Court Upholds Class Action Against Canadian Government
Just got news today from my lawyer.
The Alberta Court of Appeal dismissed Canada’s appeal from the certification of my class action against the Crown.
This decision creates several practical problems for Canada.:
Certification survives.
The appeal is dismissed except for aggregate general damages, and the class action remains certified. That is the big result. The Court confirms certification of the claim as a class action.
Canada lost on the “secondary victim” framing.
Canada tried to split victims into “direct victims” of McRae and people who were directly abused by P.S. rather than McRae himself. The Court rejected that framing, saying it wrongly assumes victims of P.S. could not also be victims of McRae.
The Court accepted multiple legal pathways.
The Court said the pleadings can support liability for torts other than direct sexual abuse by McRae himself, including assault through threats or intimidating conduct, false imprisonment, intentional infliction of emotional distress, and possible joint tortfeasor liability where McRae facilitated abuse by others.
The direct negligence issue is legally interesting.
This is probably Canada’s best SCC angle. The Court openly notes uncertainty about whether the federal Crown can be directly liable in negligence under s. 3 of the Crown Liability and Proceedings Act, then says it is not plain and obvious the claim cannot succeed.
Punitive damages remain alive as a common issue.
That matters. The Court says punitive damages focus on the defendant’s conduct, not each individual class member’s damages, and finds “some basis in fact” for the claim that military officials had knowledge of abuse and failed to prevent it.
At the end of the day I fully expect the Crown to appeal this decision to the Supreme Court of Canada.
This case is far too institutionally dangerous for the Government of Canada to let it move forward without fighting at every available stage.
The Crown will try to argue that they should not be held responsible due to language in the Crown Liability and Proceedings Act. The problem with this, though, is that the circumstances around the abuse on the base were not typical.
Captain McRae was a member of the Canadian Armed Forces who was recruited, vetted, hired, and trained by the Canadian Armed Forces.
Colonel Daniel Edward Munro was a member of the Canadian Armed Forces who was recruited, vetted, hired, and trained by the Canadian Armed Forces.
Colonel Daniel Edward Munro had full command over all members of the Canadian Armed Forces working and residing on Canadian Forces Base Edmonton. Captain Father Angus McRae was his direct subordinate.
Due to the structure of the Chain of Command pre-1998, Colonel Daniel Edward Munro had full command authority over the personnel of the base military police and the Canadian Forces Special Investigation Unit detachment at CFB Edmonton.
Due to Colonel Daniel Edward Munro’s position as Captain McRae’s commanding officer, Munro not only influenced the scope of the investigation brought against McRae, but also exercised command authority within the pre-1998 military justice structure, including authority affecting which service charges proceeded and which did not.
Captain Terry Totzke, my military social worker, was a member of the Canadian Armed Forces who was recruited, vetted, hired, and trained by the Canadian Armed Forces.
My father, Master Corporal Richard Wayne Gill, was a member of the Canadian Armed Forces who was recruited, vetted, hired, and trained by the Canadian Armed Forces.
My father, being of a junior rank, was subordinate to all of the command structure involved with the investigation of Captain McRae.
My father, again being of a junior rank, was not in a position to question Captain Terry Totzke's treatment of me or his opinion of me.
It is unclear who decided not to call in the Royal Canadian Mounted Police to deal with the actions of the babysitter, but whoever made that decision would likely have been operating within the Canadian Armed Forces or the Department of National Defence.
The PMQs and all parts of the base were part of a defence establishment, and the base military police and the CFSIU were responsible for security and law enforcement on the base.
Civilians living on defence establishments at the time were subject to the Defence Establishment Trespass Regulations. This would include P.S. Dependants living on a defence establishment were also subject to military-controlled authority, including arrest or removal in circumstances governed by those regulations.
Under the Defence Establishment Trespass Regulations, the Crown, the Canadian Armed Forces, and the Department of National Defence had authority to remove a civilian suspected of committing a Criminal Code offence from the defence establishment, including the PMQs.
The Canadian Armed Forces had legal authority under the National Defence Act to deal with many Criminal Code offences, with the exception of murder, manslaughter, and rape, through their own “separate but parallel” justice system. Because of that authority, the Canadian Armed Forces also had an innate responsibility to ensure that victims of criminal offences committed on defence establishments were protected, especially when those offences were committed by their own members.
The three-year-time-bar that existed prior to 1998, along with the military's assertion of primary jurisdiction for Criminal Code offences committed on defence establishments by members subject to the Code of Service Discipline, could interfere with a former military dependant’s ability to seek justice.
The summary investigation flaw that existed prior to 1998 may make it legally impossible to bring charges against a former service member who committed sexual assaults against children if that person's commanding officer had in fact dismissed those charges prior to 1998.
The Canadian Armed Forces had a very parochial view of male-on-male sexual abuse and treated this abuse as “acts of homosexuality.”
The legal structure was one problem. The culture sitting on top of that structure was another.
The Canadian Armed Forces had a very derogatory opinion of homosexuals and viewed homosexuality as a mental illness, even though the civilian world had already begun moving away from these small-minded and prejudicial opinions.
Because of these views, there may have been a very real drive within the Canadian Armed Forces for commanding officers to minimize instances of homosexuality on their bases, and for parents of sexually abused children to minimize or downplay instances of male-on-male sexual assault, lest other members of the Canadian Armed Forces question their parenting skills or their own sexuality.
No matter how determined the Government of Canada is to compare the sexual abuse of children on Canadian Armed Forces bases to children being sexually abused in many civilian organizations, the company town that existed within the perimeter fences offered very little in the way for children to seek justice independent of the wishes of the chain of command.
There was another layer to this that ordinary civilian institutions did not have. The Canadian Armed Forces and the Department of National Defence operated inside a federal secrecy culture shaped by the former Official Secrets Act, now the Security of Information Act. Civilian organizations can hide behind bureaucracy, settlements, reputation management, and poor recordkeeping. But military institutions also had classification practices, command discipline, national-defence language, and secrecy obligations that could make historical events much harder for victims, families, journalists, and even later investigators to reconstruct.
A civilian church, school, or youth organization could try to bury a scandal. A military institution could bury a scandal inside a command structure, a security classification system, a military police file, and a culture where speaking outside the institution could be treated as disloyalty or worse.
Back in August 2011, during a telephone conversation with Master Corporal Robert Jon Hancock, P.S. stated that “anything he had been involved in as a youth had already been handled by the military.”
That statement begs an obvious question: if the military was willing to “handle things” for someone who had multiple convictions for child sexual abuse before his nineteenth birthday, why was the military not equally willing to handle things for the victims of McRae and P.S.?
Yes, I understand that P.S. was also a victim of McRae. But P.S. was not only a victim. He also inflicted sexual, mental, and physical abuse upon us. He also took us to the rectory at the chapel, where Captain Father Angus McRae was present, and where we were given wine or some other sickly-sweet drink which was no doubt to ensure that we'd never have memories of the abuse.
That is not a minor detail. If the military treated P.S.’s conduct as something that had already been “handled,” then the question becomes: handled for whom? Handled for P.S.? Handled for McRae? Handled for the chain of command? Or handled for the children who were actually harmed?
It is important to remember that this was not the RCMP, the Edmonton Police Service, or the Vancouver Police Department conducting an outside investigation into a closed military world. This was the Canadian Forces National Investigation Service — a military police organization operating inside the same institution whose historical conduct was at issue.
CFNIS investigators may perform policing functions, but they are also members of the Canadian Armed Forces. They operate within a military structure, a military culture, and a military chain of command. That matters when the investigation concerns abuse on a defence establishment, historical military police knowledge, military chaplaincy, military housing, military social work, military command decisions, and potential Crown liability.
So when P.S. stated that anything he had been involved in as a youth had already been “handled by the military,” the obvious question is not simply what he meant. The obvious question is whether CFNIS, in 2011, was truly investigating something new — or whether it was walking back into an old institutional containment system.
Source: Court Upholds Class Action Against Canadian Government
origamiaround
blakekathryn
kaledo-art
dailybridgerton
stormborns
turnnoffyourmind
discoholicmusic
yousharknotpass
baratheonpilled
