New Brunswick

Kings County teen who could not legally consent to sex with older man shocked by plea deal

A Kings County teen says she feels betrayed by the justice system after prosecutors agreed to withdraw a charge of indictable sexual assault against Zachary Gallant if he pleaded guilty to indictable assault instead.

Sexual assault charge is withdrawn after accused pleads guilty to lesser charge of assault

Zachary Gallant, 23, was sentenced in Saint John's Court of Queen's Bench on Sept. 10. (Hadeel Ibrahim/CBC)

She was three months past her 15th birthday and, according to the law, too young to consent to sex with a 21-year-old man.

Everyone she trusted said what happened was wrong — her parents, the police, the prosecutors, the school principal and her therapist.

She says she did what they told her to do.

She gave statements to the RCMP. She was interviewed by Social Development. She was cross-examined at a preliminary hearing. And she prepared herself to testify at a seven-day trial to which 400 potential jurors had been summoned.

But at the last minute, the ground shifted, said the teen, who is now 17 and can't be identified because of a publication ban.

The Crown and the defence agreed the charge of indictable sexual assault would be withdrawn if Zachary Gallant pleaded guilty to indictable assault.

Gallant, 23, pleaded guilty to indictable assault and the Crown withdrew the charge of indictable sexual assault. (Zachary Gallant/Facebook)

Indictable offences are among the most serious and because the complainant was under 16, a sexual assault conviction would have carried a maximum sentence of 14 years of incarceration and a minimum of one.

On Sept. 10, Gallant was sentenced to 16 months to be served in the community. The sentence meant no jail time, no curfew and no requirement to be registered as a sex offender. 

The teen was shocked.

People who work with sexual assault victims weren't.

They say plea deals are common and victims are rarely prepared to hear the most traumatizing aspect of their violation — that it was sexual and intimate — effectively erased.

Sexual Violence New Brunswick says that's why it has launched a pilot project that teaches victims how the courts work and how to prepare for an outcome that may not make them feel safer or that justice was served.

The teen in this case, who did not receive such counselling, said she feels as if her life was ruined for nothing.

"I've never felt so let down."

How they met

She said Gallant always knew how old she was. 

When she was about 14, she was spending time with Gallant's sister. They would go for walks and attend school activities together. This is when Gallant also started to take an interest in her, the teen said.

Their relationship started with small talk and later moved to Snapchat, the app that lets people send messages and photos that disappear once they've been viewed.

The teen and Gallant communicated with each other on Snapchat. (Dado Ruvic/Reuters)

By late August 2017, the teen was sneaking out of her parents' house at night to meet Gallant. He would park and wait for her down the street, where it was less likely someone would see, she said.

They would go for drives but never date in public. He told her keeping their meetings secret kept their relationship special, she said.

Went to his parents' house

One day, she said, she left her school during school hours to meet him. He took her to his parents' house and they started to watch a movie in his bedroom.

She said he wanted to have sex and started taking off her clothes, but she told him she wasn't ready and asked him to take her back to school.

He said to me, 'You don't realize this is illegal. I could go to jail.'- Teenage assault victim

Not long after, she said, he apologized and she agreed to meet him again. He picked her up one night in October.

She said they parked near a dirt pit and he started to pressure her again to have sex and in the end, penetrated her with his finger and then with his penis. That penetration took place was never disputed.

At a preliminary hearing a year later, she would tell the court what he did was distressing and uncomfortable and it hurt.

When it was over, she was crying, she said in an interview with CBC News.

"I had tears running down my face," she said. "But it didn't bother him at all. He dropped me off at the end of my street."

How the word got out

The teen said she later called a friend to talk about what happened. She said that she didn't know her friend was with Gallant's sister or that a recording was being made of the conversation.

The teen said that recording was then shared at school and eventually came to the attention of the police, who started to investigate.

The teen said Gallant also called her, crying and pleading with her to deny he had touched her.

"He said to me, 'You don't realize this is illegal. I could go to jail."

Then she said he hung up.

The call to 911

The teen said she started feeling panicky. She hadn't been honest with her parents about her relationship with Gallant. 

She felt students were taking his side, and she was upset by the breakup. She felt overwhelmed and responded by taking her mother's prescription medication, including tranquillizers.

Feeling overwhelmed and friendless, the victim said she swallowed as many pills as she could.

"I remember thinking, my parents are going to kill me, students are turning their backs on me," she said. "I took as many as I could — mouthfuls and mouthfuls of pills."

Her mother later noticed that her daughter wasn't speaking correctly. Then she saw her daughter slump in her chair and saw the empty pill bottles.

"I called 911," said the mother. "They came and took her in an ambulance."

Suicide watch

The mother said her daughter stayed in hospital for about a month, about half that time, under suicide watch.

During that time, the mother said, the RCMP told her they had a recording in which her daughter revealed she'd been in a relationship with a man.

The mother said her daughter didn't want to admit to anything because she thought she was in love with Gallant and didn't want to get him into trouble.

But eventually, the mother said, she and her husband persuaded their daughter to make a formal complaint.

They felt she had been groomed and manipulated by someone taking advantage of their daughter's insecurity and inexperience.

"We told her to trust us, that we had her back," said the mother.

RCMP called the teen's mother after they learned of a recording being shared around the school in which her daughter revealed she was in a relationship with a man. (CBC News file)

Preliminary hearing

At the preliminary hearing on Oct. 3, 2018, in front of Gallant and members of his family as well as the officers of the court, the teen went into detail about how and where Gallant had touched her.

She said she had asked him to stop but he ignored her.

She said she told him she was scared.

She said he responded by telling her she would do it if she cared for him.

They would pull my hair. They'd trip me. They'd knock the books out of my hand. And all of them were girls.- Teenage assault victim

Gallant did not speak at the hearing but his lawyer, Nathan Gorham, asked the teen many questions.

At one point, he suggested she was lying when she said she'd never told the sister she was in a relationship with Gallant.

He also asked the teen why she would give damaging statements to the police if she was being truthful about wanting to protect Gallant.

"So if I understand correctly, you didn't want to get Zack into trouble, but you were telling the police things that would get him into trouble," said Gorham.

"Because I knew deep down, despite how I felt about him, that he did something wrong that still requires a punishment," she answered. "And I thought it was a duty to myself to give a statement."

Gorham asked her why she held back on the truth in her first statement to the police in November after promising she would tell the whole truth.

Defence lawyer Nathan Gorham says his client thought he had the victim's consent, not knowing that because of her age, she couldn't give consent. (Ed Hunter/CBC)

The teen said she still had feelings for Gallant and wanted to minimize the consequences for him but then decided to give another statement in May.

"I never held back details on the crime he committed. It was simply more so, my emotions and how I reacted. That's what I held back. Nothing that he did. More so, how I felt about it and how I felt during it."

Gorham asked the teen if she had sent a package to Gallant's mother containing images and taunts about Gallant's sister too vulgar to be described here.

The teen denied it.

He also accused the teen of inviting members of Bikers Against Child Abuse to come to court as a show of intimidation.

Crown prosecutor Jeremy Erickson then objected to this questioning and asked how it was relevant.

Shortly after, the 90-minute hearing ended and provincial court Judge Kelly Winchester ordered Gallant to stand trial on the charge of indictable sexual assault.

'Everybody hated me'

The teen said the time she spent waiting for the trial felt like an eternity.

In the months after the incident, she said, she was harassed in her community and bullied at school by people who sided with Gallant.

"Nobody would talk to me. I had no friends," she said.

"I would go to the washroom [at school] and all my work would be torn up and thrown in the garbage.

"Then it started getting physical. They would pull my hair. They'd trip me. They'd knock the books out of my hand."

"And all of them were girls. They were friends with the sister."

The teen said she was locked into her locker.

She said she was also physically assaulted at school and the incident was recorded by someone's cellphone, and the video shared on social media.

Around this time, the teen was getting counselling and was referred to a psychiatrist.

Plea deal comes as a surprise

The teen's family expected the trial to start June 17 before Justice Darrell Stephenson in Saint John's Court of Queen's Bench.

On June 14, the mother got a call from the Crown prosecutor, Erickson, informing her that Gallant would be pleading guilty to the lesser charge of indictable assault.

When the teen found out, she felt so betrayed she drove to the courthouse that day and demanded to speak to Erickson.

"They had told me he'd do 14 years for statutory rape," she said.

She said the prosecutors never told her they were contemplating a different kind of resolution or why.

Erickson did not return a message from the CBC.

The mother said she feels sick about what happened.

"Her father and I urged her to report this," she said.

7-day trial avoided

On June 17, Stephenson accepted Gallant's guilty plea to indictable assault after hearing a record of the facts that had been agreed to by the Crown and Gallant and his lawyer.

All sides agreed "the two had engaged in sexual intercourse" and the victim was younger than the accused by five years, 10 months and 20 days.

That's significant because the law in Canada says youth under the age of 16 do not have the legal capacity to consent to sexual activity with someone more than five years older.

Fourteen- and 15-year-olds can consent to sex with someone closer in age, as long as there is no element of exploitation, such as pornography or prostitution. Also, no partner can be in a position of authority or trust, which would include, for example, a coach, a spiritual leader, or a family member.

Youth who are 12 or 13 can only consent to sexual activity with someone who is less than two years older, and the same stipulations apply.

Children younger than 12 can never consent, under the law.

Gallant's lawyer told the court that his client believed at the time that the touching was consensual.

"But legally, it was a mistaken belief because the law operated in a way that because of the age difference, consent could not actually be given and so that's the basis on which the plea is being entered," said Gorham.

The sentencing

On Sept. 10, the teen and her mother returned to court for a sentencing hearing and read out their victim impact statements.

The teen told the court about her suicide attempt.

"I feel because of the sexual assault, my grades began to plummet and I couldn't bring myself to care," she said. "I had a pit of emptiness inside of me. I was very angry at the world."

She told the court she was still afraid of going out alone.

"I never know when I will see the accused," she said.

The mother told the court she feels rage, shame and guilt.

"As a parent, I was not there to protect her," she said.

Joint recommendation

In a joint recommendation, the Crown and defence asked for a 16-month sentence to be served in the community.

Gallant would have to keep the peace, attend counselling as directed, and stay away from the teen's home and place of work.

Your healing is separate from the criminal justice system and always will be.- Kathy Lewis, Sexual Violence New Brunswick

The judge accepted the recommendation after hearing Gallant tell the court that he was very sorry for what happened and that it wouldn't happen again.

The judge noted Gallant had no previous criminal record and was considered a low risk to reoffend. 

It was also noted that Gallant was employed and had the support of his family.

The judge said the tragic incident should never have happened and, given the discrepancy in ages, the accused "should have simply known better and not placed himself in this position to begin with."

Still heartbroken

The teen said it feels as if nothing she said mattered.

She doesn't know what she would say to any other young person who wants her advice on whether to report a sexual assault.

"It's probably the right thing to do, but I would be heartbroken if what happened to me, happened to someone else."=

"The justice system failed me, so I wouldn't guarantee her any luck, especially around here."

Pilot project for victims

Workers at Sexual Violence New Brunswick, formerly known as the Fredericton Sexual Assault Centre, say victims of sexual assault often feel victimized twice — by the violation itself and then again by what happens in the justice system.

That's why the group has started a pilot project aimed in part at managing expectations and teaching victims that they don't have the final say in what happens in court and that they should be prepared to exercise some detachment.

Victim advocate Kathy Lewis said going through the justice system is important to some victims, regardless of the outcome. (Submitted by Kathy Lewis)

"The prosecutor isn't necessarily representing the victim," said Kathy Lewis, lawyer and project manager. "They're representing the state and in that way, the victim becomes a witness to the crime that occurred to them."

Lewis said victims need to understand that prosecutors exercise their discretion, and one of their main concerns is measuring the likelihood of conviction.

Meanwhile, they're working with the defence on resolution discussions, and the vast majority of such discussions result in pleas.

She said victims have less agency than they think.

"It's almost a runaway train," said Lewis.

"You have this really strange dynamic and a lot of times that dynamic results in a pretty deep sense of injustice that it sounds like this woman and her family felt and continue to feel."

Was the sentence correct?

When it comes to sentencing, Lewis said there are many principles to consider.

"Are we saying that the main purpose of sentencing is deterrence? Are we saying that the main purpose of sentencing is to rehabilitate the offender? How important is proportionality? What does proportionality mean?"

She also pointed out that these questions would only apply to the charge upon which the accused was convicted.

And in this case, "he wasn't convicted of sexual assault," he said. "He was convicted of assault."

'Conviction funnel'

Statistics Canada issued a report in 2017 on how few sexual assaults reported to the police end in a conviction and custody sentence — a result sometimes called the "conviction funnel" by those familiar with it.

Despite the odds, Lewis said victims may still feel compelled to go to court.

"Oftentimes, people do feel that going through the criminal justice system is important to them," she said. "It solidifies their experience. It makes it real. It helps them process what happened."

But it's also important to prepare for disappointment.

"The outcome of the criminal justice system is not a reflection of your experience," said Lewis.

"Your healing is separate from the criminal justice system and always will be."