Michael Rafferty's case is too complex for someone with a Grade 9 education in segregation and with no access to a law library to handle on his own with the assistance of duty counsel, Appeal Court Justice Marc Rosenberg ruled.
"In my opinion it is desirable in the interests of justice that the appellant be represented," Rosenberg wrote.
Duty counsel provide a "remarkable service" to unrepresented inmates, but they can't be expected to take on a case this complex, with some arguments involving "an attack on the tactical decisions made by very experienced trial counsel," Rosenberg wrote.
Rafferty, 33, had been turned down four times by Legal Aid since his convictions in May 2012 for first-degree murder, sexual assault causing bodily harm and kidnapping in Tori's death.
Rosenberg ordered the case sent back to Legal Aid Ontario for reconsideration, but if Rafferty is still turned down, the lawyer who represented him on this motion will be appointed for the appeal and he will be paid by the attorney general for Ontario.
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.
There are arguable issues on appeal, Rosenberg ruled.
Lawyer Paul Calarco argued at the Appeal Court earlier this month that one ground for Rafferty's appeal is that the jury should have considered that he might have been only an accessory after the fact to Tori's brutal murder.
Rosenberg wrote that he agreed with Calarco, saying, "it appears that the trial judge’s instructions on the issue were deficient."
Calarco also raised two errors he said the trial judge made in dealing with McClintic's conflicting evidence, arguments Rosenberg found are complex and novel enough to require a lawyer.
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. McClintic is also serving a life sentence for first-degree murder.
It is in the public interest that Rafferty's appeal happen "as soon as possible," Rosenberg wrote. In his decision he said he hoped a timetable for filing the appeal documents could be set no later than the end of May.
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