Rafferty rulings: good law made in face of tough facts
By Tanya Thompson
Lawyers have a saying: tough facts make bad law. Every one of us felt, so urgently, that someone must be held to account for Tori Stafford’s disappearance and murder. Facts don’t get much tougher to stomach.
Our newspapers do us a disservice, though, when they let this sense of urgency taint their view of civil rights. Across the political spectrum from Toronto Star to Toronto Sun, editorial boards have torn the proverbial strip out of Justice Thomas Heeney for excluding evidence illegally obtained from Michael Rafferty’s computer and BlackBerry.
At trial, Crown counsel did not even attempt to argue that this electronic-device search was legal. They sought nevertheless to introduce the illegally-obtained evidence — something our Constitution does sometimes allow. But Justice Heeney found the police had been careless with significant privacy rights and excluded the evidence.
Our media tell us it was just too important, this time. The crime was too awful. The victim too innocent. The man too monstrous. The investigation too critical. You can almost hear them saying, “just this once.”
But there is no “just this once” in law.
Previous cases inform future ones, and go on to become precedents. Once it’s forged in the fire of our collective wrath, the same law will apply to others who don’t make us so angry. It may even apply to us. (We tell ourselves we’ll never be suspects in a criminal case — but plenty of my clients never dreamed they would be, either.)
The law of bail serves as a cautionary tale. In a case called Hall, the Supreme Court split 5-4 in favour of denying Mr. Hall’s bail, even though he was neither a flight risk nor a risk to the public. Would even one judge have seen things differently if the charge hadn’t been a grisly, inexplicable murder, terrifying Sault Ste. Marie and the nation? It’s impossible to say, but the excesses that the four dissenting judges feared have come to pass. Detentions of this nature — to satisfy the public, rather than protect it — are now routinely sought, in cases that can be as straightforward as a simple assault.
We should be especially vigilant when our courts talk about privacy, because it cross-pollinates outside criminal law. It’s part of the legal context that will ultimately colour your rights in other areas, like your workplace.
In excluding the computer evidence, Justice Heeney made good law in the face of tough facts — the same law that will be there for you when you need it.