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.

regardless of whether or not the commanding officer would have the authority to try the accused on the charge”

What I am not certain of, but seems to be indicated nonetheless by the language in the italics on page 18 of Legislative Summary LS-311e, is could commanding officers dismiss charges related to Murder, Manslaughter, and Rape? Commanding officers definitely would not have had the authority to try the accused on the charges of Murder, Manslaughter, and Rape.

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.

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.