The Summary Investigation Flaw

If you thought that yesterday’s post relating to the 3-year time bar flaw was interesting, you ain’t seen anything yet.

Legislative Summary LS-311E detailed another interesting flaw that existed in the National Defence Act prior to 1998. The flaw had been temporarily addressed via an administrative order in November of 1997, but nonetheless this flaw was so substantial that it had to be addressed by Bill C-25 “An Act to Make Amendments to the National Defence Act”.

Sections 160 to 162 of the 1985 National Defence Act
Sections 138 through 140 of the 1970 National Defence Act

Section 138 of the 1970 Act, and Section 160 of the 1985 Act defines “commanding officer” as being the commanding officer of the accused. In the case of Captain Father Angus McRae, the Canadian Forces have confirmed that CFB Namao base commander Colonel Dan Munro was Captain McRae’s commanding officer.

Section 139 of the 1970 Act, and Section 161 of the 1985 Act both stipulate that after a person subject to the Code of Service Discipline has been charged with a Service Offence, the commanding officer of the accused will conduct a summary investigation.

Section 140 of the 1970 Act, and Section 162 of the 1985 Act both stipulate that the commanding officer of the accused has the power to dismiss charges brought against their subordinate. Or the commanding officer could cause the charges to proceed against their subordinate.

The Canadian Forces didn’t have an independent “prosecutor” until after the passing of Bill C-25 in 1998. The commanding officer had the primary discretion to either proceed with charges or to dismiss the charges. Once the commanding officer made this decision, they would pass this up the chain of command to the “prosecutor”.

The Commission of Inquiry into the Deployment of Canadian Forces to Somalia had some very serious reservations of the Commanding Officer acting as a prosecutorial agent.
The Commission found that commanding officers could operate as investigators, prosecutors, and judiciary. The Commission pointed out that in the Civilian justice system, those three roles were conducted by three completely separate entities. Civilian police have no sway over the prosecutors and prosecutors have no sway over the judiciary. Commanding officers on the other hand could be subjected to “command influence”. Military police officers had to obey the commands of superior officers.

What did Legislative Summary LS-311E have to say about Section 160 to 162 of the 1985 National Defence Act?

Page 18 of Legislative Summary LS-311E

The decision to prosecute or not to prosecute was in the hands of commanding officers prior to November of 1997. As the Somalia Inquiry discovered, these commanding officers had no legal training, no legal background, swore no peace officer’s oath. Their decisions could easily be influenced by the chain of command as well as the commanding officer’s own parochial interests.

What charges could a commanding officer dismiss prior to November of 1997?
Gross Indecency;
Indecent Assault;
Buggery;
Sexual Interference;
Invitation to Sexual Touching;
and Sexual Exploitation.
These were crimes that the Canadian Forces were not precluded from conducting a service tribunal for.

What is the fallout of a commanding officer dismissing charges prior to November of 1997?

As LS-311E states “the effect of a decision of a commanding officer to dismiss a charge is that no other authority – military or civil- can thereafter proceed against the accused on the charge or any substantially similar offence arising out of the same facts”.

This means that anyone, who as a child was sexually abused on a military base, and whose abuser had their charges dismissed or reduced by their abuser’s commanding officer, could never bring charges against their abuser today.

According to the babysitter’s father, with whom I spoke to in July of 2015, the military police on CFB Namao in 1980 knew of 25 other children being molested by Captain McRae.

According to former Canadian Forces Special Investigations Unit acting section commander Fred R. Cunningham, with whom I spoke in November of 2011, the military police in 1980 had numerous more charges ready to go to court martial against McRae, but that the “brass” reduced the number of charges brought against Captain McRae to only those involving the babysitter / altar boy.

Why did the Canadian Forces try to bury this matter in 1980?

It would have been quite embarrassing for the Canadian public to have found out that an officer with the Canadian Armed Forces had been committing “Acts of Homosexuality” with children as young as five years of age, on a military base none the less.

What were the implications of dropping the “excess” charges against Captain McRae and only charging him with enough offences to get him booted out of the military? If any child between May of 1980 and May of 1983 had tried to bring charges against Captain McRae, and those charges were similar to the charges that had been dropped, Captain McRae could not be charged.

What are the implications of the 3-year time bar? Anyone who had been sexually abused by Captain McRae would never have been able to bring charges against McRae after May of 1983.

It is apparent that the 3-year time bar flaw and the Summary Investigation flaw make it almost virtually impossible for anyone who was sexually abused as a child to bring charges against their abuser.

I wish I could say that these two flaws were the only issues that could stymie a person’s quest for justice.

However, as I will discuss in future blog postings, there are other issues at play that stand as road blocks to justice.

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