Oromocto man acquitted in sex-crime case
Judge says Noah Paul Lavergne, 20, lacked credibility, but complainant’s confusion over her age, lack of detail about handjob incident left him with reasonable doubt
Warning: This article features graphic descriptions of a sexual act involving a minor.
An underage girl definitely gave Noah Paul Lavergne a handjob in a grocery-store parking lot, a judge said Wednesday, but when it happened and who instigated it wasn’t so clear.
Fredericton provincial court Judge Scott Brittain acquitted Lavergne, 20, of Christine Street in Oromocto, on Wednesday of a charge of inviting a minor to touch him for a sexual purpose Nov. 23, 2020.
During Lavergne’s trial last month, court heard Lavergne and the complainant - a teenage girl whose identity is protected by a court-ordered publication ban - met through the Cadets Canada program at Base Gagetown in 2019.
While they weren’t friends, Lavergne and the girl started chatting through Snapchat, initially about the Cadets program, but later about other things.
At one point, Lavergne picked her up in a vehicle and they drove together to Sobeys in Oromocto.
As they sat in the car in the parking lot, testimony showed, the girl stroked Lavergne’s penis, giving him a handjob to the point that he achieved climax.
The defendant’s and complainant’s stories agree on that, Brittain said Wednesday, but they differ dramatically on how it came to pass.
Lavergne told the court he was going through a rough patch at the time, fighting with his girlfriend, having conflict with his parents and getting grief from his boss at work for lacking performance.
He ended up turning to the complainant as a sounding board, court heard.
The judge recounted the girl testified that as they chatted on Snapchat, Lavergne asked her for a handjob and said he was coming to pick her up. She said she refused, but ended up accompanying Lavergne anyway.
Her testimony indicated Lavergne renewed his request for the sexual contact, and she capitulated.
Lavergne testified he was overwhelmed with emotion and just needed a friendly ear on the date in question. He denied ever asking for a handjob, and said it was the girl who instigated on her own after he’d broken down crying and she consoled him.
The defendant told police in the summer of 2021 when he was arrested that he thought the girl was 15 years old at the time of the handjob, Brittain said, but he also told them he thought she was 15 years old when they first met in 2019.
Furthermore, court heard Lavergne knew the complainant was in the same grade as his younger sister in middle school at the time.
During the trial, Lavergne was confronted with a text message he’d sent to another participant in the Cadets program in 2021 in which he vehemently denied any sexual incident between him and the complainant, insisting he’d never do something that like with someone so young, even though he admitted at trial the handjob did happen.
“He explained he did so ‘because I was scared,’” Brittain said Wednesday. “He says he made a mistake.”
The judge said the defendant’s story on the witness stand was troublesome.
“There is no doubt that Mr. Lavergne’s testimony lacked credibility,” he said.
Conversely, Brittain said, he found the complainant to be straightforward in presenting her evidence and didn’t exaggerate the events.
However, he added, there were gaps in her recollection that diminished how reliable that evidence was.
The girl couldn’t remember what the weather was like on the day in question, the judge said, nor how busy the parking lot was, for example.
A question of age
An even more significant issue plaguing the case, Brittain said, was the matter of the girl’s age at the time of the alleged incident.
Initially, she testified she was 13 years old when the encounter with Lavergne occurred.
“I turned 14 a little bit after all this happened,” the complainant said during her testimony.
But later on in her evidence, the judge said, the girl pivoted and said he was 14 when it happened.
“She was specifically challenged with how that didn’t align with the date of the alleged offence,” Brittain said.
She became adamant she was 14 years old when it happened, the judge said, despite the fact she was definitely 13 years old Nov. 23, 2020.
“Both of these things cannot be true,” Brittain said.
That was important for a couple of reasons, he said. First of all, the Crown is obliged to prove several elements of an offence beyond a reasonable doubt, he said, and one of those elements when an offence occurred.
Secondly, the girl’s age at the time is pertinent when it comes to consent, the judge said.
The Criminal Code of Canada notes that anyone under the age of 16 can’t consent to sexual contact, even if a court hears he or she was a willing participant. Minors are deemed to be incapable of providing such consent.
However, Brittain noted there is an exception to that rule. The Code also notes that if a minor is within five years of age of the older party with whom he or she has sexual contact, consent is legally possible.
The judge said if the complainant was 13 years old when the handjob, that five-year exception isn’t in play, but if she was 14, it is a relevant factor.
Furthermore, he said, how the handjob occurred is a key element. The charge is invitation to sexual touching, Brittain said, which means the Crown must also prove beyond a reasonable doubt that Lavergne did or said something to prompt the complainant to act.
As the judge noted earlier in his decision, the complainant’s evidence was that Lavergne asked for the handjob, but his was that the girl chose to touch him spontaneously.
Ultimately, Brittain said, the timeline of events wasn’t established beyond a reasonable doubt, and he was unable to decide who initiated the sexual contact and if Lavergne arranged to meet the girl for the purpose of a handjob.
As such, the judge found Lavergne not guilty.
Don MacPherson can be contacted at ftonindependent@gmail.com.