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Following the arrest and attempted suicide of MCpl Matchee, a
special Military Police (MP) investigation team from NDHQ arrived
in Belet Huen on March 23, 1993 to investigate the torture and
death of the Somali youth, Shidane Arone. On March 29th, Pte Brocklebank
was arrested for aiding and abetting the torture of Shidane Arone.
On March 30th, Pte Brown was arrested for murder and torture,
and Sgt Boland was arrested for aiding and abetting the torture
and for negligent performance of duty. On April 1st Sgt Gresty
was arrested for negligent performance of duty.
The first MP investigation report was completed on May 12th and
forwarded to LCol Mathieu. On May 19th, the acting Commanding
Officer of the CAR, Maj MacKay, laid the following charges: second
degree murder and torture against MCpl Matchee and Pte Brown;
and torture and negligent performance of duty against Sgt Boland
and Pte Brocklebank. In June, the charge sheets were signed by
LCol Mathieu as Commanding Officer of the Canadian Airborne Regiment.
A second MP report was submitted on July 19th. Subsequently, charge
sheets were signed on September 9, 1993 for two counts of negligent
performance of duty for Sgt Gresty, and unlawfully causing bodily
harm and negligent performance of duty for Maj Seward.
Charges related to the March 4th incident were eventually laid
against Capt Rainville. LCol Mathieu was later charged in relation
to his interpretation of the rules of engagement, and one member
of CARBG was court martialed for an accidental weapons discharge
that killed another CF member. Some of these courts martial were
delayed because of legal complications.
Proceedings in Pte Brown's court martial for his role in the death
of Shidane Arone began in October 1993. The defence argued that
his Commanding Officer, LCol Mathieu, had a conflict of interest
when he laid charges while he himself was under investigation
regarding his interpretation of the ROE and the use of force.
The presiding Judge Advocate agreed that there was a reasonable
apprehension of bias, terminated the proceedings, and sent the
matter back to the convening authority.
Similarly, since LCol Mathieu had also laid charges against Pte
Brocklebank, Sgt Boland, and MCpl Matchee, their courts martial
were terminated and then reconvened for the same reason. Between
December 1993 and April 1994, new charge sheets were signed by
another officer, LCol Chupick, for Pte Brown, Pte Brocklebank,
Sgt Boland, and MCpI Matchee.
Pte Brown was charged with second degree murder and torture. At
his court martial, the prosecution argued that Pte Brown had violated
his duty to protect the victim from MCpl Matchee, or at least
to report the incident to someone who could stop it. It was also
argued that Pte Brown's own acts of assault constituted torture,
that he knew that this sort of treatment was unlawful, and that
the defence of superior orders is not available on a charge of
torture.
The defence admitted that Pte Brown was guilty of assault, but
argued that the evidence did not establish that the assault perpetrated
by Pte Brown actually contributed to the death of Mr. Arone, or
that Pte Brown's acts or omissions were intended to assist MCpl
Matchee in torturing the victim or in causing injuries that he
should have known were likely to cause death. The defence also
argued that Pte Brown had no stronger duty to intervene than others
who knew what was going on and failed to act. If he did have a
duty to report -- given the involvement of his superiors in the
incident -- to whom was he to report?
On March 16, 1994, exactly one year after the death of Shidane
Arone, the court martial panel found Pte Brown guilty of manslaughter
and torture. Pte Brown was sentenced to five years' imprisonment
and dismissal with disgrace from Her Majesty's service. Appeals
were dismissed by the Court Martial Appeal Court on January 6,
1995, and leave to appeal to the Supreme Court of Canada was denied
on June 1, 1995. Kyle Brown was released from the military on
May 24, 1995 and was transferred to a civilian penitentiary. He
was released on parole in November 1995.
In April 1994, Sgt Gresty was acquitted on both counts of negligent
performance of duty for his role in the death of Shidane Arone.
He was the duty officer in the Command Post, just over 80 feet
from the bunker where the beating and torture took place, but
had not responded when told of the treatment of the prisoner.
There was no appeal.
In April 1994, MCpl Matchee was found mentally unfit to stand
trial on charges of second degree murder and torture. At that
time he was detained in the National Defence Medical Centre in
Ottawa. In June 1994, the Ontario Criminal Review Board issued
an order that he be transferred to the Royal Ottawa Hospital,
where a program was to be developed for his detention, custody,
and rehabilitation, with a later transfer to a facility in Saskatchewan
where his family resides. As of the publication of this report,
the charges against MCPI Matchee remain, and he can be tried in
the future if he is judged competent to stand trial.
In April 1994, Sgt Boland pleaded guilty to the charge of negligent
performance of duty for his role in the death of Shidane Arone
and not guilty to torture. He was on guard duty in the bunker
where MCpl Matchee reportedly assaulted the prisoner and, on leaving,
allegedly said "just don't kill him". The court martial
panel convicted him of negligent performance of duty and stayed
the torture charge. He was sentenced to 90 days' detention, a
penalty that includes automatic reduction in rank to private.
The prosecution appealed the sentence which was then increased
to one year's imprisonment.
Maj Seward was charged with unlawfully causing bodily harm and
negligent performance of a military duty. At his court martial,
which began in May 1994, the prosecution argued that he had given
an order as the Officer Commanding 2 Commando to "abuse"
intruders, an order that he realized, or should have realized,
was contrary to the law and would cause soldiers under his command
to harm prisoners; that Maj Seward's instruction to his subordinates
could be interpreted only as calling for the abuse of Somalis
who were apprehended; and that it was irrelevant that Maj Seward
had not intended the treatment of the prisoner, Shidane Arone,
that had occurred.
The defence argued that Maj Seward had instructed that infiltrators
were to be captured with physical force, that witnesses had stated
that they understood the "abuse" of intruders to relate
only to capture, and that Maj Seward should not be liable for
the criminal acts of Pte Brown and MCpl Matchee.
Maj Seward was acquitted of unlawfully causing bodily harm but
was found guilty of negligent performance of duty for giving instructions
to abuse detainees. He was sentenced to a severe reprimand. The
Court Martial Appeal Court allowed the prosecution's appeal of
the sentence and subsequently imposed a sentence of three months'
imprisonment and dismissal from the CF. On December 5, 1996, the
Supreme Court of Canada declined to hear the defence's appeal
of the sentence. Maj Seward was released from prison in August
1996 and released from the CF in February 1997.
Pte Brocklebank was charged with torture and negligent performance
of duty. The prosecution argued at the court martial in October
1994 that Pte Brocklebank had a legal duty to protect civilians
in his care from acts of violence, that a reasonable soldier would
not have watched as a 16-year-old, unarmed youth was beaten and
tortured, that he had assisted in the torture by handing MCpl
Matchee his loaded pistol, that what MCpl Matchee was doing clearly
contravened instructions in a DND publication on the Geneva Convention,
that any order to "abuse" could not have intended the
harm inflicted on the victim, and that if the order did intend
to do so, it would clearly be unlawful and therefore any reasonable
soldier would not comply with it. He was acquitted on both charges,
and the Court Martial Appeal Court dismissed the prosecution's
appeal.
For passing along an instruction that infiltrators captured on
the night of March 16, 1993 could be abused, Capt Sox was charged
with unlawfully causing bodily harm, negligent performance of
duty, and an act to the prejudice of good order and discipline
for his role in the death of Shidane Arone. (He was the leader
of 2 Commando's 4 Platoon and had planned the March 16, 1993 mission
allegedly to entice and capture a Somali.) At his court martial
in January 1995, the prosecution argued that Capt Sox's conveying
of the abuse order to his subordinates was reckless, that he had
failed to exercise control over his subordinates while they guarded
prisoners, and that the instruction he passed on led to the harming
of the prisoner.
The defence argued that Capt Sox had instructed that necessary
force could be used to capture infiltrators and that the word
"abuse" applied only to the capture, that he should
not be held responsible for Sgt Boland's misstatement of his instructions,
that MCpl Matchee had already formed the intent to harm the prisoner
before Sgt Boland conveyed the instruction, and that there was
no evidence that Capt Sox knew what MCpl Matchee was doing to
the prisoner.
Capt Sox was acquitted of unlawfully causing bodily harm and convicted
of negligent performance of duty. A stay of proceedings was entered
on the charge of an act to the prejudice of good order and discipline.
He was sentenced to a reduction in rank to lieutenant and a severe
reprimand. The Court Martial Appeal Court dismissed appeals by
both sides on the verdicts and also dismissed the Crown's appeal
of the sentence.
On December 15, 1993, Capt Rainville, the officer leading
the CARBG Reconnaissance Platoon in Somalia, was charged with
unlawfully causing bodily harm and negligent performance of duty
in connection with the March 4, 1993 incident in which one Somali
national was killed and a second was wounded (see Volume 5, Chapter
38). (He was also charged with an act to the prejudice of good
order and discipline and possession of a prohibited weapon for
an August 1993 incident in Sherbrooke, Quebec.)
Following a defence motion, the Judge Advocate granted that the
charges be dealt with separately. In the court martial dealing
with the March 4th shootings, the prosecution argued that, in
telling his subordinates that they could use deadly force and
to "get them", referring to the fleeing Somalis, Capt
Rainville was counselling his men to commit an illegal armed assault.
The defence argued that Capt Rainville had received instructions
from LCol Mathieu that any attempt to breach the camp perimeter
would be considered a hostile act and that soldiers could shoot
to wound thieves, and that the Reconnaissance Platoon's mission,
as understood by platoon members, was to apprehend anyone attempting
to breach the perimeter wire. The defence also observed that after
LCol Mathieu and Col Labbé had been debriefed after the
shootings, they deployed Capt Rainville and his men the next night.
Capt Rainville was found not guilty of both charges related to
the March 4, 1993 shootings. He pleaded guilty to the charges
unrelated to Somalia and was sentenced to a reprimand and a $3,000
fine.
On October 15, 1993, LCol Mathieu was charged, in connection
with the March 4th incident, with negligent performance of duty
as a result of orders allegedly given on the use of deadly force,
contrary to the ROE. In the May 1994 court martial, the prosecution
argued that LCol Mathieu's interpretations of and instructions
on the ROE were negligent, in that they confused the criminal
intent of looters with the hostile intent addressed by the ROE,
that they authorized the use of deadly force against fleeing thieves,
and that they seemed to ignore the concepts of proportionality
and disengagement in responding to threats.
The defence submitted that Operation Deliverance had not been
a peace-keeping mission and that LCol Mathieu's instructions,
which attempted to restrict the application of deadly force by
telling soldiers to aim for the legs, were reasonable. The defence
also argued that LCol Mathieu had warned local elders that his
soldiers would apply the ROE with regard to thieves and that these
rules allowed the use of deadly force to deal with situations
such as the protection of equipment and supplies. The defence
stated that LCol Mathieu's precise wording was important, because
it would not amount to ordering excessive force unless the soldiers'
discretion was removed.
LCol Mathieu was acquitted. The Crown appealed on the ground that
the Judge Advocate had confused the standard of negligence applicable
to the charge during his instructions to the court martial panel.
The Appeal Court agreed and ordered a new trial.
The second court martial of LCol Mathieu began in January 1996.
The prosecution argued that the fact that some of the officers
had questioned the order and, in some cases, had decided not to
pass it down to their soldiers suggested that LCol Mathieu's instructions
were a departure from the authorized ROE. The defence argued that
it was not clear what LCol Mathieu's order was, or whether it
was an order at all. The second general court martial panel acquitted
LCol Mathieu.
MCpl Smith was charged with criminal negligence causing death
and negligent performance of duty as a result of accidentally
discharging his rifle and fatally wounding Cpl Abel on May 3,
1993 in Somalia. On April 11, 1994, MCpl Smith pleaded not guilty
to criminal negligence causing death and guilty to negligent performance
of duty.
The prosecution called a witness on the issue of the sentence,
Capt Yuzichuk, the adjutant for the CAR. He testified on accidental
discharges in Somalia and the unit's disciplinary response to
these incidents. He stated that there had been numerous accidental
discharges during the deployment and that the standard penalty
set by LCol Mathieu was a fine of half a month's pay. The witness
stated it was his opinion that the accidental discharges were
attributable in part to the fact that, unlike other missions,
in Somalia they were required to have their loaded weapons with
them at all times.
In its submissions on sentence, the prosecution observed that
the accused had not accidentally pulled the trigger, he had done
it deliberately to "dry fire" the weapon, apparently
having forgotten that the magazine was on it and that a round
was in the chamber. The defence emphasized that only tragic luck
separated this case from the other accidental discharges in Somalia,
and asked that MCpl Smith be given a fine and a reprimand.
MCpl Smith was sentenced to four months' detention, a penalty
that included automatic reduction in rank to private. The criminal
negligence charge was stayed. On April 10, 1995, the Court Martial
Appeal Court dismissed the defence's appeal.
While CF personnel were still conducting operations in Somalia,
the Chief of the Defence Staff, Adm Anderson, convened a board
of inquiry on April 28, 1993, to be conducted by MGen de Faye,
Commander Land Force Western Area. The board's terms of reference
were to investigate "the leadership, discipline, operations,
actions and procedures of the Canadian Airborne Regiment Battle
Group (CARBG)". To the extent necessary to conduct this review
and determine these issues, the board was to investigate "the
Battle Group's antecedents in Canada and higher headquarters in
Somalia prior to and during its employment in Somalia".
The mandate of the de Faye board of inquiry excluded matters that
were the subject of Military Police investigations. At the time
it was convened, these matters included the March 4, 1993 shootings
by members of the CARBG's Reconnaissance Platoon and the beating
death of Shidane Arone by members of 2 Commando on March 16, 1993.
MGen de Faye asked the CDS to separate the proceedings of the
board into two phases. Phase I would deal with matters under its
mandate other than those that were the subject of investigations
or other legal proceedings, and a report would be submitted to
the CDS at the conclusion of this work. Phase II would then address
remaining issues after the Judge Advocate General notified the
board that all court proceedings or investigations by the Military
Police had been completed. At that time, the board would be free
to receive evidence on a wider range of issues. The terms of reference
were amended on July 9, 1993 to reflect this approach.
The de Faye board of inquiry heard from 79 witnesses in all. In
addition to CF personnel, the board also met with several representatives
of non-governmental organizations. The proceedings of the board
were held in camera. The board had the power to compel
military witnesses to testify but it could only request the co-operation
of civilians. Evidence was taken under oath but not subject to
cross-examination; the board was not bound by rules of evidence;
and it received evidence on any matter it considered relevant
to its mandate (subject to the limitation on its legal jurisdiction).
The board of inquiry released its report on July 19, 1993. when
the CDS, Adm Anderson, held a press conference in late August
to present details of the report, he stated that he was "disturbed"
by some of its findings. They dealt with issues such as the threat
and environment in Somalia; the doctrinal aspects of the Somalia
mission; humanitarian operations; support for the CARBG; command
and control relationships; the state of discipline within the
Battle Group; discipline and leadership in 2 Commando; training
for the mission; selection of personnel for deployment to Somalia;
the rules of engagement; composition and organization of the CARBG;
cultural differences and racism; attitudes toward the lawful conduct
of operations; professional values and attitudes in the Canadian
Airborne Regiment; and initiation rituals and symbols.
On the issue of security, the de Faye board of inquiry found that
the threat level varied in theatre. It found that the environment
in which the CARBG operated was harsh and stressful owing to weather,
health factors, and the limited facilities at the CARBG base,
especially during the early weeks of the deployment. The camp
itself was considered satisfactory, given that the Board saw it
as an administrative, rather than a defensive, layout. On the
doctrinal aspects of Operation Deliverance, the board found that
the mission was conducted in accordance with existing CF doctrine,
but noted that directions and procedures for handling detainees
were neither clear nor appropriate to the situation in Somalia.
On humanitarian activities, the board of inquiry found that Canadian
Joint Force Somalia did not have sufficient civilian-military
co-operation personnel on its headquarters staff. On the issue
of support for the CARBG in theatre, the board found that medical
support was more than adequate; the quality of vehicles was sufficient;
the availability of satellite links for family communications
was acceptable; family support services were well organized; leave
arrangements helped to maintain good morale; and that, generally
the clothing provided was suitable for the area (while acknowledging
that a lighter colour of uniform would have been more comfortable).
However, the report also noted that the troops had little confidence
in the standard-issue plastic rifle magazine and that some had
purchased their own metal magazines. Other areas that received
criticism were the extended use of hard rations, poor mail delivery,
and adverse press coverage. The board found as well that the apparently
arbitrary imposition of a force manning level had disrupted the
appropriate process for effective mission planning, but that the
command and control procedures used for the CARBG were nevertheless
in accordance with current practice.
In the view of the de Faye board of inquiry, the quality of individual
leadership in the CARBG during the training period and during
operations in Somalia was generally very high. The board found
that with the exception of the incidents under investigation,
discipline in Somalia was very good. At the same time, it commented
on the unacceptable number of accidental weapons discharges, which
it attributed to lack of discipline and leadership.
The de Faye board found, however, that discipline was flawed in
2 Commando. It stated that during training, 2 Commando was "slow
to adjust its operational procedures for UN operations" and
that it had quickly escalated the force of its responses during
training exercises before deployment. The board noted that leadership
problems, even before the deployment, had allowed an informal
group of junior-ranked soldiers to pose a direct challenge to
authority and that although administrative measures to deal with
disciplinary problems were available before departure, only half-measures
had been taken. It concluded that the leadership responsible for
2 Commando failed to take sufficient action to rid itself of a
known challenge to its authority.
The de Faye board of inquiry found that only refresher training
had been required for Somalia, because the Canadian Airborne Regiment
had already been trained from mid-summer 1991 for another mission
on the African continent. However, it noted that the training
of 2 Commando did not fully achieve the "specific to mission"
standard of readiness before the final assessment. It concluded
generally that the CARBG was well trained for its tasks in Belet
Huen. On the rules of engagement, the de Faye board stated that
the rules used were adequate for training purposes, but that it
had been demonstrated during training that the use of minimum
and graduated escalation of force was not well understood by all
sub-units.
The de Faye board found on the issue of selection of personnel
for Somalia that there was thorough screening of all personnel
for deployment and that, on average, the members were more experienced,
less averse to risk, and perhaps more physically fit than infantry
members in other units. The board concluded that the commanders
of the Special Service Force, the Canadian Airborne Regiment,
and 2 Commando believed they had taken reasonable steps to screen
out unfit and undesirable personnel.
In reviewing the development and promulgation of the rules of
engagement for the mission, the board of inquiry stated that there
were significant differences between the Somalia operation and
previous peacekeeping activities of the CF, and that in-theatre
commanders were called on to show a high degree of initiative,
innovation, and judgement. Concerning the composition and organization
of the CARBG, the board found that selection of the Canadian Airborne
Regiment was appropriate and that the basic structure of the Battle
Group was sound.
On the issue of cultural differences, the de Faye board stated
that the CARBG was adequately prepared, had adapted very well
to the cultural differences, and showed a remarkable degree of
tolerance. The board did not believe that the use of nicknames
(such as "gimmes", "smufties", and "nignogs")
was racist, but that such terms were unprofessional and inappropriate.
It did find that there may have been one or two white supremacists
among the personnel selected for Somalia, but in the board's view,
there was no systemic problem of racism in the CARBG.
Preliminary training of members of the CARBG was considered to
have been adequate to ensure an appropriate attitude toward the
lawful conduct of operations. The de Faye board found, on the
issue of the professional values and attitudes of the Airborne,
that the chances of the mission's success were enhanced by the
choice of a unit with special training requirements to meet the
needs of an operation conducted under spartan and demanding conditions
in a difficult climate. It stated that the CARBG adjusted with
exceptional speed and showed remarkable understanding of the requirements
of the mission from the perspective of its humanitarian goals.
In the board's opinion, the conduct of 2 Commando did not lead
to any significant inappropriate behaviours or regrettable consequences
in its area of responsibility in the town of Belet Huen.
On the practice of initiation rituals, the view of the de Faye
board was that without an officially sanctioned and challenging
indoctrination course, the informal leadership at the junior level
would likely impose initiation procedures that might not reflect
appropriate values, attitudes, and behaviours. Nevertheless, it
concluded that, for the most part, the professional values and
attitudes of the CARBG in Somalia were of the highest order, and
that the alleged failures were not indicative of any systemic
fault in the ethos, attitudes, or value system of the Airborne
or of the CF as a whole.
The de Faye board made recommendations for action in the following
areas: research on long-range communications and technologies
to reduce risks for troops; clarification of orders on the custody
and detention of military personnel and civilian individuals;
development of a joint civilian-military relations capability
for future UN operations; improvement of in-theatre rations; review
of use of the plastic rifle magazine; improved public affairs
approaches to support high-risk CF deployments; closer attention
to command and control issues for commanders of Canadian contingents;
review of the policy and practice on the use of warning shots
and implementation of standardized incident reporting requirements;
and a careful analysis of policies and structures necessary to
support tactical commanders.
The board also noted that such issues as rites of passage and
use of symbols should be examined, that cultural briefings should
be improved during pre-deployment training, and that other government
departments should be called on when necessary to provide support
to future Canadian contingents. It supported the principle of
general purpose training with supplemental specific training added
to support the requirements of each mission.
The Chief of the Defence Staff, Adm Anderson, indicated that he
agreed generally with the interim recommendations of the de Faye
board of inquiry. Although the original plan was for the board
to deal with certain issues during Phase II of its activities,
other matters were seen by the CDS as requiring immediate action.
One such issue was the structure and staffing of the Canadian
Airborne Regiment, and Adm Anderson accordingly directed the Commander
Land Force Command to review the organization and staffing, keeping
in mind the de Faye board's recommendation that the CAR must have
high-calibre and stable leadership. The Commander LFC was also
ordered to take action to ensure that CAR training conformed to
standard CF practice.
On the problems of discipline in the CAR, the CDS ordered that
all disciplinary cases that had occurred in the Regiment between
the beginning of 1992 and its deployment to Somalia be reviewed
to ensure that they had been resolved and appropriate disciplinary
action taken. Although the de Faye board had indicated that it
did not find systemic racism in the CAR, Adm Anderson ordered
a comprehensive review of all CF policies, orders, and regulations
dealing with racism. A CF administrative order was issued to provide
guidelines and procedures for handling racist activity by CF members,
and instructions were given for awareness training regarding the
policy. Directions were also issued on the inappropriate use of
nicknames based on ethnic origin.
On the issue of screening of personnel for Operation Deliverance,
which the de Faye board had found was based primarily on soldiering
skills, with insufficient attention paid to individual attitudes,
the CDS ordered that the screening of personnel for future missions
include the assessment of attitudes. Because the de Faye board
also identified shortcomings in the approach to training for contingency
operations, Adm Anderson ordered a review by the Deputy Chief
of the Defence Staff of training requirements for specific-needs
missions, including the development of assessment guidelines for
specific-to-mission training effectiveness.
Adm Anderson supported the views of the de Faye board on the need
for increased use of civilian/military relations and other specialist
staff, and he ordered an examination by the DCDS of such factors
as the lack of a civilian infrastructure in relation to future
operations. On the issue of detainees, the DCDS was ordered to
review CF doctrine on the handling of field detainees and to ensure
that future contingency planning include arrangements for handling
detainees.
The CDS supported the recommendations of the de Faye board on
rules of engagement, with the exception of the one concerning
use of an aide-mémoire by troops in the field. He ordered
the DCDS to review all existing rules of engagement for Land Force
Command operations and to develop a set of standing rules for
LFC use. A review was ordered of the doctrine and policy for warning
shots, to be assessed for each operation; the policy on the use
of lethal and non-lethal force was also to be re-examined and
incorporated into the planned 'joint operations' publication.
The CDS ordered the Commander LFC to review the standard operating
procedures regarding weapons safety for field operations and other
measures, including attention to deficiencies in long-range communications,
clothing, and rifle magazines. On the use of symbols, the CDS
directed that the commanders of commands ensure that only symbols
that reflect positive values and traditions of the CF be adopted
by units and sub-units.
The Somalia Working Group was formed at the end of September 1993.
MGen Boyle, who held the position of Associate Assistant Deputy
Minister (Policy and Communications), had already been appointed
the DND point man for all Somalia-related issues, particularly
as communicated by public affairs officers, when he assumed the
leadership of this internal committee. The Somalia Working Group's
mission, according to a report produced by MGen Boyle, was to
"collate all ongoing departmental activities associated with
the Somalia Affair with a view to (a) advising the MND, CDS and
DM on future courses of action to be taken; (b) informing group
principals of upcoming significant milestones facing the Department;
and (c) co-ordinating the NDHQ staffing of Somalia-related activities
to ensure accuracy and timeliness."
Members of the Somalia Working Group included MGen Boyle's deputy,
staff of the Minister of National Defence, the Chief of the Defence
Staff, and the Deputy Minister, the special assistants of the
Deputy Chief of the Defence Staff and the ADM (Personnel), the
directors general of Public Affairs and Security, the Director
of Parliamentary Affairs, and a member of the office of the Judge
Advocate General. Other officers, usually from public affairs,
also attended the group's meetings on occasion. The Somalia Working
Group maintained its own office, which provided the services of
a special assistant for the group, a secretary, and a public affairs
officer. This office handled the daily activities of the Somalia
Working Group, including, at a later date, the processing of requests
for Somalia-related information under the Access to Information
Act.
According to testimony before us, the group's meetings were mainly
information sessions; if necessary, important issues were brought
to the attention of MGen Boyle in his office afterward to decide
how best to follow up. However, weekly reports on the working
group's activities were produced and signed by MGen Boyle. Three
main headings recurred in these reports: support to the Minister
(such as briefings and responses to ministerial inquiries); monitoring
the courts martial and disciplinary proceedings arising from the
conduct of a number of CF members while in Somalia; and participation
in Somalia-related public affairs activities (authorizing press
releases, media advisories, and other material for public release).
The weekly reports also indicated that the working group was involved
in processing Access to Information requests.
Testimony suggested that once the Somalia Working Group was established,
both the CDS and the Deputy Minister closely monitored the release
of Somalia-related information. This included approval in advance
of back-grounders, press releases, responses to queries (RTQs),
and other information provided to the media. It was on one such
occasion that the Deputy Minister made a note on an RTQ, tabled
at this Inquiry, asking how to correct some misinformation on
racism appearing in the media and asserting that there was a need
to "control the agenda".
The group's weekly reports were distributed to the Minister's
office and to senior officers and managers at NDHQ. MGen Boyle
reported directly to the Chief of the Defence Staff, Adm Anderson,
and to the Deputy Minister, Robert Fowler. Testimony also suggested
that he reported to the Vice Chief of the Defence Staff (VCDS),
LGen O'Donnell, on the group's day-to-day activities, including
passing on to the VCDS any recommendations made by the group.
The Somalia Working Group produced an after-action report in July
1994, a year after the de Faye board of inquiry had submitted
its report. Written by MGen Boyle, the purpose of the report was
to highlight for the CDS a number of issues that remained unresolved
and to recommend appropriate courses of action. The after-action
report reviewed the work of the de Faye board of inquiry, acknowledging
that its work had been limited by its terms of reference and time
constraints. Nevertheless, the report pointed out that there were
serious deficiencies and weaknesses in the de Faye board's analysis
and recommendations.
MGen Boyle noted in his assessment that much of the confidential
information that had been severed from the report before it was
released to the public would eventually become publicly available
through testimony at the courts martial of soldiers involved in
incidents in Somalia. He pointed out that a close reading of the
de Faye board's report, comparing it with information from courts
martial testimony, would reveal that there were weaknesses and,
more important, significant discrepancies in the de Faye board's
findings and recommendations, on which the CDS was basing a number
of reforms.
MGen Boyle also indicated that some of the de Faye board's conclusions
(for example, that the CARBG was well trained for the Somalia
mission) did not appear to be borne out by the testimony actually
heard by the board. As well, he stated that there had been enough
evidence before the de Faye board to suggest that leadership problems
reached up the chain of command to Command CJFS. He referred to
documents that indicated "direct attempts to cover up facts
behind the 4 March incident, which will no doubt be brought to
light during court proceedings. Also the March 16 incident reveals
a blatant attempt at the officer level to 'cover up' this incident.
This will probably become public knowledge during the 18 Oct proceedings
[referring to one of the Somalia-related Courts Martial] and will
seriously attack the credibility of the 'officer corps."'
MGen Boyle reported to the CDS that the most pressing issue regarding
the Canadian Airborne Regiment was leadership. He stated that
this problem should be addressed by the Commander Land Force Command.
He also recommended that the CDS proceed with Phase II of the
de Faye board of inquiry, but that its terms of reference be limited
to "an analysis of the raison d'être, development,
understanding, interpretation and application of rules of engagement".
MGen Boyle pointed out, however, that several issues remained
unresolved, and he recommended that the Minister of National Defence,
as advised by the CDS, establish an independent board of inquiry
to evaluate the role of the "chain of command" in the
preparation and dispatch of the CAR for its mission to Somalia,
and to evaluate NDHQ's performance in the management of the Somalia
events, with particular attention to its handling of five incidents
(the incident at the Bailey bridge, the March 4th shootings, Mr.
Arone's death, the incident at the Red Cross compound on March
17th, and the attempted suicide of MCpl Matchee).
MGen Boyle elaborated on concerns about decisions taken at NDHQ,
which, he stated, "may have exacerbated the already tenuous
situation in Somalia", and he noted that "doubts emerge
from the following observations":
The Somalia Working Group appears to have concluded its work with
the issuing of MGen Boyle's report. He stated that the most important
work of the group was its analysis of the Phase I report of the
de Faye board of inquiry and the comparison of its content to
the evidence disclosed by the various Military Police investigations.
He reiterated that this work had been done to identify for the
Department all the potential issues it could be facing as a result
of the "Somalia Affair".
New information about the mission and the activities of the Canadian
Airborne Regiment continued to surface. In January 1995, CBC television
aired a videotape showing members of the Airborne engaged in an
initiation activity that involved human vomit, urine, and excrement.
In response to the continuing disclosures, the Minister of National
Defence, the Hon. David Collenette, announced the disbandment
of the Canadian Airborne Regiment on January 24, 1995, against
the advice of the Chief of the Defence Staff. The CAR was disbanded
on March 5, 1995, only a few weeks before this Inquiry was established.
On March 20, 1995, this Commission of Inquiry was established
under the federal Inquiries Act. Mr. Collenette told the
House of Commons that the Inquiry's terms of reference were broad
and that the three commissioners who had been appointed had excellent
reputations and had his confidence. He repeated an earlier commitment
that the Inquiry would look into all aspects of the Somalia mission.
In May 1995, Mr. Collenette stated that the Government had created
''a commission with the most wide-sweeping powers probably in
Canadian history". He again emphasized that the Government
had nothing to hide, stating that the Inquiry "would get
to the bottom of all the allegations regarding our deployment
to Somalia." Both the Minister and the Prime Minister, the
Rt. Hon. Jean Chrétien, stated consistently that the Inquiry's
mandate allowed it to examine all issues relating to the incidents
in Somalia.
To encourage members of the Canadian Forces to bring forward information
as the work of the Inquiry got under way, we travelled with our
staff to several bases in Canada to visit, individually and in
groups, many of the personnel who had served in Somalia. As our
work progressed, the review of DND and CF documentation became
a major focus.
The Chairman of the Inquiry issued an Order for Production of
Documents to the Minister of National Defence on April 21, 1995,
followed by similar orders to the Department of Foreign Affairs
and International Trade and the Privy Council Office. To assist
us in our work, DND created the Somalia Inquiry Liaison Team (SILT)
in April 1995. Its mandate was specified as collating and cataloguing
all documents, notes, electronic mail messages, etc., held by
DND and the CF regarding Canada's participation in the Somalia
mission; assisting us in obtaining relevant information from DND
and the CF; responding to requests for information from the public
and from witnesses who would be appearing before us; acting as
the focal point for media inquiries; and co-ordinating the appearances
of DND and CF witnesses during our public hearings.
SILT reported to the Associate ADM (Policy and Communications),
who at the time was MGen Boyle. Its directive from the CDS included
the order that "[no] documents, in whatever form they exist
shall be withheld from the SILT", and SILT was given the
authority to contact anyone necessary to fulfil its mandate. SILT
initially estimated that it would handle about 7,000 documents.
By the end of 1996, we had received some 150,000 documents from
SILT, totalling more than 600,000 pages.
We also obtained and reviewed documents from other related proceedings.
These documents included the report of the de Faye board of inquiry
and transcripts of the courts martial proceedings arising from
incidents that occurred in Somalia during the in-theatre phase
of the mission. Overall, information was gathered from a wide
variety of sources, with the bulk of material coming from DND.
Inquiry staff and consultants collected authoritative materials
from Canadian and foreign military sources. Numerous experts provided
background information on relevant issues.
On May 24, 1995 hearings were held to determine issues of standing
before the Inquiry. When the hearings began, we released a document
setting out the Inquiry's rules of procedure. We also issued orders
for the production of documents, orders granting standing to various
individuals, orders on the disclosure of documents, and rulings
regarding individuals who would be served notices under section
13 (adverse findings) of the Inquiries Act. As well, a
number of formal statements were provided to clarify particular
issues that had been raised.
During the week of June 19, 1995, we conducted policy hearings
on our mandate. During these hearings, we received an overview
of the policies, regulations, rules and practices of the CF and
had briefings on the structure and organization of the CF, DND,
and Canada's military justice system.
On October 2, 1995, we began hearing evidence on the pre-deployment
phase of the Somalia mission. Because of the continuing but drawn
out flow of documents to us, we had determined that it was necessary
to begin public hearings before all documents had been received,
processed, and reviewed by our staff. This series of public hearings
continued until February 22, 1996.
On January 1, 1996, Jean Boyle (who had become ADM (Personnel) with the rank of LGen) was promoted to Chief of the Defence Staff. On April 9, 1996, Gen Boyle issued a message to all Canadian Forces members to "stand down all but essential operations to conduct a thorough search of all their files, to identify and forward to NDHQ/SILT any Somalia-related document not previously forwarded...". As a result, SILT received an additional 39,000 documents totalling more than 200,000 pages. This Inquiry did not receive final delivery of these additional documents until September 27, 1996.
After a short period for preparation of witnesses, hearings on
the in-theatre phase began on April 1, 1996, but after hearing
only 12 witnesses, we suspended this phase. We had determined
that it was necessary to hold public hearings into alleged document
tampering and document destruction within the Directorate General
of Public Affairs, as well as the alleged failure to comply with
our orders for disclosure of essential Somalia-related documents.
This phase of our hearings extended from April 15 to August 30,
1996.
The in-theatre phase of public hearings resumed on September 9,
1996, but was concluded abruptly on March 31, 1997, following
the deadline imposed by the order in council of February 4, 1997.
As our investigations and research proceeded, Inquiry staff identified
several areas in which work was being hampered by unsatisfactory
document disclosure and/or production. The problems included discrepancies
in the NDHQ logs and missing in-theatre operational logs, as well
as possible alteration and destruction of response to query (RTQ)
documents. Because of these serious difficulties, we were obliged
to hold special hearings to address these issues.
A major problem for the Inquiry concerned National Defence Operations
Centre (NDOC) computer logs. These logs were found to contain
a number of anomalies, including entries that had no information
in them, entries that were missing serial numbers, and entries
that duplicated serial numbers. Our concern was that the logs
might have been tampered with deliberately. The military investigation,
launched in October 1995 following our communication of this concern,
was unable to determine whether the inconsistencies in the logs
were the result of poor operating procedures, insufficient training,
a lack of system audits, or deliberate tampering.
Research conducted by Inquiry staff into operational logs maintained
by troops in Somalia revealed that a number of logs were missing.
Of particular interest to us were logs from the commandos of the
CAR. Our staff eventually located the Service Commando logs, which
had been held by the Military Police. The logs of 2 Commando were
discovered in a filing cabinet at CFB Petawawa. SILT eventually
informed us that the 1 Commando logs had been destroyed by water
while in Somalia or during redeployment to Canada. Many of the
logs that remain missing are from critical time periods.
In October 1993, Michael McAuliffe, a reporter for CBC Radio in
Ottawa, made a verbal request for Responses to Queries prepared
by DGPA. When the DGPA staff met in early October 1993 to consider
how to respond to Mr. McAuliffe's informal request, they decided
to give him altered RTQs, from which sensitive information had
been deleted. Eventually the same altered RTQs were forwarded
to Michael McAuliffe under the Access to Information Act.
After we issued our Order for Production of Documents in April
1995, it became obvious to DGPA staff that unaltered RTQs would
likely become available to the public and also, therefore, to
members of the media, including Mr. McAuliffe. This is what occurred.
Ultimately, we determined that we were obliged to hold hearings
on the issue of document tampering. This became known as the 'DGPA
Phase' of our hearings. The issues we dealt with during this phase
included questions about knowledge of the decision to release
altered RTQs.
We heard evidence from Gen Boyle himself in relation to his responsibility
for the Somalia Working Group, which had a mandate to manage public
affairs activities surrounding the Somalia incidents. The hearings
on documentation lasted for four months and prolonged the work
of the Inquiry.
Throughout April and May 1996, Prime Minister Chrétien
and the Minister of National Defence stated consistently that
the mandate of the Inquiry allowed us to examine all issues relating
to the incidents in Somalia and emphasized the importance of allowing
us to do our job.
On April 17, 1996, Mr. Collenette stated: "The Inquiry is
to look into cover-up. The Inquiry is to look into the destruction
of documents. The Inquiry is to determine if there is wrongdoing...".
He also spoke in the House on April 19, 1996, describing the Government's
understanding of the intended scope of our investigations. At
that time he affirmed the propriety and relevance of our investigation
of cover-up and issues relating to documentation, stating: "this
Minister and the government took its responsibility by setting
up the Somalia commission specifically to deal with issues such
as documentation." He added: "There were documents altered.
There were documents destroyed. Was there a cover-up? These are
matters on which the Inquiry will get to the bottom...".
By mid-September 1996, however, Mr. Chrétien stated that
he would like to have our report, because reforms to the Canadian
Forces and the Department of National Defence would be on hold
as long as the Inquiry continued, and the Government wanted to
take appropriate remedial action. At the same time, Mr. Collenette
was describing the Inquiry as "an impartial setting to hear
all of the evidence and have everyone dealt with fairly."
During the course of the Inquiry, the Chairman made three requests
for extensions to the original reporting deadline of December
22, 1995. The first request was sent two and a half months after
the Inquiry was established and stated that the parties had underestimated
the amount of time necessary "to prepare a report of this
magnitude".
In the period leading up to this first request, government statements
focused on the Inquiry as a vehicle for eliciting all the facts
and answering all the questions concerning the deployment. In
these statements, the Government explained that the Inquiry's
terms of reference had been designed to ensure that all questions
raised or allegations made about the deployment would be examined.
We made a second request for an extension in the spring of 1996,
after we had an opportunity to review DND's handling of the order
for the production of documents. At that time, we clearly advised
the Government that a further delay could be expected because
new issues had arisen that affected the pace of our work and therefore
required our attention. The Government granted an extension, although
it did not provide the amount of time we had indicated would be
necessary. The Government did, however, state in that response
that the Inquiry's deadline could be reassessed in the fall of
1996.
Around the time this extension was made, the Minister of National
Defence again affirmed the propriety and relevance of our investigation
of cover-up and issues related to documentation. In April 1996,
the Minister told the House: "We have a terms of reference
which has never been challenged, which talks in the language used
by the hon. Member, 'cover-up, 'destruction of documents'. All
of that is in the terms of reference to do the job, to get the
answers."
On October 4, 1996, Mr. Collenette resigned as Minister of National
Defence. On October 8th, Gen Boyle resigned as Chief of the Defence
Staff. The same day the Hon. Doug Young, the newly appointed Minister
of National Defence, said that he was prepared, if he had the
support of the House of Commons, to ask us to report by the end
of March 1997, and that he would "encourage us to report
as quickly as possible on what happened, why it happened and who
was responsible for what happened in Somalia." On October
9, 1996 Mr. Young said that the Government wanted a "thorough
investigation of everything that happened in connection with the
situation in Somalia", and he wanted the Inquiry to "report
as scheduled on March 31, 1997, so that everyone, all Canadians
and all members of the Canadian Armed Forces and members of this
House will have the information they need to make an informed
decision if by any chance an election is called in 1997."
In November 1996, we provided the Government with various scheduling
options, including a final extension of the Inquiry's reporting
deadline to the end of December 1997. We indicated that the main
work still to be completed in accordance with our terms of reference
included the receipt of evidence relating to the March 16, 1993
torture and murder of Shidane Arone by Canadian Forces members,
evidence relating to other in-theatre incidents, evidence relating
to the actions and decisions of key figures at NDHQ (including
the Chief of the Defence Staff, the Minister and the Deputy Minister
of National Defence), and evidence relating to issues of alleged
cover-up at the highest levels in the chain of command and within
the civilian staff at NDHQ. We also drew the Government's attention
to the fact that the number of documents received by the Inquiry
had grown to 150,000, totalling more than 600,000 pages.
On December 10, 1996 Mr.Young told the House of Commons that we
had requested an extension of our mandate. Mr. Young asked that
all members of the House express their views on whether the Inquiry
should continue. He concluded: "I guess it is all a question
of whether it happens in our lifetime or not."
The Government responded in January 1997, giving us until the
end of March to terminate our hearings and until June 30, 1997
to submit our report.
On February 4, 1997, Mr. Young stated that if the Inquiry were allowed to go on until everyone was satisfied that it was complete, he would not live long enough to see the end of the affair. He stated that he had said right from the start, and repeated it numerous times, that he hoped the Somalia Inquiry would table its report on March 31, 1997. On February 13, 1997 Mr. Young told the House of Commons that "every Canadian...knows who pulled the trigger. Everybody in Canada knows exactly what happened on the ground in Somalia.... In response to a comment from a member of Parliament the next day in the House, Mr. Young stated: "[T]he hon. Member...should know, as do most Canadians who are interested in the matter, exactly what happened... What I have said and what I repeat is that Canadians...are fully aware of what took place with respect to the murders by shooting or by torture." (He corrected his reference to "murders" in the House on February 17, 1997, stating that it had been a mistake to link the incidents of March 4 and March 16, 1993.)
From February 5, 1997 on, responding to suggestions that the Government
was hiding the truth and preventing witnesses from testifying
by shutting down the Inquiry, Mr. Young and the Prime Minister
stated that the Inquiry was free to call any witness and that
we had until the end of March to do so.
Between January and March 1997, evidence was heard to complete
our investigation of the shootings of March 4, 1993. In April
1997, hearing time was scheduled for submissions from parties
with standing before the Inquiry.
Following the imposition of the March 3lst deadline to complete
our public hearings, some witnesses, including senior officers,
requested permission to call a number of supporting witnesses,
knowing that we would have to refuse most of these requests because
of the time limitation. Some of the parties brought motions in
court, arguing that the Inquiry could not afford them the fundamental
fairness required by law, and asking that the Inquiry be stopped
from issuing a report.
We held a press conference on January 13, 1997 to respond to the
government's decision to truncate the Inquiry's work, and another
in mid-February to respond to Government comments that we could
call as many witnesses as we wished before the end of March. We
provided a statement to the media that said (in part):
We Commissioners are profoundly disappointed at this turn of events, inasmuch as the time frame that has been stipulated severely restricts our ability to delve into crucial aspects of the mandate that has been specifically assigned to us in our original terms of reference.
Moreover, this Inquiry was established in large measure to alleviate concerns that an imbalance had occurred in the official reaction to the events in Somalia. The feeling was that too much attention had been focused upon the activities of soldiers of lower rank and that not enough effort had gone into examining the role and responsibility of higher ranking officers, senior bureaucrats and government officials. The deadline that is now being imposed on us makes it impossible for us to comprehensively address the question of the accountability of the upper ranks.
The imposed time limitation precluded us from calling a number
of important witnesses. One of them, John Edward Dixon, brought
motions before the Federal Court Trial Division, one of them challenging
the legality of the Government's actions. In a decision rendered
on March 27, 1997 Madam Justice Sandra J. Simpson ruled that the
Government's actions were ultra vires and unlawful, effectively
leaving the Governor in Council with two choices: extend time
sufficient to complete the mandated work in the terms of reference;
or revise the original terms of reference and limit the extent
of what our report should cover. On April 3, 1997 the Privy Council
Office issued another order in council telling us to report on
all items in our original terms of reference pertaining to the
pre-deployment phase, and giving us discretion as to the other
items on which we would report within the imposed deadline of
June 30, 1997.
In this report we have something concrete to say about the issues in every paragraph of our original terms of reference. The curtailment of our mandate, however, left us unable to explore several important matters. Most notable among these are the torture death of Shidane Arone on March 16, 1993, the response of the upper echelons of NDHQ to the events of March 4 and March 16, 1993, and allegations of high-level cover-up pertaining to those events.
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