The sexual assault charge against former track coach David Case won't be dismissed, Superior Court Justice Patricia Hennessy ruled Thursday.
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 coached by Case. The woman can't be identified because of a publication ban.
Case and Loyer pleaded not guilty on Jan. 27.
Case's lawyer, Nicholas Xynnis, filed the motion Jan. 29 to have the charge against his client dismissed. He said Case may have been in close proximity, but the woman has no memory of him ever touching her, and there's no evidence the assault continued after Case told Loyer what to do sexually.
In her ruling, Hennessy called the alleged assault a “joint enterprise.” She said according to evidence, Case was involved before the assault took place, during and afterwards.
Case invited the woman to his residence for dinner. They sat together throughout the evening, he participated in the serving of drinks, his face was in view in the woman's flashback, and his comments showed direct engagement in the alleged crime, the judge said.
Hennessy said there is some evidence that could allow the Crown to get a conviction, even if it's as a party to the crime. She said it wasn't the “most elegant” decision, but dismissed the motion.
The judge's ruling on the defence motion preceded the final day of testimony (Jan. 30) in the trial.
Today, the defence called Greater Sudbury Police Const. Glenn Greenbough as a witness.
Greenbough testified he interviewed the woman and her partner at their apartment days after the alleged assault took place.
In reviewing his notes, he said the woman told him she had more than two drinks that night. He testified his notes indicate she had a mixed drink, then a beer, then a shot of tequila, then another beer, and that she had zero memory after that.
In her testimony, the woman recalled having only two drinks that night. Case offered her a beer when she first arrived, and after dinner, all three had a shot of vodka to toast their new “friendship.”
Greenbough testified the woman made no allegation of sexual assault in that interview, but wanted information on Case and whether he had any similar complaints in the past. He seized the pair of jeans she had been wearing the night of the alleged assault for DNA purposes, but said it was his understanding she did not want to move forward with the allegations at that time.
Assistant Crown attorney Stephanie Baker said the very fact Greenbough responded to the call as a sexual assault, and the fact she described a sexual encounter, should have been seen as grounds for further investigation. She said some investigations aren't necessarily always based on what the victim wants.
Final submissions will be given Jan. 31 at 10 a.m.
