The jury that convicted Michael Rafferty of killing eight-year-old Victoria Stafford should have considered that he might have been only an accessory after the fact to her brutal murder, Ontario’s Appeal Court was told Monday.
The argument was part of lawyer Paul Calarco’s attempt to convince the court that there is merit to an appeal of Rafferty’s convictions for first-degree murder, sexual assault causing bodily harm and kidnapping.
Rafferty wants the Appeal Court to order that the public fund his appeal, which Calarco argues is too complex for Rafferty to handle by himself. Rafferty can’t afford to hire a lawyer and has been turned down four times by Legal Aid since his convictions in May 2012.
Rafferty’s trial heard that he and his former girlfriend, Terri-Lynne McClintic, lured Tori from her school in Woodstock, Ont., and drove to a secluded field, where the Grade 3 student was sexually assaulted and brutally beaten to death in April 2009.
It’s “absolutely vital” that every person have the right to a fair trial and a proper appeal, Calarco said outside court.
“That applies no matter if the person is one for whom the public has sympathy… or a person the public has no sympathy for,” he said.
Appeal Court Justice Marc Rosenberg reserved his decision, but he can either dismiss Rafferty’s motion, request that Legal Aid fund a lawyer or order that the money should come from the Ministry of the Attorney General.
The trial judge made three errors, including not charging the jury on the issue of accessory after the fact, Calarco told the court.
“A trial judge has to put every defence that is reasonably based to the jury,” Calarco argued. “Accessory had a very strong air of reality to it.”
McClintic made conflicting statements about whether she or Rafferty delivered the fatal blows to Tori. If she was the “principal offender,” then Rafferty’s actions could mean he is “nothing more than an accessory after the fact,” Calarco said.
“(He’s) not blameless by any means, but not blameworthy for murder,” Calarco said. “You can’t expect anyone but a very well-prepared, very well-briefed counsel to advance that ground.”
Superior Court Judge Thomas Heeney also erred by not giving the jury what is called a Vetrovec warning, which cautions juries about the testimony of untrustworthy witnesses.
Rafferty’s trial lawyer, Dirk Derstine, made a “tactical decision” not to ask Heeney to give that warning in his instructions to the jury, and Heeney found that there was no risk the jury would convict on McClintic’s evidence alone, Calarco said. Still, the caution was needed, he said.
Derstine suggested to the jury in his closing remarks at trial that Rafferty was an innocent dupe or horrified spectator to a murder that McClintic orchestrated and committed, saying her testimony can’t be trusted.
The third ground that Calarco said points to the merit of Rafferty’s appeal is another issue regarding McClintic’s conflicting evidence.
“This is a person who is totally capable of deceit,” Calarco said. “This is not a person you can put any faith in.”
Each of those issues illustrate that the appeal is not straightforward and Rafferty needs more assistance than duty counsel could provide, Calarco said.
“There’s no evidence that Mr. Rafferty was the prime offender in this,” Calarco said. “The only way to make those points to the court, I would suggest, is through the appointment of counsel.”
Crown attorney Randy Schwartz opposed the motion, arguing that the appeal is not particularly complex and doesn’t raise novel points of law. Rafferty’s appeal isn’t any more complex than other cases duty counsel deal with on a daily basis, he said.
Rafferty had been serving his life sentence at Kingston Penitentiary, but after the notorious prison closed this year, he was moved to an institution in Quebec, Calarco said, though he wouldn’t say which one.
McClintic is also serving a life sentence for first-degree murder.