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

An Ontario judge stayed sexual assault charges against a former cadet major Friday after the alleged victim decided to walk away from the case over an "expansive" request by the defence to obtain records that included her counsellor's files.

Ontario Court of Justice Judge Jennifer Woollcombe stayed three counts of sexual assault against Kenneth Richards, 70, a former major with the Cadet Organizations Administration and Training Service (COATS). 

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

Under a stay, charges are essentially held in abeyance and a Crown has 12 months to re-initiate the case. 

Crown lawyer Robin Prihar told Woollcombe she asked for the stay at the request of the victim as a result of the defence's move to seek five different sets of records under what is known as an application under Section 278 of the Criminal Code. 

This section governs the disclosure of a complainant's personal records — such as medical or psychiatric files — in court cases involving sexual offences. 

"This has been a traumatic process for her [the alleged victim]," said Prihar. "In particular, the expansive Section 278 application has interfered with her access to support."

Alexa Ferguson, who represented Richards during the virtual Brampton, Ont., court hearing, said the defence had been seeking files through subpoenas from "five record holders."

A hearing before a judge on the Section 278 application was scheduled for Sept. 12.  It is up to the defence to convince a judge that the records sought hold specific, relevant and evidentiary information in the case. 

The lawyers representing Richards, from the Toronto law firm Kapoor Barristers, did not respond to a request for comment. 

Alleged victim says forced to stop counselling

The alleged victim told CBC News the defence was seeking records from her counsellor, the Canadian Forces Sexual Misconduct Support and Response Centre (SMSRC), and a second counsellor who provided services to her children and herself. The request covered records from 2017 to the present, said the alleged victim. 

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

Cassandra said she received independent legal advice from a lawyer specializing in Section 278 applications who told her, based on the details of the case, a judge would likely grant the defence's request. 

She decided to abandon the case because the requested date range — which included present day, ongoing records —forced her to stop counselling and any involvement with the SMSRC. 

"I cannot speak to my counsellor or get assistance from the [SMSRC] until this is over. That is not reasonable," said Cassandra. "They are impeding my ability to get support because everything I say to the [SMSRC] or my counsellor could be subpoenaed."

The charges against Richards stemmed from a complaint initially filed by Cassandra, his subordinate within COATS, in 2017 with the CFNIS. Investigators initially closed the investigation and then reopened it in 2021 after she contacted the investigative service with concerns over how the case was initially handled.

"It is a big weight to carry," she said. "I don't need a court decision to validate what is true or not, I just feel like continuing on with the process would be more harmful to me and more traumatic."

Complaint filed with federal ombudsperson

Cassandra says she continues her work with COATS.

COATS is part of the Canadian military's reserves and is focused on the supervision, administration and training of cadets and junior Canadian rangers — a pair of youth development programs for Canadians aged 12 to 18.

She also filed a complaint in June with the Office of the Federal Ombudsperson for Victims of Crime over what she believes to be a misuse of Section 278 applications in sexual assault cases. In her complaint, Cassandra stated she fears the section is used by defence lawyers to "bully, threaten and intimidate" complainants. 

"Someone who abuses you, being able to access your personal records, that is the last person that should be allowed to see those things," said Cassandra in an interview with CBC News. "I think that is wrong, it is not fair, it's used to make people not continue with the system."

Federal Ombudsperson for Victims of Crime Benjamin Roebuck said that while he could not discuss individual cases, he confirmed his office has received similar complaints around the use of the same section.

"Even the possibility of personal journals or third-party counselling records being admissible in court can prevent survivors from reporting or seeking treatment," said Roebuck, in an emailed statement to CBC News. 

"There needs to be a balance between the rights of accused individuals and the rights of victims."