Cops accused of sexual assault opt for trial without a jury
Bias is ‘widespread’ among public after high-profile media coverage of other such trials, defence claims
In a surprise decision two days before jury selection was set to begin, three Toronto police officers on trial for sexually assaulting a female parking enforcement officer have chosen to be tried by a judge alone.
The three 51 Division officers, Leslie Nyznik, Joshua Cabero and Sameer Kara each pleaded not guilty to a charge of sexual assault on Monday afternoon before Superior Court Justice Anne Molloy.
They are accused of sexually assaulting the complainant in a hotel room in January 2015 while she was too drunk to consent and slipping in and out of consciousness.
Gang sexual assault charges were previ- ously dropped by the Crown.
Before the last-minute decision to have a judge-alone trial, Nyznik’s defence lawyer Joanne Mulcahy argued there is “widespread bias” against people accused of sexual assault due to media coverage of problems with the way sexual assault cases are handled by the justice system.
Mulcahy referred to a number of highprofile sexual assault cases including Jian Ghomeshi’s controversial acquittal on four counts of sexual assault and one of choking, and the federal and provincial legislation about mandatory sexual assault education for judges.
“Whether we start with the doctors who were tried in this courthouse, Jian Ghomeshi, Mandi Gray and now we have (former interim Conservative leader) Rona Ambrose in Parliament and provincial politicians as well, so this is the whole backlash,” Mulcahy said.
Mulcahy argued that potential jurors should be asked whether they can put aside all the dialogue, debates and commentary and decide on the case at hand impartially, based on the evidence and the law.
Crown prosecutor Philip Perlmutter opposed asking potential jurors the question.
There is an “ongoing vigorous debate” about issues like whether judges are behaving properly in sexual assault cases and whether sexual as- sault victims are being treated fairly, he acknowledged.
But just because someone has a strong opinion, it doesn’t mean they won’t be able to follow the judge’s instructions and follow the law, he said.
Justice Molloy said that there is no issue with jurors having views about sexual assault and being informed, for example, about rape myths and stereotypes.
“That might be an appropriate change” as a result of reading media coverage, she said.
She also noted that there has been no sampling of the population to find out whether there is now a “widespread bias” against people accused of sexual assault, as suggested by Mulcahy.
“There is no evidence that in the population at large people believe that victims of sexual assault are hard done by or we should always believe them,” Molloy said.
However, when discussing whether jurors should be asked if they can be impartial despite media coverage, she brought up an incident during a recent jury selection for another sexual assault case.
A potential juror volunteered that he didn’t think he could be impartial in the case because what happened in the Ghomeshi case was a travesty of justice that was “obvious to everyone.”
He maintained this even though she pointed out this was a different case, with different accused, a different complainant and a different set of facts.
Molloy said she would consider whether the question was appropriate over the lunch break.
When court resumed after lunch and before she issued her decision, the defence chose not to have a jury after all.
The trial is now set to begin next week.
“There is no evidence that in the population at large people believe that victims of sexual assault are hard done by or we should always believe them.” SUPERIOR COURT JUSTICE ANNE MOLLOY