Defence blasts TPS investigation of 3 officers on trial for sexual assault

CBC News

Missing videos, a lead investigator with ‘lack of experience’ and 11-dayvacation among defence concerns

Trial Sketch by Pam Davies CBC
Trial Sketch by Pam Davies CBC

For a second straight day, defence lawyers for three Toronto police officers are attempting to pick apart the criminal investigation that led to sexual assault charges.

What happened on day 1 of trial?

Leslie Nyznik, Sameer Kara and Joshua Cabero, all officers at 51 Division, are charged with sexually assaulting a female colleague in January 2015.

In his second day of cross examination, Crown witness Det. Sgt. Jeffrey Attenborough, the lead investigator on the case with Toronto Police Service’s Professional Standards unit, was asked about missing videos, a vacation he took at the outset of the investigation, and his experience with sexual assault cases.

“This was only my third sexual assault investigation in 29 years,” Attenborough told the court when asked about his previous experience by lawyer Alan Gold, who’s representing Kara.

Attenborough added that he had received training in sexual assault cases prior to the investigation.

“You have fairly acknowledged a lack of experience in this type of investigation?” Attenborough was later asked by Patrick Ducharme, the lawyer representing Cabero.

“Yes sir,” Attenborough responded.

There was “discussion”, Attenborough told the court, about having the TPS Sex Crimes unit handle the case, but it was ultimately left the hands of Professional Standards.

Missing videos

While hours of video footage have been submitted as evidence in the case, the defence is expressing concern about footage police failed to obtain in the investigation.

The complainant and three accused took a Royal Taxi from the Brass Rail strip club to the Westin Harbour Castle hotel, where the assault allegedly occurred.

There was a camera in the taxi but by the time police contacted the company the footage had been deleted.

That was also the case with surveillance footage at Pravda Vodka Bar, the court heard.

And, perhaps most concerning for the defence, several camera angles from the Westin Harbour Castle showing the complainant just before and after the assault allegedly occurred were not submitted as evidence.

The hotel provided police with a “camera activity report,” which listed the available footage of the complainant and the three accused.

However, only after disclosure was provided to the defence did lawyers notice there was footage listed in the report that was not provided and is no longer retrievable.

Attenborough told the court he assumed the hotel would abide by a production order issued by police to turn over all footage of the complainant and three officers.

“Do you think that meets the standard of a competent and proper investigation in relation to the videos?” Gold asked Attenborough.

“I was only one person,” the witness responded.  “My priority was contacting people, interviewing witnesses.”

Although some video is missing, the court has viewed footage clearly showing all three officers and the complainant entering and exiting the hotel.

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

“Yes, sir,” Attenborough agreed.

Investigator takes vacation

The defence also attempted to connect a vacation Attenborough took just days after the case was opened to the shortcomings it sees in the investigation.

Attenborough first interviewed the complainant on Jan. 26, 2015. He told the court he left for a previously scheduled vacation between Jan. 29 and Feb. 9.

Attenborough said he left instructions for other officers working the case while he was away.

But the defence argued that the absence of the lead investigator may have harmed the investigation at a time when, for example, expiring video evidence could have been secured.

“You’re not suggesting that our clients’ rights should suffer because you took a vacation at a significant time?” Gold asked.

“No, sir,” Attenborough responded.

By Trevor Dunn