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Michael Rafferty is shown in this police handout photo released as court exhibits at Rafferty's trial in London, Ont., Wednesday, April 4, 2012. (The Canadian Press handout)
Michael Rafferty is shown in this police handout photo released as court exhibits at Rafferty's trial in London, Ont., Wednesday, April 4, 2012. (The Canadian Press handout)

What the jury didn't know: Child porn, torture video found on Rafferty's laptop Add to ...

His online name was “Mychol” and for years he trawled the lowest depths of the Internet, looking for images of child rape and torture.

But the jurors at the murder trial of Michael Rafferty – who began deliberating late Thursday afternoon – never heard a word about it because of changing legal ideas about what a computer represents – a trend forcing police to change the way they investigate crimes and obtain search warrants.

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The key reason for this: a gaping hole in the package of four search warrants issued after Mr. Rafferty and co-accused Terri-Lynne McClintic were charged in Victoria (Tori) Stafford’s death, six weeks after the eight-year-old died.

Put simply, a computer or personal electronic device can no longer be viewed as a “thing,” Mr. Justice Thomas Heeney ruled, in rejecting the Crown’s bid to have the contents of Mr. Rafferty’s laptop admitted as evidence.

Rather, he said, recent case law holds that because a computer can contain huge amounts of personal information – e-mails, bank records, memos, documents, photos – it should be regarded as a “place,” akin to a house.

In this instance, the warrants targeted two homes and two cars and all were in order as far as they went, the judge found. Nor was anything amiss about how the searches were conducted – up to the point where various computers were seized.

At that stage, a secondary warrant was needed and, if requested, would likely have been granted, Judge Heeney wrote.

Yet none was obtained, despite the omission being flagged both by the Justice of the Peace who issued the warrants and later by an Ontario Provincial Police forensic detective.

Defence lawyer Dirk Derstine cited numerous problems with the warrants and almost all his objections were shot down.

But in contending that the search of Mr. Rafferty’s laptop was essentially “warrantless” and hence had violated his Charter rights against unreasonable search and seizure, Mr. Derstine scored a bull’s eye. The Crown did not contest his thesis that the hunt for information on the various computers “does not pass constitutional muster,” as Judge Heeney concluded.

The judge voiced empathy for the “Herculean” efforts of the police officers who drafted what is known as the ITO – Information To Obtain a warrant – and gave it to the Justice of the Peace. They were acting in good faith, the judge said, and honestly believed they had lined up their ducks correctly.

Moreover, the court ruling that a computer is a “place” rather than a “thing” was not made until July, 2009 – several weeks after the Tori Stafford warrants were served.

That precedent stemmed from another high-profile murder case. In 2007, Markham salesman Chris Little slashed the throat of his estranged wife and strangled a second woman, both of whom had had relationships with Toronto radio sportscaster Rick Ralph.

Mr. Little then staged a clumsy murder-suicide, apparent to police from the outset. Yet while his cellphone could be examined for “trace” evidence of blood spatter, scrutiny of its contents needed a second warrant, Ontario Superior Court Judge Michelle Fuerst wrote, and there wasn’t one.

The ruling was the first clear judgment of its kind, said Judge Heeney.

The judge called the Woodstock and provincial police officers who oversaw the search-warrant applications “careless.”

Search warrants and the ITOs that generate them are often highly detailed. In the Rafferty case, the main section of the ITO was 225 pages, plus an 82-page index, stitched together by police who worked on it almost non-stop for 36 hours after Mr. Rafferty and Ms. McClintic were charged.

An ITO must be very specific, describing what material is being sought, why, and where it is likely to be found. Fishing expeditions for what mightbe found are unacceptable.

Even though the pair stood charged with abducting, murdering and raping a little girl, the term “child pornography” went unmentioned in the search warrants and was not an issue for police. That was until child-porn material was detected.

The Crown told the court in pre-trial motions that such material was discovered on a laptop owned by Mr. Rafferty, on an iPod Touch device and on a BlackBerry – all three items found in Mr. Rafferty’s Honda Civic – and on a desktop computer shared by Mr. Rafferty, his mother and his stepfather at their Woodstock, Ont., home. It is not clear who downloaded this material.

As well, police found in Mr. Rafferty’s bedroom a Hitachi hard drive showing that from 2005 to 2006 someone had viewed numerous movies, obtained through the file-sharing network LimeWire, depicting children as young as five being violently abused.

By the time this material was detected, it was too late.

Had the requisite additional warrant been issued, identifying the laptop as a “place,” then whatever was found there might have been tendered as evidence, even if not specified in the warrant. Without it, however, the search was out of line.

Nor could the “plain view” principle be invoked, Judge Heeney ruled. This involves the common-sense notion that if police are searching for one thing and stumble across another, then the find is fair game. That principle applies only when the discovery is inadvertent, the judge ruled, and this is clearly not the case in a computer search.

A separate problem was posed by the desktop computer in the Rafferty home, which was searched legally and which prosecutors said showed evidence of a small amount of child porn and a much greater quantity of legal pornography.

Three different people had been using that computer, and proving that Mr. Rafferty had been accessing child porn would have been tough, particularly since his stepfather admitted to police he was an aficionado of legal (adult) porn.

And unless Mr. Rafferty was charged with a child-porn offence, none of the findings could be presented in court, since they would be deemed “bad character” evidence, which is generally inadmissible.

In the weeks before Tori was abducted, allegedly raped and beaten to death with a hammer in April of 2009, online searches were conducted on a laptop owned by Mr. Rafferty using terms such as “real underage rape,” “nude preteen rape,” “epileptic naked,” “best program to download child porn” and dozens of similar queries, police discovered after scouring his Hewlett-Packard laptop.

In late March, 2009, a movie depicting the ordeal of a blonde girl aged about eight, kidnapped outside her school by strangers and turned into a sex slave was downloaded onto this laptop. In their factum for the trial, prosecutors described the movie as a virtual blueprint for Tori’s abduction.

Near the end of the trial, prosecutors made a second bid to get the child-rape Google searches entered as evidence, saying Mr. Derstine had reopened the door by making Mr. Rafferty’s character an issue when he claimed that Ms. McClintic had offered Tori to him as a sexual gift and that he declined.

For a second time, the judge ruled against the prosecutors.

Along the way, there were numerous other legal skirmishes that the jury never heard about, several involving inconsistencies in various statements made by witnesses.

Chief of these was Ms. McClintic’s initial claim to police that it was Mr. Rafferty who smashed Tori’s skull with a hammer. Later she said that she wielded the murder weapon. The jurors were given both accounts.

Mr. Derstine lost a round when one of Mr. Rafferty’s many ex-girlfriends was not permitted to tell the trial of his apparent dismay at being a suspect, as police began circling.

Nor did the jury hear Mr. Derstine’s furious response after another Crown witness told the trial (without being asked) that she had been supporting Mr. Rafferty with prostitution earnings.

“I’m not going to ask for a mistrial, but ...” Mr. Derstine began, making plain his view that the “parade” of his client’s former girlfriends was excessive.

The jurors were not in the courtroom when Mr. Derstine demanded to know if Ms. McClintic was high on drugs when she began testifying. (Only the kind prescribed by a prison doctor, she said.) They also missed the episode when two hapless spectators were caught trying to snap pictures of Mr. Rafferty, a major no-no in a courtroom.

All of this paled, however, against the electronic evidence that didn’t go in.

So explosive was that material, Mr. Derstine contended during the Crown’s second effort to get it admitted, that “it would fundamentally alter the character of this trial … there could not be a more significant piece of evidence.”

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