CITATION: R. v. Nyznik, 2017 ONSC 4392 COURT FILE NO.: CR-16-00000131-00MO_ DATE: 20170809 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Philip Perlmutter, Thaddeus Ofiara, and Mabel Lai, for the Crown ~and= ) ) ) ) ) » ) ) ) ) ) ) ) ) ) ) ) LESLIE NYZNIK, SAMEER KARA and JOSHUA CABERO Harry Black and Joanne Mulcahy, for the Defendant Leslie Nyznik Defendants ) Alan D. Gold and Melissa Austen, for the Defendant Sameer Kara Patrick Ducharme, for the Defendant Joshua Cabero HEARD: June 5, 6, 7, 8, 9, 12, 13, 15, 16, 19, and 20, 2017 MOLLOY J.: REASONS: A. INTRODUCTION and OVERVIEW, U] Leslie Nyznik, Sameer Kara, and Joshua Cabero are charged with sexual assault. All three are police officers with the Toronto Police Service (“TPS”) and work out of the same platoon within a TPS Division. On January 16, 2015, they (and a number of other off-duty officers from the platoon) attended a party that started at a room they had rented at the Toronto Westin Harbour Castle and continued on through several bars in downtown Toronto. One of the attendees during the bar-hopping portion of the evening was a female parking enforcement officer (“AB")', who was not employed by the Division, but whose geographic patrol area was " Tissued an order at the beginning of this trial prohibiting the publication of the name of the complainant or any information that would tend to identify her. Thay ified her in this decision as “AB.” Those are not her actual initials, T have also used initials to identify three witnesses that testified at tral, also to protect the privacy rights of the complainant.Page: 2 within that Division. Shortly after midnight, the three defendants and AB ended up back at the hotel room. AB alleges that cach of the three defendants sexually assaulted her in the hotel room and that she was unable to resist because she was completely incapacitated by either alcohol, or a stupefying drug that had been administered to her without her knowledge, or some combination of the two, The complainant testified that she did not consent to any of the sexual acts carried out by the three defendants. The defence maintains that AB was fully conscious and capable at all times, that she freely consented to all of the sexual contact between them, and that she initiated much of it. 2] Fact-finding in this case is hampered by the complainant's patchy memory of many of the events of that night and inconsistencies in her evidence, as well as conflicts between her evidence and other objective evidence. It is clear that much of the sexual activity she describes did occur. Indeed, the evidence of Mr. Nyznik is largely corroborative of many of those details, However, on the sole contentious issue of consent, her evidence stands alone. In order to convict, I would need to be satisfied beyond a reasonable doubt that her evidence was both credible and reliable with respect to the issue of consent. Given the frailties in her evidence, I simply cannot be sure of that important fact to the degree of certainty necessary to make a finding of criminal responsibility. [3] Accordingly, I find the three defendants not guilty. My detailed reasons follow. B._ LEGAL FRAMEWORK (1) The Presumption of Innocence and Proof Beyond a Reasonable Doubt [4] Bach of the three defendants is charged with sexual assault, a criminal offence under the Criminal Code of Canada, R.S.C., 1985, ¢. C-46.. As such, each is presumed to be innocent unless and until the Crown has proven their guilt beyond a reasonable doubt. ‘The presumption of innocence is a cornerstone of our criminal justice system, originally embedded in our common Jaw tradition and now guaranteed as a fundamental legal right under our constitution.” [5] _ The presumption of innocence, and along with it the standard of proof beyond a reasonable doubt, are important safeguards to ensure that no innocent person is convicted of an offence and deprived of his liberty. Without these protections, there would be a serious risk of wrongful convictions — an outcome that cannot be accepted in a free and democratic society. [6] The concept of proof beyond a reasonable doubt is not an easy one to define. It is clearly more rigorous than the balance of probabilities standard applied in civil cases. ‘The balance of probabilities requires the party bearing the onus to establish that the proposition they advance is “more likely than not” ~ ie. better than 50/50. In its landmark 1997 decision in R. v. Lifchus, the * Canadian Charter of Rights and Freedoms, s. 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UR), 1982, c. 11Page: 3 Supreme Court of Canada held that the following definition would be an appropriate instruction for a criminal jury: Ll] A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt. (7) This instruction, with very little modification, is now the standard instruction on reasonable doubt given to criminal juries throughout Canada. The same standard is applied by judges sitting without a jury on criminal trials. The bottom line is that probable or likely guilt is insufficient. If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged. (2) Essential Elements of Sexual Assault [8] Every criminal offence consists of an actus reus (the physical act that constitutes the offence) and mens rea (the intent required to commit the offence). For sexual assault, the actus rreus consists of three essential elements, each of which must be proven by the Crown beyond a reasonable doubt. In this case, the Crown must establish: (1) that the defendants knowingly touched the complainant; (2) that the touching was of a sexual nature; and (3) that the ‘complainant did not consent to that sexual contact. [9] _ In this case, there is no issue with respect to there being sexual contact between the complainant and each of the three defendants. The sole issue in the trial is whether that contact was consensual. [10] _ The presumption of innocence applies to a person accused of sexual assault in the same way that it applies in any other criminal offence. The Crown must prove that this was an assault Rv, Lies, (1997) 3 S.CR, 320, 118 CCC. (3d) 1, at para. 39,Page: 4 rather than consensual contact. There is no burden on the defence to prove that AB consented to the sexual contact between them. Rether, the burden is on the Crown to prove beyond a reasonable doubt that the defendants had sexual contact with her without her consent, (3) Ay Sexual Assault Cases {11] As have stated, the presumption of innocence and the standard of proof beyond a reasonable doubt apply in a sexual assault case just the same as in any other criminal trial. However, there are aspects of sexual assault cases that can make the application of the standard a difficult one. [12] _ First of all, the very nature of the act underlying a sexual assault usually means that there are seldom any eye-witnesses apart from the complainant and the person or persons accused of the offence. Often, these cases come down to the word of one person against the other — the classic “he said/she said” scenario. In that situation, it would be wrong for the trial judge to decide the case based on which is the more credible version of the two. To do so would be to misapply the burden of proof on the Crown to establish guilt beyond a reasonable doubt. The correct application of the burden of proof requires the judge to acquit if the evidence of the accused, when seen in the context of all of the evidence, raises a reasonable doubt as to his guilt. It is possible that the judge might not fully believe the defendant’s version of the events, and might find the complainant's version to be more credible, but still be uncertain as 10 what actually happened. In that situation, there is a reasonable doubt, the benefit of which must go to the defendant, even where the complainant's story is more plausible or more believable than that of the defendant, [13] To assist in the proper application of the burden of proof when there are competing versions of what happened, the Supreme Court of Canada has recommended that the issue be considered in three steps, as follows:* First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [14] This instruction, commonly referred to as “the W.(D.) instruction,” has become another standard instruction given to all criminal juries, and criminal trial judges will generally instruct themselves in the same manner. However, as was said in the W.(D.) case itself, and in subsequent decisions of the Supreme Court of Canada, there is no particular magic in the incantation of these three steps.° It is not essential that the trial judge rigidly follow the three £R. v, W. (D), [1991] 1 SCR. 742, 63 CCC. (34) 397, at p. 758 5 W, (D), atp. 758; R. ». CLY., 2008 SCC 2, [2008] 1 S.CR. 5, at para. 7Page: 5 steps in the W.(D.) instruction, What is critical is for the judge to avoid tuming the fact-finding exercise into a choice as to which is the more credible version of the events. ‘This camnot be a credibility contest, with a conviction if the complainant wins the contest and an acquittal if the defendant docs. To treat it as such would be to improperly shift the burden of proof. Rather, if the defence evidence, seen in the context of all the evidence, raises a reasonable doubt, then the trial judge cannot convict. Even in a situation where the trial judge completely rejects the defence evidence and has no reasonable doubt as a result of that evidence, he or she must then assess the evidence as a whole and determine whether the Crown has discharged its burden of proving guilt beyond a reasonable doubt. In some cases, even without any evidence from the defence, it is not possible to be satisfied beyond a reasonable doubt based on the evidence of the complainant. {15] Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness" evidence — whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt. [16] It is sometimes said that the application of these principles is unfair to complainants in sexual assault cases, that judges are improperly dubious of the testimony of complainants, and that the system is tited in favour of the accused. In my opinion, those critics fail to understand the purpose of a sexual assault trial, which is to determine whether or not a criminal offence has been committed. It is essential that the rights of the complainant be respected in that process and that decisions not be based on outmoded or stereotypical ideas about how victims of assault will or will not behave. However, the focus of a criminal trial is not the vindication of the complainant. The focus must always be on whether or not the alleged offence has been proven beyond a reasonable doubt. In many cases, the only evidence implicating a person accused of sexual assault will be the testimony of the complainant. There will usually be no other eye- witnesses. There will often be no physical or other corroborative evidence. For that reason, a judge is frequently required to scrutinize the testimony of a complainant to determine whether, based on that evidence alone, the guilt of an accused has been proven beyond a reasonable doubt. ‘That is a heavy burden, and one that is hard to discharge on the word of one person, However, the presumption of innocence, placing the burden of proof on the Crown, and the reasonable doubt standard are necessary protections to avoid wrongful convictions. While this may mean that sometimes a guilty person will be acquitted, that is the unavoidable consequence of ensuring that innocent people are never convicted. [17] Although the slogan “Believe the victim” has become popularized of late, it has no place in a criminal trial. To approach 2 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Page: 6 and then placing a burden on him to prove his innocence. That is antithetical to the fundamental principles of justice enshrined in our constitution and the values underlying our free and democratic society. (4) Consent and the Interaction of Alcohol and Drugs [18] At the heart of the offence of sexual assault is the right of every person to autonomy over his or her own body. Any sexual touching without consent is a violation of that personal autonomy. The Supreme Court of Canada discussed this fundamental principle in R. v. Ewanchuk, as follows:* ‘The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a ight to meddle with it, in any the slightest manner”: see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book IIL, at p. 120. It follows that any intentional but unwanted touching is criminal, [19] As I discussed previously, the crime of sexual assault consists of an actus reus and a ‘mens rea. At the actus reus stage of the analysis, the consideration of whether there was consent relates to the subjective intent of the complainant — whether she voluntarily and knowingly agreed to the sexual contact at issue. As stated in Ewanchuk:” While the complainant's testimony is the only source of direct evidence as to her state of mind, credibility must still be assessed by the trial judge, or jury, in light of all the evidence. It is open to the accused to claim that the complainant's words and actions, before and during the incident, raise a reasonable doubt against her assertion that she, in her mind, did not want the sexual touching to take place. Tf, however, as occurred in this case, the trial judge believes the complainant that she subjectively did not consent, the Crown has discharged its obligation to prove the absence of consent. The complainant’s statement that she did not consent is a matter of credibility to be weighed in light of all the evidence including any ambiguous conduct. The question at this stage is purely one of credibility, and whether the totality of the complainant's conduct is consistent with her claim of non-consent. The accused's perception of the complainamt’s state of mind is not relevant. That perception only €R.v, Ewanchuk, [1999] 1 S.CR. 330, 131 C.C.C. Ga) 481, at para, 28 7 Bwanchuk, at paras. 29-30.Page: 7 arises when a defence of honest but mistaken belief in consent is raised in the mens rea stage of the inquiry. (20] Consent is defined under s. 273.1(1) of the Criminal Code as being “the voluntary agreement of the complainant to engage in the sexual activity in question.” Mere acquiescence in, or a failure to specifically object to, sexual contact does not constitute consent at this stage of the analysis.* In Canada, there is no such thing as “implied consent.” Rather, the question is whether, in the complainant's own mind, she was agreeing to the sexual activity in question? [21] The Criminal Code specifies some circumstances in which the sexual activity in question is deemed to have been without consent. For purposes of this case, the relevant provision is s. 273.12)(b) which states that no consent is obtained where “the complainant is incapable of consenting to the activity.” Incapacity to consent is a broad term and encompasses both situations where a person is incapacitated due to mental disability and situations where a person ‘who would otherwise be competent to consent has been rendered unable to do so, whether or not it was the defendant who caused her to be incapable, To use an obvious and extreme example, a complainant who is unconscious (whether, for example, from alcohol, drugs, or a blow to the head) lacks the capacity to consent. She has no conscious knowledge of what is happening and is not capable of directing her mind to whether she wants to engage in the activity in question, ‘Therefore, any person who proceeds to have sexual activity with an unconscious person commits the offence of sexual assault. That is the case regardless of the defendant’s involvement, or lack of involvement, in how the complainant came to be unconscious, As stated by McLachlin C.J. in Rv JA? ‘The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code, (22] Although an unconscious person is by definition incapable of consenting to sexual activity, the same is not the case for a person who is intoxicated by alcohol or drugs. There will be times when a person is so impaired by alcohol and/or drugs that he or she is incapable of consenting. Whether or not that state of incapacity has been reached is a factual finding to be made in the circumstances of each case. The fact that a complainant does not remember engaging in sexual acts, or has @ complete blackout of the time in question, is not the same thing as lacking mental capacity to consent.!’ * In some cases, where the complainant says and does nothing, this may be relevant to the defence of honest but mistaken belief in consent, but that defence is not raised in this case. ° Ewanchuk, at paras. 48-49, 51-52. Rv. LA., 2011 SCC 28, [2011] 2 S.CR. 440, at para, 66; ce also paras, 36 and 44. R. v, Meikde, 2011 ONSC 650, 84 C.R. (6th) 172, at paras. 48-49, citing R. v. LR. (2006), 40 CR. (6") 97, 2006 CanLII 22658 (Ont. Sup. Ct), at paras. 17-20, 43, af’ d 2008 ONCA 200, 59 CR. (6th) 158.Page: & [23] InR. v. J.R., Ducharme J. noted:"? The question is whether or not the complainant was able to make a voluntary and informed decision, not whether she later regretted her decision or whether she would not have made the same decision if she had been sober. Thus, an obvious ‘example of incapacity would be the complainant who was unconscious or in a coma at the relevant time. As I have already explained, memory loss, without more, is not sufficient proof of incapacity. Similarly, while intoxication, self- induced or otherwise, might rob a complainant of capacity, this is only a possible, not a necessary result... [24] Similarly, in Meikle, Trotter J. (as he then was) adopted the following observations of Duncan J. in R. v. Cedeno as follows:'* Cases where the complainant is said to be incapable [due to] consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity. Nor is alcohol-induced imprudent decision-making, memory loss, loss or inhibition or self-control. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at time(s]. [footnotes omitted] [25] With these general principles in mind, I tum then to the evidence of the particular case before me, and the application of these principles to that evidence. ‘THE EVIDENCE [26] The case for the Crown centered largely on the testimony of AB. In addition, two friends of AB testified about their interactions with AB after the events in question — one who went with her to the hospital and the other who spoke with her and encouraged her to report the incident. ‘Video footage was provided from two of the bars the group attended that night, as well as from the entrance and lobby areas of the Westin Harbour Castle. Some text messages received and sent by the complainant were marked as exhibits at trial. An expert toxicologist, Betty Chow, provided evidence as to the effects of alcohol and drugs. There were also many admissions of fact filed, including evidence from the hospitals AB attended and forensic evidence as to DNA. [27] Two witnesses who were in attendance at the various bars testified — one (Elias ‘Tissawak) called by the Crown and the other (Barry Radford) called by the defence. [28] _ Leslie Nyznik testified in his own defence. The other two defendants called no evidence, ” 1R,, at para. 43 ® Meikle, at para. 57, citing R. v. Cedeno, 2005 ONCT 91, 195 C.C.C, (34) 468, at para. 18.Page: 9 Background Facts [29] All three defendants are police officers within the same platoon. They had planned a night on the town (known as “Rookie Buy Night”) for January 16, 2015. This is a regular initiation type ritual for new officers who join the Division. The rookies treat the other officers in the platoon to dinner and drinks, up to a fixed monetary limit, after which everyone pays for themselves. Mr. Nyznik booked a hotel room at the Westin Harbour Castle, with the cost to be shared among him, Mr. Kara, and Mr. Cabero. This was to provide a starting off point where officers could come at the completion of their shift to change and get ready for the night, and to partake in some pre-event drinking. The three defendants also intended to spend the night there so that they would not need to drive home. (30] After the pre-party, the group went to CC Lounge and Whisky Bar (“CCs”) on Front Street, where they had booked a booth from 6:00 p.m. to 9:00 p.m. for dinner and drinks, Priot to the complainant's arrival, there was only one woman in attendance, She was a member of the platoon and apparently left after the dinner at CCs. The complainant arrived at CCs at approximately 8:45 p.m. [31] The group left CCs shortly after 9:00 p.m. Some went home from there, but others continued on to a vodka bar called Pravda a short walk away, There was further drinking there. Mr. Kara became ill as a result of his excessive drinking. His colleague, Elias Tissawak, took him back to the hotel in a cab. Mr. Kara was unable to stand or walk without assistance. On the way to the elevator, he threw up a number of times in the hotel lobby. Mr. Tissawak put Mr. Kara to bed, where he immediately fell asleep. Mr. Tissawak then returned to the group at Pravda. [32] At about 10:30 p.m., the group left Pravda. Some went home from there, but a small group, including the complainant, continued on. They first walked to a nearby bar called Switch and spoke briefly with the management there, but did not stay as the bar was closed. Next, they went to the Brass Rail, which is a strip club on Yonge Street just south of Bloor. Mr. Nyznik, Mr. Tissawak, Mr. Radford, and the complainant took a cab. Mr. Cabero and another officer (Mr. Mills) took the subway. [33] The group that came by cab entered the Brass Rail at 10:54 p.m. Mr. Tissawak went to a bank machine across the street and the other three (including the complainant) entered the Brass Rail and went to the upstairs lounge. Mr. Radford immediately went to the washroom, had a discussion with Mr. Nyznik there, and then left to go home at 10:59 pm. Mr, Mills and Mr. Cabero arrived at approximately 11:04 p.m, The group of five ~ the complainant and Messrs. Nyznik, Cabero, Tissawak, and Mills ~ ended up at a small table at the front of the club, directly in front of the stage. [34] At 11:56 pm, all five left the bar. Mr, Tissawak walked to the subway, Mr. Mills reportedly went back to the Pravda bar, and the complainant got into a cab with Mr. Nyznik and Mr. Cabero, heading for the hotel,Page: 10 [35] The cab arrived at the hotel at 12:10 am. and pulled up to the front entrance. AB had been in the backseat of the cab between the two defendants. The arrival is captured on video. Mr. Nyznik got out of the driver’s side rear door and Mr. Cabero got out of the passenger side rear door, which was closest to the entrance. AB then emerged from the back seat. Nobody assisted her and she can be seen exiting without even holding on to the door. She appeared to lose her balance briefly upon standing up, but quickly steadied herself by touching the side of the cab. She then stood by the cab chatting as Mr. Cabero paid the driver. ‘The three of them went through the revolving door into the hotel, first Mr. Nyznik, then AB, and then Mr. Cabero. AB was walking without assistance and did not appear to be having any difficulty doing so. Another video camera recorded them as they approached and stood waiting for the elevator. AB can be seen walking unassisted and chatting and laughing with the other two. According to the hotel's records from the digital door entry system, they entered the hotel room at 12:20 a.m. [36] AB left the hotel room at approximately 3:30 a.m. There is video footage of her exiting the elevator and immediately turning towards the lobby. Another camera from the lobby shows her speaking briefly with a cleaner who pointed her to the front entrance. She went through the revolving door and spoke with the attendant, who ordered a cab for her. When it arrived, she got in smoothly and the cab then left. [37] Late on the night of Saturday, January 17-18, AB went to the North York General Hospital with her friend TC. She was triaged and spent nearly five hours waiting to be seen, The staff there did not initially understand that AB was alleging a sexual assault. When they realized the situation, she was seen briefly by a doctor. She told the doctor she had been sexually assaulted by three men whom she knew and that she did not want to report the assault to the authorities. ‘The doctor sent her to the Scarborough Grace Hospital, which has a special unit to deal with sexual assault. AB arrived at the Scarborough Grace Hospital at about 6:00 a.m. and was examined there a few hours later. A full sexual assault kit was not done. [38] On the aftemoon of Monday, January 19, AB returned to the Scarborough Grace Hospital. A full examination and sexual assault kit was done at that time and samples were collected. [39] _AB stayed off work for a period of time, claiming sick leave. The first day she returned to work was Monday, January 26. Before starting her duties, she had an emotional breakdown at the station, which culminated in her disclosing to her supervisor that she had been sexually assaulted. The police were notified. AB was interviewed briefly on the evening of January 26, and gave a more comprehensive statement on January 27. The clothes and a necklace she had been wearing on January 16-17 were seized on January 26 and sent for analysis, [40] From the forensic testing results, I draw the following conclusions: * Mr. Kara’s semen was found on two swabs taken from AB’s external genitalia and a rectal swab, all of which were taken at the Scarborough Grace Hospital on January 19;Page: 11 Mr. Kara’s semen was found on the jeans, bustier, and black top that AB had been wearing on the night of January 16-17 and which were seized by the police on January 26; and, © Mr. Nyznik’s semen was found on the necklace AB had been wearing and on two areas inside her bra as well as on the outside left cup. [41] Based on the admitted facts from the expert witnesses, it is likely that the presence of semen on AB’s external genitalia, after AB had already showered and cleaned that area, is because there had been internal ejaculation which later drained. This is consistent with Mr. Kara having had vaginal intercourse with AB. ‘The presence of semen detected inside the rectum is not necessarily caused by ejaculation inside the rectum. Other possible explanations include natural drainage, leakage, wiping, clothing friction, and possibly semen that had been present on the external surface of the sphincter being retained on the swab in the course of swabbing the interior of the rectum. D._THE TESTIMONY OF THE COMPLAINANT (Q) Events Prior to the Party [42] AB testified that she had only been at the Division for a few months and did not know the police officers very well, but that she was closest to Mr. Kara, whom she considered to be a friend. She had also met Mr. Nyznik a few times, but did not know him as well as Mr. Kara. She said that she had originally planned to attend the Rookie Buy Night at the suggestion of her friend “AC”, who was also a parking enforcement officer working out of the same Division. Subsequently, AC made other plans for that night, but AB decided she would still attend because her mother encouraged her to go and she needed a night out. She also thought this would be a good opportunity for networking and team bonding, Although she had met with the police and the Crown on numerous occasions prior to trial to provide formal statements and to review her evidence, AB had not previously disclosed to police these reasons for attending the Rookie Buy Night. When asked about her failure to disclose this, she explained that she had not been asked. T have not seen the transcripts and notes from all of the interviews, but based on those I have seen, that seems to be correct — she was not previously asked to explain why she went. [43] AB said that Mr. Kara invited her to attend the pre-party, but she was uncomfortable doing so. She also decided not to attend the dinner as she was not a member of the platoon and felt it would not be fair to make the rookies pay for her dinner. She said she made up a story about having an carlier commitment to have dinner with a friend and told Mr. Kara she would meet up with the group for drinks after dinner. [44] On the afternoon before the party, AB attended a formal job interview for a different civilian position within the Toronto Police Service. She testified that the meeting started at 1:00 p.m. and lasted about one hour. After the interview, she delivered a coffee to her mother at her workplace. She said that on her way home, she stopped at the parking lot on Shuter Street where Mr. Kata often parked to write up his notes. He was there alone, in uniform, in his marked police cruiser. AB testified that she spoke with Mr. Kara for a few minutes just to confirm thePage: 12 plans for the evening. On cross-examination, AB conceded that in all of her previous statements to police she had never mentioned that on the Friday afternoon she took coffee to her mother or that she met up with Mr. Kara in the parking lot sometime after 2:00 p.m. on her way home. Also on cross-examination, AB was confronted with video footage of Mr. Kara and Mr. Nyznik entering the Westin Harbour Castle at 2:03 p.m., where they remained until the party. Upon seeing the video, AB agreed that she could not have met Mr, Kara after the interview. However, she said she had a clear memory of meeting with him when she was dressed for the interview and in her personal car. She suggested it was possible she met Mr. Kara prior to her interview rather than afterwards. [45] _ AB denied the suggestion on cross-examination that a few days prior to the party she had a conversation with Mr. Kara, in the presence of Mr. Nyznik, about what to wear to the party, She specifically denied ever saying that she intended to wear a “short skirt for easy access.” [46] At trial, AB said that she had dinner alone at home and did not consume any alcohol before she left to meet up with Mr. Kara and the others at the bar. However, in a text to her friend AC the next day, she said she had hung out with her friend Mark at his place and then had dinner with him. She added that she went out with “the guys” after that. She then wrote that Mark told her he had a work function he had to go to after dinner, but that when she was with “the guys” at Pravda, “Mark was there on a date!!! Hahahahaha.” When cross-examined about the inconsistency between that text and her evidence at trial, AB said that she had made up the story about having dinner with Mark to explain why she was not attending the pre-party or inner with the guys from the platoon and was just repeating that story. She said that she had asked her friend Mark if he wanted to have dinner with her downtown that night, but he told her he had a work function he had to attend. [47] _In that same series of texts, when discussing how drunk she was the night before, AB wrote “I drank at Marks. I drank at dinner. Then I played catch up with the guys. Sooooo much 0000 fast.” Similarly, in an email exchange with Mr. Tissawak on the aftemoon after the event, AB said she had a “pretty bad” hangover. Mr. Tissawak commented that she “looked buzzed but not drunk!!” AB then responded: It kicked in pretty quick after. That was a lot really fast... and I was buzzed before I got there. [48] AB offered an explanation for these inconsistencies. She said that with AC, she was merely keeping up the pretence of her earlier date with Mark and with Mr. Tissawak, she was just exaggerating, (2) The First Two Bars: CCs and Pravda [49] After exchanging some text messages with Mr. Kara, AB took a cab to CCs and entered that establishment at 8:45 p.m., as confirmed by video footage from the bar's security cameras. Inher testimony at trial, AB estimated her time of arrival at between 9:00 and 9:30 p.m, She was cross-examined about her prior statement to the police that she arrived at about 9:30 p.m. IPage: 13 attach no significance to these time estimates. AB never purported to be precise about timing, nor was there any particular reason for her to remember the exact time that she arrived. [50] AB testified that when she arrived at Cs, Mr. Kara was outside having a smoke and he directed her to the area inside where the group was seated, She went inside and said hello to some of the officers she knew. Mr. Tissawak took her to the bar, asked her what she would like to drink, ordered a rum and coke for her, and gave it to her. This can be seen on the video footage from the bar. She and Mr. Tissawak returned to the group. She said she socialized with the officers there and went outside a couple of times to accompany Mr. Kara when he went for a cigarette. She was not a smoker. It was 12 degrees below zero. She was wearing a low cut, Gressy top with slits down the sleeves. She did not put her coat on before going outside. [51] AB denied the suggestion from defence counsel that she was flirting with Mr. Nyznik at CCs, [52] From CCs, the group headed to Pravda Vodka Bar, AB and Mr. Kara were the last to leave. Just prior to exiting, they each had a tequila shooter, which were poured by the bartender and provided to them without charge. AB testified that she was feeling fine when she was leaving CCs and by that point, she had only had two drinks — the rum and coke poured at the bar when she entered (which was at 8:45 p.m.) and the tequila shooter just prior to leaving (which ‘was at 9:10 p.m.). She described Mr. Kara as being “very intoxicated.” [53] __AB testified that as she and Mr. Kara were walking to Pravda (which was a short distance away), Mr. Kara asked her to kiss him. She complied, intending to kiss his cheek, but at the last moment he tumed his head so that her kiss would land on his lips, which she avoided. She said he immediately apologized for making her uncomfortable, and she told him it was “not a big deal.” ‘They continued on to Pravda, arriving at about 9:15 p.m. Upon entering Pravda, AB and ‘Mr. Kara each had a shot of tequila, which were purchased by AB. They then went upstairs where the others in the group were gathered, [54] AB testified about seeing her friend Mark at a table on the second floor at Pravda, She said that she went over and spoke to him and that Mr. Kara came over to make sure that she was not being pestered. She introduced the two men, [55] AB testified at trial that there was a bottle of vodka provided at the table, with a variety of mixes, and that one of the officers there, she was not sure which one, poured her a drink of vodka mixed with cranberry juice. She said that later at Pravda, she had another cranberry and vodka that Mr. Kara got for her from the bartender at the bar. While at the bar, she said that she and Mr. Kara kissed. Mr. Kara then wanted to go outside for a cigarette and she went with him. On the way outside, she purchased two more tequila shots, intending them to be for her and Mr. Kara. However, Mr. Kara said that he was not able to drink anything more, so AB drank both shots herself, Thus, according to AB’s evidence at trial, she had five drinks at Pravda, four of which were poured by a bartender in her presence, and the other by an unknown officer out of her sight. Based on her evidence at trial, she had a total of eight drinks that night: two at CCs; five at Pravda; and one at the Brass Rail.Page: 14 [56] AB was cross-examined about the discrepancy between her evidence at trial and what she had said on previous occasions about what she had to drink. When she was examined at the hospital on January 19, she said she had a total of seven drinks. In her initial statement to the police on January 26, she said she had seven drinks (two at CCs, four at Pravda and one at the Brass Rail). In her formal statement to the police on January 27, she provided exactly the same information. In that statement, she said the four drinks she had at Pravda were an initial tequila shot, one cranberry and vodka drink upstairs with Mr. Kara at the bar, and two more tequila shots before leaving (hers and Mr. Kara's). Her evidence at trial was the first time she ever reported getting an additional vodka drink at Pravda, poured by an unknown person. Her explanation for not disclosing this in her prior statement was that the police were jumping around {rom topic to topic in the interview and it was confusing to her. She denied lying about this additional drink. [57] _ After AB downed the two tequilas shots, she went outside with Mr. Kara, He was feeling ill and vomited on the sidewalk. She said that she was helping him to stay upright. After throwing up, he went back into the bar with AB and they both got glasses of water from the bar. However, Mr. Kara felt ill again and left quickly for the washroom. AB saw Mr. Tissawak in the area and alerted him to the fact that Mr. Kara was sick in the washroom. Mr. Tissawak went in to help, and emerged supporting Mr. Kara. He told AB that he was taking Mr. Kara back to the hotel and they both left. AB agreed that Mr. Tissawak was holding Mr. Kara up and that he was incapable of walking on his own. [58] After they left, AB went upstairs and spoke to Mr. Nyznik, She told him that Mr. Kara was sick and that Mr. Tissawak had taken him back to the hotel. She testified that she then told Mr. Nyznik that, now that Mr. Kara was gone, she would be his responsibility. She testified that what she meant by that was that he should keep an eye out for her, like buddy system, and make sure she was not harassed and that she got into a cab to get home safely. However, she acknowledged that this was implied; she did not specify to Mr. Nyznik what she meant by it. She denied on cross-examination that she used the word “babysit” in this conversation. [59] AB testified that she was feeling fine when she left Pravda, in control of her own decisions, and able to walk on her own. However, at 10:15 p.m., while she would still have been at Pravda, AB sent a text, out of the blue, to her friend AC stating, “Yo I’m so drunk.” When confronted with this on cross-examination, AB said that she did not remember sending the text. She explained that she considered herself to be “intoxicated” at that point, although still in control of herself. 3) The Brass Rail [60] AB testified that at some point there was a decision to leave Pravda and walk to another bar close by. She said she walked over with six or seven other officers. Some of those officers spoke to people in the bar whom she surmised to be the owners. However, the bar was not open. She said that the guys then decided to go to the Brass Rail and Mr. Nyznik asked her if she was okay with that, to which she replied it was “not a big deal.” [61] On cross-examination, it was suggested to AB that the discussion about going to the Brass Rail took place on the sidewalk outside Pravda, She denied being part of any suchPage: 15 discussion, or knowing anything about it. She said the discussion about the Brass Rail was after leaving the bar that was closed (Switch). Also on cross-examination, AB acknowledged that she had not previously disclosed that Mr. Nyznik had specifically invited her to the Brass Rail and asked if she was okay with it. She explained that she has always had a memory of that, but simply failed to mention it before. [62] In her evidence in chief, AB said that after leaving Switch, she walked the entire way to the Brass Rail with this group of six or seven men. She recalled that at one point along the walk, she and Mr. Tissawak exchanged texts so that they would have each other's contact information, {63] On cross-cxamination, AB conceded that she could not have walked to the Brass Rail. Based on the video footage from the Brass Rail, she acknowledged that she had arrived in a cab with Messrs. Nyznik, Tissawak, and Radford. She said she has no memory at all of being in the cab or of any conversation that took place in the cab. Although recognizing that it is faulty, she has an actual memory of walking to the Brass Rail. [64] _ Inher evidence in chief, AB testified that upon reaching the Brass Rail, the group entered together and one of the men (a detective she later identified as Mr. Radford) left almost immediately. She said that he basically went up the stairs and out again, without actually entering the bar itself. The rest of the group sat at a table in front of the stage. She said there were herself and four men at the table ~ Messrs. Nyznik, Cabero, Tissawak, and Mills. [65] She testified that a waitress came and took their drink orders, and that she ordered a vodka and cranberry juice. She said that after the orders were placed, Mr. Nyznik excused himself to go to the washroom, but had returned by the time the waitress arrived with the drinks. [66] In cross-examination, after reviewing the video footage, AB acknowledged that she arrived at the front entrance of the Brass Rail with Messrs. Nyznik, Tissawak, and Radford at about 10:54 p.m. and immediately headed upstairs. ‘The other two (Mr. Mills and Mr. Cabero) arrived about ten minutes later, at 11:04 p.m. Therefore, all of them could not have been at the table immediately upon AB's arrival. AB's recollection of Mr. Radford having entered the premises and left almost immediately is correct. Mr. Radford went straight to the washroom upon entering, and then left the bar., The video footage also shows that Mr. Nyznik went to the washroom at the same time as Mr. Radford and also exited at the same time. The video footage shows that: the initial group reached the upstairs area of the bar at 10:55:40 p.m.; Mr. Radford entered the washroom area at 10:56:31; and Mr. Nyznik entered the washroom area at 10:56:40. It follows that Mr. Nyznik could not have been at the table with the others long enough to have placed an order with the waitress and then headed to the washroom, arriving only 9 seconds behind Mr. Radford. [67] AB testified that Mr. Nyznik was very friendly with the waitress when she came back with the drinks and that they were “clearly continuing a conversation that they seemed to have just been in.” She said that Mr. Nyznik told the waitress that they were all there from Miami and that they were an adult film crew. She said that the other men at the table all played along with this story, saying what their various roles were on the crew, and that the waitress ‘seemed to bePage: 16 buying it hook, line and sinker.” She described being “shocked at the stupidity” of this conversation and “flabbergasted at how seamless it was.” [68] On cross-examination, AB admitted that the first time she disclosed this conversation about the film crew was at trial. Although her January 27" interview with the police was almost three hours long and covers 158 pages of transcript, she made no mention of this conversation. Her explanation was that she was exhausted at the time of the statement and very stressed, Her focus was on what happened at the hotel afterwards, not what was said by the others at the Brass Rail. She denied being part of the conversation about the fictitious film crew and denied proposing that she participate in the “audition” of the waitress in the hotel room. She also denied that she proposed taking part in sexual acts with the others in the hotel room, or that they should feel free to bring a stripper back to the hotel, or that she wanted to join in, or that she wanted to be “spit roasted” with Mr. Nyznik and Mr. Cabero. She said she did not even know what the term meant. She also denied boasting about her expertise in giving blow jobs. She denied having any sexually explicit conversations whatsoever. [69] AB testified that they had one round of drinks at the Brass Rail and then left. She said there was no discussion inside the bar as to where they might go next. However, once they were ‘out on the street, Mr. Tissawak said he was going home and Mr. Mills said he was going back to Pravda. She said she wasn't sure what time it was, but that it felt early. She testified that “there was conversation” about going back to the hotel, getting Mr. Kara, and taking him back to Pravda. She said that she “wasn’t thrilled” about going to the hotel, but “wanted to continue the night.” She explained that she felt more comfortable going back to the hotel with officers she knew, just to get Mr. Kara and then leave, than she felt about going to Pravda with Mr. Mills, with whom she was less familiar. She recalled that they took cab, but did not know what hotel they were going to. She thought that she and Mr. Nyznik were in the backseat and Mr. Cabero in the front passenger seat, but conceded when shown the video footage of their arrival at the hotel that Mr. Cabero was also in the back seat, on the passenger side, with her in the middle between the two men. [70] Before getting into the cab, AB said that she felt “okay-ish” but “a litle tipsy.” She said she could walk on her own and talk without slurring her speech, However, she said once the cab started to move, her condition changed significantly. She described having a “sudden intense headache,” being unable to follow conversation, and feeling “really unwell,” She said her vision ‘was impaired and “it was almost like going through a Star Trek warp field.” She had no memory of anything that was said in the cab and no memory of arriving at the hotel, other than that the cab went up some sort of ramp with an overhang. [71] _ On cross-examination, AB said that she attributed the symptoms she was experiencing in the cab to having been drugged. She did not know who drugged her or when, but said that the two possible explanations were that an unknown person put a drug into either the first drink that she had at Pravda (which she did not see being poured) or the drink that she had at the Brass Rail (which was delivered by the waitress). She further agreed that because the drink at Pravda had been about two hours before she experienced the symptoms in the cab leaving the Brass Rail, it ‘was not likely to be the source of the drug.Page: 17 (4) The Events at the Hotel (72] AB reported virtually no memory of arriving at the hotel in the cab, no memory of entering the hotel or walking to the elevator, no memory of chatting and laughing with Mr. Cabero and Mr. Nyznik while waiting for the elevator, no memory of being in the elevator, and no memory of the hotel corridor leading to the hotel room. Afier being in the cab, her next memory is when she entered the hotel room. She did identify herself on video footage showing her arriving at the hotel, entering the hotel through the revolving door, walking to the elevators, and chatting and laughing with Mr. Cabero and Mr. Nyznik while waiting for the elevator. ‘However, she has no memory of doing any of these things. [73] AB said that when she entered the hotel room, she immediately took off her coat and placed her coat and purse on the desk. She then used the washroom. She said that when she came out of the washroom, somebody else went in, She then went to the bed closest to the ‘washroom and tried to wake up the sleeping Mr. Kara, She said she was calling his name and recalls at one point being “kind of on all fours on the bed” while trying to wake him. None of these attempts were suecessful in rousing Mr. Kara. (74] AB testified that she recalls Mr. Nyznik telling her not to wake him up yet. She said she was confused and asked him why. The next thing she remembers is being on her back beside Mr. Kara on the bed. She does not remember how she got to that position, She testified that Mr. ‘Nyznik was standing at the head of the bed with his jeans at his ankles and his penis exposed and was pulling her head towards him, She said he held her head and said “suck my cock” and then “penetrated [her] mouth with his penis.” AB testified that at this point, she was unable to move her arms and legs in any meaningful way. She was trying to talk but was unable to form words and was essentially just moaning. She also reported having trouble breathing. While Mr. Nymik’s penis was in her mouth, she also had the sensation of somebody touching her legs and crotch over her jeans. [75] She said that the next thing she remembered was Mr. Nyznik saying “Suck my boy’s dick” and then a pause. She wasn’t sure if the person who was penetrating her mouth had switched or if there was just a pause in that activity. At the same time, she had the sensation of her jeans being removed. She could feel vaginal penetration, but could not tell if this was with a penis or fingers. ‘Then she heard Mr. Cabero asking Mr. Nyznik if he should “fuck [her] in the ass.” After that, she again had the sensation of vaginal penetration, but could not see who was between her legs. She did not know if the lights were on or off at that point. She said there was light in the room when she first entered, but the lights were off when she later left the room. She did not know about the times in between when the sexual acts were occurring. [76] AB testified that while this was ongoing, Mr. Kara woke up and said, “Guys stop, Josh stop,” and then “come on, stop.” Initially in her evidence, she did not recall anything else being said before the other two men stopped and she was covered by a blanket. However, after being given the opportunity to refresh her memory from her January 27 statement, she added that Mr. Kara said, “Josh stop, she’s out.”Page: 18 [77] After being covered by the blanket, the next thing AB reported remembering was Mr. Kara waking her up by tapping her face and saying her name over and over. She said he asked her a bunch of questions, which she had trouble following, except that one of the questions was asking her why she was in his bed. She also recalled him asking her to kiss him, but she did not remember kissing him. She said the next thing she remembered was being on top of Mr. Kara and not being able to hold herself up in that position. She then remembered being placed on her back and the sensation of a towel wiping her chest. She said that Mr. Kara said “Thanks” and they were all laughing. ‘Then immediately after that, she was penetrated vaginally again. She believed it was Mr. Kara who was penetrating her vaginally because she could hear his voice above her. She said she could hear the other two men laughing from across the room and Mr. Kara saying, “Leave me alone, I’m just tired,” after which he continued penetrating her. She testified that at some point, Mr. Kara asked if he could come inside her and she did not respond because she was unable, She stated, “I was powerless, I couldn’t move. I couldn’t talk. 1 couldn't stop what was happening.” She next remembered the “sensation of some ejaculate on {her} lower stomach pelvic area,” followed by a conversation among the three men about whether or not they still wanted the hooker for the night, She recalled Mr. Nyznik saying he had arranged it, that all he had to do was text her, and that it would cost $200. That was the last thing she remembered before waking up in the room with everyone else asleep. {78} Throughout these sexual acts, AB said she had some visual glimpses, but that her main sensations were of hearing and feeling things and her “sensations felt different than they normally would.” [79] AB testified that she did not want any of this sexual contact and did not consent to any of it, She denied suggestions put to her in cross-examination that she had initiated any of it, or given specific consent to any of it. [80] AB testified that when she first woke up, the room was completely dark and she had “such an excruciating shooting pain’ in her head that she had to lie back down, When she sat up again, she was having trouble moving and figuring out her surroundings. She had no clothes on below the waist, but managed to find her jeans and boots and put them on. She could not find her underwear. She picked up her coat and purse and left the room. All three men were asleep. None of them woke up. (5) Getting Home and the Next Day [81] AB described being very confused after leaving the room because she could not remember how she got into the room and did not know the way out of the hotel. She found the levator, but was still confused about how to get out of the hotel. She testified that when she got near the front doors, two guys were coming towards her and they said, “Hey, weren’t you at the party?” AB said this terrified her and that she “kind of panicked” because she “felt like [she] had it, what had happened, written all over [her] and [she] just needed to get out of there.” She asked a ncarby hotel employee in some type of uniform how to get out of the hotel and he pointed her towards the lobby where there was another employee mopping the floor. That employee pointed her out the door to a kiosk and the employee there got a cab for her. Although AB did not knowPage: 19 what time it was when she left, she accepted the accuracy of the hotel video which showed her getting into the cab at 3:30 a.m, [82] The detail of two men in the lobby commenting that they remembered her from the party ‘was not something AB had mentioned prior to her evidence at trial. However, AB denied that this was a new memory. Similarly, AB acknowledged that she did not previously say she was terrified in the hotel lobby, but maintained that she nevertheless did feel that way, [83] _ When asked in her evidence in chief to describe her level of sobriety and consciousness as she was leaving the hotel, AB said that all she could remember was focusing on getting out of there. However, she said she felt “extremely sick” and “nauseous” once she was in the cab and was struggling to stay conscious. She could not recall the entirety of the cab ride. She said that she could recall the sensation of the cab stopping and of vomiting, but did not know what order that happened in. Her next memory was waking up in her bathroom, still wearing her winter jacket and boots, “face down in a puddle of vomit” and “choking on vomit.” She said she threw up and retched for what “felt like forever” and “wasn’t even able to catch {her] breath between retching and vomiting.” She also reported having an “excruciating” headache that was unlike anything she had ever experienced before. She was confused because there were so many gaps inher memory. However, her first and overpowering feeling was of fear. She said she believed that because these three men were police officers, it would be a lot easier for them to cover this up and that their word would be stronger than hers because there would be three of them to corroborate it. She added, “They carry firearms.” She said that there would be no way to report this because she would essentially have to tell their colleagues and that she “felt like they would Kill [her] if it got out.” She therefore decided to destroy the evidence by showering and washing her clothes. [84] AB conceded on cross-examination that in her initial statements to police on January 26 and 27, 2015, she did not tell the police that she was fighting to stay conscious while in the cab. ‘The first time she revealed that memory was 17 months later, in her statement to police on July 4, 2016. Her explanation for not providing that information carlier was that at the time of the interviews in January 2015, she was on medication (for HIV prevention), had not slept, was exhausted, and was in a state of crisis. On cross-examination, AB also admitted (based on records from her cell phone) that she sent a text message to a friend from the taxi on the way home. The text, which was sent at 3:43 a.m., was to Richard Rhone and stated, “R u back? Need urhelp.” Mr. Rhone did not respond at the time because he was not yet back from vacation. AB testified that she has no memory at all of sending that text. [85] In her prior statements to police, AB did not say anything about feeling sick in the cab or of having the sensation of the cab stopping and her vomiting. However, in text exchanges with others the next day, she did describe this. To AC shorlly after noon on Saturday, January 17, she wrote, “Dude the taxi had to pull over twice! I barely remember getting home.” To Mr. Tissawak, at 1:37 p.m. that same day when discussing her hangover, she texted, “The taxi had to pull over on the Dyp. Hahaha.” When asked on cross-examination whether the text to AC was true, she said she did not know.Page: [86] _ In her statements to police in January 2015, AB said nothing about being afraid for her life because her three assailants all carried firearms. When challenged about that in cros: examination and asked why she didn’t tell the two officers interviewing her about her fears, she replied that those two officers also carried firearms, (87] _Inone of ber texts to AC on Saturday, January 17 (at 10:39 a.m.), in the course of talking about her hangover, AB wrote, “I feel drugged. Lol.” Her friend’s response was a joking reference to various hangover cures, without any mention of the comment about drugging. AB testified that by referring to feeling like she had been drugged, she was “testing the waters” to see how her friend reacted, but when AC just laughed it off, AB decided to say nothing further. 188] _ In that same text, AB mentioned that she had a bruise and that she was going to have to explain both the bruise and the hangover to Marcus. Under cross-examination, AB said that “Marcus” was a friend of hers and that his name was DA. (I note that DA testified at trial and denied that AB or anybody else ever called him “Marcus”). Although AB implied in her text to AC that she was going to Marcus’ home that day, there was no such plan, nor is it even clear who Marcus is. AB did not call DA until Sunday, January 19. (89] From 9:49 a.m. until 7:36 p.m. on Saturday, January 18, AB exchanged numerous text messages with Mr. Tissawak, initially responding to his inquiry about whether she had fun and then making joking references to her having a hangover. The general tone of these emails is light, flirtatious bantering. There is an interruption in the chain of emails between 4:00 p.m. and 7:30 p.m., during which time AB met up with her friend Gabriella for pre-planned pedicures. Then she went out for dinner with Gabriella, her husband, and another couple. [90] AB testified that she told Gabriella “a little bit” about what happened and Gabriella urged her to report it, which she refused to do. Gabriella also told her she should at least go to the hospital to get checked out, which AB also refused to do. However, she did go with Gabriella to a drugstore and purchased “Plan B” (a pill taken after unplanned sexual contact to avoid pregnancy). AB said that during dinner, she felt “uncomfortable” in the pelvic area and excused herself a number of times to go to the washroom. On one such visit, she texted her friend TC, who then phoned her back. TC is also a parking enforcement officer and AB said she thought she would be more understanding of her situation at work. At TC’s urging, AB agreed to go to the hospital to be checked out and said she would meet TC at North York General. [91] TC was called as a witness at trial, but Gabriclla was not. AB confirmed on cross- examination that she told TC that she remembered being at the Brass Rail, but then didn’t remember anything else until she woke up in the hotel room, naked, with the three men and that she was bruised. She told her that she had been sexually assaulted and that she remembered one of the men saying, “Guys, stop, she’s completely out.” [92] After this text exchange, TC told AB to take a photograph of the bruise. However, AB did not do so. No bruise was noted in the course of two medical examinations done on January 19 and 20. AB explained at trial that the bruise was on her forehead and was very small.Page: 21 6) Hos 1 Attendances and Reporting to Police [93] AB and her friend TC arrived at North York General just after midnight on the Saturday night. It would appear that she did not initially tell anyone that she had been sexually assaulted or that she believed she had been drugged. She reported to the triage nurse at 1:34 a.m. that she was experiencing burning upon urination, which she believed was as a result of intercourse. AB testified that the triage nurse asked her some questions about the sexual intercourse, but that she told the nurse she did not know because she had been unconscious. For whatever reason, this was not flagged as a sexual assault until much later. Hours passed before she was seen. An assessment was done by a nurse at 4:18 a.m., who noted that AB said she had been at a party the night before and “did not recall much of it, only remembers flashes, woke up at 0350, left hotel, saw multiple men.” The nurse also recorded that AB knew the men involved, did not want to report it to the police, and only wanted to be checked out for sexually transmitted diseases. AB accepted at trial that this was an accurate summary of what she told the nurse. It is also an agreed fact that the nurse noted “no acute distress,” and that she recorded a report of “soreness to the groin,” but no bleeding and no vaginal discharge. AB was then seen by an ER doctor, Dr. ‘Tepper, at 4:35 am. It is an agreed fact that Dr. Tepper did not record any report of anal or vaginal discomfort, bruising, or symptoms of drugging, and would have recorded them if they had been made. Dr. Tepper also noted that AB told him that she had been raped by three men, that she had been drinking and that she thought she had also been drugged, but that she did not ‘want to report this to the police because she feared repercussions, AB acknowledged on cross- examination that this reference to being drugged was the first time she reported that suspicion to anyone at the hospital. AB received no medical treatment at North York General. Given her report of sexual assault, AB was referred to the Scarborough Grace Hospital, which has a unit with special expertise in such matters. [94] AB, again accompanied by her friend, arrived at the Scarborough Grace at 6:05 a.m. It was now Sunday morning, January 18. A sexual assault nurse was called in and she examined AB at approximately 8:45 a.m. AB told the nurse that she would not be reporting the assault to the police, She described the nurse as being “upset” and “annoyed” and said that she did the “bare basics examination” and then provided her with medication to protect against sexually transmitted diseases and HIV. According to the notes of the nurse conducting the examination, which AB accepted as an accurate summary, AB reported that: she did not know how she got to the hotel; she had been orally and vaginally penetrated; she could hear conversation between her three assailants and physical sensations on and off; she was unable to move her body; when she woke up at 3:30 aim., the three assailants were asleep; and, she then left in a taxi. The nurse also checked off a box of the medical form indicating that the complainant reported a loss of consciousness. [95] AB's cell phone records indicate that at 7:48 a.m., she did an internet search on her cell phone and looked at a website providing details about the two most common “sexual assault drugs” - Rohypnol and GHB. On cross-examination, defence counsel suggested to AB that the purpose of this research was to find out the symptoms exhibited by someone who had been given one of these drugs, so that she could report those symptoms to the nurse. AB denied this, She testified that she was worried about the lapse in time and was checking to see how long these rugs would stay in a person’s system. She said she only did one search and she believed it wasPage: 22 when she was at the North York General. Based on the timing, however, the search would have been done after arrival at the Scarborough Grace, but before examination by the nurse. [96] Later on Sunday, January 18, AB contacted her friend DA, who is also a parking enforcement officer. He came to her home to check up on her, She testified, and DA confirmed in his evidence at trial, that she was very upset and crying. In her presence, he contacted a crisis centre that provides counselling through their employee assistance plan, However, he was advised that AB would have to contact them directly, which she did after he left. AB attended for crisis counselling on Monday, January 19. As a result of the information she received, she again contacted the Sexual Assault Centre at the Scarborough Grace and complained that a full sexual assault evidence kit had not been done. She was advised to return, which she did. On this examination, samples and swabs were taken, which were later obtained by police and sent for forensic analysis. After a full examination of AB’s body, the nurse doing that examination noted no injuries, bruising, or tendemess in any areas of the complainant’s body with the exception of some reddening at the opening of the rectum (which she thought could be caused by constipation and straining) and an excoriation that looked like a scrape at the opening of the rectum. [97] AB was scheduled to be at work on Thursday, January 22. She called in sick that day, and for the following three days, those being all the sick days she had. On Monday, January 26, she first attended traffic court and then reported for work at the station at about 2:00 p.m., for a shift that started at 2:30 p.m. She testified that when she attempted to change into her uniform, she felt claustrophobic and sick so she went to a supervisor and said that she could not work. ‘She then spoke to the male shift supervisor who asked what was wrong. She said that by then, she was hyperventilating and crying. He agreed she should go home. The female area supervisor came into the change room (o speak to her. AB testified that by then, she had collapsed on the ground crying and her supervisor was “able to get out of (her) that [she] had been raped by service members.” Ultimately, police were called. [98] AB gave an abbreviated statement on the evening of January 26, 2015, accompanied officers to her apartment, turned over items of clothing and a necklace she had been wearing on the night of January 16/17, and then gave a more detailed formal statement on January 27, 2015. THE TESTIMONY OF TI () The Planning and Pre-Party [99] _ Leslie Nyznik chose to testify in his own defence. He was one of the organizers of the Rookie Buy Night and he was the one who booked the hotel room as well as the dinner and drinks venue. Mr. Nyznik testified that he barely knew AB before the night of the party. He had been introduced to her in December 2014 by another parking enforcement officer (AC) and had run into her a few times when he and his partner Mr. Kara were on the road. He was aware that she was friends with Mr. Kara and that he had invited her to the Rookie Buy Night. Mr. Nyznik said that a few days before the party, he and Mr. Kara were in their cruiser in a parking lot on Shuter St. writing up their notes, as it was often their habit to do, when AB stopped by to chat. He said she asked Mr. Kara what he was going to wear to the party and he said he was going to JEFENDANT LESLIE NYZNIK