Sex charges stayed against former cadet major after defence requests counselling records

An Ontario judge dropped sexual assault charges against a former cadet major Friday after the alleged victim decided to withdraw from the case following a “sweeping” defense request for documents that included her counsel’s files.

Ontario Court of Justice Judge Jennifer Woolcombe dismissed three counts of sexual assault Kenneth Richards70, a former major in the Cadet Organization Management and Training Service (COATS).

The charges were initially laid by the Canadian Forces National Investigation Service in July 2021 and then transferred to the civilian system for prosecution.

The charges are effectively suspended and the Crown has 12 months to reopen the case.

Crown attorney Robin Prihar told Woolcombe he asked for the stay at the victim’s request because the defense is seeking five different records under section 278 of the Criminal Code.

This section governs disclosure of a complainant’s personal records, such as medical or psychiatric records, in sex offender court cases.

“This was a traumatic process for him [the alleged victim]said Prihar. “In particular, the broad application of Section 278 has impeded his access to support.”

Alexa Ferguson, who represented Richards virtually in Brampton, Ont. during the court hearing, said that the defense is seeking documents through the trial of “five record holders”.

A hearing on the Section 278 application before a judge was scheduled for September 12. The defense must convince the judge that the requested records contain specific, relevant, and probative information about the case.

Lawyers representing Richards from the Toronto law firm Kapoor Barrister did not respond to a request for comment.

The alleged victim says she was forced to stop counseling

The alleged victim told CBC News that the defense was seeking records from her counselor at the Canadian Forces Sexual Abuse Support and Response Center (SMSRC) and a second counselor who provided services to her children and herself. The request was for records from 2017 to the present, the alleged victim said.

CBC News has granted her anonymity at her request and is identifying her as “Cassandra.”

Cassandra said she had obtained independent legal advice from a lawyer specializing in Section 278 applications, who said that based on the details of the case, the judge would likely grant the defense’s request.

He decided to drop the case because the required date range, which included current, current records, forced him to stop consulting and any involvement with the SMSRC.

“I can’t talk to my counselor or get help [SMSRC] until this is over. It doesn’t make sense,” Cassandra said. “They’re hindering my ability to get support because all I’m saying to people is, [SMSRC] or my adviser may be summoned.”

The allegations against Richards stemmed from a complaint originally made to CFNIS in 2017 by his subordinate at CFNIS, Cassandra. Investigators initially closed the investigation, then reopened it in 2021 after she contacted the investigative service with concerns about how the case was initially handled.

“It’s a heavy weight to carry,” he said. “I don’t need a court order to confirm what is right or wrong, I just feel that continuing the process would be more damaging to me and more traumatic.”

A complaint has been filed with the federal ombudsman

Cassandra says she continues her work with COATS.

COATS is part of the Canadian Military Reserves and focuses on the supervision, management and training of cadets and Canadian Junior Rangers, twin youth development programs for Canadians between the ages of 12 and 18.

She also lodged a complaint with the Office of the Federal Victims of Crime Ombudsman in June about what she says are abuses of Section 278 applications in sexual assault cases. In her complaint, Cassandra said she fears the section is being used by defense attorneys to “arrest, threaten and intimidate” complainants.

“Someone who abuses you by being able to access your personal records is the last person who should be allowed to see those things,” Cassandra told CBC News. “I think it’s wrong, it’s not fair, it’s being used to keep people from continuing the system.”

Benjamin Roebuck, the federal ombudsman for victims of crime, said that while he could not discuss individual cases, he confirmed that his office had received similar complaints about the use of the same section.

“Even the admissibility of personal journals or third-party counseling records in court can prevent survivors from reporting or seeking treatment,” Roebuck said in an emailed statement to CBC News.

“There must be a balance between the rights of the accused and the rights of the victims.”