Texts, video and 'rape myths': Week 1 of the Toronto police sexual assault trial

Two different narratives emerged in the first week of the judge-only trial of three Toronto police officers charged with sexual assault. One paints the picture of a victim. The other depicts a woman who wanted sex that night, and even initiated it.

WARNING: Story contains graphic details

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

Two different narratives emerged in the first week of the judge-only trial of three Toronto police officers charged with sexual assault.

The Crown paints an image of a severely intoxicated and possibly drugged victim getting taken advantage of by three men while barely conscious in a hotel room.

Meanwhile, the defence depicts her as a woman who had a crush on one of the men, thought another was cute, went out in a "low cut" top to have sex with them, and then reported it as a sexual assault out of embarrassment.

Leslie Nyznik, Sameer Kara and Joshua Cabero are accused of sexually assaulting the woman, a Toronto parking enforcement officer, in January 2015. Her identity is protected by a publication ban.

Already, the court has heard hours of detailed testimony, evidence and attempts to try to piece together the sequence of events of Jan. 16 and 17 that year.

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

There are some things the defence and the Crown agree on.

The complainant joined the three accused at three different bars for a police party. She had at least seven drinks that night. At one point, Kara was sick and was taken back to the hotel. The complainant, Nyznik and Cabero arrived at the same hotel around midnight.

What happens next is where the consensus ends.

Did the complainant stumble as she exited a taxi at the hotel because she was intoxicated or drugged? She thinks so.

"Well, you were also wearing high-heeled boots on a cobblestone driveway," defence lawyer Harry Black snapped back during cross-examination.

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

Was it sexual assault or consensual sex that happened in Room 2340 of the Westin Harbour Castle hotel between 12:20 a.m. and 3:30 a.m. on Jan. 17?

On Wednesday, guided by questions from the Crown, the complainant gave her version of events.

"What was your expectation of what was going to happen in the hotel room?" Crown lawyer Ted Ofiara asked.

"We were waking Sameer [Kara] up and dragging him out," the complainant said.

Security video from CC Whiskey Bar shown to the court as evidence at the trial of three Toronto police officer accused of sexually assaulting a colleague. (Trial exhibit)

Instead, the complainant testified that once in the room, she lost consciousness and all three officers took turns penetrating her.

The court learned on Thursday that the complainant believes she was drugged that night and in the minutes leading up to the arrival at the hotel she had a "sudden headache", "impaired vision" and felt like she was in a "Star Trek warp."

There is nothing in the charges regarding drugs.

At one point in the hotel room, the woman testified she heard Kara say:  'Guys stop. Josh stop. Come on, stop'."

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

Waking up sometime around 3:30 a.m. the complainant told the court she quickly got dressed, left the room, and took a taxi home.

"R u back? Need ur help," she texted to a friend at 3:43 a.m.

The complainant said she has little memory of the ride home and awoke on her bathroom floor later that morning in a "puddle of vomit."

She told the court she realized she had been assaulted but at that point vowed not to report it because she was scared to accuse police officers.

"I felt like if it got out, they would kill me," she said.

Defence: 'It's a lie'

Cross-examination of the complainant began on Thursday and continued all day Friday. It's expected to go well into next week.

In his questioning, officer Nyznik's lawyer, Harry Black, argued that the woman not only consented to sex in the hotel room, but that it was all her idea.

Black suggested the woman had a crush on Kara and flirted with Nyznik at the party, which she denied.

The defence also took aim at her clothing the night of the alleged assault.

Black asked the woman about her choice of wearing the top, described as "really low cut with open sleeves" to a party mostly attended by "all young men, all men who would be drinking."

A pair of jeans the complainant wore the night of the alleged assault, submitted as evidence. (trial exhibit)

"You did so because you wanted to draw the attention of men to you," Black suggested.

"Absolutely not," the woman replied.

Black then painted a picture of consensual sex in the hotel, first proposed by the complainant to Nyznik and Cabero at the Brass Rail strip club and then initiated by her in the hotel room.

He dismissed the woman's previous testimony of going to the hotel in order to get Kara and continue partying.

"It's a lie," Black said.

According to the defence, once in the hotel room the complainant "reached for the crotch area of Mr. Nyznik's pants and undid his zipper."

A necklace worn by the complainant the night on the alleged sexual assault. (trial exhibit )

The complainant disputed this and most of Black's graphic description of the consensual sex he said followed.

After attempting to portray her allegations as false, Black gave his reasoning on Friday as to why the complainant would make it up.

He suggested the woman was embarrassed and panicked the morning after the alleged assault.

"You were filled with regret about what you had done, what was going to happen to your reputation," Black said.

"I did nothing wrong," the woman testified.

Black attempted to give examples of changes to the woman's testimony and statements made over the past two years.

"You have been developing a narrative to make it more and more convincing," he said

"I disagree," the complainant responded.

'Rape myths'

Although the defence was able to use the woman's "flirting" and "low cut" top against her, Justice Anne Molloy stopped some of the complainant's text messages the day after the alleged assault from being introduced as evidence.

"This is walking straight into the stereotypes and rape myths about how a woman is going to behave, and that is not appropriate," Molloy said on Friday.

Black was attempting to submit as evidence a long series of text messages between the complainant and a male friend sent the day after the alleged assault.

He described the messages as "sexting."

However Molloy disagreed, saying they were just "flirtatious banter."

Crown lawyer Ted Ofiara told the court questions about the texts "can only be designed to make [the complainant] feel uncomfortable."

Black argued the messages contradicted the complainant's testimony that she felt "hysterical" the day after the alleged assault.

He also said the texts are relevant because the friend the complainant was texting is also a police officer who will be called as a witness.

Molloy granted the defence this much, but didn't accept its argument that the texts are related to the alleged assault.

"Nor is it appropriate to say that because she engaged in this joking the next morning she wasn't sexually assaulted," Molloy said.

Molloy removed three of the texts from evidence — presumably those most sexual in nature.

Section 276 of the Criminal Code of Canada states that evidence of previous sexual activity cannot be used to prove the sexual activity in question was consensual.

About the Author

Trevor Dunn

Trevor Dunn is an award-winning journalist with CBC Toronto. Since 2008 he's covered a variety of topics, ranging from local and national politics to technology on the South American countryside. Trevor is interested in uncovering news: real estate, crime, corruption, art, sports. Reach out to him. Se habla español. trevor.dunn@cbc.ca