A judge could not be sure what happened in a downtown hotel room in January 2015, and as a result acquitted three Toronto police officers accused of sexually assaulting a parking enforcement officer while she was unable to move and too intoxicated to consent.

Superior Court Justice Anne Molloy said the complainant’s evidence was not credible or reliable enough for a finding of guilt beyond a reasonable doubt because of inconsistencies, unreliable memories and contradictory video, witness and expert evidence.

“It is simply not safe to convict,” she wrote in a 45-page ruling.

However, she said, she did not necessarily believe the evidence of Leslie Nyznik, the only one of the three officers who testified.

The only issue to be decided was whether the complainant consented to intercourse and oral sex with Nyznik, Sameer Kara and Joshua Cabero on the night of Jan. 17, 2015, Molloy said.

Nyznik’s evidence seemed “stilted or somewhat scripted” and much of his account of the sexual acts was implausible, Molloy said.





Nyznik testified the sexual acts that took place were consensual and that most were initiated by the complainant, describing her almost as an “aggressor,” Molloy said. His account would have required the complainant to be “some kind of contortionist,” she said.

“Some of this simply did not ring true,” she said, adding that he was “less than forthright” when he refused to acknowledge the possibility of career repercussions for a woman employed by the police who accused police officers of sexual assault.

Molloy noted that Nyznik freely admitted things that were not positive, including what she called the “shocking insensitivity and cruelty” of asking the other two men if they should still call the “hooker” to come over following sex with the complainant.

“To summarize, I do not find Mr. Nyznik’s version of the events to be compelling,” she said. “However, neither am I in a position to say I reject his evidence as untruthful. I simply do not know whether or not he is telling the truth about the critical issue — the consent of the complainant to the acts he described.”

Nyznik’s lawyer Harry Black said his client is pleased to be “vindicated” and is looking forward to having his life back. He would not comment on Molloy’s finding that she did not necessarily believe Nyznik’s testimony. As of Wednesday morning Black said Nyznik remained suspended with pay. Toronto Police Service has not responded to questions about the employment status of the officers.

The complainant testified she was orally and vaginally penetrated by the three men who were aware she was going in and out of consciousness. At one point, she said, she heard Kara say, “Stop Josh, she’s out.”

“I was powerless. I couldn’t move. I couldn’t talk. I couldn’t stop what was happening,” she told the court. She said she never consented to sex with any of the three men.

She said she’d had seven or eight drinks that night and believed she had been drugged, describing suddenly being unable to move or speak as well as blurry vision and patchy memory.

In her ruling Molloy acknowledged the uniquely heavy burden placed on sexual assault complainants and said she “looked in vain” for evidence that would corroborate the complainant’s evidence which was too flawed to rely on alone.

However, the video evidence and the toxicology evidence did the opposite.

Molloy found, based on the evidence of a toxicologist, that the complainant’s symptoms were not consistent with the amount of alcohol she drank or being drugged.

She said that this does not mean the complainant was lying about her symptoms. It could mean her memory is wrong or unreliable, that her symptoms occurred for reasons that cannot be explained, or that she has “reconstructed a memory of her own participation in the hotel room and believes it to be true,” Molloy said. “The important point, however, is that science cannot explain or corroborate as plausible what (she) described about her condition in the hotel room.”

The video of the complainant walking into the hotel and waiting for the elevator is also inconsistent with her evidence that she was confused, had trouble with her vision and was in pain. “In short she appeared to be perfectly normal,” Molloy said.

Some of the complainant’s memories were also shown to be wrong raising concerns about her credibility and reliability, Molloy found, for example, she said they walked from one bar to another but video evidence shows they took a cab.

Molloy said that could be an honest mistake or that she lied about the cab ride to avoid evidence of sexual banter during the cab ride.

“Either is problematic,” Molloy said. “If she has reconstructed a false memory about walking to the Brass Rail, how do I know she has not done the same thing with respect to her conduct at the hotel afterwards? If she has lied about the cab ride to the Brass Rail, how do I trust she has told the truth about what happened in the hotel room?”

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Molloy also found it “inconceivable” that the complainant, Nyznik and Cabero wanted to take Kara out drinking again, given that Kara had been so drunk earlier that evening that he could barely stand up. She questioned why they didn’t just call him and ask him to meet at a bar, rather than all go to the hotel. However, in an unusual section of the ruling addressing rape myths and stereotypes, she noted that the fact the complainant voluntarily went to the hotel room has no relevance to whether or not she consented.

In his statement outside the court, Black criticized the prosecution of the case, in particular the time taken to get to trial and the Crown’s decision to proceed by direct indictment, which meant there was no preliminary hearing. (A motion to have the charges stayed due to delay failed).

The defence also criticized the investigation during the trial, bringing an application to have the charges tossed because the investigating officer failed to obtain video from the hotel and the cab that could have been helpful to their case. Molloy did not make a ruling on this issue due to the finding of not guilty.

Other missteps also apparently took place. According to a letter sent by the complainant’s counsel filed in court materials, the Crown accidentally sent the complainant’s medical records to the defence and had to ask for them back.