This is the sixth instalment in a series about a criminal rape trial that took place in Toronto late last year. The trial lasted eight days; the judge announced his verdict earlier this month.
At the time of the actions that led to the criminal charges, the female accuser was seventeen years old, entering her final year of study at a Toronto high school. The male defendant was a year older, a star athlete on his way to winning a scholarship to a US college. She had substantial credibility problems on the witness stand. His testimony seemed far more convincing—at least at first. But this was more than just a “she said, he said”—or, as it turned out, “she lied, he lied”—case. There was an element of physical evidence against him: bruises on her arms and legs. The judge had to decide if the totality of the prosecutors’ case against the defendant was enough to send him to jail, brand him a sexual offender, and destroy his promising future.
Despite its sensational nature, this was a case that never made headlines. What I observed during my reporting was the farthest thing from a Jian Ghomeshi courthouse scene, with mobs of press and police. I was the sole reporter at the superior court trial and, on most days, the only observer not directly related to the case. The mother and grandmother of the accused, whom I will call Matthew in the reports that follow, attended throughout the trial. The complainant, who will be known as Ava, was supported by a representative from victim services and the detective in charge of her case.
Ava’s family and Matthew’s father were not permitted in the courtroom as they were all considered to be potential witnesses. They spent much of their time in the courthouse hallways, pacing or sitting nervously. Like everyone else, they knew that the events unfolding on the other side of the courtroom door would deeply affect the two young people involved for their entire lives.
—Ann Brocklehurst
Ava’s mother traded almost forty texts with the defendant during the early morning of August 2, 2012. Police photographed the messages; more than two thirds of which are from Mary, who initiated the contact. The Crown argued against having this exchange admitted into evidence, but Justice Gary Trotter has allowed it.
Mary’s first message to Matthew accused him of being a thief and a rapist.
“I was just shocked,” he testifies on the witness stand. “I left and I felt like we both had consensual sex and there was nothing wrong.”
Her second text read: “How sick or angry are you? I will pray for you, but trust me, the day will come when your karma will catch up with you and you won’t handle it well.”
“Did you feel you had raped someone and were a sick human being? ” asks Gary Stortini, one of Matthew’s two defence attorneys.
“No . . . from where I stood I didn’t do anything wrong. I assumed her mother wasn’t happy.”
While he was still driving home, Matthew tried to reply. But looking back, his messages don’t make much sense. He wrote things like “I get what you’re saying, but I was leaving,” and “(I was) not feeling it as much as I wanted to.”
He also lied: “We were going to have unprotected sex. As much as I wanted to have sex decided it wasn’t best idea,” Matthew texted to Mary.
This wasn’t a back-and-forth exchange. It was two people talking, or texting, past each other.
“How can you have sex with a girl too intoxicated to make legal consent? Are u crazy? ” Mary wrote at one point.
“This all began just to feel surreal to me,” Matthew says in court. “It felt like a dream. The girl that I left that night wasn’t intoxicated, wasn’t raped. She was with me and had sex with me.”
“What caused you to respond? ” asks Stortini.
“I thought I was going to be able to tell her the truth. She wasn’t listening to me at all. She kept on saying I was a rapist, that I had raped and assaulted her daughter.”
“I would think a guy like you would have more self respect,” read another one of Mary’s texts.
“I was panicking at this point. Me being accused of these things. It never ends well. My life is going to be done. It’s over. I didn’t know how to defend myself,” Matthew tells his attorney. “It was my word against hers, but a parent was telling me I did these things. I was scared because she was older than me.”
There was a confusing exchange about whether he had ejaculated inside Ava. “Do I need to get a kit done? ” Mary asked.
Matthew lied in his reply: “No, you don’t. Why would I risk having sex without a condom? Her and I both want to lead normal lives.”
By this time, close to 2 a.m., he had arrived home. His parents were sleeping; he didn’t wake them.
“I was terrified. I was in a state of shock. I had no clue how to explain it to anyone. I thought my life was over. I thought it was consensual and fine,” Matthew testifies. “I had sex with a minor and I was going to jail because her mother was making these accusations . . . we had sex, I climaxed, I was not going to admit [that] to her mother.”
Ava’s mother texted him again: “This kind of behaviour on your part will only bring you misery.”
Matthew replied twice, telling Mary that Ava had agreed to sex, that she had said, “Fuck it, it’s summer.”
Mary was unmoved. She told him he’d chosen “the wrong girl at the wrong place. We’ll put you in jail.”
Another one of her messages said: “You don’t have sex with girls that are drunk. Are you stupid? ”
Stortini asks Matthew where he was at this point.
“I believe I was sitting on the couch downstairs,” he says. “I was having a little breakdown, but in my heart I knew I did not do anything wrong. I felt like [Ava], just tell her the truth. I was not raping her at all. I didn’t know what to do.”
When Mary sent Matthew another text, accusing him of being drunk as well, he typed back: “I hope [Ava’s] fine. I didn’t want things to hit the wall like this. I’m sorry.”
“Did you think you’d had sex with a minor who was drunk and [you] had raped her? ” asks Stortini.
“I felt like I had done something terribly wrong.”
“Guys like you end up with HIV,” texted Mary. “God is watching and karma will find you.”
“Trust me, my sex life isn’t what you think it is,” Matthew replied.
“I didn’t want to get into a text message fight with her mother,” Matthew tells the court. “I just wanted to go back to school, see my friends, and play sports. I was eighteen years old.”
“That’s what all date rapists say,” read one of Mary’s last texts.
“I’m not a rapist. Fuck,” he wrote back.
“We will have to address this tomorrow. This is not over.”
“Alright.”
“Get some sleep,” Mary signed off, incongruously.
Matthew sent her one last text, at 2:08 a.m. It read: “Am I going to jail? ”
Later that morning, two police officers showed up at Matthew’s house. Both his parents were at work. His father had taken the car that Matthew drove the night before.
Matthew says the police were polite, and asked if he wanted a lawyer. He said no because he didn’t think he’d need one. After Matthew told his father what was going on, the latter gave police permission to impound his car and came home in his work truck.
Matthew continued talking to the police in the presence of his father. The officers did not arrest him, but advised him to get a lawyer and come to their station the following day.
*
In her cross examination of Matthew, assistant Crown attorney Sharna Reid goes after him in much the same manner as Stortini took apart Ava’s police statement (as described in Part 3 of this series, Can the Complainant Continue?). Both lawyers look for any inconsistency and pounce.
Reid reads one of Matthew’s messages to Mary: “I get what you’re saying but I was leaving and she said, ‘Fuck it, it’s summer.’ I didn’t want to hurt her and we were going to have sex unprotected. So I said, ‘Not feeling it as much as I wanted to.’”
“The text suggests you did not have sex unprotected or otherwise,” says Reid, “which differs from what you told us in court today. That is, you did have unprotected sex.”
Reid reads Matthew’s next text: “She said she was drunk.”
Ava, though, has testified that she never said any such thing. “In terms of the accuracy of that text, it’s incorrect,” Reid says. “Why did you type that? ”
“I was in a panicked state. I was just trying to tell her mother that I didn’t do anything wrong,” Matthew answers.
Reid asks what he meant when he told Mary that he had tried to leave, but her daughter stopped him from doing so. He indicates that he was referring to Ava’s “Fuck it” comment.
“That’s what you characterize as stopping you from leaving? ” Reid says in disbelief.
She shifts her focus to his texted claim that he wouldn’t have sex without a condom.
“I told her mother I wasn’t willing to take the risk, but I did,” Matthew says on the stand.
“When you wrote that sentence you knew you had, in fact, had sex without a condom. You knew? ”
“Yes.”
She reads another of his texts: “We were having sex and I said we should stop.”
“Can you tell us when, sir, while you were having sex, you said you should stop? ” she asks.
“After I had climaxed.”
“In your mind, the words ‘I’m done’ were akin to ‘We should stop’? ”
“Yes.”
After a few more questions of this type, Reid says: “The general overall sense I get is you weren’t being exactly honest in terms of what you wrote. Is that fair to say? ”
“Yes.”
Reid explores Matthew and Ava’s dating history. In her questioning, she takes a different tack from Stortini—who had, earlier in the trial, dismissed and declined to probe Ava’s version of events. Reid questions Matthew thoroughly about events Ava insisted never occurred—like having sex in the back of his van on their first date, and again in his car after one of his sports matches.
The prosecutor uses Matthew’s accounts of these disputed encounters to imply that he is not a gentleman. She asks how Ava reacted when he’d told her he wanted to keep their relationship on the “DL” (down low).
“She wasn’t sure about it, but she accepted it.”
Reid asks him to specify how.
“What are the exact words you used? ”
“I don’t remember exactly.”
“How did she indicate she was agreeing? ”
“She said she was looking forward to seeing me again.”
Finally, Reid begins questioning Matthew about the night of the alleged assault. She asks him what he and Ava talked about after she got in his car.
“She explained what happened between her and her friend and then said she wanted to talk about our relationship.”
“She didn’t say she wanted to reconcile? ”
“No.”
“But she was angry about her birthday? ”
“She’d go from one moment being happy and having a casual conversation to being angry and calling me names.”
“Had she ever behaved like that before? ” asks Reid.
Only once, says Matthew, when he was supposed to meet her at a party, got lost on the way, and never showed up.
Reid presses for details about his version of the assault. “What caused her to kiss you? ”
“We were talking and it kind of flowed . . . she came onto my lap.”
The prosecutor asks about the complainant’s position. Reid appears to have assumed Ava was straddling him; she seems momentarily taken aback when Matthew says Ava sat in his lap with her back toward the driver door, looking toward the passenger window.
“Have you ever been in that position before? ”
“No.”
“Was it comfortable? ”
“Yes.”
“What prompted her to go back to her seat? ”
“I have no clue.”
“Was anything said? ”
“No.”
“Was she simply one minute engaged with you, [then] left your seat and said she wanted to go home? ”
“Yes.”
“When she said she wanted to go home, you had no difficulty with that? ”
“No.”
“You were still sexually attracted to her? ”
“Yes.”
“You were content to have her walk home as well? ”
“Yes.”
Reid asks Matthew what he thought when Ava returned to the car.
“Maybe she wanted to be driven home or to have sex,” he answers.
“That was your expectation, she wasn’t coming back to continue the conversation? ”
“No.”
According to Matthew, Ava took off her shorts and underwear and climbed on top of him. He grabbed her by her upper arms.
“Why did you assist her? ” asks Reid.
“She wasn’t sliding.”
The prosecutor can’t wrap her head around the mechanics of the situation. She says she can’t understand how the two could fit behind the steering wheel, let alone engage in sex. She asks how Matthew could even get his pants off in such a confined space, and requests that he indicate the position of Ava’s legs by placing an X on a photo of the car’s interior. She questions Matthew about how long he was holding Ava by the arms.
“Until we got comfortable,” he says.
Several questions later, she asks why he held her legs.
“The thighs were the only thing I could grab at that time. The waist would have been too far.”
“The least comfortable place where one could engage would be precisely where you chose to,” says Reid, referring to the driver’s seat. “Why? ”
“It was just spur of the moment,” says Matthew.
Reid wonders if it didn’t occur to him to hop in the back as they had done in the past—according to his account, if not Ava’s.
No, Matthew says, it didn’t.
She asks if Matthew remembers telling Ava that he wasn’t “Mr. Taxicab,” as she later told police. Or that since he was doing her a favour with a ride, she should do him one in return.
“I did not say that,” Matthew answers.
“You climbed over to her side, held her down by the arms and proceeded, by doing so, to cause injuries to her arms and thighs.”
“No, that did not happen,” he says.
“She quickly made her escape.”
“No, I drove her home to her house.”
Reid moves on to question the police visit to Matthew’s house, when his father asked him questions in the presence of the officers.
“[Your father] asked you if you had used a condom.”
“No.”
He asked if you had ejaculated inside Ava.
“I said no. I lied.”
“You knew you had ejaculated. You lied. What was the reason you lied to your father in the presence of police? How would that admission have impacted your fear? ”
“I don’t recall exactly why I lied, but I did and I don’t recall why.”
“In text messages to [Mary], you were less than forthright, and in the words you said to your father, you lied. What did you believe would have happened? ”
“When I had to call my father that day, that’s when I broke down. There’s no easy way to tell your parents. I lied and I admit that . . . I was just scared and I wasn’t thinking properly at the time.”
Reid asks about Matthew and Ava’s Facebook messages and BBMs. He says he deleted them all after the police left.
“Was there anything you thought would hurt you? ”
“No, I just panicked and deleted everything.”
The prosecutor shows Matthew the photos of Ava’s bruises.
“Can you say whether or not those injuries were caused by you? ”
“I don’t know.”
“Could they have been caused by the way you were holding her? ”
“Yes.”
[on-trial]
