Defence grinds away at purported inconsistencies in testimony.
I’ve come to think of them as the silverbacks, legal primates beating their chests.
The banger-in-chief among this troop of well-coiffed lawyers is unquestionably Harry Black, pointy end of the defence spear in the trial of three Toronto police constables charged with sexually assaulting a parking enforcement officer.
Snappish, indignant, provoking — much as I’ve witnessed him in action over decades of largely representing cop defendants — and practically stamping his foot in ire on Tuesday, more like a “You’re-not-the-boss-of-me” brat than a be-robed servant of the court, following an objection from the Crown over an inaccurately quoted passage put to the witness.
“I can put whatever I want to the witness!” Black retorted hotly, with a rustling flounce of black silk. “I can make whatever suggestion I want to the witness!’’
Indeed, in a sex assault trial, even in these allegedly enlightened times, that does appear to be the case.
It was a minor matter, as so many of the purported inconsistencies in testimony have been over the past nine days. Not the reputed pile-up of damning contradictions and incongruities — aha moments — of TV courtroom drama fare. Mostly niggles and slight shifts between statements made to investigators more that two years ago and what’s been said on the stand.
So there was the witness, a parking enforcement officer himself and a friend of the alleged sex assault victim, being put through the pedantic paces of his interview with professional standards investigators in February 2015. In that session, the man had recounted how he went to the complainant’s house on the day after the alleged assault, because the woman had called him distraught and bewildered.
(While there is no publication ban on the names of two witnesses who testified yesterday, both friends of the complainant, the Star is withholding their identities because naming them might make the complainant recognizable within the small world of 51 Division, where she worked. Her identity is formally protected by a publication ban.)
“It just seems odd to me that today you say she threw up on her bedroom floor but that’s not in your statement,” Black nit-picked. This, after asking if the witness if he’d ever had “a relationship” with the complainant (“we’re good friends”) or has since discussed the case with her (“I don’t bring it up because I know how upset she gets”).
“Where did that come from?” Black continued, referring to the vomiting detail, which wasn’t in the police statement.
Calmly, the witness replied that he’d told police what he recalled of his conversation with the complainant.
On such picayune disparities — if there are enough of them — a sex assault trial might actually turn.
Had the complainant told this witness if she’d told medical staff at North York General Hospital that she’d been sexually assaulted when she went to the hospital the night after the alleged assault at the Westin Harbour Castle Hotel? “She said she didn’t say those words, per se,” the witness replied.
The complainant, as quoted by Black (although I must admit at that point this reporter was confused about the source material being cited): “I think I told them I had un-consensual sex. And I also told them I was drunk.”
Witness: “She was upset about how she was treated at the hospital.”
More quoting, from the complainant to this witness, some 26 months ago: “I don’t remember anything from the time we left the last bar until I woke up and took a cab home.”
Witness: “That’s what she said . . . She said she didn’t know what to say because she was scared and she was upset.”
But — aha — looks here, from your statement Mr. Parking Officer, that the complainant never mentioned how, on the day after the alleged assault — this would be the Saturday, Jan. 17, 2015 — the woman didn’t mention word-boo about having spent some four hours or so blithely and humorously texting back and forth with another officer about the previous night’s pub crawl, then getting a pedicure, then going out for dinner. All of that before this witness found her sobbing and shaking when he went to the woman’s home later.
Black suddenly and jarringly changed tack. “Do you have a nickname?”
Witness, with a “huh?” expression, creasing his brow: “No.”
Black: “Are you sure?”
Oh, for heaven’s sake.
Witness: “I only have the given name my parents gave me and that’s what I use.”
On re-direct, Crown attorney Philip Perlmutter had only one further question for this witness, about the complainant’s emotional state.
“Before I left, I tried to give her a hug. She was shivering, (said), ‘Don’t touch, don’t touch.’’’
Constables Leslie Nyznik, Joshua Cabero and Sameer Kara have all pleaded not guilty to one charge of sexual assault. The complainant, who was on the stand for four days of cross-examination, has steadfastly insisted that she did not consent to the acts — oral sex and intercourse — allegedly committed against her following a night of heavy drinking after she accompanied Nyznik and Cabero back to the hotel where a heavily intoxicated Kara had been deposited earlier by another colleague.
Although the marquee silverbacks — Black representing Nyznik, Alan Gold representing Kara, Pat Ducharme representing Cabero — have yet to open their defence, the cross-examination quarterbacked by Black has made it clear they will argue that the sex was consensual, even instigated by the complainant; that the woman’s “narrative” was plotted out afterwards, from fear of the blow to her reputation if the sordid encounter became known – remorse guilt; and that her memory of the event, as she recounted in the stand, is utterly unreliable.
What’s not at all clear, because during cross Black has posited it both ways, is whether the complainant was so smashed that she doesn’t remember what happened. Or whether she was, in fact, quite fine — despite consuming at least eight alcoholic drinks — captured by hotel security cameras walking steadily, smiling in the company of Nyznik and Cabero whilst waiting for the elevator, and thus capable of halting the sexual escapade had she chosen to do so.
On Wednesday, court heard also from another female parking enforcement officer, likewise a friend of the complainant, who met up with the woman at North York General on the Saturday night.
“She’d explained that she had gone out and she was raped. I immediately explained to her that we would have to go to the hospital.”
Under questioning by Perlmutter, this witness said: “Her fear was being in the service, outing officers, that she would be blacklisted. She was afraid of the backlash.”
The witness agreed they’d done an Internet search on date rape drugs while at the hospital and waiting more than four hours to be seen. “The nursing staff was taking too long and we didn’t know if it could affect the testing. I was getting agitated. They hadn’t flagged her as a rape victim.”
They didn’t have a sex assault nurse, either. So, in the early morning hours, onto Scarborough Grace Hospital.
The judge-only trial continues.
By Rosie DiManno