Toronto

They may not be guilty of sexual assault, but those three police officers are still guilty of being scumbags who don’t deserve to wear the uniform of Toronto Police.

Yes, Consts. Leslie Nyznik, Joshua Cabero and Sameer Kara were off duty on that now infamous night in January 2015 when their activities included Kara being stinking drunk and puking through a hotel lobby, Nyznik pawing at strippers and making plans to hire a hooker that night and all of them enjoying free booze and food at bars. Their conduct was not criminal, as a judge has now ruled, but it still remains nothing less than unbecoming.

Toronto’s finest? Hardly.

But while they may be cops behaving badly, they are not rapists, the court has declared. Clearly conscious of how controversial these decisions have become, Ontario Superior Court Justice Anne Molloy took pains in her 45-page decision to explain that it’s not enough for a woman to cry rape. Even sexual assault cases must be proven beyond a reasonable doubt and there were too many frailties and inconsistencies in the parking officer’s “patchy memory” about the bar hopping night she spent with Cabero, Nyznik and Kara.

“The question is not whether they behaved admirably, or even ethically,” Molloy said. “I cannot make a finding of guilt based on evidence such as this. Based on the complainant’s evidence, I cannot be sure about what happened in that hotel room.

“It is simply not safe to convict.”

One of the relatives in the gallery shouted “Yes!” and the three officers exchanged smiles and looks of relief. Not present was the complainant, dubbed “AB” by the judge, who now must be wondering why she ever came forward at all.

Without a rolling sex tape of the night or an eyewitness, it was her word against theirs. And her word wasn’t reliable or credible enough to cost three men their freedom.

Her undoing were the security videos that told a different story than the one she gave police and the court. She said they’d walked to the Brass Rail strip club, but video showed they’d arrived by cab. She said Nyznik left their table to go to the washroom after ordering drinks, hinting that he had the opportunity to tamper with her cocktail, but the video showed he didn’t leave.

But most damaging was the footage from the Westin Harbour Castle. In the security videos, the woman is seen getting out of a taxi in her high heeled boots and then standing outside the hotel elevator, laughing and chatting with Nyznik and Cabero — all without exhibiting any physical symptoms of inebriation. But on the witness stand, she said she’d been overcome with a blinding headache and tunnel vision in the cab and didn’t remember arriving at the hotel or going up to the room. She described feeling unable to move and powerless to stop the sexual assaults because she was completely incapacitated by alcohol and possibly a drug.

It just didn’t jibe with the security footage of moments before. “In short, she appeared perfectly normal,” the judge said.

“The complainant’s evidence is too fraught with problems to stand alone. I have looked in vain for corroboration,” Molloy wrote. “Indeed, what objective evidence there is (the video footage and the toxicologist’s opinion evidence) contradicts rather than corroborates the complainant’s evidence.”

Which is not to say the judge bought Nyznik’s story — he was the only one to testify — that the parking officer was a sex-mad vixen who single-handedly orchestrated their wild orgy. Molloy even labelled that section of her judgment: “I do not necessarily believe Mr. Nyznik.”

That said, the burden of proof was on the Crown, and she found their case simply wasn’t strong enough to convict.

Now the three friends, who’ve been suspended with pay, are anxious to get back to work. But after all we’ve learned about their behaviour, are these really the men we want serving and protecting us?

Excerpts from the 45-page judgment by Justice Anne Molloy:



•“Although the slogan ‘Believe the victim’ has become popularized of late, it has no place in a criminal trial. To approach a trial with the assumption that the complainant is telling the truth is the equivalent of imposing a presumption of guilt on the person accused of sexual assault and then placing a burden on him to prove his innocence.”



•“There was nothing at all wrong with what AB was wearing that night. In cross-examination, defence counsel suggested to her that she wore a low-cut top in order to make herself attractive to all the men who would be present at the party. I found that suggestion to be offensive and irrelevant. What a woman wears is no indication of her willingness to have sexual intercourse, nor can it be seen as even the remotest justification for assuming she is consenting to sex.”



•“A woman who has been the victim of a sexual assault will not necessarily exhibit immediate symptoms of trauma. She might, or might not, be weepy. She might, or might not, be depressed and withdrawn. She might, or might not be hysterical ... There is simply no ‘normal’ or ‘typical.’”



•“His description of how the group sex was carried out, particularly with the complainant purportedly servicing all three of them at once without Mr. Nyznik so much as touching her to provide assistance seems improbable. As the Crown pointed out, AB would have to be some kind of contortionist to accomplish all of that at once.”



mmandel@postmedia.com