Court of Appeal for Ontario
CITATION: R. v. Rafferty, 2016 ONCA 816
DATE: 2016-11-03
DOCKET: C58090
BEFORE: Laskin, Sharpe and Huscroft JJ.A.
Her Majesty the Queen
Respondent
and
Michael Rafferty
Appellant
Counsel: Paul Calarco and Stacy M. Nichols, for the appellant Howard Leibovich and Randy Schwartz, for the respondent
Heard: October 24, 2016
On appeal from the conviction entered on May 11, 2012 by Justice Thomas A. Heeney of the Superior Court of Justice, sitting with a jury.
Huscroft J.A.:
[1] Eight year-old Victoria Stafford was abducted on her way home from school and taken to a farmer’s field, where she was killed. Her body was discovered some months later, naked from the waist down, stuffed into garbage bags under a pile of rocks. She was found to have several broken ribs and several skull fractures.
[2] Terri-Lynn McClintic pleaded guilty and was convicted of first degree murder. In the agreed statement of facts at her trial, she said that the appellant, Michael Rafferty, had sexually assaulted and killed the child. She said that the appellant covered the child’s head with a garbage bag, stomped and kicked her while she was on the ground, then struck her several times in the head with a hammer.
[3] The appellant pleaded not guilty to first degree murder; sexual assault causing bodily harm; and kidnapping. He did not testify at his trial. Contrary to the agreed statement of facts at her trial, at the appellant’s trial McClintic testified that she was the one who killed the child. The defence argued that McClintic orchestrated the kidnapping and killing; that there was no sexual assault; and that the appellant was neither a principal of nor a party to the crimes.
[4] The appellant was convicted on all counts following an eight-week jury trial.
[5] On appeal, the appellant argues, in essence, that he was a mere bystander at the scene when McClintic killed the child and that, at most, he is guilty of being an accessory after the fact to murder, an offence with which he was not charged. He also says that the trial judge made four errors that rendered his trial unfair.
[6] Following the hearing of the appellant’s submissions, the panel did not consider it necessary to call on the respondent Crown. The appeal was dismissed with reasons to follow. These are the reasons.
Issues on appeal
[7] The appellant submits that the trial judge erred in the following ways:
By failing to charge the jury in his instructions on post-offence conduct on the “defence” of being an accessory after the fact;
By permitting the Crown to lead a portion of the May 24 videotaped statement McClintic made to the police for the truth of its contents;
By failing to warn the jury that it would be dangerous to convict solely on McClintic’s testimony; and
By erroneously charging the jury on the appellant’s post-offence conduct of removing the backseat of his car.
[8] I deal with each of these issues below.
(1) Should the trial judge have charged the jury on the “defence” of being an accessory after the fact?
[9] The appellant acknowledges that the trial judge properly charged the jury that the appellant’s post-offence conduct should not be used to conclude that he was guilty of all of the offences with which he was charged. However, he argues that the trial judge’s instruction on post-offence conduct was underinclusive: although he was not charged with being an accessory after the fact, it offered an alternative explanation for his actions following the murder. Accordingly, it was incumbent on the trial judge to instruct the jury that the appellant’s post-offence conduct was consistent with him being solely an accessory.
[10] The appellant submits that the following evidence was consistent with his attempt to assist McClintic in avoiding apprehension and prosecution:
a) obliterating tire tracks at the scene;
b) washing the car and sanding its interior to eliminate evidence that the child had been in the car;
c) concocting a false alibi for McClintic;
d) telling McClintic to alter her appearance; and
e) removing the backseat of the car.
[11] I would reject this submission.
[12] There was simply no evidence upon which a properly instructed jury acting reasonably could have found the appellant guilty solely of being an accessory. 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.
[13] Moreover, it strains credulity to suppose that the appellant would have helped McClintic to cover up a heinous crime that she alone had committed. That the appellant’s trial counsel did not ask for an instruction on being an accessory after the fact speaks volumes in this regard.
(2) Should McClintic’s May 24 statement to the police have been admitted for proof of its contents?
[14] McClintic gave several statements to the police. In her statements given on April 12 and May 12, 2009, she denied any involvement in the crime. On May 19, 2009, she gave a statement to a police polygraph examiner that was partly exculpatory, and partly inculpatory. However, on May 24, 2009, McClintic gave a statement in which she admitted her role in the kidnapping, sexual assault, and murder, but stated that the appellant killed the child.
[15] McClintic testified at the appellant’s trial in a manner consistent with her May 24 statement with one important exception: she testified that she was the killer, not the appellant. She stated that she kicked the child and struck her with the hammer.
[16] The Crown was permitted to cross-examine McClintic on her May 24 statement pursuant to s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C.5 and sought to have a portion of her statement admitted as a principled exception to the hearsay rule. The trial judge agreed, and the jury was allowed to consider a 58 minute portion of her statement along with her testimony at trial.
[17] The appellant submits that the trial judge erred in admitting the May 24 statement, and erred further in admitting only a portion of that statement, rather than the whole statement. He acknowledges that the statement meets the “necessity” requirement in the principled exception to the hearsay rule, but contends that the statement does not meet the threshold reliability requirement.
[18] I disagree.
[19] The trial judge carefully reviewed the criteria from R. v. B. (KG.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787. Although McClintic’s statement was made under caution, rather than under oath, it was made following consultation with her counsel, it was videotaped and, importantly, McClintic was available for full cross-examination.
[20] This was not a case in which one co-accused sought to blame another co-accused. Nor is it a case in which a statement was made in an attempt to minimize involvement in a crime, in order to obtain a lesser sentence. As the trial judge noted, McClintic’s May 24 statement ensured her own conviction as a party to the offence of first degree murder. R. v Youvarajah, 2013 SCC 41, [2013] 2 S.C.R. 720, which was delivered subsequent to the trial judge’s ruling, is distinguishable on this and other bases.
[21] It was reasonable for the trial judge to conclude that threshold reliability was established in these circumstances, and this conclusion is reinforced by a substantial body of confirmatory evidence. This evidence included, among other things, video of the abduction; video of the purchase of the hammer and garbage bags at Home Depot; and expert evidence from a pathologist as to the cause of death.
[22] Finally, the trial judge considered his residual discretion to exclude the statement, but concluded that the probative value of the statement far outweighed any prejudicial effect that it may have. He found that the statement was given freely and there was no basis to conclude that its admission into evidence would bring the administration of justice into disrepute.
[23] Although the trial judge admitted only a portion of the May 24 statement, he considered the statement as a whole. His decision to admit an edited portion was properly made in order to avoid prejudice to the appellant by the admission of a prior consistent statement. However, the appellant had unlimited ability to cross-examine McClintic. Admission of a portion of her May 24 statement cannot be said to have occasioned any prejudice to the appellant.
[24] In summary, there is no basis to impugn the trial judge’s decision to admit McClintic’s May 24 statement into evidence. This ground of appeal must be rejected.
(3) Should the trial judge have warned that it would be dangerous to convict solely on McClintic’s testimony?
[25] The appellant submits that the trial judge erred in not giving a Vetrovec warning to the jury – in failing to warn the jury that it would be dangerous to convict the appellant based solely on the testimony of McClintic: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811.
[26] I disagree.
[27] The difficulty with this submission is that the trial judge included a Vetrovec warning in his initial draft charge to the jury, but removed it at the request of the appellant’s trial counsel. 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.
[28] When defence counsel objected to the Vetrovec warning, the trial judge offered to reduce the list of potentially confirmatory evidence to six items. However, appellant’s trial counsel asked that a Vetrovec warning not be given.
[29] Plainly, counsel’s request was made in order to avoid the recitation of any of the substantial body of confirmatory evidence that would have had to accompany the Vetrovec warning. 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 Vetrovec warning. His decision to do so cannot now be impugned.
[30] The appellant submits that responsibility to give a Vetrovec warning lies with the trial judge regardless of the position of the parties, and so it does. However, the decision to give the warning is discretionary in nature, as is the content of the warning itself, and a trial judge’s exercise of this discretion is entitled to deference: R. v. Brooks, 2000 SCC 11, [2000] 1 S.C.R. 237, at paras. 2 and 18; R. v. A.W.B., 2015 ONCA 185, [2015] O.J. No. 1407, at para. 40.
[31] Although there will sometimes be cases in which a Vetrovec warning must be given, as Fish J. noted in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 at para. 5, in my view no such warning was required in this case. Given the volume of confirmatory evidence, the trial judge reasonably concluded that there was no risk that the jury would convict based solely on the testimony of McClintic. That being so, the trial judge did not want to interfere with a tactical decision made by the appellant’s trial counsel who, as the trial judge noted, was very experienced and highly skilled.
[32] The trial judge instructed the jury concerning McClintic’s criminal record and the use the jury could make of it in assessing her credibility, but gave no Vetrovec warning. He made no error in doing so, and there is no basis to interfere with the exercise of his discretion.
[33] This ground of appeal must be rejected.
(4) Did the trial judge err in charging the jury on the appellant’s post-offence conduct of removing the backseat of his car?
[34] McClintic testified that, on the appellant’s instructions, she cut a bloodstained portion out of the backseat of the appellant’s car, and there was evidence that the backseat of the car was disposed of subsequent to the commission of the offences. The appellant submits that the trial judge erred in failing to instruct the jury that it could not use the removal of the backseat as evidence of post-offence conduct, unless it was sure that the backseat had been removed following the offences.
[35] There is no merit to this submission.
[36] The trial judge specifically instructed the jury that it had to decide whether it accepted the evidence as to what the appellant was alleged to have done following the offences. This instruction followed the trial judge’s reminder to the jury that two witnesses testified that the backseat of the appellant’s car was removed prior to the commission of the offences.
[37] The trial judge went on to instruct the jury that if it did accept the evidence of post-offence conduct, it “should be careful about drawing any incriminating inferences from this conduct without first considering whether there may be alternate explanations for it”. The appellant’s submission that this instruction did not go far enough cannot be sustained. There could be no doubt as to the permissible use of post-offence conduct evidence following these instructions.
[38] This ground of appeal must be rejected.
Conclusion
[39] In summary, the trial judge made none of the errors that the appellant has raised. On the contrary, his handling of a difficult trial was, in our view, exemplary.
[40] The appeal is dismissed.
Released: November 3, 2016 “GH”
“Grant Huscroft J.A.”
“I agree John Laskin J.A.”
“I agree Robert J. Sharpe J.A.”