Former Sudbury track and field coach David Case will find out Thursday whether sexual assault charges against him will be withdrawn.
Case is accused of participating in a sexual assault of a Sudbury woman in 2011, along with his co-accused, Celine Loyer, a former runner.
His lawyer, Nicholas Xynnis, submitted the motion Wednesday at the end of Day 2 of the trial, saying his client could only be found guilty as a party to the alleged sexual assault. To be found guilty, the Crown has to prove beyond reasonable doubt the offence occurred
Xynnis argued the only evidence against Case is a flashback the now-28-year-old complainant had in the early morning hours after the alleged assault occurred June 17, 2011. The woman, who can't be identified because of a publication ban, testified Monday she was unconscious for four hours after drinking a vodka shot Case gave her to celebrate their “friendship.”
But after returning home that morning, she had a flashback about what happened. She remembers laying on the floor in Case's apartment, with her pants off and Loyer between her legs, molesting her genitals. The woman remembers Case telling Loyer what to do to her sexually.
Xynnis argued that, while Case may have been in close proximity, the woman had no memory of him touching her, and there's no evidence anything happened after Case told Loyer what to do. His mere presence doesn't make him guilty of sexual assault, Xynnis argued.
But assistant Crown attorney Stephanie Baker said the woman remembers Case encouraging Loyer, which shows he was present and involved in the alleged crime. Through the woman's testimony, the inference can be drawn that the attack did occur and continued to occur beyond the limit of her flashback.
Xynnis said it's speculative to infer Case had a greater role in the assault, and to assume Loyer continued the assault after she was encouraged by Case.
In other testimony on Day 2, the woman described Case as a “master manipulator,” when explaining why she sent him an email the day after the alleged assault, apologizing and agreeing to see him the next day.
When she asked Case what happened during the four hours she was unconscious, the woman testified he tried to turn it around on her, telling her she had kissed Loyer, tried to get into Case's pants, had stripped naked and masturbated in front of them.
“Why did you go back (to his home on June 19)?” Xynnis asked her.
“I was naive, young, a kid, stupid,” she said. “Mr. Case had put doubt in my mind.”
Even to this day, she said certain events trigger her flashback. She continues to struggle in relationships, and is fearful when she looks over at them in the courtroom.
A friend and former co-worker testified Wednesday she remembers seeing the woman at work the day after the alleged assault feeling sicker than she had ever seen.
“It was the worst I've ever seen her,” the former co-worker said. “She was dishevelled and it looked like she'd been through war.
“I texted her after work to see if she was OK, and that's when she told me about what happened, and that she believed she had been sexually assaulted.”
The woman's former partner testified they had dated for about five years and were living together at the time of the assault. She was suspicious of Loyer and Case from the start.
“They were nice people, but something seemed off,” said the ex. “I don't recall ever hearing Celine talk. David did all the talking, like she wasn't allowed to talk. I tried to convince her not to give him money, but she did anyway.”
When she came home after the alleged assault, the former partner said she could barely walk.
“She was stumbling down the stairs,” said the ex. “I heard a commotion in the hallway. I opened the door, and she was at the top of the stairs (they lived in a basement apartment) with her pants down around her legs.”
The former partner helped her down the stairs, pulling up her pants while doing so. The woman was in a “zombie-like” state. She wasn't talking and couldn't get her key into the door.
“I thought she was drunk, but she didn't smell like alcohol,” said the ex.
The former partner noticed bruises on the woman's inner thighs as she got into bed. She was still very sick the next morning.
“She told me she had a very vivid sexual assault dream,” the former partner said, describing how she started piecing together what had happened.
The former partner read the email exchange between the woman and Case and Loyer after the alleged assault, saying they were putting a lot of doubt in her mind and trying to turn what happened against her.
“I found the emails disgusting, and I urged her to stop communications with them.”
The former partner said the woman wasn't the same after that night.
“Her personality changed. She always thought the best of people, but this hardened her. She became cynical, and definitely not as trusting.
Superior Court Justice Patricia Hennessy will release her decision on whether to dismiss the charges Thursday, when the trial resumes at 10 a.m.
