Superior Court Justice Anne Molloy said the complainant’s evidence was flawed due to inconsistencies, unreliable memories and contradictory evidence and as a result, she could not make a finding of guilt beyond a reasonable doubt.
Three Toronto Police officers have been found not guilty of sexually assaulting a parking enforcement officer while she was unable to move and too intoxicated to consent.
Superior Court Justice Anne Molloy said the complainant’s evidence was flawed due to inconsistencies, unreliable memories and contradictory evidence and as a result, she could not make a finding of guilt beyond a reasonable doubt.
However, she said, she did not necessarily believe the evidence of Leslie Nyznik, the only one of the three officers who testified.
Nyznik’s evidence seemed “stilted or somewhat scripted” and much of his account of the sexual acts was implausible, she said. Nyznik testified that the sexual acts that took place were consensual and that most were initiated by the complainant, describing her almost as an “aggressor,” Molloy said. His description would have required the complainant to be “some kind of contortionist,” she said.
“Some of this simply did not ring true,” she said, adding that he was “less than forthright” when he refused to acknowledge the possibility of career repercussions for a woman employed by the police who accused police officers of sexual assault.
“To summarize, I do not find Mr. Nyznik’s version of the events to be compelling,” she said. “However, neither am I in a position to say I reject his evidence as untruthful. I simply do not know whether or not he is telling the truth about the critical issue – the consent of the complainant to the acts he described.”
Nyznik, Sameer Kara and Joshua Cabero had pleaded not guilty to sexually assaulting the complainant, whose identity is protected by a publication ban, in a downtown hotel room on Jan. 17, 2015.
The defence was seeking to have the charges tossed because the investigating officer failed to obtain crucial video from the hotel and the cab. Molloy did not make a ruling on this issue due to the finding of not guilty.
Molloy said she “looked in vain” for evidence that would corroborate the complainant’s evidence which was too flawed to rely on by itself.
“Based on the complainant’s evidence, I cannot be sure about what happened in that hotel room,” Molloy said in her 45-page ruling. “It is simply not safe to convict.”
Following the verdict, Nyznik’s lawyer Harry Black said his client remains suspended. He said his client is pleased to be “vindicated” and is looking forward to having his life back. He would not comment on Molloy’s finding that she did not necessarily believe Nyznik’s testimony.
The complainant testified she was orally penetrated and vaginally penetrated by the men who were aware she was going in and out of consciousness. At one point, she said she heard Kara say, “Stop Josh, she’s out.”
“I was powerless. I couldn’t move. I couldn’t talk. I couldn’t stop what was happening,” she told the court. She said she never consented to sex with any of the three men.
She’d had at least seven drinks that night which began with a “rookie buy night” for 51 Division officers, she testified, but believes she may have been drugged at some point.
Kara had already returned to the room after getting extremely drunk earlier that night.
The complainant testified she went to the hotel to wake up Kara and see if he wanted to go to a bar and continue partying. However, she said, during the cab ride to the hotel she started to get a headache and her vision blurred. She said it felt like being in a “Star Trek warp.” As she was lying on the bed next to Kara, Nyznik penetrated her mouth with his penis, she said. She said another man – likely Cabero – began vaginally penetrating her. Someone asked if he should “f--- me up the a--,” she said. After Kara said she was “out” they stopped, but later Kara vaginally penetrated her, she said. She said she told them to stop but they did not. Nyznik said the complainant began performing oral sex on him and said she had sex with Kara and Cabero.
Molloy found it “inconceivable” that the complainant, Nyznik and Cabero wanted to take Kara out drinking again, given that Kara had been so drunk earlier that evening that he could barely stand up. She questioned why they didn’t just call him and ask him to meet at a bar, rather than all go to the hotel. She also found that video footage and the testimony of another officer, Elias Tissawak, corroborated Nyznik’s version of events in this instance.
The video of the complainant walking into the hotel and waiting for the elevator is also inconsistent with her evidence that she was confused, had trouble with her vision and was in pain. “In short she appeared to be perfectly normal,” Molloy said.
Some of the complainant’s memories were also shown to be wrong, Molloy found, for example, she said they walked from one bar to another but video evidence shows they took a cab.
Molloy said that could be an honest mistake or that she lied about the cab ride to avoid evidence of sexual banter during the cab ride.
“Either is problematic,” Molloy said. “If she has reconstructed a false memory about walking to the Brass Rail, how do I know she has not done the same thing with respect to her conduct at the hotel afterwards? If she has lied about the cab ride to the Brass Rail, how do I trust she has told the truth about what happened in the hotel room?”
Molloy also found that the symptoms the complainant described were not corroborated by the testimony of a toxicologist on how the drugs and alcohol would have affected her.