Memory at issue in sex assault trial

Lawyer says gaps in woman’s recall create reasonable doubt

A woman’s spotty memory during the time she said she was sexually assaulted by three Toronto police officers in a hotel room should leave a judge with reasonable doubt about whether or not she consented, a defence lawyer argued in closing submissions Monday.

The officers, Joshua Cabero, Leslie Nyznik and Sameer Kara, have all pleaded not guilty to sexual assault and argue only consensual sexual activity took place.

The complainant, a parking enforcement officer, has testified she was orally and vaginally penetrated by the officers as she lay on a bed in the hotel room unable to move. “I was powerless. I couldn’t move. I couldn’t talk. I couldn’t stop what was happening,” she said.

At one point she recalled hearing Kara say, “stop Josh, she’s out.”

The Crown is arguing the complainant did not consent to sexual activity and that she could not have consented because she was too intoxicated. The complainant testified she had at least seven drinks that night, but believes she may also have been drugged.

Lawyer Alan Gold, who represents Kara, said the complainant simply cannot remember much of what happened that night and so “she cannot give direct evidence as to whether she consented to the sexual contact or whether or not she had the capacity to do so.”

Gold suggested the circumstantial evidence shows Kara was “always a gentleman” to the complainant and “asked permission for everything.”

Kara’s actions, including a consensual kiss at one bar and texting her the next day asking if she got home safe, show “an appropriate concern and respect for her” and that “there is nothing to suggest Mr. Kara would do anything without her consent,” he argued. Kara did not take the stand. “Unless the Crown proves she was incapable of consenting, then Your Honour has to have a reasonable doubt because she is unable to testify she didn’t consent,” Gold argued.

And, he told the court, the evidence shows the complainant was not incapacitated.

The law says being drunk, even severely drunk, does not mean being incapable of consenting to sex, he said.

“A drunken consent is still a valid consent,” he told the court, quoting case law.

“Alcohol-induced imprudent decision-making, memory loss, loss of inhibition and self-control, that does not amount to proof by the Crown of a crime.”

Courts have found that even when a complainant is falling-down drunk, that is not enough to conclude the person is too intoxicated to consent, he pointed out.

Gold pointed to two security videos, one of Kara arriving at the hotel, and one of the complainant arriving at the hotel with Nyznik and Cabero.

“There is probably nothing more striking in this case than the difference in the videos,” he says.

In the video of Kara, who left the bar early because he was drunk and throwing up, “one sees exactly, exact- ly what would be expected if the complainant incapacitated.”

He says the complainant’s video “shows absolutely no indication of incapacity whatsoever.”

He compared the case to a recent sexual assault case where the videos of the complainant’s “dazed and confused” facial expression was part of the reason there was a conviction.

Gold said the complainant went to the washroom when she got into the hotel room and was able to send a text message after the alleged sexual assaults, suggesting these were acts of “obvious consciousness” that show she was capable of consenting.

To make the finding that the complainant was incapacitated the court has to establish beyond a reasonable doubt that the complainant was so impaired she did not know she was engaging in a sexual act and that she could refuse to engage in the sexual act, Gold said.

Gold told the court the defence will also be seeking the charges to be stayed due to the loss of key videos from the hotel surveillance cameras that “would have solidified any reasonable doubt concerning the complainant’s incapacity.”

That application will be argued in full on Tuesday.

Of the three officers only Nyznik testified.

His lawyer Harry Black called one additional witness Monday, Det. Barry Radford, 60, who was part of the group of officers who bar-hopped that night.

Radford took a cab to the Brass Rail strip club with the complainant, Nyznik and another officer, Elias Tissawak.

He sat in the front passenger seat and said he heard laughter and “sexual innuendo” from the back seat but specifically spoke only to the cab driver so “that way I can say I was talking. I can’t talk and hear at the same time . . . I didn’t want to be quoted on anything that was said.”

Radford testified that “we all know what happens” when men, women and alcohol mix and that he “didn’t want to be a witness to anything and end up where I’m sitting now.”

He said “in my opinion it was a recipe for disaster” and that he was uncomfortable going to a strip club with a woman he did not know.

He said the complainant was “willingly” going to the strip club and that none of the three were slurring their words or were too drunk to hold a conversation.

When the Crown lawyer Ted Ofiara questioned him about whether he intervened or told the officers he didn’t think this would end well, Radford said he did not.

“I’m not psychic,” he said. “They are all adults. You can’t tell adults what to do and what not to do.”