Michael Rafferty Should Get Legal Counsel

The Ontario Court of Appeal ruled this week that Rafferty should receive publicly funded legal aid in preparation of his appeal as part of a s. 684 application.

Public anger towards Michael Rafferty is perhaps understandable. As I commented last year, Rafferty was referred to as a “monster” even by the judge presiding over his sentencing for his horrific murder of Tori Stafford.

The parties agreed that Rafferty did not have means to retain counsel, and had limited ability to do so himself as he has a grade 9 education, is imprisoned in segregation, and does not have access to a law library. The Crown argued that the appeal lacked merit and that the issues were relatively straight-forward. Justice Rosenberg adopted the following paragraph from R. v. Bernardo:

22. In deciding whether counsel should be appointed, it is appropriate to begin with an inquiry into the merits of the appeal. Appeals which are void of merit will not be helped by the appointment of counsel. The merits inquiry should not , however, go any further than a determination of whether the appeal is an arguable one. I would so limit the merits inquiry for two reasons. First, the assessment is often made on less than the entire record. Second, any assessment beyond the arguable case standard would be unfair to the appellant. An appellant who has only an arguable case is presumably more in need of counsel than an appellant who has a clearly strong appeal.

Justice Rosenberg agreed that the record appeared there were appealable issues on the full record in respect to the jury charge for accessory after the fact defence, the lack of Vetrovec warning, and the admission of a prior inconsistent statement. He reviewed the distinction between duty counsel and appointed counsel and concluded,

[9] Given Mr. Schwartz’s very fair position that the appellant could not argue these grounds of appeal without the assistance of counsel, the issue is whether duty counsel would be an adequate substitute for appointed counsel. A letter from Mr. Russell Silverstein explains the operation of the duty counsel system. He points out that duty counsel is not a substitute for counsel of choice and that duty counsel cannot be expected to argue appeals where the appeal record is extremely large and the issues are sufficiently complex or novel. In my view, this case falls within that category of cases. It may well be that, with the agreement of counsel, the actual record that will be placed before the appeal court will be relatively limited. But, that result can only be fairly achieved with the assistance of appointed counsel familiar with the proceedings at the three-month trial. Duty counsel cannot be expected to perform that task in a case like this.

[10] And, in my view, this is a case of sufficient complexity that duty counsel will not suffice. Duty counsel provide a remarkable service to the court and the unrepresented inmates. They work diligently and provide hours of their time without compensation to assist inmates, including inmates convicted of serious crimes serving lengthy sentences of imprisonment. However, those cases tend to have a limited record and involve one or two discrete points. Duty counsel cannot be expected to take on a case of this complexity involving difficult grounds of appeal, some of which will involve an attack on the tactical decisions made by very experienced trial counsel.

[11] I agree with Mr. Schwartz that although Legal Aid Ontario has refused to fund the appeal, it would be appropriate to refer the matter back to the Corporation pursuant to s. 28(6) of the Legal Aid Services Act, 1998, S.O. 1998, c. 26. In my opinion it is desirable in the interests of justice that the appellant be represented.

Although this conclusion may be difficult for some members of the public to accept, Justice Rosenberg pointed to the following passage in Bernardo:

Appellate review as provided for by Part XXI of the Criminal Code is not an indulgence to be doled out to those who are somehow seen as deserving of the opportunity to challenge their conviction. The salutary purposes underlying broad appellate review on appeals from convictions are engaged and must be served no matter how heinous the crime or despicable the accused. Detached and reflective appellate review of the trial process is perhaps most important in notorious, emotion-charged cases involving the least deserving accused. It is in those cases that the public eye is most closely focused on the process and the mettle of the criminal justice system undergoes its severest test. By giving the most repugnant appellant full recourse to meaningful appellate review, and by subjecting the apparently most deserving convictions to careful appellate scrutiny the integrity of the process is maintainedand a commitment to the unbending application of the rule of law is affirmed.
[Emphasis in the original]


  1. Update: Legal Aid has declined to pay for this counsel, so the expense will be passed on to the Ministry of the Attorney General.