Reasons for Judgment

Court File No.: CR-23-30000412
Date: 2025-02-20
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Mark Andre Davis

Appearances:
Melissa Mandel, for the Crown
Jordan Gold, for the accused, Mark Andre Davis

Heard: January 13-15, 17, 2025

Judge: Lise Vermette

(Subject to a publication ban that applies to any information that could identify the complainant or a witness, pursuant to section 486.4 of the Criminal Code)

Introduction

[1] The accused, Mark Andre Davis, is charged with two offences that are alleged to have been committed in Toronto between July 1 and August 31, 2020: (a) sexual assault on the complainant, contrary to section 271 of the Criminal Code; and (b) touching the complainant, a person under the age of 16, for a sexual purpose, directly or indirectly with a part of his body, contrary to section 151 of the Criminal Code.

[2] In the summer of 2020, the complainant was 13 years old. Mr. Davis was her tennis coach. The two offences with which Mr. Davis has been charged relate to an incident that took place in Mr. Davis’ car after Mr. Davis drove the complainant home following a tennis practice. At trial, the complainant and Mr. Davis gave very different accounts of what happened in Mr. Davis’ car on that day. The complainant alleged that Mr. Davis intentionally touched her breasts and her inner upper thigh. This was denied by Mr. Davis.

[3] On the whole of the evidence, I am not satisfied beyond a reasonable doubt of the guilt of Mr. Davis. Accordingly, I find him not guilty of the two offences with which he was charged.

A. Evidence at Trial

[4] The Crown called one witness, the complainant. The defence called two witnesses: Mr. Davis and the complainant’s mother, A.B.

[5] The following is a summary of the witnesses’ evidence on various factual issues.

1. Background and Relationship Between the Parties Before the Incident

a. Evidence of the Complainant

[6] The complainant is 17 years old. She was 13 years old at the time of the incident in July 2020.

[7] The complainant has been playing tennis since she was 5 years old. She started playing competitively when she was around 11 or 12 years old.

[8] In 2019, when she was 12 years old, the complainant started training at a new tennis club. Her main coach there was Mr. Davis. She trained around four to five times a week, but the number of times could vary. The training involved a combination of private lessons, fitness training and group lessons. The lessons were from one to three hours. The one-on-one sessions occurred only once or twice a week and lasted one hour.

[9] The complainant described her relationship with Mr. Davis in 2019 as “regular”. She said that they had regular conversations. In 2020, they started getting closer. The complainant and Mr. Davis would talk about more personal things in their lives, but nothing too serious or deep. The complainant also started getting closer to some of Mr. Davis’ students, including A.M.

[10] When the COVID-19 pandemic started, there were times when training at the complainant’s tennis club was not allowed so the complainant would train at outdoor courts. In the fall of 2020, she would do fitness training at the house of A.M. A.M. was one of the complainant’s best friends. A.M. is approximately one year younger than the complainant. When they did fitness training at A.M.’s house, Mr. Davis was there 75% of the time, and sometimes another student was there as well. They continued doing fitness training at A.M.’s house until January 2021, when both Mr. Davis and A.M. left for Florida.

[11] Prior to the incident in issue in this case, Mr. Davis had tickled the complainant and many other students. The complainant said that Mr. Davis would tickle her about once a week, often when they were doing fitness training. He would tickle her in her stomach area or her armpits. There were other students around when that happened, and Mr. Davis would also tickle other students on those occasions. Everybody treated the tickling as normal.

[12] Before July 2020, Mr. Davis had also made sexual and inappropriate comments and used harsh and vulgar language around the complainant and A.M. Mr. Davis started making this kind of comments when they got closer at the start of 2020. He would make the comments whenever they were together. Among other things, Mr. Davis would joke that the complainant and A.M. were lesbians, that they should date and have sex and get it over with, that they should do graphic things to each other and go to the back of his car. He used a lot of swears. Mr. Davis occasionally made inappropriate comments when he was just with the complainant. The complainant never told her parents about Mr. Davis’ comments. She was too scared to tell them. She did not know how to deal with these comments. They made her feel embarrassed and insecure.

[13] Further, during private lessons that took place in early 2020, Mr. Davis once or twice grabbed the complainant’s hips and her lower back close to her butt to try to show her some technique. The complainant had never had another coach do this before and Mr. Davis never asked her whether he could put his hands there before doing it. The complainant agreed that, in her experience, it was normal for a tennis coach to make technical adjustments by putting hands on a student to show them how to do it right. However, she said that her other coaches used a tennis racket to touch her hips, and Mr. Davis was the only one who used his hands.

[14] During her cross-examination on this point, the complainant said that Mr. Davis had put his hands on her butt two to three times, and probably more times on her hips. She disagreed with the suggestion that Mr. Davis had touched her on her lower back near her butt. However, during the preliminary inquiry, the complainant said that Mr. Davis touched her lower back near her butt. The complainant said at trial that she had trouble judging certain areas of her body at the time of the preliminary inquiry and she is now confident that the touching was on both her lower back and her upper butt. She said that her understanding of the touching had never changed, but her communicating of it had changed. She stated that half of Mr. Davis’ hand was on her lower back and half of his hand was on her upper butt. She also stated that his hands were on her back, not on the side. The complainant had previously said during the preliminary inquiry that this touching was on the side. When confronted with this prior statement at trial, she said that Mr. Davis would move his hands, and there would be multiple placements in one instance. This kind of touching only lasted a couple of seconds.

[15] I note that the preliminary inquiry in this matter took place on May 18, 2023, when the complainant was 16 years old.

b. Evidence of Mr. Davis

[16] Mr. Davis is 41 years old. He used to be named Mark Furman. He changed his name in late 2021 because his name was the same as a detective involved in the O.J. Simpson trial who was alleged to be racist, and Mr. Davis did not like the negative association. Mr. Davis said that there was no specific reason for doing this change in 2021.

[17] After graduating from high school, Mr. Davis went to York University in the early 2000s for a year and a half or two years, and then transferred to Ryerson University. He got a degree from Ryerson University in the 2000s. He is currently in business school and plans to become a certified public accountant (CPA). He has been in this program for about a year. The last time that he worked was in 2022. He was working in his family business, which is in the area of logistics.

[18] Mr. Davis was a tennis player before becoming a tennis coach. He played collegiately when he was at York University in the early 2000s, and he played a bit professionally after he was done with college. He was not playing professionally full time. He was doing a lot of coaching at the same time.

[19] Mr. Davis worked as a tennis coach for 22 years. As a tennis coach, Mr. Davis coached students of all ages, adults and juniors (i.e., anybody under 18). He stopped coaching tennis in 2021 because he was experiencing burnout and he had a lot of physical injuries. He has chronic injuries to his back, ankles and hips which prevent him from walking or standing for a long time. He decided that he needed to retire and choose a different career. He had been experiencing burnout for a few years before he stopped coaching. He does not know when he started feeling his burnout.

[20] In around 2005, Mr. Davis started being a coach at the tennis club where he subsequently met the complainant. He was a tennis coach there until 2020.

[21] In 2020, Mr. Davis was doing significantly less than what he did previously as a tennis coach. There were two lockdowns. The facility where he worked closed down for most of the year. He said that he perhaps coached between 10 and 20 players that year.

[22] Mr. Davis was the complainant’s tennis coach from the end of 2018 until January 2021. Mr. Davis stated that the complainant was about 11 years old when he started being her coach, but he said that he could be mistaken. Mr. Davis also said that it was possible that he started coaching the complainant in 2019 instead of 2018. He stopped coaching her in January 2021 because he left for Florida. He went to Florida with A.M., A.M.’s mother and another kid to train and play tournaments there.

[23] Mr. Davis’ evidence is that he did not coach the complainant four or five times a week. He said that he did not think that she ever played that much. Mr. Davis stated that the complainant may have been playing that many times per week doing different things, but he was coaching the complainant on the court once a week when she started. The frequency of the coaching sessions increased a bit to once or twice a week. Mr. Davis would see the complainant at the tennis club. When the tennis club shut down during the COVID-19 pandemic, they had to find other locations to play. He did not coach her during the lockdowns. The coaching lessons with the complainant were mostly one hour long, but there might have been some times when the lessons were two hours long. There were private and group lessons. Some of the lessons could extend beyond two hours. The group lessons could include 2 to 16 players.

[24] They did fitness training at A.M.’s house because she had a home gym. Mr. Davis knew A.M. before he knew the complainant. Mr. Davis does not know when he started doing fitness training at A.M.’s house.

[25] The complainant has been in Mr. Davis’ car more than once. Mr. Davis did not keep track of how often it happened, but he said that it happened perhaps 10-20 times. He also drove other students, including A.M. Mr. Davis had a white Honda Civic at the relevant time.

[26] Mr. Davis sometimes used foul language around the complainant and other students. He denied making any sexual comments to the complainant or commenting on her sexuality or sexual orientation. He also denied making any comments about the complainant and any other student engaging sexually with one another.

[27] As a coach, Mr. Davis would sometimes physically touch a student for the purpose of instruction, but not very often. He did not ask for permission before touching the student. Mr. Davis did touch the complainant for the purpose of instruction to show her how to do something on the tennis court. Mr. Davis remembers that the first time that he met the complainant, they were working on her serve, and he touched her elbow because it was not in the right place. He took her elbow and moved it into the right place. Mr. Davis does not remember touching the hips of any student during the course of instruction, but he said that it was possible that he touched a student’s hips to show them to turn their hips. Mr. Davis said that he has never had a reason to touch a student’s butt while giving instruction. He does not recall touching any part of a student’s butt during instruction.

[28] Mr. Davis tickled some of his tennis students to make them laugh, but not during instruction and not frequently. The students he tickled were under 11 years old. He tickled the students on the side, on their rib cage, approximately half-way up the torso, not close to the armpit. Mr. Davis said that he always tickled students in the same place. He did not ask for permission before tickling them. Mr. Davis would tickle students he had known for a long time and with whom he was close. Mr. Davis was not able to remember the names of any students he had tickled. Mr. Davis does not remember ever tickling the complainant, but he said that it was possible that he tickled her. He does not think that he ever tickled her in his car.

[29] Mr. Davis said that he and the complainant were not that close. They were “medium close”. Mr. Davis testified that the complainant would sometimes text him about television programs, movies or music she liked. Mr. Davis would respond. He exchanged similar text messages with almost all of his students. He would also talk with his students during water breaks about these topics and about what they liked to do. Mr. Davis had a good rapport with the complainant. He would also text her to give her feedback on her play, send her what fitness to do and arrange times to play.

The remainder of the judgment continues with detailed factual findings, the parties' positions, legal analysis, and the court's assessment of credibility and reasonable doubt. The full text is available at the official source.

D. Conclusion

[147] I find Mr. Davis not guilty.

Lise Vermette

Released: February 20, 2025

Notes

[1] There are no outstanding charges in relation to these allegations, and these allegations are obviously hearsay and not admissible for the truth of their contents.

[2] The complainant was not cross-examined about her use of the word “privates”. However, I have no evidence that the defence was in a position to raise this issue with the complainant during her testimony because A.B. testified after the complainant. In any event, given all the other issues with the complainant’s evidence, this point plays a very minor role.