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In the spring, summer, and fall of 1992, the United Nations, concerned about the breakdown of national government in Somalia and the spectre of famine there, sought international help to restore some semblance of law and order in Somalia and feed its starving citizens. Canada, among other nations, was asked to help. After months of planning and training, and after a change in the nature of the United Nations mission from a peacekeeping mission to a peace enforcement mission, Canadian Forces personnel, as part of a coalition of forces led by the United States, were deployed for service to Somalia, mainly in December 1992. Many of the Canadian personnel involved in the deployment belonged to the Canadian Airborne Regiment Battle Group, itself made up largely of soldiers from the Canadian Airborne Regiment (a paratroop battalion), with other army personnel added to it, including A Squadron, an armoured car squadron from the Royal Canadian Dragoons, a mortar platoon from 1st Battalion, The Royal Canadian Regiment, and an engineer squadron from 2 Combat Engineer Regiment.
On the night of March 16-17, 1993, near the city of Belet Huen, Somalia, soldiers of the Canadian Airborne Regiment beat to death a bound 16-year-old Somali youth, Shidane Arone. Canadians were shocked, and they began to ask hard questions. How could Canadian soldiers beat to death a young man held in their custody? Was the Canadian Airborne Regiment suitable or operationally ready to go to Somalia? Was racism a factor in improper conduct within the Regiment? Before long, Canadian media began to publicize accounts of other incidents involving questionable conduct by Canadian soldiers in Somalia. Major Barry Armstrong, surgeon to the Canadian Airborne Regiment, acting in fulfilment of his military duties, alleged that an earlier incident on March 4, 1993, where an intruder was shot dead and another was wounded by Canadian Airborne soldiers, appeared to have been an execution-style killing. And so, other questions arose: Were incidents in Somalia covered up and, if so, how far up the chain of command did the cover-up extend? Did the Canadian Forces and the Department of National Defence respond appropriately to the allegations of cover-up? And perhaps most problematic of all, were the mistreatment of Shidane Arone and other incidents of misconduct caused by a few "bad apples", or were they symptomatic of deeper institutional problems in the Canadian military at the time -- problems relating to command and control, accountability, leadership, or training? If so, did these problems still exist?
The Canadian Forces responded in many ways to the death of Shidane Arone and other incidents that occurred in Somalia. Several courts martial, arising mostly though not exclusively from misconduct relating to the death of Shidane Arone, were launched and concluded. A court martial trial began against Master Corporal Clayton Matchee, the person who allegedly beat Shidane Arone to death. The trial did not proceed, however, because injuries resulting from an apparent suicide attempt rendered MCpl Matchee unfit to stand trial. The most prominent court martial was arguably that of Private Kyle Brown, who was convicted of manslaughter and torture in the death of Mr. Arone. In some cases, appeals of the courts martial arising from the Somalia operation were launched. Other individuals involved suffered sanctions less severe than imprisonment upon conviction.
But perhaps more important, the Canadian Forces recognized the need for additional measures to respond to public concern about what happened in Somalia. Accordingly, the Chief of the Defence Staff of the Canadian Forces appointed an internal board of inquiry under section 45 of the National Defence Act to look into issues arising from the Somalia operation. The board conducted the first phase of its work from April to July 1993. The board's final report made several recommendations for change. However, its terms of reference were restricted in two ways. First, to avoid challenges to its jurisdiction under the Canadian Charter of Rights and Freedoms, it was essentially precluded from looking into incidents that could give rise to court martial proceedings. As its terms of reference said, "[n]o inquiry shall be made into any allegation of conduct that would be a service offence under the National Defence Act, and in particular any Criminal Code offence, that has resulted in the laying of a charge, the arrest of a person or the ordering of a military police investigation."1 Second, its focus was on issues such as leadership and discipline relating to the CARBG, which included the antecedents of the CARBG in Canada and higher headquarters in Somalia before and during its deployment there.2 Thus, it had no authority to look into the actions or omissions of persons at the highest levels of the chain of command within the Canadian Forces. As well, the hearings were not open to the public. It was intended that there would be a second phase of the inquiry to address issues not addressed in its first phase.3
Critics argued that an open inquiry was needed to get to the truth of what happened and why. Representatives of the Liberal Party of Canada, the official opposition at the time the board of inquiry was established, argued for an open public inquiry under the National Defence Act.4 When the Liberals gained power after the 1993 federal election, they continued to express this view.5 However, as more revelations suggesting possible cover-up and other disclosures were made, the Government eventually decided to establish a public inquiry independent of the military that would have the power to subpoena witnesses not belonging to the military. As a result, on March 20, 1995, this Commission of Inquiry, governed by the federal Inquiries Act, was created.6 The act sets out the statutory powers and responsibilities of inquiries, generally giving us broad powers to summon and enforce the attendance of witnesses and to require the production of documents.7
Our Inquiry carried out its work under three closely interrelated components, each assigned a specific task. The three prongs were investigation, research, and hearings. The work was allocated among these three areas to ensure that the results of their efforts, when combined, would address in full each and every aspect of the terms of reference.
Our Investigative Team methodically sought factual evidence by studying over 150,000 documents and interviewing hundreds of potential witnesses in a relentless search for the truth. In parallel, our Research Team carried out an exhaustive comparative assessment of rules and policies affecting military operations and decision making. The third component of our approach, the part that was most visible to the public, was our hearings.
The hearings were divided into two parts: policy hearings and evidentiary hearings. Following procedural hearings on May 24, 1995, we held policy hearings during the week of June 19, 1995, at which the parties and the Department of National Defence (DND) presented policy submissions on a number of issues. Those hearings were limited strictly to receiving evidence on policy issues necessary to enable the Commission of Inquiry to clarify its mandate. The purpose of the evidentiary hearings was to elicit and probe litigious facts or those that could be established only through testimonial evidence. They commenced on October 2, 1995, beginning with hearings on the pre-deployment phase of the Somalia mission. Extensive hearings on the in-theatre phase of the deployment commenced on April 1, 1996. An unanticipated phase of the hearings, commenced on April 15, 1996, related to difficulties we had experienced in obtaining documents from DND and its Directorate General of Public Affairs (DGPA). This phase lasted more than five months, with many witnesses testifying on matters related to the handling of documents within DND, the CF and the DGPA. As a result of the Government s decision to order the early termination of the Commission of Inquiry,8 it was not possible to complete our hearings on some of the events and actions in theatre and on some of the issues arising in the post-deployment phase. Nevertheless, we are confident that during our mandate we heard and reviewed sufficient testimonial and documentary evidence on a comparative basis to enable us to address the institutional and systemic problems we were asked to investigate in our terms of reference.
The scope of a public inquiry is determined by its terms of reference, and ours were detailed and complex.9 Essentially, they required us to examine several major matters, such as the chain of command as it applied to the Somalia operation, and the leadership shown before, during and after the Somalia operation. The terms of reference were divided into two parts. The first part contained a broad opening paragraph, generally requiring us to inquire into and report on the chain of command system, leadership within the chain of command, discipline, operations, actions and decisions of the Canadian Forces, and actions and decisions of the Department of National Defence in respect of the Somalia operation. The terms of reference stated clearly that our investigation need not be limited to the details and issues set out in subsequent paragraphs.
The second part required us to look at specific matters relating to the pre-deployment, in-theatre, and post-theatre phases of the Somalia operation. Specific pre-deployment issues (before January 10, 1993) included the suitability of the Canadian Airborne Regiment for service in Somalia; the operational readiness of the Canadian Airborne Regiment Battle Group for its missions and tasks before deployment; and the state of discipline within the Canadian Airborne Regiment. In-theatre issues (January 10, 1993 to June 10, 1993) included the missions and tasks of Canadian Joint Task Force Somalia and the suitability of the composition and organization of the Task Force for its missions and tasks; the extent, if any, to which cultural differences affected the conduct of operations; the attitude of all rank levels toward the lawful conduct of operations; and the manner in which the Task Force conducted its mission and tasks in theatre and responded to the operational, disciplinary and administrative problems encountered, including allegations of cover-up and destruction of evidence. Post-deployment issues (June 11, 1993 to November 28, 1993) were to address the manner in which the chain of command of the Canadian Forces responded to the operational, disciplinary, and administrative problems arising from the deployment.
The terms of reference of this Inquiry obliged us to conduct an examination of the joint structure, planning and execution of the Somalia operation by the Canadian Forces and the Department of National Defence. We reviewed the military's actions and decisions (including those of the Department of National Defence) to determine whether structural and organizational deficiencies lay behind the controversial incidents involving Canadian soldiers in Somalia. We also reviewed the institutional reaction and response to these incidents. Our mandate includes proposing appropriate corrective measures for future missions. The Inquiry was not intended to be a trial, or a retrial of any trial previously held, although our hearings did include an examination of the institutional causes of and responses to incidents that previously resulted in the charge and trial of individuals. In the same way, the Inquiry was not an examination or re-examination of the issue of compensation for the victims. Hence, the Inquiry's primary focus was the organization and management of the Canadian Forces and the Department of National Defence, as well as institutional and systemic issues, rather than the individuals who constitute them. However, this focus inevitably required us to examine the actions of the chain of command and the manner in which leadership was exercised. Nevertheless, we refrain in this report from making findings of individual misconduct, save as regards the pre-deployment phase and on the issue of disclosure of documents by the Department of National Defence and the Canadian Forces and the events involving the Directorate General of Public Affairs.
Our mandate thus required us to consider several fundamental institutional issues. How is accountability defined, determined and exercised in the chain of command of the Canadian Forces? Were reporting procedures adequate and properly followed so as to enable the flow of information within the chain of command and the adoption of appropriate corrective measures when required? Did actions taken and decisions made in relation to the Somalia operation reflect effective leadership or failures in leadership? To determine this, we intended originally to examine the decisions and conduct not only of officers and non-commissioned officers in the Canadian Forces, but also of top civilian staff at National Defence Headquarters, including the Deputy Minister of National Defence. We have been able to cover the vast majority of issues assigned to us under the terms of reference. However, because of the Government's decision to terminate the Inquiry, we were unable to carry out this intention with regard to the upper echelons, the allegations of cover-up, and the extent of their involvement in the post-deployment phase.
We were obliged to consider whether the correct criteria were applied to determine whether Canada should have committed troops to Somalia in the first place and whether the mission and tasks of the Canadian Forces and the rules of engagement governing their conduct in theatre were adequately defined, communicated and understood. It was also necessary, given the disciplinary and organizational problems that became apparent in the Canadian Airborne Regiment at relevant times, to assess the extent to which senior military leaders advised or should have advised the Minister of National Defence, through the chain of command, about the true state of readiness of the Canadian Airborne Regiment to participate in the mission. In the circumstances, we had also intended to address the scope of the responsibility and duty of the Deputy Minister of National Defence to keep the Minister of National Defence informed of significant events or incidents occurring in theatre and the extent to which these responsibilities and duties were carried out. Further, we had intended to examine in detail the duties and responsibilities of the political and civilian leadership at the ministerial level, including the scope of the duties and responsibilities of the Minister of National Defence at the time of the in-theatre activities, the Hon. Kim Campbell, and whether she was being kept accurately informed of problems occurring during the Somalia operation. In examining this broad issue, we had determined the importance of considering both the nature and the scope of the duties and responsibilities of the ministerial staff to keep the minister appropriately informed as well as the duty and responsibility of the deputy minister to organize the department in such a way as to ensure that information appropriate and necessary to its proper functioning was conveyed and received. Finally, where we identified failures to fulfill necessary duties or convey appropriate information, we addressed the nature and scope of appropriate accountability for such failures.
In short, we interpreted our mandate reasonably and limited it to the issues set out in the terms of reference, which themselves were quite broad. We would not examine issues that appeared to us to fall outside our mandate. Some parties asked us to interpret our mandate to cover two issues that, while undoubtedly relevant in examining the effectiveness of the Canadian military, appeared to us to fall outside the terms of reference: the issue of the disbandment of the Canadian Airborne Regiment, and the issue of racism in the Canadian Forces generally. We ruled that the disbandment of the Regiment fell outside the scope of our mandate. An investigation of racism in the Canadian Forces would have required us to examine racist organizations throughout Canada and allegations of racist conduct in all units of the Canadian military. In our view, the terms of reference did not authorize such a broad inquiry, although we were prepared to examine aspects of racism that may have affected the Canadian Airborne Regiment Battle Group or that conceivably had an impact on the deployment. Nonetheless, we asserted that we would call any evidence that would do justice to issues falling within the terms of reference.10 Thus, we concluded that the terms of reference would permit us to inquire into racist conduct, insofar as it reflected systemic problems within the Canadian military, such as inadequate screening of recruits or inadequate training.
At the outset, we recognized that if we were to obtain all relevant facts, we would have to create a positive environment that would foster co-operation between the Canadian Forces members involved in the Somalia deployment and the Inquiry. Concerned that soldiers who wished to testify might feel intimidated and keep silent out of fear that testifying or co-operating might jeopardize their careers or promotions, we announced that we would take steps to monitor the career progress of any soldier who wished to testify. We paid particular attention to the case of Cpl Michel Purnelle, who was court-martialled after publishing a book critical of leadership in the Canadian Forces. Cpl Purnelle testified before us and was a credible witness who is to be commended for the example he set for other soldiers and for the assistance he rendered to the Inquiry. We were involved in his case at numerous junctures and made public statements with respect to actions taken against him. In particular, we intervened actively in an attempt by military authorities to prevent him from bringing important evidence to the Inquiry. We had several meetings with DND officials regarding the propriety of actions taken with respect to Cpl Purnelle and have continued to monitor his progress.
As well, we were determined to penetrate any wall of silence that might be erected around the Somalia operation. Accordingly, in 1995 and 1996 we visited many of the soldiers who served with the Canadian Airborne Regiment during the deployment in locations across the country --Petawawa, Ontario, Valcartier, Quebec, Winnipeg, Manitoba, and Calgary and Edmonton, Alberta. We talked to them in groups and in one-on-one sessions. We were initially optimistic that these efforts had succeeded in breaking down any barrier of mistrust that might have existed, but as events unfolded and witnesses appeared, that optimism began to wane. Nonetheless, the visits did prove useful and, in some cases, helped us obtain new information and a better understanding of the deployment.
The facts and information in this report came to us from a variety of sources. We ordered the production of relevant documents from the Department of National Defence, the Department of Foreign Affairs and International Trade (formerly the Department of External Affairs) and the Privy Council Office.11 At the Department of National Defence, the Somalia Inquiry Liaison Team (SILT) was created to collect and send documents, videos, and other information sought by the Inquiry. More than 150,000 documents were received from these departments, all of which were painstakingly categorized by the Inquiry's staff according to relevance and issue.
Recognizing that the reconstruction of what happened in Somalia would require full disclosure by DND and the rest of the government of all relevant material, we issued an order on April 21, 1995 for the production of all such documents. Initial estimates from SILT were that some 7,000 documents were likely involved and subject to disclosure. SILT representatives made a convincing case that great efficiencies would be associated with computer-scanning all such material and making it available in electronic form. What transpired after we agreed to this procedure was totally unexpected and painted a most unflattering picture of SILT officials.
DND's faulty scanning and transmission process placed an enormous burden on us to reconstruct files. All documents that were maintained collectively in subject-matter files at DND were scanned into individual file folders, effectively destroying the structural integrity of the DND file system by obscuring the subject-matter relationship between and among documents. This was tantamount to handing over pieces of a jigsaw puzzle to the Inquiry. This process was merely the first chapter in a saga of failure.
Document disclosure never came to formal closure throughout the life of the Inquiry. Disclosure took the form of a slow trickle of information rather than an efficient handing over of material. Key documents were missing, destroyed, or even altered. Many documents we requested were not forthcoming, and some of them came to our attention only by happenstance, such as when they were uncovered by a third-party Access to Information request. Some key documents were disclosed officially only after their existence was confirmed before the Inquiry by third parties. Representatives from SILT were reminded constantly of the slow pace and incomplete nature of DND disclosure. Following numerous meetings on the document transmittal process and private meetings with SILT officials at which we expressed frustration with the process, there were still no results. Finally, faced with an attempt to destroy Somalia-related documents, missing and destroyed field logs, and a missing National Defence Operations Centre computer hard drive, we were compelled to embark on the 'DPGA/document disclosure' phase of our investigation and to address the issue of compliance with our orders for production (see Volume 5, Chapter 39 for further details).
Many of the documents that were made available were filed as exhibits. Documents researched included the report of the internal board of inquiry, consisting of 11 volumes of documentation, the response of the Chief of the Defence Staff to the board's recommendations;12 the transcripts of the courts martial of those prosecuted as a result of alleged misconduct in Somalia; Canadian and other military manuals and policy documents; and literature on the Canadian military and United Nations peacekeeping and peacemaking missions.
The analysis in this report is based on testimony and submissions made by all parties at our hearings, the documents and other material entered as exhibits at the hearings, authoritative articles and books, material collected from conferences attended by Inquiry staff and consultants on relevant topics, papers written and other information provided by special consultants to the Inquiry, and original research and analysis conducted by our own research staff.
Research staff and technical advisers also travelled to points in Canada and abroad to obtain comprehensive information on relevant issues. For example, in the United States, they visited the Pentagon in Washington, D.C., and obtained information about the structure and doctrine of relevant aspects of the U.S. military, such as the role of the Inspector General in their armed forces. In March 1996 the Chairman, Commission Secretary and Director of Research travelled to London, England for meetings with the British Judge Advocate General and other senior military officials. In December 1996 the Director of Research met with senior Australian military officials. A conference sponsored by the United Nations focusing on the lessons learned from the Somalia mission was also attended by a member of our research staff.
In Canada, members of the research staff, technical advisers and consultants visited sites such as the Department of National Defence's Directorate of History in Ottawa, the Canadian Forces Base at Camp Borden, Ontario, and Royal Military College at Kingston, Ontario. The co-operation of members of the military who assisted Inquiry personnel on these visits was outstanding. Research staff also contacted numerous military personnel and independent experts and consultants for information on such issues as military ethics, training, and leadership. Experts and consultants also attended the Inquiry's premises to provide background information on major issues: for example, in October 1995, Professor Jarat Chopra of Brown University discussed "The Changing Nature of Peacekeeping: Missions to Somalia".
Early on, we established rules of practice and procedure to govern our proceedings. These rules were designed to ensure that persons appearing as parties were treated in a fair and just manner in accordance with due process. On May 24, 1995, we held initial hearings to determine whether certain persons or organizations should be given full or limited standing before the Inquiry. We also considered and disposed of a number of subsequent applications. A list of parties granted standing is found in Appendix 2. Parties given full standing, in addition to being able to file written submissions, were allowed to examine or cross-examine witnesses and make oral submissions subject to terms set by the Inquiry. Parties with limited standing were allowed to make written submissions and, with the permission of the Inquiry, to make oral submissions after the filing of their written statements. If a party believed that a person not called by Commission counsel could provide relevant evidence, the party could apply in writing for an order that the witness be called to testify. Also, a party could, on written application, be authorized to call a witness. In effect, our procedures were created to ensure that all relevant witnesses were identified and their evidence advanced if it might assist us to carry out our mandate. As well, counsel for parties with full standing had broad powers of cross-examination.13 To prevent the Inquiry from becoming adversarial, we decided that all witnesses would first be examined in chief by Commission counsel. Counsel for parties or witnesses had the right to conduct a supplementary examination of their client after Commission counsel and a right of re-examination after cross-examination. To allot the time allowed for examination and cross-examination by parties, a rule of thumb was adopted: the total time allocated to all parties for questioning witnesses was to be equal to the time taken by Commission counsel to conduct the examination in chief.
In the latter phases of our hearings, we had the unfortunate task of issuing rulings denying the requests of various individuals to be heard. Under the time constraints imposed on the Inquiry, we were unable to accommodate such individuals because of our inability to explore the issues on which they wished to testify.
Key rulings of the Inquiry are reproduced in Appendix 3. Later in this chapter, we elaborate on the contents of some of our rulings.
The powers conferred by the Inquiries Act, such as the power to subpoena witnesses and obtain documents, were tempered by our commitment to fairness. A key rule of fairness is prescribed in section 13 of the Inquiries Act:
No report shall be made against any person until reasonable notice has been given to the person of the charge of misconduct alleged against him and the person has been allowed full opportunity to be heard in person or by counsel.14
We rejected a narrow interpretation of this provision, that is, that a "charge of misconduct" involved only misconduct of such a nature as to attract a criminal charge.15 Analyzing the law in this area, we decided that a "charge of misconduct" should be defined more broadly. Thus, we gave section 13 notices to all persons in relation to whom an allegation or finding had been or might be made that could reasonably bring discredit upon that person. In this way, the protections afforded by section 13 were made widely available, thereby ensuring a more effective commitment to fair process throughout the course of this Inquiry.
Section 13 of the Inquiries Act exists to provide procedural fairness to affected individuals. With this in mind we were determined to provide notification as early in our process as possible to individuals with regard to whom we expected allegations of misconduct to be made. For this reason notices affecting the pre-deployment phase of our proceedings were sent out in September 1995. Similarly, notices with regard to other phases of our hearings were sent to affected individuals at the first reasonable opportunity after we assessed the evidence we anticipated receiving in that phase.
The advantages of early receipt of section 13 notices are considerable. The affected individuals knew the nature of their jeopardy and were therefore able to examine and cross-examine witnesses with this reality in mind. Also, notice recipients were called to testify before the Inquiry and could prepare for their testimony in light of knowledge of Commissioners' concerns about their actions and conduct.
The Government's decision to curtail our Inquiry resulted in the truncation of the in-theatre phase of the hearings and necessitated a decision to withdraw the section 13 notices sent out in relation to that phase. However, the DPGA/document disclosure and pre-deployment phases were self-contained and did not require this drastic step. In January 1997 we sent a letter to each section 13 recipient providing greater particularization and further specification of the allegations contained in the notices sent to them previously. We then reserved time in the final days of our hearings (the order in council curtailing the Inquiry obliged us to end our hearings "on or about March 31, 1997") for section 13 recipients to call witnesses to answer or rebut the allegations in their notices.
Section 13 recipients were also accorded substantial rights to file affidavit evidence and make written or oral submissions to Commissioners at the conclusion of our proceedings.
Finally, as a matter of fairness and to protect the reputations of the individuals involved, we ensured that the contents of section 13 notices would remain confidential until they were addressed in our final report or filed with the Inquiry by the recipient for the purpose of examining or cross-examining witnesses as to their contents. We also kept confidential the names of the recipients of such notices and invited them to protect such confidentiality.
In preparation for our hearings, and throughout the course of the investigation, it was necessary to make rulings on matters of procedure and various motions put before us. On August 3, 1995 we issued a detailed interpretation of our terms of reference as well as a statement on the role of Commission counsel. Copies of these and related documents can be found in Appendix 3.
On May 24, 1995 we issued a document on rules of practice and procedure that dealt with a number of procedural issues, including the requirements for standing, procedural, and public hearings; provisions for the calling of witnesses; a definition of "documentary evidence"; the requirements for written submissions; and conditions relating to media coverage of hearings. During April and May 1995, we issued orders for the production of documents to the Minister of National Defence, the Minister of Foreign Affairs and the Clerk of the Privy Council. Orders were also issued at various times to give individuals standing before the Inquiry.
A different example of an order was that of June 12, 1995, which contained reasons for our decision respecting an objection by counsel for the Government of Canada to the filing of an unedited version of the proceedings of the internal board of inquiry appointed by the Chief of the Defence Staff to investigate the leadership, discipline, operations, actions, and procedures of the Canadian Airborne Regiment Battle Group. The objection was made on the basis of counsel's argument that some of the information in that report related to national security or that the release of certain information could affect Canada's good international relations. Our terms of reference require that matters relating to national security be heard in camera and kept confidential. In the end, considering arguments relating to the balance between the need for secrecy and the public's right to know, we adopted the test enunciated in section 38 of the Canada Evidence Act and developed by the Federal Court of Appeal in Goguen v. Gibson: A document will not be disclosed to the public if disclosure would likely be injurious to national security or international relations and if such injury would outweigh the importance and benefit of the disclosure to the public in the inquiry proceedings.16 Applying those principles, we ruled that certain information contained in the report of the board of inquiry would be severed from the documents to be filed.
It was also necessary to rule on a motion for disclosure of the transcript or tapes of Military Police witness interviews that formed the basis of Military Police Report Summaries filed at our hearings. This request was based on a claim of procedural fairness, and we took into consideration the fact that this was an investigation, not a civil or criminal trial. In the end, we granted the applicant's motion for disclosure.
Most challenging were rulings regarding individuals who received section 13 notices. Any individual who received such a notice faced the possibility of adverse findings regarding his or her conduct. On November 30, 1995 we issued a ruling dismissing a motion from counsel for LCol(Retired) Carol Mathieu to adjourn the Inquiry's proceedings and to declare that the representatives of the Department of National Defence, the Canadian Forces, the Government of Canada, and the Attorney General of Canada at the Inquiry were in a conflict of interest to the prejudice of the applicant.
On April 19, 1996, we considered a motion put forward by counsel for BGen Ernest B. Beno that sought either to disqualify the Chairperson of the Inquiry from continuing to act as a Commissioner for this Inquiry, on the grounds that his conduct with respect to the applicant created a "real apprehension of bias", or, alternatively, from participating in any way in the making of adverse findings with respect to BGen Beno. The applicant's concerns arose over questions and statements perceived to demonstrate "unfairness" toward the witness, both inside and outside the hearings. We considered the legal arguments and, in the end, dismissed the motion on the grounds that any findings to be made would be based solely and scrupulously on the evidence formally disclosed to the participants and received in our hearings, and that all findings and conclusions would be collective, that is, those of all Commissioners together. The applicant sought judicial review of our decision in the Federal Court Trial Division, which on February 20, 1997 upheld the claim of bias and prohibited the Inquiry Chairperson from participating in any discussions or decisions regarding matters of conduct where BGen Beno was involved. We immediately filed an appeal of that decision, believing that the facts did not support it, that the reasons for decision rested on an assumption of standards of conduct for a judge during a trial, and that those standards should not be applied to a Commissioner acting as an investigator in a hearing that is not a civil or criminal trial. On May 2, 1997, the Federal Court of Appeal, in a unanimous decision, quashed the decision of the Trial Division and concluded that there was no evidence of bias and no reasonable apprehension of bias on the part of the Chairman.
In addition to dealing with a variety of motions, we issued formal statements from time to time to clarify certain matters. These included opening statements at the commencement of each phase of the hearings, comments on our investigation into the integrity of documents made available to us, and a statement on a letter sent by counsel for the Government regarding legal and ethical standards for all counsel contacting members of the military.17
We issued formal statements at a press conference following the January 10, 1997 decision to cut short our hearings, at which time each of us expressed concerns about the implications of such a decision, but reaffirmed our individual and collective commitment to stay on in pursuit of the truth. That was, after all, the only goal we had set for ourselves -- to seek the truth on behalf of Canadians. The impact of the Government's decision to cut short the Inquiry is discussed more fully in Volume 5, Chapter 42. Our hope is that the report sheds additional light on what actually transpired in Somalia, and that implementation of our recommendations will help to prevent such events from recurring.
This section explains, in broad outline, how this report is organized and presented. The report consists of five volumes and an executive summary.
The executive summary contains a brief summary of the facts and issues and sets out our major recommendations. Its purpose is to give readers an overview of the major points found in the chapters on context and narrative (Volume 1) and analysis and recommendations (Volumes 2 through 5).
The preface in this volume sets the tone and introduces the challenges we faced in the Inquiry. This is followed by a discussion of the major themes and principles stemming from the terms of reference and significantly affecting our approach. These issues include leadership, the chain of command, discipline, mission planning, personnel selection and training, personnel suitability and cohesiveness, rules of engagement, operational readiness, cover-up, disclosure of information, military justice and accountability. These topics and themes appear throughout the report and form an integral part of our analysis and recommendations. At the beginning of our report, we explain the broad principles underlying these concepts and demonstrate the linkages between and among them.
Then we describe our approach to the Inquiry, how we interpreted the terms of reference, the methodology used to conduct our investigation, and various rulings and formal statements rendered during the course of the Inquiry.
The bulk of Volume 1 consists of nine chapters describing the background to the Inquiry and our report. It describes things as they were at the time of the Somalia mission. It is not intended to be interpretive or to pass judgement. Rather it presents our research on the military, legal, and cultural factors that defined Canada's participation in the mission during 1992 and 1993. Its purpose is to give readers a basic familiarity with the nature and organization of the Canadian military and the role of the military in society. Thus, it provides a context for understanding our detailed analysis of the issues raised in the terms of reference.
The volume concludes with three chapters describing what happened before Canadian troops were deployed to Somalia, during the deployment, and after they arrived home. It describes the events and actions that define the issues and points to areas where we believe an investigation of the facts is warranted. This part of the report points out where we suspect systemic problems exist, whereas volumes 2 through 5 provide an analysis of those suspicions. These three chapters are thus a detailed narrative summary of the events, actions and decisions relating to the Somalia operation. All controversial or disputed facts are noted there.
This is where we present our findings. We explore the events described in Volume 1 to reach conclusions about what happened during the mission and to make recommendations. For each of our key themes, we describe the standards and norms (what should have been expected), identify the variances detected (the concerns flagged in our narrative of events), and draw findings from that analysis. Recommendations follow the findings, and these appear again at the end of the report and in the executive summary.
Our analysis and findings are presented in volumes 2 through 5. Volume 3 is devoted to a case study of the mission planning process for the Somalia deployment. Volume 4 is devoted to our findings with respect to individual misconduct on the part of those officers of the Canadian Forces who received section 13 notices for the pre-deployment period of the mission and as regards the DPGA/document disclosure phase. Volume 5 contains additional findings on several important topics, including a thorough analysis of the incident of March 4, 1993 and its aftermath, and a detailed assessment of the military justice system, with recommendations for extensive change. In the same volume we spell out the implications of the government decision to truncate our Inquiry in midstream, and what else we could have accomplished with sufficient time. Volume 5 also contains a summary of our recommendations and appendices to the report.
The appendices contain important material relating to the operations and the content of the Inquiry, for example, our rules and procedures; and our terms of reference as contrasted with those of the internal board of inquiry appointed by the Chief of the Defence Staff. The appendices contain various lists covering administrative and procedural matters. These include names of staff, advisers and consultants, and lists of persons and organizations with standing. In addition we provide copies of Commissioners' rulings, lists of witnesses appearing before the Commissioners, the names of research studies undertaken by external consultants, a description of background briefings and seminars attended by Commissioners and staff, and a list of acronyms and abbreviations used in the report.
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