Toronto police officer accused of sexual assault testifies complainant gave her consent

The trial of three Toronto police officers accused of sexual assault now has two competing versions of what happened on the night in question, following graphic testimony from one of the accused.

Warning: this story contains graphic details

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

The trial of three Toronto police officers accused of sexual assault now has two competing versions of what happened on the night in question, following the graphic testimony of one of the accused.

Officer Leslie Nyznik was called as a defence witness by his lawyer Harry Black late Thursday.

Nyznik, along with officers Sameer Kara and Josh Cabero, is charged with sexually assaulting a female parking enforcement officer at a downtown hotel in 2015.

The three men and the complainant attended a party involving 51 Division officers at several bars the night of the alleged assault in January 2015.

On Thursday, Nyznik testified that the complainant was flirting with him on the night in question and at one point told him he had to be her "babysitter."

Conversation at the Brass Rail

Nyznik told the court he attended the Brass Rail strip club that night with the complainant and Cabero. Kara was extremely drunk and had already returned to the Westin Harbour Castle hotel to pass out, according to testimony.

At the Brass Rail, Nyznik told the court that while he was sitting at a table with the complainant and other officers she leaned over and told him she loved performing oral sex.

She then, according to Nyznik's testimony, told him she wanted him and Cabero to take her to the hotel and engage in sexual acts, but under "one condition" — that the acts be performed on top of Kara while he was sleeping.

The complainant in the case told the court her side of the story over four days of testimony. (CBC)

The complainant had previously testified that she believed she may have been drugged while at the Brass Rail, possibly by Nyznik while she went to the washroom.

Testimony counters complainant's account

There are no drug charges in the indictment.

Nyznik testified on Friday that he arrived at the table before the waitress left to retrieve the drinks and did not leave the table until the drinks were finished.

The taxi ride from the Brass Rail to the hotel, around midnight, is when the complainant previously testified she got a sudden headache, she began to lose her vision and her memory started to fade.

Nyznik told the court the complainant did not mention any of this in the taxi and did not appear to be unwell.

"She was talking fine, walking fine," Nyznik testified. "She was normal."

The complainant testified the reason the three of them went to the hotel was to get officer Kara and continue the party at another bar.

Nyznik disagreed.

"There was no way he could have gone out and there was no way I would have brought him out," he said.

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)

At the hotel, Nyznik told the court, the complainant started the sexual contact as she was lying on the bed with a sleeping Kara and then reached for Nyznik's pants and unzipped them.

Accused disputes allegation he touched complainant

"She placed me in her hand and put me in her mouth," he testified.

"At anytime in that hotel room, did you touch her with your hands?" Black asked.

"No I did not," Nyznik answered.

Around that time, Nyznik told the court that officer Cabero exited the bathroom and asked to join in. The complainant agreed, Nyznik said.

Several minutes later, Nyznik said Kara awoke and said: "F--k off, I'm tired."

Nyznik said the sex stopped and he went to the room's other bed with Cabero.

A short while later, he said he saw the complainant performing oral sex on Kara. The complainant and Kara then had sexual intercourse, Nyznik testified.

The complainant then waved Nyznik back to the bed, where she continued performing oral sex on him, he testified.

Asked by Black if the complainant consented to the sex, Nyznik said:

"There was full consent. I believed and and still believe there was consent."

Footage from CC Whiskey Bar was shown to the court as evidence in the first week of the trial. (Trial exhibit)

Asked what his belief of this consent was based on, Nyznik told the court that the complainant performed oral sex and masturbated him on four separate occasions, that she asked him whether he was going to have sex with her and because of her comments at the Brass Rail.

'Desperate for sex'

Under cross-examination, the Crown attempted to paint a different picture of the evening.

Lead prosecutor Phillip Perlmutter suggested Nyznik was "desperate for sex" that night, having invited both an ex-girlfriend and a dancer at the Brass Rail back to the hotel room.

Perlmutter then reminded Nyznik that he said the complainant was acting "odd" and "weird" that night.

"You knew she wasn't in any condition to have sex," Permutter said.

"I would disagree," Nyznik answered.

Focusing on the officer's testimony about what happened in the hotel room, the Crown tried to cast doubt on the alleged consensual sex scene. Nyznik had told the court it all began when the complainant, lying on her back on the bed, reached for his jeans as he stood beside her.

"You just happened to be standing there?" Perlmutter asked.

"That's where I was positioned," Nyznik replied.

Perlmutter then asked the officer how it was possible that — out of the blue — a woman he admitting to barely knowing invited two colleagues to a hotel room for group sex.

"That's absurd, isn't it?" Perlmutter asked.

"No, it's not," Nyznik replied.