Amici Curiae: Rafferty Trial, Kirpans in Courts and North Carolina’s Gay Marriage Amendment

The Trial of a “Monster” is Over

Despite claiming he is not guilty, a jury and judge have said otherwise. After being found guilty of a jury on all three counts of kidnapping, sexual assault causing bodily harm and first degree murder of Victoria (Tori) Stafford, Michael Rafferty was sentenced on Tuesday morning by Justice Heeney in London, Ontario.

Tori Stafford went missing in Woodstock, Ontario outside her elementary school in April, 2009.  Terri-Lynne McClinctic, one of Rafferty’s girlfriends at the time, pleaded guilty to first degree murder two years ago. She testified in March that she had been the one to lure Tory into Rafferty’s car under his orders. Rafferty sexually assaulted Tori multiple times and, upon being overcome with rage, McClintic beat the girl to death with a hammer.

Members of Tori’s family read heart wrenching victim impact statements in court on Tuesday. In delivering the sentence, Justice Heeney further condemned Rafferty’s behaviour, stating:

“Only a monster could commit an act of such pure evil. You sir are a monster.” 

Rafferty is sentenced to life in prison without the opportunity of parole for twenty-five years. He also received ten years each for kidnapping and sexual assault causing bodily harm. The latter charges are to be served concurrently with the sentence for first-degree murder. He is forbidden from owning weapons in addition to having his name added to the sex offenders registry.

When his lawyer, Dirk Derstine, was asked by the CBC as to whether Rafferty plans to appeal, he answered,

“It cannot be contrary to Mr. Rafferty’s interest to appeal… There’s no downside to it. If Legal Aid agrees to fund his appeal, he may very well appeal.”

‘Court’ing History: Kirpans Now Allowed in Toronto Lawhouses

In what is fast being hailed as a landmark event, Toronto became the first Canadian city, on May 16, 2012, to allow members of the Sikh faith to carry a kirpan–the ceremonial dagger that is considered one of the five pillars of the religion–into Ontario courthouses. The policy was the result of negotiations between the World Sikh Organization of Canada, Toronto Police, the Toronto Police Services Board, the Ministry of the Attorney General and the Ontario Human Rights Commission.

The settlement however, applies only to practicing Sikhs who adhere to the other four mainstays of Sikhism and self-identify as members of the religion. Moreover, the kirpan must not be in excess of 7.5 inches when sheathed, must be worn underneath clothing, and cannot be accessible when the wearer is in court.

The decision was prompted because of two separate instances where kirpan-wearers were prohibited from entering courthouses with the daggers, and were asked to remove them to gain access. Neither individual complied, citing it contrary to their faith to be leave behind their kirpans. The policy, then, is not only designed to improve court accessibility to members of the public, but is also an extension of the recognition of religious rights and freedoms under the Charter. The legality and admissibility of the kirpan in various facets of Canadian life has previously been addressed and the federal level in Multani v Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, and by the House of Commons and the Quebec National Assembly.

The decision has attracted some criticism, primarily because of its potential use a weapon that could exacerbate tense courtroom situations into ones endangering the lives of people present. However, its defenders are quick to point out the kirpan’s spiritual symbolism, and the fact that almost any mundane item can, if used in the same capacity, become a threat. While this decision is another step towards the recognition of religious freedom for Canadians, it remains to be seen if other jurisdictions will follow Toronto’s example, and implement official kirpan- allowance policies.

North Carolina Says “I Don’t”

Last Tuesday, North Carolinians went to the polls to decide the fate of an amendment that would ban same-sex marriage, partnerships and civil unions. One side championed marriage, defending the amendment as a statement about marriage, as opposed to about homosexuality. The other side argued that the amendment would jeopardize families, particularly the 150,000 families comprising a straight couple. It would invalidate domestic violence protections, undercut child custody arrangements and jeopardize hospital visiting rights.

North Carolinians overwhelmingly voted in favour of the amendment. North Carolina became the 30^th state to render same-sex marriage unconstitutional under their state constitution.

There was a certain fervor in North Carolina on the morning of Tuesday, May 8, 2012. Half a million North Carolinians voted earlier, which set a record for a primary in a state. Generally, the turnout was high. This was not wholly unexpected, though, given the amount of national and, to an extent, international attention paid to the Bill. North Carolina had a ban on same-sex marriage in place before this historic Bill. But this Bill is more expansive in scope: It also carries with it constitutional force. In one sense, North Carolina was playing catch-up to the other states in the Southeast, as all the other states had already made same-sex marriage unconstitutional.

Not long after this amendment was passed, President Obama publicly proclaimed his support for same-sex marriage. He had been painstakingly careful about keeping the debate at arm’s length in the past. President Obama’s endorsement of same-sex marriage puts his re-election campaign in a very politically precarious position, as it could cost votes in swing states, such as Virginia, Colorado and North Carolina come next November.

After shoring up his position, President Obama has already come out on the offensive, comparing his position on the issue to that of his Republican challenger, Governor Romney. Between May and November, the debate is likely to escalate and to turn in the direction of the law: President Obama stands by the federal government, and believes that the United States Constitution is the place where the debate should be settled; Governor Romney, on the other hands, would leave it to individual states. Like the fate of ‘Obamacare,’ or the Affordable Care Act (PL 111-148), the debate on same-sex marriage may turn on the ever-problematic idea of federalism. Even though North Carolinians made a decisive decision last week, the debate will surely rage on.