COURT FILE NO.: 10856

DATE: 2012-01-31

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: January 31, 2012

ENDORSEMENT: C-7 (eLECTRONIC EVIDENCE)

[ 1 ] My ruling of January 31, 2012 in Application D-4, relating to the Charter challenge with respect to evidence obtained through the four search warrants issued May 22, 2009, has rendered inadmissible most of the items of electronic evidence that the Crown was seeking to have ruled admissible in the present motion. The effect of that ruling was to exclude, pursuant to s. 24(2) of the Charter, the information obtained from the search of the laptop and Blackberry of the accused which were seized from his 2003 Honda civic. Excluding that evidence, in turn, rendered the electronic evidence obtained from the 20 gig. Hitachi hard drive irrelevant, and it was ruled to be inadmissible on that basis.

[ 2 ] After reviewing the list at para. 2 of the Crown’s factum, it appears that there are only two items that remain to be dealt with in this motion. The first, the contents of the SanDisk digital memory card, were ruled to be admissible in my earlier ruling. In the present motion, the written Defence Position filed by Mr. Derstine indicates that the accused is not contesting the admissibility of the photographs on that memory card.

[ 3 ] The other item is the Neoprint printout of the Facebook profile of the accused, which was obtained from the corporate headquarters of Facebook in California, pursuant to the Mutual Legal Assistance Treaty. A copy has been marked as Ex. 5 on this motion. The relevant part of that profile is a message posted by the accused on April 8, 2009 at 7:01 a.m. Pacific time (10:01 a.m. Eastern) as follows: “everything good is comming my way”.

[ 4 ] The theory of the Crown, to be supported by the evidence of Terri-Lynne McClintic, is that later that same day the accused told her that he wanted her to snatch a little girl for him. She agreed to do so, which led to the abduction, rape and murder of Tori Stafford.

[ 5 ] The posting is circumstantial evidence of the state of mind of the accused on that morning, and is highly relevant evidence.

[ 6 ] The accused challenges its admissibility on the basis that it is a statement without context. Reliance is placed on R. v. Hunter, 2001 5637 (ON CA), 54 O.R. (3d) 695 (C.A.). In that case, a statement was admitted at trial which had been overheard by a passerby as he was walking by the accused and his lawyer. The accused was heard to say “I had a gun, but I didn’t point it”. The accused was convicted of a weapons offence and appealed, arguing that this statement ought not to have been admitted.

[ 7 ] Gouge J.A., speaking for the court, applied R. v. Ferris (1994), 1994 31 (SCC), 34 C.R. (4 th ) 26 (S.C.C.), in ruling that the statement ought not to have been admitted. In Ferris, the accused was overheard to say “I killed David”. However, the statement lacked any context, because what the accused said before and after that phrase was unknown. That context, depending on what it was, could completely change the meaning of the statement. For example, the accused could have been saying “they are saying I killed David, but I didn’t”, or “there is no way that I killed David”, and so on. Because of that, it was held that the trial judge ought to have excluded it, on the ground that its prejudicial effect outweighed its probative value.

[ 8 ] At para. 20 of Hunter, Gouge J.A. said this:

When the principles derived from Ferris are applied to this case, I think the evidence must be excluded as it was in Ferris. The only possible relevance of the overheard utterance is if it could be found to constitute an admission by the appellant that he had a gun. Here, as in Ferris, the trial judge found that the overheard utterance had a verbal context, which is unknown, and that it was part of a fuller statement. That statement may have been a statement such as “I could say I had a gun, but I didn’t point it, but I won’t because it’s not true” or “What if the jury finds I had a gun but I didn’t point it – is that aggravated assault?” Neither would constitute an admission. Indeed, given the reasoning of the trial judge, had these possibilities been pointed out to him he might well have reached a different conclusion.

[ 9 ] He went on to observe, at para. 21, that the trier of fact “would have to guess at the words before and after to fix on a meaning”. Accordingly, it was held that the prejudicial effect of admitting this statement outweighed its probative value.

[ 10 ] The situation before this court is completely different. The posting in question is something that is done by the accused, who was a user of Facebook, on his own profile page, which amounts to a message to anyone who visits his page. Indeed, the statement appears beside the word “Message” on the printout. The Neoprint profile that was obtained from Facebook relating to the profile page of the accused shows the statement in question that was posted on April 8, 2009, but it also shows postings and other activity on his page both before and after that date. For example, before the message was changed to “everything good is comming my way” on April 8, the previous message was “where are my good old friends? I need you to hang out with me.. so get ahold of me so we can meet up.. common like ALL OF YOU are you that busy you cant see me ONE night...”. That message had been posted on April 2, 2009. Previous message postings dating back to early February are also disclosed on the Neoprint profile.

[ 11 ] After April 8, 2009, the only similar activity involves announcements that the accused and various people are now “friends” or that someone had written on his “wall”. No further “message” was posted by the accused up to May 12, 2009, which is the last date shown on the printout.

[ 12 ] I am satisfied that the message that the accused posted on April 8 represents the entire thought that he wished to convey at that point in time. There is no missing context that the trier of fact will have to guess at in order to give meaning to that message. To the extent that things said before and after may have some significance, the earlier messages, dating back several months, are all shown on the profile and require no guesswork. No messages were posted after April 8.

[ 13 ] I see no prejudice in admitting this evidence, and its probative value is very high. It is admissible.

[ 14 ] If I have overlooked any other items of evidence that are not covered above or in my earlier ruling, I would be grateful if counsel would advise me.

“T. A. Heeney J.”

Mr. Justice T. A. Heeney

Date: January 31, 2012