Toronto

It was not a stellar investigation by any means.

Cops investigating cops accused of sexually assaulting a parking control officer, a bungle of missed video possibilities that might have captured her state of impairment during a bar hopping night on Jan. 16, 2015 that ended at the Westin Harbour Castle hotel.

Instead, many were erased or lost by the time Toronto Police got around to asking for them. And those missing videos could scuttle the case.

Constables Joshua Cabero, Leslie Nyznik, and Sameer Kara, all currently suspended with pay from 51 Division, have pleaded not guilty to sexual assault. Their colleague, a parking enforcement officer, had joined a group of cops from their division for a “Rookie Buys” night that moved from CC Lounge to Pravda Vodka House to the Brass Rail strip club and then ultimately to the hotel where Nyznik had rented a room earlier in the day.

There’s no dispute that all four were in room 2340 together. The men are expected to argue that any sex that occurred was consensual. Due to testify Wednesday, the complainant has said in previous court documents that she was so drunk that she couldn’t move or speak, let alone offer consent as she drifted in and out of consciousness.

At this judge-alone trial, it will all come down to credibility. How she appeared may be key.

Staff-Sgt. Jeff Attenborough, then with Professional Standards, was tasked to investigate. Under cross-examination, the Crown witness admitted that in his 29 years on the job, this was only his third sexual assault probe.

And it showed.

Kara’s lawyer, Alan Gold, called the ever-presence of CCTV cameras the best “silent witnesses to her conduct and appearance.” Wouldn’t the investigator’s first order of business be to catalogue all the potential sources of video that were recording them that night?

Attenborough said his priority was interviewing the complainant and taking her clothes and phone into evidence — including an alleged text message from Kara asking if she had made it home alright. He admitted that he never sent anyone to check what hotel security cameras were operating at the relevant times.

“Were you relying on the Westin Hotel to conduct a competent investigation of the video available?” demanded Gold.

It seems that he was. By the time he got around to checking what they sent, after inquiries for disclosure by the defence, Attenborough realized there were obvious omissions. Some of the available footage of the complainant and the suspects that had been listed in the hotel’s camera activity report hadn’t actually been provided. Video from cameras in the outside valet office, the motorcourt, the gift shop and several lobby locations at the key times had never been obtained — or requested — by police. And now all of it was gone — Attenborough was told in May 2015 that the hotel’s computers had crashed and the videos no longer existed.

“I could not anticipate their system failing,” the officer said in his defence.

But it wasn’t just the hotel recordings. Police didn’t seize video from the taxi that took the woman and two of the suspects from the Brass Rail to the hotel around midnight on Jan. 17. Attenborough said he was wrongly told that it would have been erased after 72 hours. He later discovered it could still have existed up to 30 days, but he and his officers never bothered to check. No one spoke to the cabbie himself until 18 months later.

While they did secure video from CC Lounge, they were too late to get footage from Pravda. When he went on holidays three days into the investigation, Attenborough said he left his partner in charge to look into it. On his return Feb. 9, he followed up with several phone calls and finally learned any video had been erased after 15 days.

“Can we agree you failed to retrieve all the relevant videos?” Gold asked.

“Yes, sir,” he conceded.

Is that enough to have the entire case thrown out? It’s a longshot but the defence has filed an application to stay the proceedings against the three cops due to missing evidence. It will be heard by Justice Anne Molloy after the trial concludes.

mmandel@postmedia.com