I’m going to talk a little bit about the flaws in the National Defence Act that existed prior to 1985.
Specifically how the National Defence Act played with the average Canadian’s lack of understanding about the criminal code.
I’ve frequently been told that I’m wrong. I’ve been told that the Canadian Armed Forces could never court martial a service member for sexual assaults committed against a child. I’ve been told that the military couldn’t conduct a service tribunal for the crimes of “Murder, Manslaughter, and Rape” prior to 1985.
Well, there’s a problem with that. The problem is that rape was never a crime that could apply to males. Rape was a crime that could only apply to females:
There you have it.
Rape is when a male has “sexual intercourse” with a female person who is not his wife. That automatically rules out males having sex with other males. It is also worth mentioning that when underage females were involved, the preferred charges were often Section 149 “Indecent Assault on a female”, or Section 146 “Sexual Intercourse with female under 14”.
What this means is that so long as the charge was not “Rape”, the military could conduct a service tribunal. This means that the Canadian Armed Forces could conduct a service tribunal for the offences indicated in sections 146, 148, 149, 150, 151, 152, 153, 154, 155, and 157 of the 1970 Criminal Code of Canada. And this criminal code was in place up to 1985. That means that the Canadian Forces had from 1950 until 1985 to conduct service tribunals for sexual crimes against children.
How many of these service tribunals did the Canadian Forces conduct?
Your guess is as good as mine.
It would appear that the record keeping system for criminal convictions prior to 1998 leaves a lot to be desired.
How many of these charges actually made it to a service tribunal?
Again, your guess is as good as mine as prior to November 1997, the commanding officer of the accused could dismiss any charge that had been brought against their subordinate.
How many of these offences couldn’t be prosecuted due to the arbitrary 3-year time bar that the National Defence Act placed upon service offences?
Remember, section 120 of the National Defence Act made Criminal Code matters into Service Offences, so the 3 -year time bar did place a “statute of limitations” on Criminal Code matters that did not have a “statute of limitations”.
Again, we’ll probably never know. The Minister of National Defence could call an inquiry if he so chose to. But I really don’t think the Minister of National Defence really wants to open that Pandora’s box.
What’s also not clear to me is when someone comes forward with a complaint of child sexual abuse from back in the ’70s for example and claims that they were molested on base by a member of the Canadian Armed Forces. Section 55(1) of the 1970 National Defence Act defines persons subject to the Code of Service Discipline. Section 55(2) states that a person who committed a crime while they were subject to the Code of Service Discipline continues to be liable for having committed a service offence even after they’ve left the military. Does this mean that the rules of the National Defence Act that were in place at the time also apply. Does that mean that Section 59 of the National Defence Act prevents the prosecution of historical child sexual assault matters?
Charges other than rape.
Sex with an underage female:
Section 146 is clearly not “Rape”. I believe that this would be called the “jail bait law”. I can only wonder how many times the Canadian Forces conducted a service tribunal for this crime. Notice that this is the charge for having “Sexual Intercourse” with a female child under the age of 14. This covers any age under the age of 14.
Section 146(2) is what we’d call “slut shaming” in the modern day. Basically what Criminal Code s. 146(2) is stating is that if a man has sex with a virgin between the ages of 14 and 16, he has committed an indictable offence and can be sent to prison for up to 5 years. This also seems to imply that if the girl isn’t a virgin, then he hasn’t committed a crime at all.
Section 146(3) further states that the prosecutor has to show that the accused is MORE to blame than the girl otherwise the court can find the accused not guilty. I can see a lot of commanding officers using Section 146(3) in determining to not allow charges to proceed against their subordinate.
Section 148 of the 1970 Criminal Code is interesting. What exactly defines an idiot, imbecile, or for that matter “feeble-minded”?
From my experience, there were a lot of stepfamilies on base. How many times acts contrary to section 153 were committed on base is again anyone’s guess.
Regina vs. Corporal Donald Joseph Sullivan.
or how the CMAC straight up said that the Canadian Forces could conduct service tribunals for some forms of gross indecency.
Donald Joseph Sullivan was recently just convicted for crimes against numerous children that he committed during the 1970s when he was a boy scout leader in Ottawa area of Ontario. For some reason, the police never busted his ass in the ’70s. Donald disappeared from the Ottawa area and fell off the radar of the police for some reason.
The reason that Donald Joseph Sullivan fell of the radar of the Ottawa police in the ’70s is that he joined the Canadian Armed Forces. Donald went on to have some involvement with the Catholic church on CFB Gagetown, and that’s where he met most of his teenaged victims.
The above section is from the Court Martial Appeal Court ruling when Corporal Donald Joseph Sullivan appealed his courts martial sentence for molesting four boys all over the age of consent on Canadian Forces Base Gagetown, in New Brunswick. One of Mr. Sullivan’s arguements was whether or not the Canadian Forces had the right to conduct a service tribunal for the crimes of “Gross Indecency”.
The finding of the CMAC explains how the Canadian Forces could conduct a service tribunal for sexual crimes involving children
Gross Indecency is an interesting charge. There is no clear definition of what Gross Indecency is other than it typically referred to any type of sexual relations between two males that did not involve Buggery. Rarely was the charge of Gross Indecency ever used in any type of heterosexual encounter.
Gross Indecency included:
Masturbation of the other person;
The Age of Consent.
As the CMAC ruling in the Regina vs. Donald Joseph Sullivan matter shows, the appearance of consent determined whether or not the Canadian Armed Forces could conduct a service tribunal for sexual assaults against children.
As section 140 of the Criminal Code of Canada stated, a person under the age of 14 cannot consent to sexual relations.
Section 146 is “Sexual intercourse with female under fourteen”;
Section 149 is “Indecent Assault on Female”;
Section 156 is “Indecent Assault on Male”
What is “Indecent Assault”? Believe it or not, but just like Gross Indecency, Indecent Assault isn’t clearly defined in the Criminal Code. Best examples I can think of would be touching someone’s genitals without their consent, rubbing against someone for sexual gratification, groping someone for sexual gratification, of just plain touching anyone anywhere on their body in a sexual manner.
One thing that I’ve learnt from the Captain Father Angus McRae matter is that the “brass” reduced the number of charges brought against Captain McRae to only the charges involving P.S. who was apparently the only victim at the time who was over the age of 14 at the time of the CFSIU investigation of Captain McRae. The other victims of Captain McRae, F.A., and S.O., were 13 years of age when McRae was investigated by Warrant Officer Fred Cunningham of the CFSIU.
The CMAC ruling in the Donald Joseph Sullivan matter makes it very clear as to why the Canadian Forces would have dropped all of the charges against Captain McRae except for the charges related to P.S..
If the Canadian Forces had insisted on charging Captain McRae with crimes that he had committed against children under the age of 14, the Canadian Forces would have lost the right to have conducted a service tribunal. And by losing the right to have conducted a service tribunal, Captain McRae’s exploits would have been dealt with in the public courts where the Canadian Forces wouldn’t have been able to”throw a wall of secrecy” around the proceedings.
Even in the matter of Regina vs. Donald Joseph Sullivan, all of the boys he was charged with molesting are all 14 years of age and older. You’re telling me that there were no boys under the age of 14 on CFB Gagetown? Was Mr. Sullivan checking birth certificates to ensure that he wasn’t messing around with a 12 year old or even an older looking 11 year old?
I don’t know about you, but I’m really kinda curious to know how many times the Canadian Forces and the Department of National Defence limited charges to those involving only children above the age of consent to ensure that these matters were dealt with in a service tribunal as opposed to in the civilian justice system.