Sudbury Crown wants pen for pair who sexually abused woman

Defence lawyers call for six months

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A noted Sudbury track coach and his protege should spend up to three years in jail for sexually abusing a young woman 10 years ago, a prosecutor argued Wednesday.

“They both took advantage of an unconscious female, a young unconscious female, for their own sexual gratification,” said assistant Crown attorney Stephanie Baker, referring to David Case and Celine Loyer. “This constellation of aggravating factors demands that sentence in the higher range be imposed today.”

On Wednesday, Baker said aggravating factors in the case included that the victim was only 19 at the time, was new to the city, had few friends, was impressionable, and was flattered when Case, whom she just met, invited her to a dinner party.

“The fact (the sexual assault) does not involve intercourse does not diminish the seriousness of the offence,” Baker said. “(Case and Loyer) showed a callous disregard for her after they abused her and treated her like a playmate for their own amusement. Mr. Case tried to mitigate the complainant’s memory by suggesting she was the one that was inappropriate on the night in question.”

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Baker said that if a lower-end jail term is to be awarded, that it be two years less a day, but if a higher one was warranted, it should be two to three years in the penitentiary.

Case, 58, and Loyer, 31, were found guilty of sexual assault following a trial a year ago. Sentencing has been delayed, in part because of the COVID-19 pandemic.

At one time, Loyer had been a top track athlete in Sudbury and Case was her coach.

During the trial, the victim testified she had been invited to a dinner party at Case’s home on June 17, 2011. She said after consuming two drinks, she passed out, but later found herself being dropped off by Case near her apartment.

She told the court she had a flashback in which she was on Case’s couch and Loyer was having manual sex with her. She also remembered hearing Case telling Loyer to do it again.

While the Crown is pushing for a penitentiary term for the pair, their defence lawyers are calling for softer punishments.

Michael Haraschuk said that after Loyer, a registered massage therapist, was charged, her practice lost clients largely due to media coverage and she eventually surrendered her licence to her governing body.

Haraschuk said Loyer is not working, and dealing with anxiety and insomnia.

“This criminal proceeding has been a long and draining road for Miss Loyer,” he said.

The lawyer said that Loyer has stayed out of trouble while on bail for almost four years and, according to people interviewed for a pre-sentence report, is a good, caring person always willing to help others.

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“We can’t lose sight of the fact this was a momentary event in an otherwise pro-social and productive 31-year-old woman,” he said. “She is a valuable member of our community and we can’t lose sight of that …

“I suggest sentencing Miss Loyer to six months’ jail would not offend the principles of sentencing.”

Lawyer Nick Xynnis also suggested a six-month sentence for Case, saying he played a lesser role in the sexual assault.

“He was found guilty, not as a a principal offender, but an aider and abetter,” said the lawyer. “This was one incident, isolated, for a brief moment of time.”

Xynnis said Case had led a pro-social life for decades, worked at various jobs over the years, and up until a few years ago, was still coaching athletes.

Xynnis said news coverage led to Case having to deal with threats and assaults. One person who read a newspaper story on the matter left the online comment: “If I see Mr. Case on the street, I will shoot him.”

“He has been harassed, assaulted and abused,” said the lawyer, adding that Case has not gotten into trouble while on bail for almost four years.

Baker, however, took exception to Xynnis’ comment that Case played a minor role in the sexual assault.

“That is not what was found by the court,” she said in reply. “Mr. Case was more involved. He provided the alcohol to the complainant. The words he said. He is there. He took her home. He was involved in attempting to modify her memory. It was a significant involvement in the offence.”

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Case and Loyer do not have prior criminal records.

Case, however, is awaiting sentencing for sexual assault and assault convictions involving a young female athlete he coached and was then secretly married to more than two decades ago.

He was convicted last March, but Xynnis has filed an application for a mistrial. A hearing for that application to be heard has yet to be held.

Following the virtual sentencing hearing, Superior Court Justice Patricia Hennessy reserved her decision. A date for the decision to be given will be set in Superior assignment court on Jan. 19.

In finding the two guilty, Hennessy had ruled that “I am satisfied (the victim’s) account of what happened at the Case residence has inherent truthfulness and is therefore reliable. The confirmatory evidence (from other witnesses) allows me to conclude, and I do, that the sexual assault was not a dream. She was able to observe what happened to her and feel it, recollect it in the following days …

“There is no evidence that the complainant consented to any sexual activity with Celine Loyer. I am satisfied beyond a reasonable doubt the complainant did not inherently consent to sexual contact with Celine Loyer or David Case.”

As for Case’s liability, Hennessy ruled he was part of the sexual assault.

“I accept from the complainant’s account that the assault (by Loyer) and the words (by Case) were happening at the same time,” said the judge. “It is sufficient. It forms part of a continuous series of events. Mr. Case set up the evening and took all the steps to isolate (the victim) and ensure there were no witnesses …

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“It defies logic that Mr. Case’s presence was some sort of accident or innocent co-incidence. Mr. Case facilitated the incident from beginning to end … By aiding and abetting Miss Loyer, David Case is guilty of sexual assault.”

Haraschuk had argued the case “was about a dream, a dream that is not reliable, and the evidence is not reliable as to the details of the dream are to (the alleged victim) as not reliable. The details themselves are inconsistent.”

It’s more likely the woman had too much to drink, passed out and got sick, he said.

Xynnis also argued the woman’s memories could not be trusted.

He said the woman was unconscious for close to four hours and has no memory of what happened during that time. He discounted the woman’s flashback.

“In my submission, a dream is a dream,” said Xynnis. “For three-and-a-half to four hours, there was no memory: she was unconscious. No form of memory happened.”

Baker, however, said the victim never wavered about the details of what happened despite grilling by two senior defence lawyers.

“The memory, the flashback she described, contained very specific details: how she was positioned with the defendants, what they were doing, how she is being sexually assaulted, and the words that were being said,” she said.

“People can have repressed memory and not remember for years, and then have triggers. That does not make the memory itself unreliable. The bruises she received and the trauma she felt the next day are consistent with her memory.”

Baker said an unconscious person cannot consent to sexual activity.

“There is very strong circumstantial evidence she was provided an intoxicant and unable to provide consent,” concluded Baker. “It is the only reasonable conclusion that can be reached.”

hcarmichael@postmedia.com

Twitter: @HaroldCarmichae