Court File and Parties

Court File No.: 10856
Date: 2012-02-14
Superior Court of Justice - Ontario

Re: R. v. Michael Thomas Christopher Stephen Rafferty

Before: Heeney J.

Counsel:
Michael Carnegie, Counsel for the Crown
Dirk Derstine, Counsel for the Accused

Heard: February 8 & 10, 2012

Endorsement: C-2 (PHOTOGRAPHIC EVIDENCE)

[ 1 ] This motion was brought by the Crown to determine the admissibility of certain graphic photographs of the body of Tori Stafford. The intention is to present these photographs during the testimony of Dr. Michael Pollanen, who conducted the post mortem examination, and who will be providing expert testimony as to the mechanism and cause of death.

[ 2 ] There were literally hundreds of photographs taken of the child’s remains. Those have been pared down by Dr. Pollanen to twenty photographs which he considers to be essential to enable him to fully and fairly deliver his testimony. Most of those photographs are very clinical in nature, such as pictures of the reconstructed skull. Only three can be considered to be graphic in nature. Of those three, the Crown has agreed to eliminate photo #6, leaving only photos #3 and #4 in dispute.

[ 3 ] Tori Stafford was allegedly abducted, raped and murdered on April 8, 2009, and her body placed in garbage bags and left under a pile of rocks in the countryside near Mount Forest. The body was discovered on July 19, 2009, and was, as may be expected, in an advanced state of decomposition, with some skeletonization visible. Photo #3 depicts the body in its original position after removal of the garbage bags, and therefore represents the starting point for the post mortem examination. Photo #4 is a photo of the corpse after cleaning, lying on its back with the front of the body fully visible.

[ 4 ] In her usual fashion, Fuerst J. helpfully and succinctly summarized the law that applies to the admissibility of graphic photographs in R. v. Wills , 2007 239 (Ont. S.C.J.) at paras. 19 to 22 :

[19] Photographic images of the deceased can be relevant to the issues in a murder trial in any number of ways. As noted in R. v. Schaefler , [1993] O.J. No. 71 (Gen. Div.) they may, for example, illustrate the facts on which experts base their opinions and the steps by which they arrive at their opinions; illustrate the minutiae of objects described in the testimony of a witness such as the nature and extent of wounds; corroborate testimony, provide a picture of the evidence, and assist the jury in determining its accuracy and weight; link the injuries of the deceased to the murder weapon; provide assistance on the issues of intent and planning and deliberation; and help the jury assess the positions put forward by Crown and defence counsel.

[20] Whether the images are admissible, however, turns on a balancing of probative value and prejudicial effect. The three-step approach that a trial judge should take to make this determination was set out in R. v. R. P. (1990), 58 C.C.C. (3d) 334 (Ont. H.C.J.) at 347:

1. The judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case including the credibility of witnesses;

2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters that are not in issue or because of the risk that the jury may use the evidence improperly to prove a fact in issue;

3. The judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions.

[21] In R. v. A. D ., [2004] O.J. No. 5838 (S.C.J.) Dambrot J. observed that the balancing of probative value and prejudicial effect must take into account the principles identified by Binnie J. in R. v. Handy , 2002 SCC 56 , [2002] 2 S.C.R. 908 . In determining probative value, the issue in question must be identified, the relative importance of that issue should be considered, and the strength of the inference should be assessed. In evaluating prejudicial effect, moral prejudice (the improper inference of guilt from evidence of general disposition or propensity), reasoning prejudice (distraction of the jury flowing from inflammatory evidence, the creation of a distracting side issue, or the undue consumption of time), unfairness to the witness, and unfair surprise are considerations.

[22] The onus is on the defence to demonstrate that the prejudicial effect of the evidence outweighs its probative value: R. v. R. P., supra; R. v. Currie , 2000 22822 (ON SC) , [2000] O.J. No. 392 (S.C.J.) .

[ 5 ] The first task, then, is to determine the probative value of the evidence.

[ 6 ] Dr. Pollanen intends to use photo #3 to assist in outlining the multi-stage scientific process that is undertaken during a post mortem examination. In his view, it is important for the trier of fact to understanding the starting point, which is represented by the presenting pathology illustrated by this photograph. The extent of decomposition, while horrible to see, is an important fact in and of itself, because it will assist the jury in understanding the limitations of the scientific evidence - in particular, that the near complete decompositional destruction of the external genitalia makes it impossible to offer an opinion as to whether or not the child had been sexually assaulted.

[ 7 ] This photograph also assists in demonstrating the following positive findings:

• The extraordinary extent of the damage to the left side of the skull;

• The presence of a Hannah Montana shirt on the upper portion of the body, with the lower portion of the body being unclothed;

• The fact that the body was found in a fetal position.

[ 8 ] The first point is highly relevant to Dr. Pollanen’s opinion that death was caused by multiple blows to the head with a hammer, and to corroborate the evidence of the alleged accomplice, Terri-Lynne McClintic, that the child was beaten to death with a hammer.

[ 9 ] The second point is important to corroborate the evidence of Ms. McClintic that the child was wearing that shirt at the time, and that she was sexually assaulted by the accused before she was murdered.

[ 10 ] The third point serves to corroborate Ms. McClintic’s evidence that the child was in a fetal position at the time she was stomped on by the accused, prior to the hammer blows being inflicted.

[ 11 ] The accused argues that this photograph has no probative value because the defence does not intend to contest the fact that the body depicted is that of Tori Stafford, nor the level of decomposition, nor the fact that the body was found in the fetal position. As to the importance of the skull fractures, it is argued that the five close-up photographs of the reconstructed skull make the extent of damage self-evident.

[ 12 ] There is not, however, any admission that the child was killed by being struck on the head with a hammer, nor that she was sexually assaulted beforehand. It will be for the jury to determine how the child was killed, and by whom. The latter issue has been impacted by the recent change in the anticipated testimony of Ms. McClintic, where she is now saying that it was she, and not the accused, who inflicted the hammer blows.

[ 13 ] While the destruction of the skull is clinically illustrated by later photographs, in which the fragments of the skull have been reconstructed, those photographs do not begin to convey the extent of damage nor the degree of violence that was initially inflicted on the child. This photograph, in my view, is highly relevant and important evidence for the jury to have at its disposal as it considers these central issues.

[ 14 ] Photo #4 is relevant because it once again shows the extent of the destruction to the left side of the child’s skull, but does so in a photograph where the body has been cleaned up and from an angle that eliminates photographic shadow. This photograph also illustrates the Hannah Montana shirt on the torso, and the absence of clothing on the lower half of the body. Finally, it illustrates the advanced decomposition present, particularly to the lower portion of the body, to further explain Dr. Pollanen’s inability to offer an opinion as to the likelihood of sexual interference having occurred.

[ 15 ] This photograph can be said to be somewhat redundant, since most of these points can already be illustrated with photo #3. The previous photograph has the additional advantage of showing the body in its original position, which the second photograph does not. This photograph does, however, show the extent of decomposition to the genital area very clearly.

[ 16 ] In response to that, the accused, in para. 34 of his factum, indicates that he is prepared to admit that, at that level of decomposition, one would not expect to find physical evidence of any sexual assault.

[ 17 ] In my view, a formal admission to this effect would serve to considerably lessen the probative value of photo #4, because the central point which it is offered to illustrate would no longer be in issue. It is important to note that this point relates not to what conclusions can be drawn, but rather what conclusions cannot be drawn by Dr. Pollanen, and by extension by the jury, from the post mortem. Such a point is more readily dealt with by an admission that effectively removes it from consideration. That is not the case with the probative elements of photo #3, from which the jury will be asked to draw certain positive conclusions.

[ 18 ] There is an additional aspect to the probative value of both photographs, which was recognized by Goudge J.A., sitting as the Commissioner in the Inquiry into Pediatric Forensic Pathology in Ontario, Report : Ontario Ministry of the Attorney General, Queen’s Printer for Ontario, 2008, pp. 48, 495. In dealing with the gatekeeper function of the court to ensure the threshold reliability of pathology evidence, he suggested that the following factor be considered:

7. whether the expert can express the opinion in a manner such that the trier of fact will be able to reach an independent opinion as to the reliability of the expert’s opinion.

[ 19 ] The photographs in question where chosen by Dr. Pollanen precisely because he felt that he needed them to explain to the jury the step by step process he followed in conducting the post mortem examination, and to assist them in understanding the basis for his conclusions. The photographs, therefore, will assist the jury in reaching their own independent opinions as to the reliability of his conclusions, as opposed to merely being asked to “take his word for it”.

[ 20 ] The next step in the analysis is to consider the prejudicial effect of the admission of the photographs.

[ 21 ] The accused argues that the admission of these photographs is likely to invoke strong emotional responses in the minds of the jury, which could cloud or distract their reasoned examination of the evidence, and incite in their minds an overwhelming desire to punish the perpetrator.

[ 22 ] In my view, the degree to which the average juror will be inflamed by graphic photographs has been much diminished in recent years, due to the frequency with which they are bombarded by such graphic images on television and at the movies. As Laforme J. (as the then was) observed in R. v. Kinkead , [1999] O.J. No. 1498 (S.C.J.) at para. 17 :

In my view, and in my experience, juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. It is certainly true that we live in a time when communications are extraordinarily rapid, comprehensive and complete. The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination.

[ 23 ] Those comments were made thirteen years ago, and the “deluge” has since become a virtual tsunami. Forty years ago, images such as these might have caused an average person to recoil in shock and horror, because they would never have seen such things before in their lives. Today, that is no longer the case. The general public has, in my view, become largely desensitized to graphic images of blood, death and destruction.

[ 24 ] Furthermore, it must be acknowledged that horror is an inevitable component of the alleged crime before the court. In R. v. Hurd , [2011] O.J. No. 2142 (S.C.J.) , Sproat J. considered an objection by the defence to the admission of an audio recording that depicted an intruder’s sexual assault and strangulation of the victim. While acknowledging the “stark horror” of the recording, he said this, at para. 20:

I think it fair to observe that the crime itself is disturbing and of stark horror. Nothing can change that.

[ 25 ] He repeated this theme at para. 26: “To the extent that there is “stark horror”, it inheres mainly in the nature of the case itself”.

[ 26 ] The jury in this case will know from the outset that they are trying charges relating to the abduction, rape and murder of a young child. They will inevitably be hearing evidence that could be classified as horrific, and will be instructed that they are to disregard any emotional reaction to such evidence, and to decide the case without prejudice or sympathy. The extent to which their emotional reaction might be aggravated by seeing graphic photographic evidence during the course of the trial is, in my view, minimal. Indeed, in a trial such as this, they will probably expect to encounter such evidence along the way, and will be emotionally prepared for it. A mid-trial instruction just before this evidence is introduced will also assist in buffering their reaction.

[ 27 ] The fact that this evidence will be presented during the testimony of Dr. Pollanen also offers a great deal of comfort in this regard. In his e-mail, which was received in evidence on consent and marked as Ex. #1 on this motion, he said the following:

In addition, in my own experience, once I engage the jury in a scientific explanation of the images, any inflammatory nature that is apparent at first glance will be minimized and replaced with real understanding of what the images actually show at the medical/scientific level.

[ 28 ] Having observed Dr. Pollanen testify before me on several homicide trials, I can confirm that his description of the manner in which he quickly establishes an atmosphere of scientific detachment is, if anything, understated.

[ 29 ] The final step in the analysis is to balance the probative value as against the prejudicial effect. With respect to photo #3, I have already found the probative value to be extremely high. It speaks, in general, to the reliability of the evidence of Dr. Pollanen as a whole. Specifically, it offers visual evidence of the position of the victim at the time of her death, her state of semi-nudity, and the violence of the blows inflicted on her head. It is directly relevant to the central issues in this case, and to the credibility of the central witness for the Crown.

[ 30 ] While the photograph is horrible to look at, I am not persuaded that the jury would be so inflamed with passion from looking at it that they would be distracted from their duty to dispassionately try this case based solely upon the evidence. In my view, the manner in which this evidence is expected to be delivered by Dr. Pollanen, coupled with mid-trial instructions to the jury, will serve to largely eliminate any unduly emotional reaction on the part of the jury. I am satisfied that the probative value of this evidence outweighs its prejudicial impact.

[ 31 ] It was suggested that cropping the photograph might reduce its prejudicial impact. However, the view of the skull is probably the most horrible part, but it is equally the most important. Cropping away the rest of the photo would not serve to diminish the emotional impact of the photograph, and would only serve to diminish the probative value that the rest of the photograph has to offer.

[ 32 ] With respect to photo #4, I have already observed that it is largely redundant in that most of the points it serves to illustrate can already be illustrated by photo #3. The extent of decomposition of the genital area, leading to the conclusion that it is impossible to offer an opinion as to whether the child had been sexually assaulted, can be dealt with by the proposed formal admission, rendering that fact to be no longer in issue.

[ 33 ] As to the prejudicial impact, it has been suggested that this photograph is less disturbing than photo #3 because the body has been cleaned up and is more clinical. While that is true, the photograph is disturbing in another way, in that the child’s genital area, or what is left of it, is wide open to view. Given that the Crown alleges that the child was raped shortly before her murder, a photograph depicting her genital area has some potential to inflame the jury.

[ 34 ] Provided that the accused executes and files a formal admission as outlined above, I am satisfied that the prejudicial effect of photo #4 outweighs its probative value, and it will be excluded on that basis. As Mr. Derstine suggested, this ruling may be revisited in the event that the cross-examination of Dr. Pollanen takes an unexpected turn.

“T. A. Heeney J.”

Mr. Justice T. A. Heeney

Date: February 14, 2012