Three Toronto police officers accused of sexually assaulting a female parking enforcement officer in January 2015 were acquitted in a Toronto court on Wednesday.
Ontario Superior Court Justice Anne Molloy found the three officers, Joshua Cabero, Leslie Nyznik, and Sameer Kara, not guilty of sexual assault after identifying issues with the “reliability” and “credibility” of the complainant’s testimony.
In a written decision released Wednesday, Molloy said she was unable to get a clear picture of whether the complainant, who cannot be identified under a court-ordered publication ban, consented to what occurred in the early morning hours of Jan. 17, 2015.
The three accused, who are all members of the same Toronto Police Service division, and the complainant, who works as a parking enforcement officer, went out drinking at two bars and a strip club on the night of January 16, 2015. The outing was said to be part of a “rookie buy night.”
At the end of the night, the officers and the complainant ended up in a hotel room at the Westin Harbour Castle, which was rented by one of the officers.
It was there that the complainant alleges she was sexually assaulted by the three officers.
In her analysis of the evidence presented at trial, Molloy called the complainant’s testimony “problematic.”
“The question is not whether they (the officers) behaved admirably, or even ethically. The question is whether I am satisfied beyond a reasonable doubt that the Crown has discharged its onus of proving that the complainant did not consent to the sexual activity at issue or that she lacked the capacity to do so,” the decision said.
“Based on the complainant’s evidence, I cannot be sure about what happened in that hotel room. It is simply not safe to convict.”
The judge identified several areas where she said the complainant’s evidence was not strong enough to support a conviction, including inconsistencies with her testimony when reviewing video evidence, a toxicology report, text messages and the testimony of other witnesses.
Issues with memory
The judge said the complainant’s memory of the events that night was at times “patchy.”
The complainant testified that she had a specific memory of walking with a group of six or seven men to the Brass Rail strip club when it was later revealed that she actually took a cab.
“She went to the Brass Rail in a cab. Her memory of walking is wrong,” the judge wrote.
The complainant also testified that the whole group arrived at the strip club at the same time, which was later contradicted by video evidence.
There were also inconsistencies with how much alcohol the complainant said she drank that night, the judge said.
She repeatedly told police and others that she had seven drinks that night but when testifying in court, she added an additional drink.
“It is somewhat troubling that this information had not been disclosed earlier. (The complainant) had many opportunities to do so in her formal interviews and multiple interactions with the police and Crown prosecutors in the 29 months prior to the trial.”
The complainant testified that she believed she was drugged at some point during the night and suggested that the drink she initially failed to disclose may have been the one that was tampered with.
“It is interesting that this was the only drink for the entire night that was not actually poured by a bartender and, apart from the drink at the Brass Rail, the only drink that could have been tampered with,” Malloy wrote.
There was also conflicting information about whether she drank prior to meeting up with the officers.
Complainant described being incapacitated
Another major issue identified by Molloy was with the complainant’s testimony about her condition on the way to and at the hotel.
The complainant told the court that when she got into the cab to go back to the hotel, she had a “sudden intense headache,” impaired vision and couldn’t follow the conversation going on inside the vehicle.
She added that when she got to the hotel room, she was unable to speak or move any of her limbs and was unable to see.
“There is footage of her getting out of the cab,” Molloy said. “That footage paints a completely different picture of (the complainant’s) condition.”
The judge said the footage shows the woman getting out of the back seat of the cab completely unassisted.
“Her gait appeared normal and steady. The same applies to her ability to walk as she entered the elevator lobby. She stood alone without any difficulty and was laughing and chatting with the two defendants in the lobby while waiting for the elevator,” the decision read.
“She did not appear to be in any pain or discomfort. She had no apparent difficulty moving her limbs or conversing. There did not appear to be any difficulty with her vision. In short, she appeared to be perfectly normal.”
Toxicology evidence did not corroborate complainant’s testimony
The judge said that the symptoms described by the complainant and the timing of them were “not consistent” with either impairment by alcohol or the date rape drugs GHB and Ketamine.
“It is possible she has an inaccurate or unreliable memory of her symptoms. It is also possible, particularly in light of earlier events, that she has reconstructed a memory of her own participation in the hotel room and believes it to be true. It is even possible that these symptoms did occur, for reasons we are unable to explain,” Molloy wrote.
“The important point, however, is that science cannot explain or corroborate as plausible what (the complainant) has described about her condition in the hotel room.”
Issues with defendant’s testimony
Although the judge discussed at length the issues she had with the testimony of the complainant, she also identified problems with testimony given by Nyznik, who was the only officer to take the stand at trial.
“I do not find Mr. Nyznik’s version of the events to be compelling and I am not able to say I necessarily believe him. However, neither am I in a position to say that I reject his evidence as untruthful. I simply do not know whether or not he is telling the truth about the critical issue — the consent of the complainant to the acts he described,” she said.
She added that the testimony he gave about some of the complainant’s behaviour during the sexual encounter was “unlikely.”
“He described (the complainant) almost as the aggressor, simply pulling down his zipper and taking his penis into her mouth without any assistance from him and with no prior discussion whatsoever, all while she was simultaneously sexually caressing the unconscious body of Mr. Kara,” Molloy wrote.
“Further, his description of how the group sex was carried out, particularly with the complainant purportedly servicing all three of them at once without Mr. Nyznik so much as touching her to provide assistance, seems improbable… as the Crown pointed out, (the complainant) would have to be some kind of contortionist to accomplish all of that at once.”
The judge also noted that she found some of the suggestions made by defence counsel “irrelevant” and even “offensive.”
“In cross-examination, defence counsel suggested to her that she wore a low-cut top in order to make herself attractive to all the men who would be present at the party…. What a woman wears is no indication of her willingness to have sexual intercourse, nor can it be seen as even the remotest justification for assuming she is consenting to sex,” the judge wrote.
She added that she did not see anything “nefarious” about the complainant conducting an internet search on the effects of sexual assault drugs and said she derived nothing from the fact that the complainant voluntarily went to a strip club with male colleagues and voluntarily went to a hotel with them afterward.
“I do not know why she (the complainant) decided she would go to the hotel, but I draw nothing from it. Her willingness, or even desire, to go to the hotel does not mean she consented to have sex with these three defendants, or any of them, nor does it mean that she was more likely to have consented. The same reasoning applies to the sexual innuendo banter in the backseat of the cab,” Molloy said.
'Believe the victim' slogan has no place in a criminal trial, judge says
In her decision, Molloy also addressed those critical of the justice system and the way sexual assault cases are handled.
“It is sometimes said that… judges are improperly dubious of the testimony of complainants, and that the system is tilted in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed,” she wrote.
She said while it is essential that the right of complainants be respected during the process and that decisions aren’t made on stereotypical ideas of how victims are supposed to behave following an assault, she said the focus must be on whether the allegations can be proven “beyond a reasonable doubt.”
“A judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt,” she wrote.
“That is a heavy burden, and one that is hard to discharge on the word of one person.”
She said the system of reasonable doubt and placing the burden of proof on the Crown is necessary to prevent wrongful convictions.
She added the popular slogan “believe the victim” has “no place in a criminal trial.”
“To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence,” she said.
“That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society.”
Defendant 'very happy' case is behind him, lawyer says
Speaking to reporters outside the courthouse Wednesday, Nyznik’s lawyer, Harry Black, said his client is glad to have the criminal case behind him.
“He took the stand and he faced the allegations and he has answered them and he is now vindicated. He has been found not guilty and he looks forward to finally getting his life back, as does his family,” Black said.
“Mr. Nyznik comes from a very close-knit family and he has had their unending support and confidence and their unwavering belief in his innocence throughout the last 30 months, for which he is hugely grateful. It goes without saying he looks forward to finally being able to get back to work.”
Toronto Police Association President Mike McCormack told CP24 that the officers could be back on the job “anytime.”
“The chief will have to decide when he is going to lift that suspension,” McCormack said.
“Generally, if there is no other appeal or no other court cases coming up or anything, then they are generally brought back right away.”
Police spokesperson Mark Pugash said Chief Mark Saunders is reviewing the case and will soon decide when the officers will return to work.
The trio were suspended with pay since charges were laid. Pugash said the officers will not face any internal investigation by the professional standards section.
