Justice

Part 5: He Said

Late last year, in a Toronto courtroom, a young woman faced off against the university student whom she accused of raping her in a school parking lot. The media ignored the story. Our reporter was there for every moment

This is the fifth 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

Until now, Matthew has been an inscrutable presence, showing little or no reaction as he’s been accused of rape by Ava and trashed by her mother. His own mother has sat through every public moment of this trial; his grandmother has attended all but one day.

On the morning of the fifth day, the defendant takes the stand to begin his testimony. One of his attorneys, Gary Stortini, starts by telling the court a bit about Matthew’s family. His mother is a civil servant; his father (who has also been present every day, but must remain outside the courtroom, as he may be called as a witness) is a blue collar worker. Matthew has an older and a younger brother, who both live at home; his full scholarship to a small US college covers his tuition and room and board.

Matthew is tense for Stortini’s first few questions, but he quickly relaxes. He is soft spoken, perhaps even sweet: not what I expected after viewing his Facebook cover shot, which shows him and three friends puffing on cigars in their prep school blazers, ties, baseball caps, and sunglasses. Stortini portrays him sympathetically—noting, for example, that Matthew has an upcoming appointment with a medical specialist for a congenital kidney ailment.

After the brief introduction, Matthew’s lawyer moves on to the history of his client’s relationship with the complainant. The he said, she said nature of this story is once again drummed home.

Matthew says he and Ava had sex on the day they met; she denies this completely. Matthew says this took place in the parking lot of a school near her house; Ava says the first time they went there together was the night of her alleged assault. He says she left her panties in his car after a consensual encounter in another parking lot; she says he took them from her bedroom.

“How did you come to have possession of her panties? ” asks Stortini, in a juxtaposition of legalese and lingerie that strikes me as absurd.

“She left them behind after the incident on the tenth, so I hid them in my sports bag.”

“Where did you find them? ”

“In back, on the floor behind the driver’s seat, when I got home and parked the car.”

“She said she gave them to you when you were in her bedroom. That didn’t happen? ”

“No, it did not.”

“Did you have a shirt of hers? ”

“No.”

“Did she have a shirt of yours? ”

“Yes . . . it was in the back of the car. She put that on after we were done.”

“Did you ever ask for it back? ”

“No.”

“Did you expect to get it back? ”

“Eventually, but . . .” He trails off.

Stortini arrives at the night of the alleged assault.

“Did you have sexual intercourse with [Ava]? ”

“Yes.”

“How? ”

“I was seated. She was straddling on top.”

“When the intercourse was done, sir, did you leave the school? ”

Once again, the use of courtroom language to describe sexual encounters seems jarringly incongruous. I want to laugh, but there’s nothing remotely funny about the big picture of this case. Taking notes in the audience, I often feel more like a voyeur or a pornographer than a reporter. And this is despite the fact that most of the details of this couple’s sexual history have been ruled inadmissible for the purpose of this trial, in accordance with Canada’s rape-shield laws.

At one point, when Matthew’s description threatens to become too graphic, Justice Gary Trotter warns him off. The whole situation is all the more bizarre when I consider that the accused is describing—in highly realistic detail—encounters that the complainant swore never took place. Though they’ve both taken an oath to tell the truth, their accounts are fundamentally incompatible.

It is a relief from the awkwardness when Stortini moves on to the couple’s break-up, which occurred after Matthew left for a big sports tournament in the US.

“Did you contact her during that weekend? ” Stortini asks.

“Very little. I kind of tuned her out just to focus on [playing].”

Matthew says he didn’t keep his phone close at hand, and only responded sporadically to Ava’s texts. When he did, he kept it brief, sending messages like, “Everything fine, still playing, going into next game, talk to you later.”

Once back home in Toronto, Matthew says, he made no effort to contact Ava.

“Why weren’t you seeing her? ” asks Stortini.

“I felt like she was becoming too much for me to handle. She wanted to be serious and have a long-term relationship. I didn’t want to get serious and miss her if I was going back to school.”

He says he told Ava his school was unlike a Canadian university. He had classes on Saturday mornings, and visitors weren’t allowed in the dorms. Stortini asks how she reacted.

“Not well. She came across as being frustrated with me, and angry.”

“Did it bother you in any way? ”

“Not really.”

Despite all this, Matthew says the two continued occasional BBM-ing. She invited him to her birthday.

“I told her I’ll try to make it.”

“Did you intend to go? ”

“No.”

“Why didn’t you tell her? ”

“If I just told her no, it would have ended ugly. I was just trying to be subtle about it. Go our separate ways.”

After he failed to show up at her birthday, Ava messaged him.

“She said she never wanted to see me again or talk to me. We were done. I said, ‘Okay.’”

The next time the two saw each other was the night of the alleged assault. Ava has said from day one that she was forcibly confined in Matthew’s car, and raped in his passenger seat. He says they had consensual sex in the driver’s seat: she was on top, and stopped talking to him after he climaxed and told her “I’m done.”

According to Matthew, this was one of many mood swings she had exhibited over the hour and a half they were together, during which she repeatedly called him an asshole and lambasted him for missing her birthday party.

“I said, ‘Yes, I know I was an asshole. I’m sorry,’” Matthew tells Stortini. “She’d say, ‘You’re a great guy but you have no time for anyone. Your life is just sports.’”

The conversation kept going in circles, the defendant recalls. At one point, he even checked his Facebook and Twitter messages, which is confirmed by data usage on his phone bill.

“Throughout the conversation, she would put her hand on my right knee and leave it there. When she got angry she’d pull it back, separate herself.”

“Were you trying to be affectionate, touch her, put your hands on her? ”

“No.”

Matthew says he finally asked, “If I’m such an asshole, why would you call me first to pick you up? She responded, ‘Because you’re hot.’ She reached over to kiss me. Then she came on to my side of car. She pushed herself over the console, sat on my lap. She put her arms around my neck and I had my arms around her waist. We began to kiss. Not even a minute into kissing, she stopped, looked at me, went back to her side.”

“Why did you kiss her back? ”

“She kissed me, so I kissed her. I liked her, but I didn’t want kind of to be with her.”

Stortini asks Matthew if he tried to stop Ava from leaving the car.

“No.”

“Did she say anything? ”

“That she was going to go home. I said, ‘I’ll drive you home.’ She said, ‘No, I’m going to walk.’”

“You would allow her to walk home? How far was it? ”

“A minute’s walk. She got out, walked in front. I started the car and began to pull away, began to drive out of the parking lot. She turned around and said, ‘Fuck it, it’s summer.’

“I kind of felt like she wanted to come back in the car and hook up. She got back in, I reversed back, she took off her pants and crawled over to my side. I kind of lifted her and guided her.”

Stortini asks: “Had you ever had sex on [the] driver’s side of [your] car? ”

“No.”

“Was she angry during intercourse? ”

“No.”

After sex, Matthew says, Ava said, “Seriously, that’s all? ” and got mad at him again. He turned the car on. “We started to drive home. She was not responding to any of my questions. ‘Are you okay? Did I do anything wrong?’ I just thought something must have happened.”

“Was she looking at you? ”

“No, she was looking out past the window, almost leaning on the door. . . . Once I stopped, she was out of the car.”

“How long did you stay in front of the house? ”

“A couple of seconds, until I saw her walk up the stairs to the front door.”

“On the way home, had you felt in any way that you had done anything wrong? ”

“No.”

“On the way home, did you start getting text messages from her mother? ”

Yes, Matthew says. He was about halfway there, fifteen minutes away from his door, when those texts began to arrive.

Ann Brocklehurst (@AnnB03) is the author of Dark Ambition: The Shocking Crime of Dellen Millard and Mark Smich.

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