Sudbury courthouse

In a last-ditch effort to keep his client out of jail, a defence lawyer got the sentencing in one of two cases against former Sudbury track coach David Case delayed.

On the day Case was expected to be jailed, lawyer Nicholas Xynnis brought forward a last-minute application for a mistrial. Case was found guilty of the physical and sexual assault of a female athlete he coached in the 1980s when she was under the age of 18.

During the trial, the abuse survivor said she didn't report the incident for 30 years because she didn't think anyone would believe her.

Case was found guilty March 13 and was expected to be sentenced Dec. 15, but was delayed when Xynnis claimed he wasn't expecting a decision the same day.

Now, Xynnis is challenging the judge's reasoning that the complainant is trustworthy by arguing a spontaneous disclosure during her testimony was not so.

"In reviewing this matter since the last time it was in court, I came upon an issue that I believe undermines the basis for the trial judge's verdict. I believe this had to be brought to the trial judge's attention for resolution," Xynnis told CTV News. 

As a result, Justice Alexander Kurke granted an adjournment to allow the defence to apply for a mistrial. Kurke said that since the sentence had not been delivered, he continues to have jurisdiction over the case, and to maintain fairness, he shall hear the application for a mistrial rather than send it to the court of appeals.

Crown Attorney Stephanie Baker said she was surprised at the new development and only received the information 10 minutes before the virtual court hearing.

"I am disappointed that the sentence was not rendered today given that Mr. Case was convicted almost 10 months ago," Baker said.

The matter has been put over into assignment court Tuesday morning where a mistrial hearing date is to be set.

Case was also found guilty on March 5 of sexually assaulting a young Sudbury woman back in 2011 with one of his former sprinters, Celine Loyer. The two are scheduled to be sentenced in that matter on Jan. 13.