New trial ordered for ex-soldier accused of sexual assault

A new trial has been ordered for a former Canadian soldier found not criminally responsible for a sexual assault he admitted committing in The Pas, Man.

A three-judge appeal court panel ruled the original trial judge failed to properly determine whether Roger Borsch truly suffered from post-traumatic stress disorder and whether he was in a dissociative state when he attacked a 13-year-old girl.

"I guess you could say mission accomplished,"Crown attorney Don Knight said after the decision was handed down. "We were looking for a new trial and we've got one."

Inhis 2006 trial, Borsch was found not criminally responsible for sexually assaultingthe girl, the teenaged daughter of a co-worker,in 2004 in the northern Manitoba community.

The original trial judge, Nathan Nurgitz,clearly preferred the evidence and opinions from Borsch's experts over the Crown's and did not fully explain his reasoning, the appeal panel said in a written decision.

Borsch did not contest the Crown's assertion that he attacked the girl in her home, but blamed post-traumatic stress disorder for his actions the first time a Canadian soldier successfully used PTSD as a defence.

Borschtold the court about horrors he saw during a six-month tour of duty in 1994 as a Canadian Forces peacekeeper in Bosnia and said he was experiencing nightmares and flashbacks.

He said he once came across a Serbian soldier raping a young girl and shot the man in the head. On another occasion, he said, he saw a girl killed by a landmine.

Psychiatrists and psychologists at the trial supported Borsch's claims,but in an appeal hearing earlier this year,Knight argued that a witness who discounted the incidents Borsch claimed to have experienced in Bosnia should have been allowed to testify.

"The Crown's position at trial was that he didn't suffer from PTSD and even if he did, it's still not an excuse for committing crimes," Knight said Thursday.

Borsch's lawyer, Greg Brodsky, said he plans to take the case to the Supreme Court of Canada, and added the case has been very difficult on his client.

"He's not holding up very well at all," Brodsky said.

The Crown did not oppose bail while Borsch awaits a new trial. He was expected to be released later Thursday.

Borsch's caseis not the firstin which aCanadian soldierattempted to usePTSD a defence, but it was the first timethe defencehad been successful.

In 2003, an Alberta judge rejected PTDS as a defence for a former soldier who rammed hissport-utility vehicleinto a military office and assaulted a military police officer.

The case prompted a review and 31 recommendations by the military ombudsman. The current ombudsman is reviewing how well the military has implemented those recommendations.