In spite of the time constraints facing the Inquiry, it has been possible to examine the full range of in-theatre and post-deployment disciplinary incidents relating to Somalia. Having done so, it is abundantly clear that the military justice system is replete with systemic deficiencies that contributed to the problems we investigated. Without substantial change to this system, it will continue to demonstrate shortcomings in promoting discipline, efficiency, and justice.

Essential to an understanding of the issues raised in Chapter 40 is an appreciation of the extent to which the commanding officer is the central figure in the military justice system. The commanding officer has discretionary powers at most stages of the military justice process - before and during investigations, prosecutions and sentencing, and in the application of administrative and informal sanctions. This discretion is pervasive, overwhelming, and largely unfettered.

In short, a commanding officer who learns of possible misconduct can convene a board of inquiry or order a summary investigation, a Military Police investigation, or an informal review of the allegation. Alternatively, the commanding officer may decide to take no action at all.

If the commanding officer chooses to have alleged misconduct investigated, the investigation may result in a recommendation for action against an individual. Again, the commanding officer may respond in any of several ways - among them disciplinary or administrative action, or no action at all. If the commanding officer chooses a particular course of action within the present disciplinary system - summary trial, for example - he or she often holds further discretionary powers.

Military Police may also decide to investigate possible misconduct. They can choose of their own accord to investigate and, within the law, select their investigative methods. However, the powers of Military Police are, in practice, limited because they are in the chain of command. As well, other factors limit their effectiveness in traditional policing roles: their relative lack of investigative experience, their conflicting loyalties as soldiers and Military Police, and the reluctance of superiors to allocate sufficient investigative resources.

The role of the Judge Advocate General (JAG) in investigations and the decision to prosecute is more limited than that of Military Police. In discharging the responsibility to provide legal advice to the decision makers in the military justice system, JAG officers may advise Military Police or the commanding officer on the legality of a particular investigative tool, or they may help determine the appropriate charge. However, there is no requirement that JAG representatives be involved in investigations or charging decisions. JAG officers do, however, prosecute and defend CF members for service offences in courts martial.

Chapter 40 identifies a broad range of difficulties, such as conflicts of interest, command influence, and lack of independence, that arose in investigating and responding to misconduct of CF members shortly before, during, and after the deployment to Somalia, and describes the conditions within the military justice system that contributed to these difficulties. It discusses the factors limiting the effectiveness and fairness of the military justice system, and, ultimately, the ability of the CF to discharge its mandate. The chapter argues for a significantly restructured military justice system to remedy many of the shortcomings of the present system and presents recommendations accordingly.