Three Toronto Cops Found Not Guilty in Gang Rape Trial

The three Toronto police officers accused of raping a female parking enforcement officer in January 2015 have been found not guilty.

Leslie Nyznik 40, Sameer Kara, 33, and Joshua Cabero, 30, of 51 Division, were acquitted Wednesday after Justice Anne Molloy determined there were too many issues in the complainant's testimony to convict.

When Molloy stated the not guilty finding, one of the officer's female relatives cried "yes!" and began sobbing. Upon adjournment the three cops hugged each other and their lawyers.

Outside the courthouse, Nyznik's lawyer Harry Black said his client is looking forward to getting his life back and going back to work. "He took the stand and he faced the allegations and he has answered them. And he is now vindicated."

Nyznik is the only cop who testified in his own defence.

The case stemmed from a night of drinking on January 16, 2015—a networking event for cops called Rookie Buy Night. The night spread out over several venues, including CC Lounge and Whisky Bar, Pravda Vodka Bar, and the Brass Rail strip club.

The complainant, who cannot be identified due to a publication ban, said after drinking for several hours, she went back to a hotel room rented out by the officers and that all three of the accused sexually assaulted her there. She said she was too drunk to consent and had few memories of what happened. She also said she believed she may have been drugged.
The defence said she was conscious and was a willing participant in the sex acts that took place.

However, Judge Molloy said in her judgment the complainant's "patchy memory of many events of that night and inconsistencies in her evidence" as well as conflicts between her testimony and other evidence made it impossible to prove guilt beyond a reasonable doubt.

Nyznik testified that the complainant hung around him all night, engaged in sexual innuendo, and came back to the hotel room uninvited. There, he said she initiated sex, and he maintained that he didn't touch her while she performed oral sex on him four times, except with his penis. The Crown accused him of sounding like he was reading from the script of a porno.

In her analysis, Molloy stated that she doesn't necessarily believe Nyznik's testimony nor does she find him more credible than the complainant.

"I agree that his evidence appeared to be scripted or rehearsed," she wrote. "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 as much as touching her to provide assistance, seems improbable."

Molloy said though she didn't find Nyznik to be believable, she was unable to reject his evidence as untruthful either.

She also spent a chunk of the judgment emphasizing that it doesn't matter if the complainant had flirted with the officers all night, or if she had exchanged sexual banter, or if she proposed going to the hotel room to have group sex. "In terms of consent, all that matters is what happened at the time of the activity in question."

The problem, Molloy said, is the complainant had "specific memories that are demonstrably wrong." For example, she remembered walking to the Brass Rail strip club with a group when in fact they had taken a cab. And while the complainant initially told police she'd had seven drinks, at trial she added an additional vodka and cranberry which "she did not see poured" but was given to her at Pravda.

Molloy said it's possible the complainant had forgotten about the additional drink until just before trial, but she also said she may have invented it "either to buttress the case for her being more intoxicated, or to provide an explanation for how she might have been drugged."

The complainant testified that on the cab ride back to the hotel room room, she felt a "sudden intense headache" and had impaired vision and that after entering the hotel room, she could no longer see, speak, or move. However, Molloy's judgment pointed to video footage of her getting out of the cab in front of the hotel. In the video, Molloy said the complainant "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." Molloy also said footage of the complainant leave the hotel room, after she said she was assaulted, shows her "walking and behaving normally," despite her testimony that she was confused and didn't know where she was going.

To summarize, the judge said the symptoms of intoxication described by the complainant don't add up when taking into account how much she drank; her weight/height; and her behaviour in the videos.

Molloy dedicated a portion of her judgment to "irrelevant evidence," which challenged the defence's attempts to bring rape myths into the courtroom and to portray the complainant as having an agenda. In particular, she called out:

• Nyznik's testimony that the complainant had said she would wear a short skirt to the event "for easy access."
• The defence's suggestion that the complainant wore a low-cut top to attract the men at the party. Molloy said this was "offensive and irrelevant. 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 fact that the complainant researched date rape drugs while waiting in hospital to do a rape kit. "I would be more surprised if she had not checked online to see if her symptoms could be explained," Malloy wrote.
• The fact that the complainant went to a strip club with five male colleagues.
• The fact that the complainant may have invited herself back to the hotel room or whether or not she made sexual innuendo.
• The complainant's initial decision not to report the assault. The complainant's conduct after the alleged assault. "A woman who has been the victim of a sexual assault will not necessarily exhibit immediate symptoms of trauma," Molloy wrote. "She might, or might not, be weepy. Se might, or might not, be depressed and withdrawn. She might, or might not, be hysterical. Or she might cover up any of those kinds of emotions with an exterior of jocularity."

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