National Post (National Edition)
A disreputable mess of a case
However Ontario Superior Court Judge Anne Molloy rules on the allegation three Toronto police officers sexually assaulted a parking enforcement officer, on almost every level the case was little short of a disgrace for the force.
The trial ended Tuesday with Molloy promising a verdict on Aug. 9.
Constables Les Nyznik, Sameer Kara and Joshua Cabero pleaded not guilty to a single count of sexual assault.
The alleged assault — the only issue was whether the sex forced or consensual — took place at the Westin Harbour Castle hotel on Jan. 17, 2015 after a night of drinking and bar-hopping.
Yet even in the most benign light, assuming for argument’s sake that the 36-year-old woman merrily agreed to it all, three cops, at least one of them married, decided it was a grand idea to have group sex with a colleague who was at least a little tipsy and whom closed-circuit video reveals was clearly on the outside of the boys’ own group, following the men in and out of downtown bars like an after-thought come to life.
And in the harshest light, the three forced sex upon a vulnerable colleague, who says she was either so drunk, or drugged, that she couldn’t move, see or even give voice to her non-consent.
But that was just one aspect of a case that was mishandled by the force at every turn.
The woman, whose identity is protected by the mandatory publication ban standard in sexual assault cases, wanted to be a police officer herself, a common goal for those who work on the civilian side of the force.
She never wanted to “report,” as reporting to police is called. She had to be convinced by a friend, a fellow PEO, even to go to hospital the next night, and there, at first, simply said she had pelvic pain from intercourse. Though later that morning she told Dr. Joshua Tepper that she’d been raped by three people she knew and was “adamant no police involvement because she fears repercussions.”
Eventually, when she returned to work nine days later, she broke down crying in front of a supervisor and told her she’d been sexually assaulted by three service members. That was Jan. 26. Given the incestuous nature of the allegation — that a PEO had been forced into sex by three police officers — it was reasonably foreseeable that the woman might be nervous, uncomfortable or suspicious of investigators from the Toronto force.
The province’s independent Special Investigations Unit, which probes cases of death and serious injury or allegations of sexual assault by police, had no mandate because all four were off-duty and there was no allegation that any police equipment was used.
But that didn’t preclude the Toronto force from calling on a neighbouring service — the Ontario Provincial Police or Peel Regional Police, for instance — to take over the file.
This is frequently done, if only as a matter of optics: It looks better if officers from the same force don’t investigate their fellows.
For similar reasons, judges and prosecutors are often brought in to handle high-profile cases in another city. It was a judge from Toronto, for instance, who handled the Mike Duffy trial, not an Ottawa judge.
In this instance, it would have lent at least a veneer of distance to the investigation and might have made the complainant feel less frightened, for she says she even feared for her life after the news “got out,” and two PEO colleagues who testified for the prosecution said she was afraid.
One of them said she was one of the woman’s few remaining supporters on the job and the complainant herself once blurted out that she’d been subjected to threats, harassment and intimidation after she reported the three officers.
Instead, the case was handed over to Toronto’s professional standards unit, or PRU.
(Police spokesman Mark Pugash said the force is unable to comment on that decision until Molloy returns a verdict.)
And then the PRU, as the officer-in-charge of the case, Detective-Sergeant Jeff Attenborough acknowledged at trial, conducted an investigation that was at best sleepy and slow and at worst inept.
The investigation’s central misplay was its failure to ensure that all the closed-circuit video it sought, particularly from the Westin hotel but also from a company whose taxi took two of the accused officers and the woman to the hotel, in a production order actually had been produced.
It was only under constant pressure from defence lawyers that Attenborough belatedly acted to get the hotel to produce the missing frames — and by bad luck, the hotel had had problems with its system and replaced the hard drive.
The video, whatever it may have showed, was irretrievably lost.
Defence lawyers for the three officers have asked the judge to stay the proceedings on the grounds that the investigation was “negligent,” critical evidence was gone, and the officers’ constitutional right to full disclosure had been breached.
As Joanne Mulcahy, who represents Nyznik, argued, “police essentially outsourced their investigative work (preserving the video) to lay civilians and blindly trusted that these third parties could select the relevant recordings.”
Given the snippets played at trial, which appeared to show that the complainant was relaxed and moving under her own steam at the hotel, defence lawyers are convinced the missing video would have contradicted the woman’s story that she was ill and stricken minutes before in the taxi.
But it inarguably would have been useful in a trial that was in the end she said/they said.
As one police witness testified, this of the combination of “women and men and alcohol” — he could see trouble coming and left the group at the Brass Rail strip club — it was “a recipe for disaster.”
And so was the case a disreputable mess: In such increments does the public lose faith in the police.