Defence questions police investigation at trial of 3 Toronto officers accused of sexual assault
'Key video evidence was lost' during investigation of 51 Division officers, defence says
The sexual assault trial of three Toronto Police officers has begun with the defence attempting to cast doubt on the Crown's evidence and the competence of the Toronto Police investigation into three of its own.
Leslie Nyznik, Sameer Kara and Joshua Cabero, all officers at 51 Division, are alleged to have had non-consensual sex with a female colleague in January 2015.
The three men "variously engaged in intercourse and oral sex without consent," Crown lawyer Mabel Lai told the court in her opening remarks on Monday.
The complainant, a Toronto parking enforcement officer whose name is protected by a publication ban, also worked at 51 Division at the time of the alleged assault.
She was not in court on Monday but will be called as a witness, the Crown said.
The Crown's first witness was Detective Sergeant Jeffrey Attenborough, who investigated the allegations with the Toronto Police Service's Professional Standards unit.
Attenborough told the court that he interviewed the complainant on Jan. 26, 2015. The alleged assault occurred on Jan. 17.
Following the interview, Attenborough and forensic investigators went to the complainant's home where the clothing and a necklace she wore the night of the alleged assault were photographed and seized.
Attenborough and his officers then set about gathering video evidence from the Toronto bars and hotel the accused and complainant were on the night of the alleged assault.
It's here that the defence attempted to question the thoroughness of the police investigation.
According to the allegations, the accused and the complainant visited three Toronto bars as part of a "rookie buy" party before going to the Westin Harbour Castle Hotel, where the alleged assault took place.
The court was shown several clips of video footage from CC Whiskey Bar as well as from the hotel.
In cross-examination, lawyer Joanne Mulcahy, representing Leslie Nyznik, questioned Attenborough about several camera angles from the Westin Habour Castle that were not provided to police from hotel staff.
To do so, Mulcahy referred to a "camera activity report" provided by the hotel, which listed all of the available camera footage and compared it to what was ultimately provided to the defence as evidence.
She pointed out several pieces of footage that were not obtained by police and are no longer retrievable.
"Key video evidence was lost," Mulcahy told the court.
"This process of looking at what footage was available and what footage we have, that's not a process that you engaged in?" Mulcahy asked.
"No ma'am," Attenborough replied.
Defence challenge
Early Monday, the defence challenged the admissibility of evidence expected to be provided by at least two Crown witnesses. They are people the complainant was in contact with following the alleged assault.
Lawyer Harry Black, who's also representing Nyznik, told the court the defence doesn't deny the complainant communicated with these witnesses, the first on Jan. 17, 2015 and the second on Jan. 26, 2015.
But Black said the court has already agreed on the narrative of events that surround the allegations, which is the only purpose for the evidence, he argued.
"The law is very clear that this evidence is permissible solely as narrative."
Crown Philip Perlmutter told the court the witnesses may also speak to the complainant's emotional state at the time.
Superior Court Justice Anne Molloy did not immediately rule on the matter.
The brief challenge hinted at where the defence may take its case.
One of the witnesses is a man who the complainant texted shortly after the alleged assault occurred.
"This allegation had its inception in the early morning hours of Saturday," Black told the court.
Group seen entering hotel
In one clip of footage viewed in court, the complainant, Nyznik and Cabero can be seen entering a hotel elevator at around 12:12 a.m.
The complainant appears to be smiling and chatting with the two officers.
The assault is alleged to have occurred between 12:20 a.m. and 3:30 a.m.
At approximately 3:28 a.m. the complainant can be seen walking out of the same elevator towards the hotel lobby.
She is then seen from another camera angle appearing to ask a hotel janitor for directions to the taxi valet, where she's then seen speaking with an attendant before getting into a taxi.
Complainant to be called as witness
The crown intends to call 17 witnesses, including the complainant, the court heard.
Other witnesses expected to be called by the Crown include an emergency-room physician, a toxicologist and several officers who also attended the "rookie buy" party at three downtown bars that preceded the alleged assault.
The crown also intends to present evidence, including a forensic biologist, attempting to prove that semen found on the complainant's body and clothing is likely that of Nyznik and Kara.
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