was convicted in 2012 of the kidnapping, rape and murder of eight-year-old Tori on April 8, 2009.

The Woodstock girl was walking home from school when she was lured into Rafferty’s car, driven near Mount Forest north of Guelph, assaulted, killed and buried under rocks near a farmer’s field.

Rafferty’s trial was marked by legal arguments over contradictory statements by his co-accused, Terri-Lynne McClintic, a damaged and dangerous woman whose own violent life became the focus of the trial. She is serving a life sentence for first-degree murder after pleading guilty in 2010.

Rafferty’s lawyer, Paul Calarco, said it hasn’t been determined yet if the decision will be appealed to the Supreme Court of Canada.

“I have received the reasons. I’m reviewing them and I’m awaiting instructions,” he said.

Calarco raised four issues that the court of appeal dismissed:

• Should the trial judge have given the jury an option of Rafferty being only an accessory after the fact, rather than a killer?

“There was simply no evidence upon which a properly instructed jury acting reasonably could have found the appellant (Rafferty) guilty solely of being an accessory,” the court of appeal ruled.

“There was no evidential foundation — no ‘air of reality’ — for the appellant’s submission that he was simply helping McClintic after she committed the offences. On the contrary, a large body of evidence contradicted this theory. Moreover, it strains credulity to suppose that the appellant would have helped McClintic to cover up a heinous crime that she alone had committed.”

• Should the trial judge have warned the jury that it would be dangerous to convict solely on McClintic’s testimony?

The trial judge considered issuing the warning but removed it at the request of Rafferty’s lawyer, the appeal court noted.

“The warning made clear that McClintic was an unsavoury witness, and among other things detailed her criminal background, history of violence, and confession to the murder. The draft also included reference to 14 items of independent evidence that potentially confirmed McClintic’s evidence,” the court of appeal noted.

But Rafferty’s lawyer, Dirk Derstine, recognized that references to independent evidence would not have helped the accused’s cause, the court of appeal noted.

“The trial judge understood that the request was made for tactical reasons and having reviewed the law he decided that he should accede to counsel’s request and omit the . . . warning. His decision to do so cannot now be impugned.”

• Did the trial judge err in failing to tell the jury that it could not use the removal of the backseat of Rafferty’s car as evidence of guilty conduct after the murder, unless it was sure that seat was removed after the murder?

The trial judge did tell the jury it had to consider alternate explanations for Rafferty’s conduct before drawing any conclusions, the court of appeal ruled.

• Should McClintic’s May 24, 2009, statement to the police incriminating Rafferty have been admitted at the trial for proof of its contents?

McClintic gave contradictory statements to police and others. Part of the May 24 statement was admitted as evidence, with both sides in the trial allowed to question her. At the trial itself, McClintic insisted she killed Tori.

Calarco argued at the court of appeal hearing the trial judge erred in admitting the May 24 statement because the statement broke rules against hearsay evidence.

But the court of appeal disagreed, saying McClintic did not make the May 24 statement to blame someone else and minimize her own involvement. It was also made under a caution and following consultation with her lawyer.

There was also a “substantial body of confirmatory evidence,” such as a video of the abduction; the purchase of the murder weapon, a hammer; and expert evidence on the cause of death, the court of appeal ruled.

rrichmond@postmedia.ca