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Defence for Case and Loyer go after accuser's credibility in final submissions

Former track coach, runner accused of raping woman in 2011 while she was unconscious
Celine Loyer, David Case, former track coach and sprinter charged in sexual asssaults in 2009 and 2011

Lawyers for David Case and Celine Loyer entered their final submissions on Friday, the last day of their trial on charges of sexual assault in connection to a 2011 incident involving a 19-year-old woman.

Michael Haraschuk, representing Loyer, and Nicholas Xynnis, counsel for Case, tried to poke holes in the complainant's testimony, characterizing her testimony as unreliable.

The now 28-year-old woman testified Monday she was sexually assaulted after she was invited to a barbecue at Case's home June 17, 2011. 

That night, she said they all had a “pretty chill” evening at Case's apartment, with casual conversation and jazz music playing in the background. The three had recently met at the downtown restaurant where the woman worked. The night she was attacked, the woman testified she was offered a shot of vodka to toast a “new friendship.”

She passed out after drinking the vodka, and the next thing she remembers clearly is waking up in the back of Case's vehicle four hours later. That night, she had a flashback in which she remembered Loyer molesting her genitals as Case gave her instructions. 

Assistant Crown Attorney Stephanie Baker said Friday the complainant was credible and her statements were consistent throughout the course of the trial.

"During the course of her cross examination there were very little inconsistencies, but the core of the story remains the same," said Baker.

"Ultimately she's very credible and the real issue here is the credibility of the evidence. The obvious issue is her lack of memory of the three to four hour time period (when she blacked out)."

Baker said the woman recalled the events leading up to the alleged assault in incredibly specific detail. The same is true of the flashback she had of what happened that night.

"She remembered fairly specific details about how she was positioned, about what the defendants were doing, about being assaulted, about the words that were being said," Baker told the court. 

"Memory is a complicated thing. We have to take a common sense approach. People can have repressed memories and have triggers that cause them to remember. Her flashbacks were vivid and she couldn't forget what had happened."

Baker said the flashback was consistent with the bruises found on the woman's legs, as well as the physical soreness of her vagina.

The Crown spent a great deal of time poring over the principles of sexual assault in relation to consent, explaining that in totality, the evidence showed a sexual assault had occurred, since the woman was incapacitated and unable to consent.

"There was no conscious agreement to engage in a sexual act," said Baker. "She was incapacitated. She said she felt dizzy, her head hit the couch, she has a lack of memory and had no interest in a romantic relationship with Case or Loyer. There's ample evidence that (she) did not consent."

Baker inferred the woman was given some type of intoxicant. She testified that she was an experienced drinker and only had two to four drinks before blacking out.

The credibility of the flashback was a focal point for both defence lawyers. Xynnis leaned heavily on the argument that the woman had no real memory of what occurred between 9:30 p.m. the night of the alleged assault, and 1:30 a.m. when Case dropped her off at home.

"She says this was a dream or so-called flashback -- that's not reliable," said Xynnis. "She says this occurred when she could not appreciate what was going on, she was not conscious, she wasn't forming memories. There's no reliable or credible evidence that any sexual act occurred."

Superior Court Justice Patricia Hennessy asked Xynnis if he was making the point that if you're unconscious, by definition you have no memory.

"Yes, if you're asleep or unconscious, you can't observe what's going on around you,” Xynnis replied. “I have no doubt she believes it to be true. She said her pants were around her ankles. That's not an indication of sexual assault. Is it evidence of her state of being? Yes."

Xynnis pointed to inconsistencies in the woman's story when it came to how much she had to drink.

"By her own admission, she had too much to drink,” he said. “It doesn't matter how she gets to that point. She has no memory and we're being told that, in a three- to four-hour period where she has no memory, there's a vivid snapshot. 

“It's false memory and she's blocking the memory of the things Case told her she did while she was intoxicated in his home."

Haraschuk followed a similar line of defence, arguing the woman's flashback was really only a dream that she had later that night.

"It's a memory of a dream, not a memory," Harasachuk said. "It's not reliable because the details of it came to her in bits and pieces."

Haraschuk also pointed out inconsistencies in the woman's story between the preliminary hearing and the trial.

"She would not agree it was a blackout, even though she had described it as such (at the preliminary hearing),” he said. “She was inconsistent in where Case and Loyer were located. She can't account for four hours of time, but can recall words, actions and movement. She's not consistent with the amount she drank – it's been two, one, three to four and four."

There is "an abundance of reasonable doubt," in this matter and that the evidence can not be relied upon.

"It's not an event, it's a dream – and the details of the dream are inconsistent," said Haraschuk.

A date for Hennessy's decision in the case will be announced Feb. 4.

Xynnis is also Case's lawyer for another trial, held earlier this month on charges of sexual assault.


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