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.

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