Decision expected today in trial of 3 Toronto police officers for sexual assault
Complainant alleges that she was sexually assaulted by officers in 2015
A decision is expected on Wednesday in the high-profile trial of three Toronto police officers accused of sexually assaulting a female parking enforcement officer in January 2015.
Leslie Nyznik, Sameer Kara and Joshua Cabero, all officers at 51 Division, are accused of having non-consensual sex with the complainant at a downtown hotel after a boozy evening out on the town.
Because the three men elected a judge-only trial, the decision comes down to Superior Court Justice Anne Molloy, who heard the case earlier this year.
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Arguments made during the nearly month-long trial centred on whether or not the complainant, whose identity is protected by a publication ban, was able to consent to sex with the three men given her level of intoxication.
In Canadian law, the concept of incapacity to consent is a murky one, with the definition of what it actually means left to judges and juries to interpret.
Molloy will also make a decision Wednesday on a motion by the defence to stay the charges due to lost evidence.
Complainant described memory loss, inability to move
The judge has spent the weeks since the trial ended mulling reams of conflicting testimony.
In the witness box early in the trial, the complainant alleged that over the course of the evening of Jan. 16, 2015, she had seven or eight drinks at different downtown bars with a group of police officers, including the three accused.
She said she then took a taxi with Cabero and Nyznik to the Westin Harbour Castle Hotel, developing an "excruciating headache" and "tunnel vision" during the ride.
Up in a hotel room, where Kara had gone earlier in the night, she testified that she experienced blackouts in memory but came to while lying on her back on the bed, unable to move or speak.
She said she was then vaginally and orally penetrated by the officers. She went on to report the incident to police on Jan. 26, 2015.
She also said she believes she was drugged at some point during the evening, though no proof of this was provided by the complainant, Crown, or the police investigation.
Defence argued complainant was embarrassed after sex
Defence lawyers painted the complainant as an unreliable witness who was sexually interested in the officers in the lead-up to the sexual activity and then embarrassed and worried about her reputation afterwards.
They pointed to security video footage of her walking normally into the hotel and talking with the officers as evidence that she was capable of consent, wondering why she would not have simply gone home if she were in fact feeling so unwell.
"Why isn't it a reasonable possibility that you are not a victim of a crime but a victim of the alcohol diminishing your inhibitions and the alcoholic impairment of your memory?," asked lawyer Alan Gold during a four-day cross-examination.
"I did not consent of what happened in that hotel room," answered the complainant.
Nyznik, the only one of the three officers to testify at the trial, said that it was the complainant who came up with the idea of group sex with him and his two colleagues.
All three are currently suspended with pay.
Motion to stay charges over 'serious loss' of evidence
Defence lawyers also filed a motion to stay the charges, arguing that the prosecution should be discontinued due to concerns about lost evidence and an inexperienced, inattentive lead investigator.
The detective who led the sexual assault investigation testified during the trial that 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.
Defence lawyer Alan Gold described it as a "serious loss" of evidence.
In particular, he argued that lost footage of the complainant speaking to the valet booth attendant minutes after the alleged assault would have "solidified any reasonable doubt concerning the complainant's capacity."
With files from Trevor Dunn