She said, he said: Parts 3 and 4
Reporting on a rape trial that never made headlines
Part 3: Can the complainant continue?
December 2014
It’s a Friday in Toronto, the fourth day of a trial, which has been proceeding far more slowly than most. During the past three days, the judge has granted frequent breaks so that Ava—who is now nineteen years old, and has been distraught on the witness stand—can collect herself. Gary Stortini, one of two lawyers defending Matthew, has not yet finished cross-examining her. And this morning, she is half an hour late for court.
When Ava finally arrives, Stortini jumps back into his questions. He asks about several consensual encounters, all from the summer of 2012, that she admits to having with his client. These prior sexual acts, as the lawyers call them, were deemed admissible by Justice Gary Trotter after a non-public session known as a “276 application.”
Stortini asks Ava how many times she and Matthew had sex.
“Three or four,” she says.
“Always in your bedroom?”
“Yes.”
“What time of day? Who was home?”
“Nobody was home. I made sure of that. It was always during the day, not night. I was not hiding anything. I just did not feel comfortable with my parents in the house.”
Stortini presses Ava about the first time when she and Matthew, who is a year older than her, had sex.
“Who was home? Your mother?”
“Yes. She’s always home, always on the computer working,” she says. “He wanted to show me videos of how he played lacrosse and hockey.”
“But your mother was home.”
“Yeah, we did it anyways.”
Ava ignores this contradiction—that in minutes, she has gone from protesting that she wouldn’t have sex when a parent was home to admitting that she had.
Stortini focuses in on a particular week from that July, when his client had a week off from his summer job. According to the defence attorney, that’s when the couple had sex on four consecutive dates.
On the first day, Matthew and Ava headed out for dinner at a sports bar after having intercourse. On the second day, he was invited to eat at her house, then she drove him home. On the third day, she asked him to take her to her wisdom tooth surgery. He said he couldn’t, but stopped by her house later in the evening.
“Even though you had your surgery, you still got close,” says Stortini.
“That never happened. My face was the size of a tennis ball,” says Ava.
“You may not have kissed, but you had sex.”
“No,” she cries, covering her face.
Stortini asks if she and Matthew had sex on the fourth day.
“No. I was on medicine, painkillers,” she says, rolling her eyes.
“Did you have feelings for him?”
“Yeah, he was nice.”
“A lot?”
“No, I’d only known him for a month.”
At the end of the week in question, Stortini points out, his client travelled to the US for a sports tournament. Matthew and Ava didn’t see each other again until early August—the night of the alleged rape.
“When he left [for his tournament], you thought you’d have contact?”
“Can you rephrase the question?”
This is a response Ava gives frequently. Many times, she tells Stortini she cannot understand his questions, and asks him to repeat himself. Both counsel and witness are often exasperated with each other, to the point that the judge has to intervene on several occasions during the cross-examination.
“Did you think you would be seeing him again?”
“I assume. We didn’t plan anything. Just go with the flow.”
“Did you miss him?”
“No. He wasn’t gone for a year. I assumed I was going to see him.”
“That weekend, he told you to give him some space, that it was a very serious tournament with lots of scouts. Do you recall?”
“No, I don’t. I said, ‘Have a good trip, good luck, be safe.’ I wasn’t hounding him.”
“He had stopped texting you back,” says Stortini, as Ava sighs and rolls her eyes again.
“He didn’t indicate, ‘Leave me alone,’” she says. “I just assumed it was the long-distance charges. I wasn’t sitting around waiting, expecting to hear from him. I wasn’t expecting anything.”
Stortini says that when Matthew returned from the trip, he never contacted Ava. She eventually got in touch to invite him to her birthday dinner.
“I didn’t want to hound him, or be—” says Ava, before she turns and speaks to Justice Trotter.
“She was smiling and looking up,” I hear Ava say to the judge. She’s complaining that someone in the audience is making faces—a forbidden practice in court, where proper decorum is strictly enforced. Since I have been looking at her, noting her mannerisms and expressions as I make notes, I’m worried that, through some inadvertent action on my part, I am the one being reported. After all, the only other women it could be are Matthew’s mother, his grandmother, and a victim services support worker.
As distressed as Ava has appeared at times, she also has a feisty and combative streak. When she’s not in tears, she doesn’t hesitate to snap at Stortini: for example, she’s told him he is clueless about things like how BBM and Facebook work. Now she is reporting someone for making a face, when she herself frequently rolls her eyes and makes faces.
“It was the girl with black hair,” she tells the judge.
Although I’m a brunette, I feel a wave of relief. She means Matthew’s mother, whose hair is a few shades darker than mine.
Trotter takes the situation in stride, telling the accused’s family they haven’t done anything wrong, and have a right to be here—but in a small courtroom, he explains, witnesses pick up on the expressions of audience members. There are no admonitions. He just tells us all to be conscious of the situation, then calls another recess.
I get the distinct impression that Ava is displeased by this measured reaction. When she fails to return at the end of the twenty-minute break, the defence team is unhappy. Back in the courtroom, I overhear Stortini’s co-counsel, Carolyne Kerr, mutter, “She’s holding us all hostage.”
Sharna Reid, the prosecutor, says she has tried unsuccessfully to approach Ava, who is huddled in the hallway with Detective Brian Wookey, the Toronto Police Service officer in charge of the case. “I don’t believe she can continue with the cross-examination,” Reid tells Trotter. “It’s very difficult to have questions answered as to what exactly the issue is.”
The judge is perplexed as to what triggered the breakdown, as is Stortini. “I agree you’ve acted professionally,” says Trotter. “I can see how anybody would be upset dealing with these personal matters.”
The defence, the Crown, and the judge agree that the questions are only going to get harder. Trotter wonders if he should bring in another judge to make a procedural ruling. This is a trial by judge alone, so he doesn’t have to worry about a jury, but he must consider whether any action he takes could taint his neutrality.
“Is this case going to go ahead or not?” he asks Reid.
“If the complainant can, we will go ahead,” she says. “Without the complainant, the prosecution will come to an end.”
It is now noon, and there has only been a half hour of testimony all morning.
“We’ll come back at 2:30,” says Trotter. “I think a decision does need to be made.”
As we break for lunch, I’m betting the trial won’t resume. But when I return to the courthouse, Ava and her family are all waiting in the hallways. Their presence seems to invigorate her. Back on the stand, as Stortini picks up his cross, she is quite combative.
Now, the defence lawyer suggests that the accused had made it clear he no longer wanted to see her.
“No,” she says.
“No?”
“No.”
Stortini asks Ava to explain when she invited Matthew to her birthday.
“I invited him the night before....He said he was at work and he’ll let me know.”
“He wasn’t getting back to you, and you still wanted to see him.”
“That’s incorrect, because I wanted a friend to be at my birthday party and I invited him.”
Stortini asks her who else was invited. He establishes that Matthew was the only potential guest apart from a girlfriend of Ava’s and her date.
“My birthday is midsummer, so a lot of people couldn’t come,” says Ava.
In the end, Matthew didn’t show up.
“You were embarrassed, humiliated, upset,” says Stortini.
“No, because it happened once before,” says Ava, referring to the time when Matthew had stood her up to watch fireworks on Canada Day. “I just wanted to enjoy my birthday. I didn’t think twice.”
“You messaged that night that you never wanted to see him again,” says Stortini.
“No, because we weren’t fully established. At this point...he was brushing me off. I was brushing him off.”
“How were you brushing him off?”
“In my own mind. Whatever.”
Next, Stortini brings up Ava’s videotaped police statement—submitted as evidence earlier in the trial—in which she discussed a series of text messages made several days after her birthday. She told police that Matthew had sent her a hey-how-r-u? kind of message that she basically ignored.
But Stortini says it was actually Ava who initiated the contact, by phoning to tell Matthew that her father was in hospital for a medical emergency. She completely denies anything of the sort, saying Matthew had been looking for marijuana for a friend.
Stortini does a double take, wondering why he’s never heard this story before: Ava didn’t mention it to the police or at the preliminary inquiry.
“I never wanted this, so I’m sorry I missed one thing,” she says, raising her voice. “Because of what had been done to me, how my body was.”
The lawyer shifts gears. He asks the witness if she is aware that her friend Zoe gave her own police statement about what happened on the night of the alleged rape. Ava nods.
Stortini explains that Zoe’s statement contradicts Ava’s. Zoe told police that Ava had brought a mickey of Bacardi rum to her house, and that they drank it on the subway as they headed downtown to a concert at Dundas Square.
Ava, however, told Wookey that she’d only drank half that much at Zoe’s house, and never mentioned that she had supplied the bottle. Ava also said a third friend was present, although Zoe said they’d met up with him at the subway station.
Moving along, Stortini says Ava phoned Matthew before going to the concert. She denies it. The defence has subpoenaed her phone records; he shows them to her, pointing out a call she made at 6:50 that evening. Ava shakes her head and mouths something at her current boyfriend, who is sitting in the courtroom.
Stortini shifts his focus to a series of text messages sent earlier that day, during the afternoon. Ava’s police statement indicated that there had been approximately twenty texts, and they were mostly about getting back some of her belongings from Matthew. His lawyer wants to know what exactly his client had of hers.
“He had my underwear and my shirt.”
“Why did he have your underwear?”
“He took them from my house.”
“He took them from your house?” Stortini is clearly surprised by this revelation. At the preliminary hearing, she did not explain how Matthew came to have her panties.
“I suggest the reason he had your underwear was you left them in his car,” says Stortini, referencing a sexual encounter that he has already questioned her about—and which she insisted never took place.
Ava says absolutely not: Matthew had asked for them when he was in her bedroom. “He liked them. He said they were cute.”
“If you were giving [them] to him, why would you want [them] back? Wasn’t it a gift?”
“I felt uncomfortable with him having them in his possession.”
Stortini asks about the shirt that Ava had wanted Matthew to return. She replies it was just a shirt. Stortini says it was, in fact, one of Matthew’s sports shirts that he had lent to her.
“I never had any of his clothing,” she says.
Storntini disagrees. What actually happened, he suggests, is that Matthew told Ava he couldn’t meet her to return it that day because he was busy.
“Well, so was I,” she says. “I don’t recall the conversation.”
In her police statement, Ava says her first call to Matthew happened twenty minutes after midnight—she asked him for a lift home after she had already phoned three other friends. But Stortini again points to her phone records, which show an outgoing call to Matthew at 10:58 pm. There are no prior calls to other numbers.
“[Matthew] said, ‘Try someone else. If you can’t find anyone, I’ll take you,’” the lawyer says to the complainant. “It was [Matthew] who suggested you call other people...You never called three other people before you tried to call [him].’
“I just wanted to get home,” Ava says.
Part 4: The Facebook test
As the trial begins its second week, defence attorney Gary Stortini continues his cross examination, asking Ava about a fake Facebook account that he says she set up in the summer of 2012, shortly after Matthew stood her up at her birthday dinner.
“Did you tell your mother you had the idea to set up a false Facebook account?” asks Stortini.
“No.”
“That your girlfriend had the idea to set up a false Facebook account, get flirtatious with [Matthew] on the account, and invite him [over to a stranger’s house]?”
“No.”
“You didn't hide in the bushes waiting to see if he would arrive?”
“No.”
“You didn’t tell this to your mother?”
“I didn’t tell my mom anything. It was over, done. I had no reason to communicate with him.”
Stortini drops the subject. He spends the remainder of his cross-examination, which lasts half the morning, on the alleged assault.
Matthew’s lawyer puts an alternative version of events to Ava. The story he tells is one of consensual sex and a girl who couldn’t let go. She wanted to see Matthew in the hopes of getting back together, he suggests.
In her videotaped statement to police, Ava said that Matthew drove her from a subway station to a parking lot where they had never been together, then forcibly confined and raped her.
According to Stortini, however, Matthew drove instead to her house. They parked outside, and Ava asked him over and over again why he hadn’t shown up for her birthday. When they saw her mother open the door to come outside for a cigarette, she suggested they drive to a parking lot—a place where, Stortini maintains but Ava denies, they’d had sex on two previous occasions. Once there, she told Matthew he was a great guy, but also an asshole who cared only about sports.
Stortini’s story is that Ava went from angry to friendly and back again several times. She told Matthew she could come visit him at his American boarding school next term, something he replied was impossible. She sat on his lap and kissed him, then left the car. Matthew’s windows were open and he asked if he could drive her home. Ava said no and crossed in front of the vehicle, walking away. Then she turned and said, “Fuck it, it’s summer.”
Stortini continues: Ava got back in the car, removed her shorts and underwear, and climbed into the driver’s seat. Matthew grabbed her by the upper arms and lifted her on top of him—that’s where the bruises on her biceps came from. He reclined his seat and removed his pants. They had passionate sex. Ava’s thighs bruised as Matthew manipulated her in the confined space. When it was over, he said, “I’m done.”
As Stortini recounts this version of events, Ava covers her face with her hands. She cries “Nooooo,” stretching the word out. She says again and again and again that none of these things happened, that she was tired, that she just wanted to go home.
But Stortini isn’t finished. He says that when Matthew drove Ava home, she was upset in the car, and refused to look at or talk to him until she got out. He has a theory of what happened after his client drove off. First, Ava shared a cigarette with her mother. While they were smoking, her mother asked her why the buttons on her blouse were undone, and what was she doing with the guy who’d stood her up on her birthday. Ava fled inside to take a bath. Her mother heard her crying, and entered the bathroom to find out why. When she noticed her daughter’s bruises, she demanded an explanation.
“That’s when you became hysterical,” Stortini says to Ava. “Did you know [your mother] was texting [Matthew]?”
“She grabbed the phone. I didn’t know what she was doing,” Ava answers.
A few minutes later, the cross-examination ends. After four days on the witness stand, the complainant’s testimony is over. She leaves the courtroom.
Ava’s friend Zoe (not her real name) is the Crown’s next witness. Her blonde hair is pulled back in a tight ponytail. She’s dressed in a black hoodie with the name of a university displayed across the front in big red letters, black leggings, and Doc Martens boots. She looks slightly nervous, but also a bit excited to be in court.
Zoe and Ava haven’t spoken to each other since the night of the alleged rape. Her testimony under direct examination by the prosecutor supports much of Ava’s account of the evening.
On cross-examination, Stortini goes over Zoe and Ava’s alcohol consumption on that night: they’d shared a mickey of rum as they made their way downtown to a concert. He asks Zoe if Ava was drunk.
“She didn’t seem intoxicated.”
“Did her behaviour change?”
“I don’t believe so. She didn’t seem drunk to me.”
Zoe says the reason why she fought with Ava was because Ava and another friend both thought Zoe was drunk.
“What was her demeanour?” Stortini asks.
“She seemed alright,” Zoe answers.
“Was she upset?”
“Yes, quite upset.”
Stortini asks about Ava and Matthew’s relationship.
“It was obvious [Ava] liked him?”
“I believe she liked him.”
“Does she swing back and forth in her moods?”
“No, I don’t think so.”
“Did you know before your fight that [Ava] had contact with [Matthew] earlier in the day?”
“I don’t think so.”
“You didn’t think they were [still] dating?”
“No.”
Stortini moves on to the Facebook incident, which he had questioned Ava about earlier this morning. He asks Zoe if she helped Ava set up a fake account for a non-existent girl, which Ava used to flirt with Matthew as a test of character.
Zoe answers yes, she did.
“It was her idea,” says the witness. “It wasn’t mine.”
“Was it your house [Ava invited him to]?”
“No, around the block.”
“You two hid in the bushes?”
“Yes,” replies Zoe, somewhat sheepishly.
“You watched him go to the door?”
“Yes.”
“After he missed [Ava’s] birthday, were they through?”
“I’m not sure.”
Stortini asks if Ava was upset when Matthew showed up at that house.
“Yes.”
“Was it obvious she liked him more than he liked her?”
“No.”
Stortini has Zoe clarify a few more details about the fake Facebook-ing. The girls didn’t know who lived at the address they had provided to Matthew. They invited him there to join the mystery girl in her hot tub and no one was home when he showed up. The whole thing ended with him returning to his car, not much the wiser as to what had happened.
The prosecution’s next two witnesses are Ava’s father and the police constable who was called to her home after the alleged assault. Both confirm that she was extremely agitated and crying hysterically. Their testimonies are brief.
Ava’s mother, a wiry, forceful woman in her fifties, who I will call Mary, is the Crown’s final witness. As assistant Crown attorney Sharna Reid begins questioning her, there is some legal wrangling about “prior consistent statements” and what can and cannot be admitted.
The main point of contention is an anecdote that Ava tried to bring up, more than once, during her time on the stand. It’s about something Matthew did when she invited him to eat dinner with her family dinner. He allegedly told a story about how he and his buddies at school wanted to videotape a fifteen-year-old girl having sex in her dorm room. Mary, apparently, overheard this.
While Mary waits for the lawyers to resolve the prior consistent statements issue, she doesn’t hide her disdain for what she obviously considers to be legalistic hair splitting.
“I’m sorry you’re not happy with my rulings,” Trotter says to her. He calls a brief recess, and asks Reid to make clear to the witness what is off the table for discussion.
But when the proceedings resume, Mary returns quickly to the anecdote. She says Matthew’s story led her to suspect him of “sexual deviancy.”
“He made us nervous,” she explains. “[Ava]’s sister was disgusted. I told [Ava], ‘You deserve better.’”
In exasperation, Justice Trotter calls an end to the day’s proceedings.
By the following morning, the judge has done some legal reading. As Mary’s testimony resumes, he allows her more leeway in what she can talk about.
The Crown puts a few last questions to the witness, asking if she was angry with her daughter for taking a lift home from the subway with Matthew.
“I may have been upset with her for taking a drive with this kid...I have a recollection of asking her why she would take a ride with him and not wait for someone else.”
Carolyne Kerr, Stortini’s co-counsel, handles the defence’s cross-examination. She asks why, if Mary had been so upset about Matthew’s table talk, she hadn’t mentioned it in her police statement.
“I answered questions I was asked,” Ava’s mother replies. “I was more concerned about my daughter...I hadn't slept in thirty hours.”
Kerr tells Mary that she provided a forty-five-page statement, in which she gave many long and involved answers, and went on at length about her cellphone dying.
“Detective Wookey didn't question you in a manner that forced you to give one-word answers. You did tell Detective Wookey a bit about [Matthew]. On page five, you say, ‘I had met the boy a number of times. He had dated my daughter a number of times. He was a normal kid with a future, for what I knew.’”
Next, Kerr asks about the birthday dinner no-show. Mary replies that it was her understanding that Ava and Matthew had broken up before that, because Ava’s friends had told her that he was running around with other girls.
“Your daughter told you about a fake Facebook account.”
“It was an idea of a girlfriend to test his character.”
“Your daughter told you he did show up [at the fake girl’s house].”
“Yes. I don't believe it was Ava’s idea...I thought it was ridiculous, at that age, to be engaging in such covert ideas.”
“You told her she deserved better in her actual choice of boyfriends?”
“[Her sister] was more upset, more vocal. My line was, ‘You deserve better.’ My line was, ‘Just let it go.’ It seemed to me it was going to become unhealthy.”
Parts 5 and 6 of ‘She said, he said’ can be found here. Please feel free to share “She said, he said” on social media and with your friends.