



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafferty, 2016 ONCA 816

DATE: 20161103

DOCKET: C58090

Laskin, Sharpe and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Rafferty

Appellant

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 farmers 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 childs 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 appellants 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 appellants 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:

1.     By failing
    to charge the jury in his instructions on post-offence conduct on the defence
    of being an accessory after the fact;

2.     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;

3.     By
    failing to warn the jury that it would be dangerous to convict solely on
    McClintics testimony; and

4.     By
    erroneously charging the jury on the appellants 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 appellants 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 judges 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 appellants 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
    appellants 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
    appellants trial counsel did not ask for an instruction on being an accessory
    after the fact speaks volumes in this regard.

(2)

Should McClintics 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 appellants 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] 1 S.C.R. 740
and
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787
.
Although McClintics 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, McClintics 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 judges 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 judges decision to
    admit McClintics 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] 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 appellants 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
    McClintics 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, appellants trial counsel asked that a
Vetrovec
warning
    not be given.

[29]

Plainly, counsels 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 counsels 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 judges 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 appellants trial counsel who, as the trial judge
    noted, was very experienced and highly skilled.

[32]

The trial judge instructed the jury concerning McClintics 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 appellants post-offence
    conduct of removing the backseat of his car?

[34]

McClintic testified that, on the appellants instructions, she cut a
    bloodstained portion out of the backseat of the appellants 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 judges
    reminder to the jury that two witnesses testified that the backseat of the
    appellants 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 appellants 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.


