Michael Rafferty, 28, charged with the murder of Tori Stafford.
It's one thing to ask police to respect constitutional rights, but another to demand that they be constitutional scholars.
An Ontario judge would not let a jury see evidence that Michael Rafferty, accused in the kidnapping and murder of an eight-year-old girl, had an obsession with pornography about child rape and had recently watched movies about the kidnapping and murder of little girls.
This was relevant information because the killing of Tori Stafford had elements of what Mr. Rafferty had been viewing. But because the police had not sought a warrant to search his computer, BlackBerry and iPod, and a hard drive found in his bedroom, the evidence was illegal under the Charter, according to Mr. Justice Thomas Heeney of the Ontario Superior Court of Justice.
But police did seek and receive a warrant to search Mr. Rafferty's home and car – and the law at the time, as interpreted by Canadian judges, did not require a so-called secondary warrant for a computer search.
Police should not need to anticipate where the law is going.
And police should be able to use the law as it stands to their full advantage.
What really matters is the seriousness of the Charter violation. That is what the Supreme Court of Canada said three years ago in a quartet of rulings on the exclusion of evidence. The Charter has a back-door clause, by which illegally obtained evidence can be produced at trial if it wouldn't bring the justice system into disrepute. A serious breach would harm the justice system's reputation over the long-term.
It is impossible to see the supposed violation in this case – of a legal interpretation not yet in existence – as a serious one. For one thing, Judge Heeney said the police would have received the warrant, if they had only asked.
For another, police showed good faith. They did not trample, willfully, on constitutional rights. They did not turn a blind eye to the law. They simply did not anticipate a requirement to anticipate.
And they were doing a task the judge called "Herculean" – producing a 225-page argument for warrants, plus an 82-page index, within 36 hours. And there was a huge public-safety imperative – a child-killer was on the loose somewhere. They had to act fast.
The public should expect a lot of police, but not that they exceed ordinary human limits.