Sexual assault trial of 3 Toronto cops set to begin

Consent, alcohol, the complainant's credibility: common themes in sexual assault cases that are now set to play out in an uncommonly high-profile setting, as the trial of three Toronto police officers begins Monday.

Leslie Nyznik, Sameer Kara and Joshua Cabero, all officers at 51 Division, are accused of having non-consensual sex with a female parking enforcement officer at a downtown hotel in 2015.

In a surprise move by the defence last week, the three men elected a judge-only trial just two days before jury selection.

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The case will be heard by Superior Court Justice Anne Molloy.

Although the trial has yet to begin, an unusual amount of information is already known about the allegations, thanks to an unsealed police document released to the media in 2016.

Known as Information To Obtain (ITO), the document details the evidence Toronto police gathered to request DNA samples from the three accused.

None of the allegations in the document has been proven in court.

Alcohol and consent

The ITO portrays a boozy party night, conflicting witness statements, and lapses in memory.

It's familiar territory for lawyer Loretta Merritt, who represents sexual assault victims in civil cases.

"Many, many sexual assault cases involve alcohol," Merritt said in an interview. "In a lot of cases, the fact that sexual activity took place is not the issue. The defence is consent."

The complainant in this case alleges she did not consent to sex with the three officers and it may be argued that she was unable to consent because of the alcohol consumed.

Court rulings regarding sexual assault and alcohol have gone both ways, Merritt says.

"If a complainant is incapable of consenting due toincapacity because of alcohol, there is no consent. But it doesn't mean that every time somebody has alcohol there's no capacity. It's a question of looking at all the circumstances."

Complicating matters, Merritt says, is the fact that alcohol impairs memory, whichappears to have happened in this case.

"Credibility is often undermined by problems with memory. So it really gets complicated when alcohol is involved, and that's often the case," Merritt said.

'Rookie night' party

According to the ITO, the alleged assault followed a "rookie night" party at several downtown bars that the complainant, the accused and other officers from 51 Division attended on Jan.16, 2015.

At the start of the evening, according to the ITO, the complainant went to CC Supper Club at about 9:30 p.m. There were about eight to 10 other officers at the club and the complainant had at least two rum-and-cokes.

From there, the document says, the group moved to Pravda Vodka Bar, where the complainant had a vodka and cranberry juice and a tequila shot.

3 police officers charged

10 years ago

Duration 3:21

3 Toronto police officers from 51 Division are accused of a gang sexual assault.

Sometime around 10 p.m., the document says, Kara became too intoxicated. The officer left the group for the Westin Harbour Castle Hotel, where Nyznik had rented a room.

It was around midnight when Nyznik,Cabero and the complainant left the party's final stop, the Brass Rail strip club, and headed to the hotel together.

In the taxi, the complainant told police, she began to feel the effects of the alcohol she had consumed. She said she did not remember the hotel's name.

'Josh, stop she is out'

In the room, the woman told police, Kara was sleeping, and Nyznik told her not to wake him up. The next thing she remembered, she said, was that she was on her back, performing oral sex on Nyznik. She said she could barely move and he had to hold her head up. She said she believed Cabero started rubbing her legs.

The complainant said she didn't tell them to stop because she couldn't form the words. She remembers someone taking off her jeans. Then she remembers being penetrated. She didn't remember who was doing this but alleges she heard Kara say: "Josh, stop.She is out."

The document alleges the penetration stopped after "a little more coaxing" from Kara. She remembers Kara calling her name and someone penetrating her a second time. She also remembers someone ejaculating on her lower stomach and someone ejaculating on her upper chest.

The complainant alleges that when she woke up, Kara was in the bed next to her and she believed Nyznik and Cabero were in the other bed. She got dressed left the hotel room, according to the ITO.

She told an investigating officer she "had never suffered such memory loss or experienced an inability to move or talk" and had never been that drunk before.

Reported to police

After leaving the hotel, the woman went home where she was "physically ill" and passed out on the bathroom floor, the document says.

When she woke up, the complainant called a friend and told her what had allegedly happened.

Later that day, Jan.17, the ITO says the complainant had dinner with friends, who urged her to go to a hospital.

A sexual assault examination was performed on the woman at Scarborough Grace Hospital. It found traces of semen on her body and clothing.

The complainant called in sick to work on Jan.22, when she was next scheduled to work, and was off sick for four days.

Reaction to charges

10 years ago

Duration 2:54

The police chief and board officials were asked about sex-assault charges that had been laid against three officers.

When she went back to work after that, she had a panic attack, the ITO says.

In the change room at work, she threw up and then told two female supervisors she had been sexually assaulted and that police officers were involved.

The alleged victim then spoke with a staff sergeant and described the three accused.

The incident was reported to police on January 26, 2015.

Nyznik, Kara and Cabero were arrested and charged with sexual assault on Feb. 19, 2015.