Judge in police sexual assault trial rules 'flirtatious' texts from complainant inadmissible in court

Three out of several "flirtatious" text messages sent by a woman the day after three Toronto police officers allegedly sexually assaulted her cannot be submitted as trial evidence, an Ontario Superior Court judge ruled on Friday.

"This is walking straight into the stereotypes and rape myths about how a woman is going to behave, and that is not appropriate," Justice Anne Molloy told the court about the texts in question.

The complainant, whose identity is protected by a publication ban, alleges officers Leslie Nyznik, Sameer Kara and Joshua Cabero sexually assaulted her in a Toronto hotel room in January 2015.

In his continued cross-examination on Friday, defence lawyer Harry Black, representing Nyznik, attempted to question the woman about a series of text messages she sent to a male friend the day after the alleged assault.

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​ Black referred to the messages as "sexting" at one point, however Molloy disagreed, calling them "flirtatious banter."

The purpose of using the texts as evidence, Black argued, was to contrast them with the complainant's testimony, earlier in the trial,that she was an "emotional wreck" and "hysterical" following the assault.

The communication "strongly contradicts the crown's evidence about how she was feeling that day," Black said.

He also argued the messages are relevant to the judge-only trial because they speak to the relationship the complainant had with the friend, a police officer who will also be called as a witness.

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But crown lawyer Ted Ofiara objected, telling the court that questions about the texts "can only be designed to make [the complainant] feel uncomfortable."

Ofiara told the court that the messages may be contrary to Section 276 of the Criminal Code of Canada, which says that evidence of previous sexual activity cannot be used to prove the complainant consented to the sexual activity in question.

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After hearing arguments from both sides, Molloy ruled three of the texts are inadmissible and the rest are "admissible for a limited purpose."

She agreed that they can be used in relation to the way the complainant said she was feeling that day and in relation to her relationship with the friend.

But Molloy said she did not accept the argument from the defence that the texts are relevant to the alleged sexual assault

"Nor is it appropriate to say that because she engaged in this joking the next morning she wasn't sexual assaulted," Molloy said.