It’s hard enough in the civilian world for sexually abused children to obtain justice.
In the military world, it’s almost impossible.
In the civilian world, it’s almost impossible for a perpetrator or a perpetrator’s employer to have influence over the police, the prosecutor, or the judiciary.
In the military world, especially in the days of the pre-1998 National Defence Act, the perpetrator’s employer could have direct influence over the police, and the judiciary.
Because of the chain of command and the military hierarchy, it is completely possible for the chain of command to have undue and irresponsible influence over any investigation undertaken by the military police, the CFSIU, or the CFNIS.
This was an established fact that led to the crafting of Bill C-25 which made some very serious changes to the National Defence Act in 1998.
The National Defence Act both pre and post 1998 states that every person subject to the Code of Service Discipline shall obey the lawful commands of their superior.
So first, a superior isn’t limited to their immediate chain of command. A superior is anyone with a superior rank who has the authority to issue lawful commands
Lawful is an interesting word choice. Lawful does not equate with legal.
Lawful and legal are two completely different concepts.
Lawful just means that the superior has the authority to issue a command. Lawful does not ensure that this command is legal and that by following this lawful command the subordinate is not placing themselves in a position of violating the Criminal Code of Canada.
There have been many court martial tribunals both in Canada and in the United States in which it has been argued that it is unfair for a subordinate to be expected to disobey an illegal lawful command if the subordinate is not given access to a legal officer to review the lawful command to see if it is an illegal command.
According to the Military Police Complaints Commission in 2020, someone in 1980 made the decision to not call the RCMP in to deal with the babysitter because someone believed the babysitter to be only 12 or 13 years old in May of 1980.
The babysitter has been confirmed from various sources as having been born on June 20th, 1965. When the babysitter was interviewed in May of 1980 by the CFSIU he would have been 14 years and 10 months old.
This also proves that the CFNIS had the CFSIU investigation paperwork as early as March of 2011 as when master corporal Christian Cyr called me on May 3rd, 2011, he repeated this same “error”, that the babysitter was only 12 or 13 when he was caught buggering me.
The CFNIS in 2011 had no excuse for going with what the CFSIU investigation paperwork stated for the babysitter’s age as the CFNIS in 2011 had access to the babysitter’s Canadian Police Information Centre “CPIC” file which listed all of the dates of his charges and his convections. This CPIC file would have also clearly stated his Date of Birth D.O.B..
In 1980, the babysitter’s birthdate would have easily been obtainable from Guthrie School. Guthrie School was the school on base for children of military families and it was run by the Canadian Armed Forces as were all the other schools for children of military families on bases across Canada.
There is also another place where the babysitter’s date of birth would have been obtainable. Birth records of all military dependents are deposited into their serving parent service file.
So, someone with authority made the decision to not turn the babysitter over to the RCMP.
In the lead up to the Court Martial of Captain McRae the decision was made to move the entire court martial “In Camera”. This caused outrage in the media at the time. But I can promise you that the Canadian Armed Forces and the Department of National Defence were not going to allow the Canadian public to learn that Captain McRae and his teenage accomplice had molested 25 children, if not more, on a secure defence establishment.
The Canadian Forces couldn’t do bugger all had the babysitter gone to Juvenile Court. And yes, the media were allowed to report on juvenile cases back then with the courts usually ordering the press not to divulge the juvenile’s name or anything that could potentially identify the juvenile. The Canadian Forces would have had to throw around a lot of weight to get a civilian juvenile court judge to throw a publication ban over the trial.
Also, under the juvenile delinquents act, the adult who contributed to the delinquency of a minor could be found guilty by summary conviction in the juvenile court system. This would have meant that the Canadian Forces throwing a “veil of secrecy” over Captain McRae’s military court martial could have been all for naught as his exploits would have been made public by juvenile court.
The Somalia Report and supporting documents indicated that back in the pre-1998 days, Base Commanders could often interfere with investigations due to their rank and due to the fact that the military police were contained within the local chain of command.
My father, and just about everyone else on that base were subordinate to Colonel Munro.
Now, one thing that you’ll hear in the modern day is how when the military police or the CFNIS want to lay charges related to Criminal Code offences, they need to get the approval of a Crown Prosecutor.
This is not how it worked prior to 1998.
Prior to 1998, it was the military police or the CFSIU that laid charges.
The military police or the CFSIU were then required to present these charges to the commanding officer of the accused.
In the case of Captain Father Angus McRae the Canadian Forces have confirmed that Colonel Daniel Edward Munro, base commander of CFB Namao, was Captain McRae’s direct superior.
Colonel Munro would have then been required to conduct a summary investigation to determine if the charges brought against Captain McRae would proceed to summary trial, military tribunal, or civilian tribunal. Colonel Munro would have also had the full authority to drop these charges if he so desired. Or Colonel Munro could drop some charges while allowing other charges to proceed.
And once dropped, these charges or similar charges arising out of the same facts could never be brought against Captain McRae again at a later date.
As the Somalia Inquiry found, these commanding officers had no legal training and were not peace officers, but had the full authority under the National Defence Act to dismiss charges that they wouldn’t have even had the authority to conduct a summary trial for.
The three year time bar is another hurdle. Recently I was told by a CFNIS investigator who had investigated “the man in the sauna” that if the CFNIS ever discover the identity of the “man in the sauna” that the babysitter provided me to for the purposes of oral sex, the CFNIS will be able to prosecute this man in civilian court.
That’s not true though.
Just as the man in the sauna would have to be charged with Criminal Code offences as they were in 1980. The man from the sauna would also enjoy all of the legal protections that he had back in 1980.
Captain McRae was given a court martial for Gross Indecency, Indecent Assault, and Buggery.
These charges were reviewed by his commanding officer, Colonel Dan Munro.
Even though I would have been to young at age 8 to have been able to consent to the oral sex I performed on the man, and even though the Supreme Court of Canada, as discussed in Corporal Donal Joseph Sullivan vs. Regina, stated that the military could only conduct a court martial if the victim was over the age of 14 when consent was a possibility, the fact of the matter is the military police or the CFSIU would have had to submit the findings of their investigation to the Commanding Officer of the accused.
In 1998 when Bill C-25 removed the requirement for commanding officers to conduct summary investigations AFTER the military police or the CFSIU laid charges against the commanding officer’s subordinate, that’s all it did. Bill C-25 simply removed the requirement for a summary investigation. It did nothing to retro-actively remove this requirement.
And this poses a very significant problem. The command structure as it existed in 1980 no longer exists.
Persons who were subject to the Code of Service discipline at the time of the offence remain liable to be charged with Code of Service Discipline offences committed during their service even after they leave the military.
If the man in the sauna is discovered tomorrow, how will the military charge him? Nothing prevents the CFNIS or the base military police from conducting investigations into child sexual abuse matters. But who is going to approve charges brought against the former member?
Prior to 1998 the military police or the CFSIU didn’t take Code of Service Discipline charges to the Provincial Crowns for approval. These charges flowed to the commanding officer. After 1998 charges can go two ways. One is to the Military Prosecutor that didn’t exist prior to 1998. The other is to the Provincial Crown.
But you can’t apply this to Code of Service Discipline charges prior to 1998. Sure, you hear stories all the time of cases in civilian court where a civilian teacher, or a civilian priest from 1956 or 1966 gets sentenced to jail for sexual abuse of children. But these people are civilians. Civilians were never subject to the Code of Service Discipline, nor were their employers / supervisors required to approve charges brought against their employee.
Another issue that prevents the laying of charges for offences that occurred prior to 1998 is the 3-year-time-bar.
Even if the CFNIS do manage to figure out who the man in the sauna was that I gave a blow job to when I was 8 years old, more than three years have elapsed.
Section 59(2) of the 1970 National Defence Act states ” no person is liable to be tried by a service tribunal unless his trial begins before the expiration of a period of 3 years from the day upon which the service offence was alleged to have been convinced.
Section 120(1) of the 1970 National Defence Act enumerated ALL criminal code offences as service offences.
Section 120(2) allowed the Canadian Forces to apply minimum penalties based upon what the Criminal Code of Canada would call for.
Section 134(a) allows any military police officer to arrest anyone subject to the Code of Service Discipline WITHOUT WARRANT who is subject to the Code of Service Discipline who has committed, is found committing, is suspected of being about to commit, or is suspected of or charged with having committed a service offence.
Section 140 of the 1970 National Defence Act calls for a Commanding Officer to conduct a summary investigation AFTER the laying of charges. The Commanding officer shall either cause the charge to proceed, or shall dismiss the charges.
Section 140 would have to be undertaken before the charges could proceed to Summary Trial, Court Martial, or Civilian Tribunal.
So, here’s the problem for the modern day prosecution of child sexual abuse which occurred on Canadian Armed Forces bases prior to 1998.
The military police in 1980, had they arrested the man in the sauna would have laid charges against him.
The military police would have been required to present these charges to the commanding officer of the accused.
Now, even though the commanding officer of the accused would not have been able to conduct a summary trial for the charges related to sexual offences committed against a child under the age of consent, and even though a court martial would have been precluded for trying these charges, nothing would have stopped the commanding officer from dismissing these charges and replacing them with charges that the commanding officer or a court martial could conduct a trial for.
And I think this is what keeps the Canadian Forces from successfully prosecuting for historical child sexual abuse which occurred prior to 1998.
This would be one hell of a massive Charter Challenge by the accused.
If the accused had been arrested back in 1980 and charged with receiving oral sex from me, under the National Defence Act he had the legal right to make a plea to his commanding officer.
That avenue does not exist today.
So even though the law allows for the man in the sauna to be charged in the modern day with 1980 criminal code offences that he committed back in May to June of 1980 he wouldn’t be allowed to enjoy the legal protections that the National Defence Act would have allowed him to enjoy back in 1980.
And I can’t help but wonder if this is why you don’t hear of any modern day military or civilian tribunals for service offences which occurred prior to 1998.
I would imagine that anyone who committed a service offence prior to 1998, and is charged in the modern day with having committed that service offence prior to 1998, would simply raise the argument in court that it is unfair to try them by modern laws and practices when the laws and practices at the time of the offence would have allowed them to plead with their commanding officer for leniency or forgiveness, which the commanding officer had the full authority to offer.