EXCLUSIVE: More than two years have passed since a judge on Ontario's highest court called for the appeal to get going
Child killer Michael Rafferty's slow-mo appeal raises eyebrows
More than two years after a judge urged that school girl killer Michael Rafferty’s appeal of his murder conviction begin “as soon as possible,” lawyers have yet to file a single argument.
Not even the timetable for the exchange of documents, also requested by Ontario Court of Appeal Justice Marc Rosenberg, has been produced.
As to Rosenberg’s explicit directions about the handling of transcripts, one was filed in court about a year ago.
The length of time it’s taking for the appeal to be heard is reaching the limits of what can be considered reasonable, says a Western University law expert.
“This is getting pretty long. In the normal court of events, it should have happened by now for a man in custody,” associate professor Chris Sherrin said.
Justice is supposed to move as quickly as possible for the consideration of the families of victims and the rights of the accused, he said.
“He is suffering prejudice every single day he is delayed.”
For the family of the victim in the case, Tori Stafford, the slow path to the appeal is another hard road to take.
“I don’t understand why it’s taking so long,” her mother Tara McDonald said Wednesday.
“We’re waiting for this last delay to know whether or not we have to endure going through hell and it seems to have just been forgotten about. No updates to let us know where things stand. It’s frustrating.”
The lawyer representing Rafferty, Paul Calarco, acknowledged the appeal process is taking a long time.
“Sometimes cases of this nature take longer than expected, but the matter is being pursued,” the affable but cautious Calarco said, declining to provide details.
“I cannot say when the matter will be heard. Cases of this nature will often take a significant amount of time.”
Rafferty was convicted May 11, 2012, of the kidnapping, sexual assault causing bodily harm and first-degree murder of the eight-year-old Tori.
She was abducted April 8, 2009, while walking home from her school in Woodstock and killed that same evening in a wooded area of a farm north of Guelph.
Rafferty’s partner in the killing, Terri-Lynne McClintic, pleaded guilty April 30, 2010, to first-degree murder and was sentenced to life in prison.
Rafferty received leave to appeal in November 2012, but it took more than year for the court to decide who should pay for his lawyer and what level of legal help he should receive.
In December 2013, the Ontario Court of Appeal, the province’s highest court, made a ruling on that issue and set the appeal process in motion.
“It is in the public interest and the interest of justice that this appeal proceed to hearing as soon as possible,” Justice Rosenberg wrote in his decision.
He set a date of May 2014 for lawyers for Rafferty and the province to arrange a timetable for filing factums, or the main arguments, and the appeal book that is the collection of all supporting documents.
No timetable has been produced, an official with the appeals court confirmed.
“No documents have been filed since November 21, 2014 and that document was a transcript,” a court official said in an e-mail.
“Counsel has yet to file a Factum, Appeal Book or perfect the appeal and the appeal cannot be listed for hearing until it is perfected.”
Perfecting an appeal means completing and filing all the necessary documents.
Rosenberg also gave clear directions on what transcripts would be needed and how and when counsel could debate the necessity of additional transcripts.
It’s not clear what parts of the trial the transcript received November 2014 covers, or if other transcripts were filed earlier than that.
Rosenberg died in August 2015, but Calarco indicated that was not a factor in the length of time it is taking for the complex case to move to a hearing.
Rosenberg would not have heard the actual appeals.
Criminal cases take on average 14 months to go from the time leave to appeal is granted, to the time the appeal is ready for a court date, according to the Ontario Court of Appeal’s annual reports.
To meet that average, the Rafferty appeal would have to have been heard in February 2015.
--- --- ---
May 2012: Michael Rafferty convicted
December 2013: Appeal set in motion
January 2016: No arguments filed yet