LONDON, Ont. - A laptop computer belonging to the man accused of kidnapping, sexually assaulting and killing Victoria Stafford was used to search online for "real underage rape" and "nude preteen" not long before the eight-year-old was abducted, court documents indicate.
But the jury in Michael Rafferty's trial — now sequestered and deciding his fate — doesn't know it, along with a number of other facts that the court deemed inadmissible.
WARNING: Graphic details from this court case may disturb some readers.
The Crown contends Rafferty also downloaded "substantial" amounts of child pornography, and there was evidence of snuff films — movies depicting real killings — on his laptop. A woman he met online alleged that he drugged, choked and raped her. A litany of past dates reported he had a penchant for sexual choking. Some even complained of his "disconcerting" behaviour toward their children.
The jury doesn't know that, either.
Superior Court Judge Thomas Heeney refused to allow evidence found on Rafferty's laptop and BlackBerry — the searches, the evidence of child porn and a downloaded movie about Karla Homolka — because the search violated Rafferty's charter rights.
When police legally searched Rafferty's car and found the two devices, they should have obtained another search warrant to examine their contents, Heeney ruled — even though at the time there was no binding authority upon them to do so.
The first court decision to spell out that a secondary search warrant is necessary under such circumstances wasn't released until several weeks after investigators began poring through Rafferty's laptop.
At least one officer expressed concern they should get another warrant, but they believed they were on safe legal footing to search it because it was found in Rafferty's car.
But while police honestly believed they had the authority to search Rafferty's devices and were "doing the best they could in the face of extremely difficult circumstances," Heeney concluded the search was careless and took a risk in not getting a secondary warrant.
The laptop was not going anywhere, Heeney said, so police had time to draft another search warrant request, which could have specified what they were looking for on the computer.
"In my view, it cannot be said that society's interests in the adjudication of the case on its merits are best served by admitting evidence that was obtained by means of a charter breach, when its probative value is so weak and its prejudicial effect will be so devastating," Heeney wrote in his pre-trial ruling.
Data fragments on Rafferty's laptop indicate he had been downloading child pornography since 2005. The Hollywood movie "Gardens of the Night," about the abduction of a young, blond girl — which deviates substantially from what allegedly happened to Tori after the abduction — was downloaded 11 days before she disappeared. The movie "Karla," about Karla Homolka and Paul Bernardo, was downloaded two weeks later.
Investigators also said they found evidence on the laptop of videos "depicting 'how-to' instructions for child sexual assault," and evidence "of recent possession of 'snuff' films inclusive of one with a title suggestive of a child target."
Most of the videos depicted "a variety of graphic and coercive images of violent sexual abuse involving children between one and eighteen years of age," the Crown documents say.
The rape allegation, the way Rafferty acted toward the children of his girlfriends and other such evidence could be considered "bad character" evidence, which is generally inadmissible at trial. Rafferty himself enunciated the principle during his interrogation: "Just because I'm sleazy doesn't make me what I'm being accused of."
Bad character evidence can be admitted if the accused suggests someone else is more likely to have committed the crime, much like Rafferty's defence did with ex-girlfriend Terri-Lynne McClintic, for days bringing up her violent past and self-professed thirst for blood.
But because McClintic, days before the start of pre-trial motions in January, suddenly went from saying Rafferty killed Tori to saying she dealt the fatal blows, it rendered the point moot. The defence was free to call all the character evidence it wished about McClintic without fear that Rafferty's past would come up.
The Crown did try during the trial — while the jury was excused — to argue that defence lawyer Dirk Derstine's cross-examination of McClintic put character in issue. When Derstine suggested that McClintic offered Tori to Rafferty sexually, and that he declined, it suggested Rafferty is the type of person who would refuse such an offer, Crown attorney Michael Carnegie said.
But because the threshold to put character in issue in that scenario involves some type of evidence, and questions from lawyers are not considered evidence, Heeney ruled against the Crown.
The Crown was only seeking to introduce some of the searches — the ones directly related to the alleged offences — it says Rafferty made on his laptop: "underage rape," "real underage rape," "real underage rape pictures," "nude preteen," "how to find preteen websites," and "preteen nude model galleries."
They weren't seeking to include searches for: "transgender," "she male," "necrophilia videos," "real rape," "best program to download child porn," "naked girl seazing (sic)," "seizures girl," "seizures videos," "epileptic naked," "epileptic naked attack," "real gang rape" and "peeing."
The Crown says all the searches were made between Jan. 25 and April 7, 2009. Tori was abducted on April 8.
The documents also say the Crown found "compelling evidence to suggest that the accused intentionally deleted text message content from his BlackBerry between April 4th and April 28th to eliminate reference to April 8th messaging or McClintic contacts in general."
Carnegie also noted the "significant" amount of cautions the Crown placed on the long string of former girlfriends who were called to testify, suggesting they had a lot of bad character evidence about Rafferty.
"The amount of restraint the Crown has exercised with respect to these former partners of Mr. Rafferty has been nothing short of herculean," Carnegie said.
"This is a case that has had character landmines all over it and we have been very delicate in how we have been trying to deal with those."
Some of the girlfriends, Carnegie said, have "interesting and perhaps disconcerting things to say and conclusions drawn from various behaviours of Mr. Rafferty about his behaviours towards their children." He did not elaborate.
However, the Crown documents say the investigation "revealed a considerable history of alleged but previously unreported sexual violence that, if believed, demonstrates a rather significant escalation in violence over the few years and months preceding this matter."
The investigation uncovered 13 women who reported that Rafferty had a penchant for sexual choking — some of which they said was not consensual.
Investigators said they were told Rafferty had one woman who was reluctant to participate in his sexual violence sign a consent note, saying she agreed "to what Mike and I are doing tonight sexual choking and passing out and other things."
One of the most startling pieces of evidence from the 15 women who were dating Rafferty in the spring of 2009 wasn't even supposed to come out.
Charity Spitzig, who had been dating Rafferty for a year and was talking marriage, gave Rafferty $16,835 from December 2008 until May 2009, when he was arrested. The Crown had instructed her not to say where the money came from, but she nevertheless testified that she and Rafferty had decided she should work as an escort and give him the earnings.
It did not go unnoticed by Derstine, who rose as soon as the jury left to denounce the "grievously prejudicial" comment, but assured the court he would not ask for a mistrial.
He did ask Heeney to put a stop to the "parade of women," saying it was wearing on him. The parade, Crown attorney Kevin Gowdey agreed, is "wearing on all of us." Heeney sided with the Crown, who argued each woman had valuable evidence to add.
The jury also did not know that in January 2009 a woman Rafferty met on dating website Plenty of Fish, where he met most of the other women he dated, invited Rafferty over to her house to watch a movie. According to a police complaint, he arrived with an already opened bottle of wine, poured her some, but did not drink any himself.
She told police she started to feel "fuzzy," the room started to spin and Rafferty climbed on top of her on the couch. He started choking her, removing her clothes and tying her hands behind her back, according to the police report, which was cited in court documents. She started vomiting, and Rafferty anally raped her while still choking her, she alleged.
There were no charges laid in the matter.