Justice

Part 8: The Verdict

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 final 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

Matthew’s family seemed anxious and rattled as they left the courtroom after closing arguments, knowing they would need to wait more than two weeks for Justice Gary Trotter to announce his verdict. Although the judge stressed on several occasions that he had not yet reached any conclusion, some of his comments during the summations were harder on the defendant than I would have expected. Matthew had “testified well,” as defence co-counsel Carolyne Kerr put it, and remained remarkably poised throughout assistant Crown attorney Sharna Reid’s cross-examination, which Trotter described as skillful. In short, he was an excellent example of when it is prudent to run the risk of putting the defendant on the stand.

This is not say that Matthew was without weakness. There were times when his account of things seemed too good to be true. Mr. Perfect on the witness stand was, after all, the same guy who had heartlessly dumped Ava and moved on to the Facebook girl’s hot tub (see Part 4 of this series, The Facebook Test). Not that there’s anything illegal about that.

Matthew’s deletion of his bizarre and confusing text messages to Ava’s mother Mary also bothered me, though I didn’t find these actions quite as “damning to (his) credibility” as Trotter. I accepted Matthew’s explanation that the texts had been sent in a blind panic and irrationally deleted.

Which brings me to Justice Trotter, LL.B., University of Toronto; LL.M., Osgoode Hall; M.Phil. and Ph.D., University of Cambridge. Former lawyer with the Toronto Crown Attorney’s office before becoming associate, and then acting, dean of the Faculty of Law at Queen’s University. He was appointed to the Ontario Court of Justice in 2005 and then to the Ontario Superior Court of Justice in 2008.

Last November, his honour raised some hackles by ruling that a bank robber was not really a bank robber, just a thief, which made the man eligible for a lesser sentence. But lest you get the impression Trotter is soft on crime, last spring he sentenced a serial subway groper to two-and-a-half years in jail, and put him on the sex offender registry for life. “This might strike some as severe for a single over-the-clothing subway groping,” he said at the time. “(But) his persistent pattern of offending seems to be impervious to (short) jail sentences and court orders.”

In the Regina vs. (Matthew) ruling, which takes almost an hour to deliver, the judge spends the first half reviewing the evidence presented at trial, along with his comments on its validity. He plays up the importance of the Facebook incident, and Ava’s denial that it ever took place, along with some of the other contradictions in her testimony. The judge describes the bruises on Ava’s arms and thighs as “the most troubling aspect of this case,” and says they appear to be consistent with her version of what took place in Matthew’s car that summer night in 2012.

The bruises remain something of a mystery to me, as they were not shown on the courtroom’s big screen, and I only glimpsed them by peaking at the lawyers’ computer monitors. During the closing arguments, Trotter had noted that there was no expert evidence about the injuries and that bruising can be hard to type. Now I’m left to guess that neither the defence nor the Crown saw any benefit in pursuing an issue that would ultimately be inconclusive.

Trotter begins the latter half of his ruling, the analysis section, by noting that the case turns on the credibility assessments of Ava and Matthew:

In some ways I prefer the version of events described by [Ava], especially in light of the physical injuries she sustained. In other ways, [Matthew’s] account is more compelling. Of course, in a criminal case such as this, one cannot be reduced to a competition in which I must choose the most compelling version of events. The law requires a more searching analysis of the evidence as a whole measured against the standard of beyond reasonable doubt. If there is anything in the evidence, whether it comes from Crown witnesses or defence witnesses that causes me to entertain a reasonable doubt, I must acquit.

The judge finds that Matthew’s rendition of what occurred is credible to a point. “The narrative of the discussion about missing (Ava’s) birthday party and her oscillating attitude towards him is not unbelievable,” he says. “Moreover, his account makes sense in light of the Facebook incident.”

He considers Matthew’s testimony about Ava getting out of the car and saying, “Fuck it, it’s summer,” believable. “This strikes me as a strange and unnecessary detail to fabricate if it really did not occur. (Matthew’s) description of (Ava) walking around the front of his car and then returning to the passenger side struck me as an authentic description of physical movement that he actually observed,” says Trotter.

Where the judge starts to disbelieve the accused, however, is after Ava’s return to the car. “The confined space within the car, as demonstrated by the photographs, makes it less likely that sexual intercourse happened in the manner that (Matthew) described,” he says. “I also had some difficulties with (his) account of how he lifted (Ava) over the console and onto his seat. He reported that at the time he weighed roughly 185 pounds, whereas Ava said she was about 150 pounds at the time. This strikes me as a difficult physical feat.”

A word about this weight issue, which is an interesting example of a legal strategy gone wrong. At the beginning of his cross-examination of Ava, Kerr’s co-counsel, Gary Stortini, had asked about how she had lost thirty pounds, shrinking down to 120. To me, the implication was clear; in her newly slim and trim state, Ava had chased after a handsome star athlete who’d previously been out of her league. Stortini was using an old-school rape defence strategy, trying to paint the complainant as calculating and slutty. It caused her to burst into tears, and Trotter to tell Stortini that weight wasn’t relevant.

But the judge may have thought it irrelevant for a different reason than I did. During the trial, assistant Crown attorney Sharna Reid made a big deal about how two large people would never be able to fit together behind a steering wheel, causing Stortini and Kerr to object that the prosecutor had the timing of the weight loss wrong. When the court reporter was asked to play back the tape to verify what was said, all we got was clarification that the exchange between Stortini and Ava was ambiguous. The defence lawyers then let the weight subject drop. But here it was, back again and wrongly interpreted, in the judgment.

That said, the Crown appears to have made its own strategic error in calling Ava’s mother as a last-minute witness. Mary completely contradicted her daughter’s account of the Facebook caper, as had Ava’s friend Zoe. Unlike Reid, who argued that this could be understood as the immature acts of two high school girls putting a young man to a moral test, Justice Trotter ruled that the plan to lure Matthew to a hot-tub blind date “bordered on being spiteful.”

“Fortunately for (Matthew), although he probably did not view it that way at the time, no one answered the door,” says the judge, in the one moment of levity at the ruling.

Some time between the closing arguments and the verdict, Trotter has finally concluded that Ava had indeed lied under oath about the Facebook incident. “I consider this to be a serious deception,” he says. “It is a lie in the face of virtually incontrovertible evidence to the contrary. It is a lie that relates to an event close in time to the events of August 1st and 2nd. It is a lie that relates to her attitude toward [Matthew], which I’m already concerned is at odds with her trial testimony.”

After taking into account the Facebook incident and the other inconsistencies in Ava’s version of events—including the discrepancies between her sworn testimony at the preliminary inquiry and the trial and the lack of corroboration from her phone bill—the judge declares “there are too many shortcomings with [Ava’s] evidence for me to safely find that she was sexually assaulted, confined, and assaulted in the manner that she alleges.”

He has, however, enough problems with Matthew’s “shortcomings as a witness—his lies to [Ava’s mother] and his father and the deletion of the potentially important electronic data [his Facebook and BBM messages with Ava]—(to) prevent me from concluding that the allegations against the defendant are completely unfounded.

“All I can say is that I’m left with a reasonable doubt. I find (Matthew) not guilty on all counts.”

*

Unfortunately I was not in the courtroom to see the reaction. The date of the verdict was moved forward from what had been negotiated after closing arguments, but, not surprisingly, no one informed me. A lone reporter in a courtroom can be far more unpopular than a media mob. And throughout this trial, I have been given the frosty treatment by pretty much everyone involved.

I hope you will believe me when I tell you that I did nothing to deserve it, other than just being present at a public trial. No microphones in anyone’s face. No chasing witnesses out of the courthouse. No tweeting indiscretions. When I found myself in the bathroom washing my hands next to Ava, we both stared straight ahead into the mirror. In the halls, Ava’s and Matthew’s families and I all avoided eye contact.

This is not out of the ordinary as far as courthouse etiquette goes. Most reporters understand just how stressful an experience court is for the defendants, witnesses, and their families. We give them their space. As a rule, I won’t try to talk to anyone unless they indicate they are open to it, and even then I proceed with caution.

I do regularly approach lawyers and police, but back off if they don’t want to talk. At this trial, Detective Brian Wookey indicated, in not so many words, that I should get lost. Of the lawyers, Stortini was the friendliest of the three, which isn’t saying much. He told me he never talks to reporters during a trial and he might talk to me after. Reid pretty much cut me off at the pass every time I tried to open my mouth, until I just gave up. Kerr all but ignored me.

To find out what happened at the verdict, I had to get an audio transcript— during which I heard some clapping at the end when Trotter pronounced Matthew not guilty. Later that evening, Matthew tweeted that he was hugely relieved and hadn’t felt this good in forever. Ava’s Facebook timeline never so much as mentioned the trial. On social media, she and Matthew both congratulated Team Canada on winning the world junior hockey championship later that day. When I messaged Matthew asking if he would consider talking to me, he blocked me on Twitter. Ava ignored my Facebook message; her mother texted that she’d get back to me, but never did. (I’m actually kind of scared to get a message from her.)

Detective Wookey was chummier when I reached out to him again after the trial, but said on the phone that I’d have to speak to Toronto Police Service corporate communications or Sharna Reid—who subsequently referred me to the communications office of the Attorney General. Matthew’s mother told Kerr to tell me that the family has nothing to say for now.

Even after spending eight days analyzing one late-night incident, questions linger. If I had the chance, I’d ask Matthew how he’d coped these past two-and-a-half years. I’d ask Ava why she lied about things she had no reason to lie about. I’d ask her mother WTF? I’d ask Wookey if the cops had any doubts about Ava’s version of events, and if they had ever investigated her her phone bill. I’d ask Reid how much pressure there is these days—given the zeitgeist—to prosecute sexual assault cases. I’d ask Matthew’s family how much they’d paid in lawyers’ fees, because unless Stortini and Kerr cut their rates, I can’t see how their bill could have been less than $100,000. (Ava incurred no legal costs.) I’d ask Stortini and Kerr why they didn’t pursue a jury trial, and how typical Matthew’s case is or isn’t.

*

As this series has published, I’ve gotten some pushback from people questioning why I opted to write about a case in which the woman lied. The answer is that it was randomly chosen. A reporter walked into a courtroom. There was no agenda. I have no idea how representative the case is or isn’t, but what I can tell you is that defence lawyers will typically say that the way that sexual assault issues are framed by activists and discussed in the media is not reflective of their clients’ realities.

I’ve also been asked, as this story of Matthew and Ava became public, what was the point of all this intrusion and lurid detail?  Sometimes I respond with something banal and high-minded about the importance of due process and how every individual sexual assault case is different and life can’t be reduced to a Twitter hashtag. But in the end, I think it’s best—and, perhaps, necessary since no one involved wants to talk further—just to let this very cautionary tale speak for itself.

Court dismissed.

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

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