Day: October 7, 2019

The Three Year Time Bar Flaw

One of two horrific flaws in the pre-1998 National Defence Act.

Before I go too far into the details of what happened on Canadian Forces Base Namao in the years of 1978 until 1980, I’m going to first examine two historical flaws in the National Defence Act that greatly impact the ability of the Canadian Forces to investigate historical child sexual abuse that occurred on the military bases in Canada prior to 1998. These flaws may actually interfere with modern day CFNIS investigations.

1998 is an important year in that this was when Parliament passed Bill C-25 “An Act to make Amendments to the National Defence Act”. Legislative Summary LS-311E accompanied Bill C-25.

Per the Library of Parliament web page:
Legislative Summaries
Legislative Summaries are non-partisan, concise analyses of bills. They are prepared for government bills concerning new initiatives or changes to existing legislation and for significant private members’ bills and Senate public bills. 

In layman’s terms, a Legislative Summary is a detailed overview of the contents contained within a Bill without all of the legalese that goes along with a Bill.

I became aware of LS-311E and Bill C-25 quite by accident in April of 2014.
I forget exactly what I had been searching for at the Law Library at the Supreme Court of British Columbia, but I came across Legislative Summary LS-311E.

This section of LS-311E talks about removing the “3-year” time bar from the National Defence Act.


This is what the time bar actually looked like in the 1985 National Defence Act.

This is what the time bar looked like in the 1970 National Defence Act.

And this is what the time bar looked like in the 1950 National Defence Act.

Subsection 2 relates to Mutiny, Desertion, AWOL, or any service offence for which the punishment was death.

What are “Service Offences?”
Service Offences include Offences Punishable by Ordinary Law, which in simple terms means criminal code offences.

Under the Criminal Code of Canada, indictable offences have no statute of limitations. However, the National Defence Act, via Section 60 from 1950 until 1970, and Section 59 from 1970 until 1998, placed a three year statute of limitations on ALL Criminal Code of Canada matters that were enumerated into the National Defence Act by Section 130.


This means that offences such as Gross Indecency(157-1970), Indecent Assault(156-1970), Buggery(155-1970), Sexual Interference(151-1985), Invitation to Sexual Touching(152-1985), Sexual Exploitation(153-1985) which have no statute of limitations under the Criminal Code of Canada, do in fact have a statute of limitations under the pre-1998 National Defence Act.

From 1950 until 1985, the Canadian Forces could not hold a service tribunal for the crimes of Murder, Manslaughter, and Rape. And from 1985 until 1998, the Canadian Forces could not hold a service tribunal for the crimes of Murder, Manslaughter, and Sexual Assault.


It must be pointed out that in the pre-1985 Criminal Code of Canada, Rape was a crime that could only be committed against females. Males could never be the victim of rape under the pre-1985 Criminal Code of Canada.
Even at that, Rape was rarely the preferred charge when a female child was sexually assaulted.
This means that the Canadian Forces could hold service tribunals for the crimes of Gross Indecency, Indecent Assault, and Buggery. And this also meant that the 3-year time bar applied to these crimes.

Sexual Assault(271), Sexual Assault with a Weapon(272), and Aggravated Sexual Assault(273) in the 1985 Criminal Code of Canada are completely separate charges from Sexual Interference(151), Invitation to Sexual Touching(152), and Sexual Exploitation(153). This means that while the Canadian Forces may have been precluded from conducting a service tribunal for Sexual Assault, Sexual Assault with a Weapon, and Aggravated Sexual Assault, there was absolutely nothing preventing the Canadian Forces from holding a service tribunal for the crimes of Sexual Interference, Invitation to Sexual Touching, and Sexual Exploitation.
The problem with this is that the three year time bar applies to all pre-1998 instances of Sexual Interference, Invitation to Sexual Touching, and Sexual Exploitation, which all just happen to be offences that apply only to child victims.

And I know that this 3-year time bar actually impacts the ability of the Canadian Forces National Investigation Service to conduct modern day investigations.

I had asked Mr. Tenaschuk about the possibility of investigating the former base commander of Canadian Forces Base Namao to see whether or not he committed the offence of “obstruction of justice” during the investigation of his immediate subordinate, Captain Father Angus McRae.

“Obstruction of Justice” is an indictable offence under the Criminal Code of Canada.

The response that I received from Mr. Tenaschuk confirms that basically any criminal code offence that occurred on a base in Canada prior to 1998 cannot be investigated due to the 3-year time bar that applies to ALL service offences which occurred prior to 1998.

Unbelievable

I recently watched a Netflix series called “Unbelievable”. This is a must watch program if you’re ever interested in just how badly the police themselves can screw up an investigation.

The story starts off in August of 2008 when an 18 year old woman named “Marie” makes a report to the Lynnwood Police Department that she had been raped. The police investigators in this matter screwed up the investigation from the start. They hounded “Marie”, they intimidated “Marie”, they made “Marie” repeat her story over and over all the while picking her story apart due to what they considered to be “inconsistencies”.
The investigating officers placed special emphasis upon the statements of two of “Marie’s” former foster parents who thought that “Marie” wasn’t behaving like someone who had just been raped.
In the end, “Marie” was coerced into admitting that she made the whole story up.
The Lynnwood Police charged “Marie” with making a “False Report”
In March of 2009 she was fined $500 by the courts and sentenced to probation, and ordered to attend counselling.

It wouldn’t be until February of 2011 that “Marie” was proved to have not lied at all. The FBI along with two Colorado police detectives from two different Colorado police departments arrested a man named Marc O’Leary. Upon searching his house for evidence, the police found a hard drive that contained pictures of “Marie” the night she had been raped and photographed by Marc O’Leary.

The two Lynnwood Police sergeants that had originally coerced “Marie” into admitting that she lied faced no repercussions.
The City of Lynnwood did however refund “Marie” her $500 fine.
“Marie” later settled out of court with the city for $150k.

How did this happen?
I wish I knew.
But, from my personal experience, this happens quite frequently.
Police quite frequently start investigations with preconceived biases already floating around inside of their skulls.

In my case, I have no doubt in my mind that the Canadian Forces National Investigation Service was well aware of who my abuser was, I have no doubt in my mind that the CFNIS knew about my abuser’s lengthy criminal record with numerous charges and convictions for sexual crimes involving children, I also have no doubt that the CFNIS knew of the direct connection between Canadian Armed Forces officer Captain Father Angus McRae, and my abuser, Mr. P.S.

Much like in “Marie’s” matter, my care giver at the time I was being abused gave the CFNIS in 2011 a false statement. Why’d he give the CFNIS a false statement? My Alberta Social Service paperwork from my childhood contained a report from a psychologist that had been hired by the Canadian Forces in October of 1980 to evaluate my family. This psychologist found that my father accepted no responsibility for his family, blamed others for problems with his family, expected others to solve his problems for him. My child case workers noted that my father often told conflicting stories from one session to the next, and that he often told people in positions of authority what they wanted to hear.

I honestly don’t remember much of my father from before we were posted to Canadian Forces Base Downsview in the spring of 1983. Prior to us living on CFB Downsview, my father was usually frequently away on training exercises or missions with the Canadian Forces. I know that on CFB Shearwater, he was frequently away. He was also away frequently when we lived on CFB Summerside. After my mother left in the spring of 1977, my father asked his mother to move in with us and raise my brother and I.
When my grandmother moved back to Edmonton in the spring of 1978, my father received a compassionate posting to CFB Namao to be near his mother. Upon our arrival at CFB Namao, grandma and her husband moved into the house on base to again raise my brother and I. My father was infrequently home.

I think my father told the CFNIS investigators what they wanted to hear because he didn’t want to own up to the fact that it was his own alcoholic mother that he had brought into the house to raise his kids hired the babysitter that would end up molesting his sons for over a year and a half.

I also think that my father still bore some shame for the way that he would stand aside while I was psychologically traumatized in his presence by Canadian Armed Forces officer Captain Terry Totzke. My father never once stood up to Captain Totzke. Sadly, my father seemed to absorb Captain Totzke’s ideas, and my father brought those ideas into our house on CFB Greisbach. I’ll talk more about Captain Totzke in a later post.

When I had my first frank talk with my father back in 2006 about Mr. P.S. and what he had done to me and my brother, my father wasn’t shocked. In fact my father had named Mr. P.S.. My father implored me to understand that he had nothing to do with the hiring of Mr. P.S. and that hiring Mr. P.S. had been my grandmother’s fault and that she was to blame.

I think my father’s statement played right into the hands of the chain of command within the CFNIS as when I spoke with Master Warrant Officer Terry Eisenmenger on July 18th, 2011, he stated that the CFNIS couldn’t find any evidence to corroborate my complaint against Mr. P.S. and that it looked as if my complaint was groundless and without merit.