Defence says 'drunken consent is still consent' in final arguments at police sex assault trial

The complainant in the sexual assault trial of three Toronto Police officers "had a buzz" the night of the allegations but maintained the capacity to consent, the lawyer for one of the officers argued Monday in his closing summation.

Defence has also filed motion for charges to be stayed due to lost evidence

Toronto police officers Leslie Nyznik, Joshua Cabero and Sameer Kara are charged with sexually assaulting a female colleague. (CBC)

The complainant in the sexual assault trial of three Toronto Police officers "had a buzz" the night of the allegations but maintained the capacity to consent, the lawyer for one of the officers argued Monday in his closing summation.

"Drunken consent is still consent," Alan Gold, who's representing officer Sameer Kara, told the court on Monday.

Kara, along with officers Leslie Nyznik and Joshua Cabero, is charged with sexually assaulting a female parking enforcement officer at the Westin Harbour Castle hotel in January 2015.

According to the charges, the woman attended a police staff party at several downtown parts the night of the allegations, where she consumed seven or eight alcoholic drinks.

Although it is not part of the indictment, the woman also testified during the judge-only trial that she believes she was drugged that night, but cannot say for certain when or by whom.

Nyznik, the only officer who will testify, told the court last week that the complainant and three officers had consensual sex on the night in question.

Complainant's 'reliability'

On Monday the defence once again relied on video footage from the downtown hotel to attempt to show the complainant was capable of consenting.

"She was drunk. She had a buzz," Gold said of her level of intoxication.

In the footage, with the exception of a slight stumble exiting the taxi (the defence argued this was due to her high-heeled boots on a cobblestone driveway), the woman appears to speaking with two of the officers as she walks without difficulty into the hotel lobby towards an elevator bank.

The sexual assault trial of three Toronto Police officers has seen its first images of the complainant and the accused in the critical moments directly before and after the alleged incident took place. 3:58

Kara's lawyer spent much of his closing statement attempting to attack the woman's credibility, telling the court there are "very serious reliability issues."

Gold argued that the complainant had several new details in her testimony, compared with earlier police statements. He also said parts in her story don't add up in the eyes of the defence.

Returning to the group's arrival at the hotel and the way the complainant said she was feeling at that time, Gold argued her story "makes no rational sense."

The complainant previously testified she was suffering from loss of vision, an "excruciating headache" and felt "very unwell" in the taxi to the hotel.

Video evidence from the trial shows the complainant and two of the defendants arriving at the Westin Harbour Castle Toronto Hotel, where the assault allegedly occured. (Trial exhibit)

"It simply makes no sense that she got out of that taxi," Gold argued.

The woman testified that the group went to the hotel to retrieve Kara, who was already there and had passed out, to continue partying at another bar.

"It defies any standard of judgement," Gold said. "She would have said to the taxi driver just take me home."

Lost evidence motion

Gold also spoke briefly to a defence motion to stay the charges because of lost evidence.

Justice Anne Molloy had asked for this motion to be argued at the end of the trial along with closing statements.

As the court heard during testimony from the detective who led the sexual assault investigation, police were unable to retrieve multiple angles of video footage from the hotel, video from the taxi to the hotel and video from one of the bars the group visited because too much time had passed.

Gold argued it was a "serious loss" of evidence.

The boots the complainant wore the night of the alleged assault, submitted as evidence on day one of the trial (trial exhibit)

He brought up one camera angle police failed to retrieve from the hotel. The camera is inside the valet booth outside of the hotel.

The complainant spoke to the person inside this booth minutes after she left the hotel room following the alleged assault.

This footage "would have solidified any reasonable doubt concerning the complainant's capacity," Gold argued.

"A picture is worth a thousand words," he said.