What transpired in those three hours?
CC Lounge & Whiskey Bar. Pravda Vodka Bar. The Brass Rail.
A night on the gin-joint town. And on the newbie tab, at least the part where a bill was presented.
“Rookie Buy Night” it was called, the scrubeenie in this case a cub cop, or wannabe cop, that was her ambition, all of them working out of 51 Division. It was Friday, Jan. 16, 2015. And it would end in a hotel room, many hours later, with an alleged sexual assault by three Toronto constables against a female parking enforcement officer.
Leslie Nyznik, Joshua Cabero and Sameer Kara each pleaded not guilty to the charges a week ago when the trial was to have started with jury selection. In a surprise last-minute move, however, the defendants opted to have the case heard by judge-alone.
That proceeding got underway Monday.
An admission of facts — the part that isn’t being contested — is brief. The accused admit being with the complainant — her name protected by a publication ban — throughout the evening, as they meandered from one saloon to another. A couple of other officers in the original party group checked out earlier. Also departing the scene at the Pravda point — because he’d thrown up on himself — was Kara. A colleague helped him get to the Westin Harbour Castle Hotel on the nearby waterfront.
A room there had been booked just after noon, with Nyznik checking in around 2:06 p.m., just after finishing his shift.
Those facts aren’t in contention. Security video from the hotel shows Nyznik entering the elevator, plastic bags in hand. Kara, leaning heavily into his colleague, is also captured lurching into the hotel a couple of hours before midnight.
At 12:20 a.m., Nyznik and Cabero arrive at the Westin in the company of the complainant. Up the elevator they all go, to Room 2340.
At about 3:30 a.m., now into Saturday, the complainant is seen leaving the hotel alone, getting into a cab. Within 15 minutes she’d sent a text about the incident to a friend.
What transpired in those three hours?
“Mr. Nyznik, Mr. Kara, Mr. Cabero and (the complainant) are alone in that hotel room,” Crown Attorney Mabel Lai told Justice Anne Molloy in her condensed opening. “The dispute is about what happened in that hotel room during that time.
“The Crown will allege that the three defendants before the court variously engaged in intercourse and oral sex with (the complainant) without consent. That will be the crux of the Crown’s case.’’
The “festivities,” court heard, had begun at the Westin. Just after 6 p.m., the group “migrated” to the CC Lounge. That’s where the complainant joined them around 8:45.
There is an abundance of video documenting most of this, though no footage was recovered by investigators from Pravda.
In the broad outline provided by Lai, the Crown said the complainant will relate what she did in the nine days between the alleged incident and her formal reporting of it to her supervisor on Jan. 26.
In the interim, the complainant had spoken about the event to friends. She’d also gone, over that weekend, to two Toronto hospitals.
Lai said court would hear, from among a long list of witnesses — the trial is expected to last four or five weeks — the evidence of two expert witnesses, one of them a toxicologist. “I expect she’ll tell you that urine and blood samples collected . . . on Jan. 19,” by a sexual assault specialist nurse, “yielded no significant findings for drugs or alcohol.”
Also scheduled to testify is a forensic biologist who will speak to DNA profiles taken from a rectal swab, an external general swab taken from the complainant, the outside of her bustier, inside crotch area of her jeans and her blouse.
Based on Kara’s DNA profile, “he cannot be excluded as the donor of the semen on these items,” Lai said.
The probability that Kara and a randomly selected individual unrelated to him would share that DNA profile is about 1 in 440 million for the rectal swab and 1 in 68 trillion for the other swabs.
A second DNA profile was taken from a swab taken from the complainant’s pendant necklace and brassiere cups, Lai said. Based on Nyznik’s DNA profile, the forensic biologist is expected to explain that officer can’t be excluded as the “donor of the semen” found on those articles, and the probability that Nyznik and a randomly selected individual unrelated to him would share that DNA profile “is about 1 in 490 quadrillion.”
The trial hasn’t got to any of that yet.
Instead, the first day was spent almost entirely on a laborious scrutiny of the stills and video collected by investigators, with Nyznik’s defence lawyer Joanne Mulcahy doing all the cross-examination heavy lifting on behalf of the three topdrawer defence teams, a go-to cast featuring Harry Black, Patrick Ducharme and Alan Gold.
With Det. Sgt. Jeffrey Attenborough — at the time with the criminal investigations unit from Professional Standards and lead investigator on the case — in the witness stand, Mulcahy educed a litany of shortcomings and gaps in the video evidence collected. Attenborough, who went on vacation just after the case was opened, had no explanation for why video from all the surveillance cameras at the CC Lounge had not been recovered, nor why footage from various hotel cameras was missing, even though those images had been documented by the hotel’s security staff in the “camera activity report” turned over along with the USB flash drive.
Example: Footage purportedly showing two of the accused leaving the Westin at 8:45 Saturday morning, apparently going for a walk, and returning shortly thereafter. All three are seen leaving together in a cab once Nyznik checked out at 9:12 a.m.
That original missing hotel video is no longer available, due to a “video crash” that erased the material, except for one clip subsequently located.
“All the other footage is gone?” Mulcahy asked.
Attenborough: “To my knowledge, yes ma’am.”
The relevance of the missing video is unclear, beyond the implication that the investigation had been sloppy and inept. Rosie DiManno usually appears Monday, Wednesday, Friday and Saturday.