 |  |  |
      |
| | |
|
This Inquiry was established to investigate and report on
the chain of command system, leadership within the chain of command, discipline, operations, actions and decisions of the Canadian Forces and the actions and decisions of the Department of National Defence in respect of the Canadian Forces deployment to Somalia and, without restricting the generality of the foregoing, the following matters related to the pre-deployment, in-theatre and post-deployment phases of the Somalia deployment.
The terms of reference go on to provide a four-page list of the specific matters we were directed to investigate.
Our mandate was essentially to undertake a comprehensive review of the Somalia deployment. We were asked to delve into questions involving both institutional failures and individual misconduct. This involved evaluating whether institutional or structural deficiencies existed in the planning and initial execution of the operation, and whether institutional responses to operational, disciplinary, and administrative problems encountered in the various phases of the Somalia operation were adequate. Also central to our investigation was determining whether some of the problems encountered were the result of individual shortcomings or personal failures.
In discharging our mandate we focused, at the pre-deployment stage, on the nature of and preparation for the mission and tasks assigned to the Canadian Joint Force Somalia and on the suitability of the forces deployed to accomplish the tasks assigned. We were asked to examine the manner in which the mission was conducted, the effectiveness of decisions and actions taken by leadership at all levels of the chain of command, and the adequacy of the command response to the operational, disciplinary, and administrative problems encountered. The curtailment of our endeavours by Government-imposed deadlines restricted the ambit and reach of our inquiries, but what we did investigate shines a penetrating light across the entire spectrum of activity in the Department of National Defence and the Canadian Forces. In addition, we sought to explore, to the extent possible in the circumstances, the professional values and attitudes of all rank levels with respect to the lawful conduct of operations and the treatment of detainees, as well as the extent to which cultural attitudes affected the conduct of operations. We also reviewed allegations of cover-up and destruction of evidence (although to a lesser extent than we would have preferred).
The public inquiry process is an exercise in accountability (a concept defined below). In general terms, an examination of accountability as it relates to the military could entail a consideration of principles derived from the fields of criminal liability, civil responsibility, ministerial accountability, public service administration, and corporate, managerial, or bureaucratic accountability. However, despite the breadth and scope of our mandate, we do face jurisdictional constraints. We, therefore, limited our investigation consciously and deliberately, to questions of accountability falling outside the sphere of an assessment of criminal or civil liability. We affirmed this orientation publicly on numerous occasions.
Excluding notions of criminal and civil responsibility from an analysis of accountability does not impede an inquiry's ability to conduct an appropriate review. Indeed, public inquiries are effective instruments precisely because they can probe an issue in the public interest without the need to assign civil liability or determine guilt. The applicable principles of accountability are capable of reasonably precise identification and can provide an effective measure for evaluative purposes.
Accountability is the mechanism for ensuring conformity with standards of action. In any setting where rules are established to guide human activity, supervision of conformity with those rules is an essential condition for the stability of that environment. Those exercising substantial power and discretionary authority must be answerable (that is, subject to scrutiny, interrogation, and, ultimately, commendation or sanction) for its use. Without answerability, systems tend to become autocratic, despotic, or dictatorial. Accountability is therefore a basic attribute of open, democratic societies. Open processes generally are regarded as guarantors of responsibility in the exercise of official authority. In democracies all public officers exercising significant authority are made accountable for their decisions and the effects of them. Accountability provides a vehicle for preventing, or at least controlling, the abuse of state power.
The term accountability is neutral in its embrace. It relates to both positive and negative actions. The accountable person accounts for all activities that have been assigned or entrusted -- in essence, for all activities for which the individual is responsible. Accountable officials receive credit as well as blame. Thus, in a properly functioning system or organization, there should be accountability for individuals' actions regardless of whether those actions are executed properly and lead to a successful result or are carried out improperly and produce injurious consequences.
Responsibility is not synonymous with accountability. The person authorized to act is 'responsible'. Responsible officials are held to account. People responsible for acting in an official capacity are ordinarily held to account for their actions. An individual who exercises powers while acting in the discharge of official functions is responsible for the proper exercise of the powers or duties assigned. Where the individual does so under the direction of a superior officer entrusted with supervisory authority, that superior officer is accountable for the manner in which that authority is or is not exercised. The subordinate remains responsible for the proper exercise of the powers or duties assigned, but the subordinate's proper or improper exercise of such powers or duties may also reflect proper or improper supervision for purposes of overall accountability.
There is a distinction between supervision of a subordinate's actions and delegation of the authority to act to another person (who may or may not be a subordinate). A person exercising supervisory authority is responsible, and hence accountable, for the manner in which that authority has been exercised. A person who delegates authority is responsible, and hence accountable, not for direct supervision of the kind a supervisor is expected to exercise but, rather, for control over the delegate and ultimately for the actual acts performed by the delegate.
The nature of delegation can be explained in these terms: An individual entrusted with authority to act can delegate certain tasks or functions to another person, but the act of delegation does not relieve the responsible official of the duty to account. Put another way, the responsible official can delegate the authority to act but can never delegate responsibility for the proper performance of the tasks and duties in question. Where a superior delegates the authority to act to a subordinate, the superior remains responsible -- first, for acts performed by the delegate; second, for the appropriateness of the choice of delegate; third, with regard to the propriety of the delegation (i.e., the nature, extent, and scope of the delegation and whether, in any circumstances, it was appropriate to delegate the function in question); and, finally, for control of the acts of subordinates, since delegates are the agents of their superiors and bind their superiors in acting on their behalf.
It is the responsibility of those who exercise managerial authority (i.e., management, in the sense of exercising supervisory or delegated authority) to know what is transpiring within the area of their assigned authority. The proper exercise of managerial authority includes the necessity for managers to establish adequate systems or procedures to provide relevant information; to seek information; and to be informed and kept informed of all aspects of the mandate under their charge. Even if subordinates whose duty it is to inform their superiors of all relevant facts, circumstances, and developments fail to fulfill their obligations, this cannot absolve the superior of responsibility for what has transpired. Perhaps the most relevant questions in such scenarios are whether officers who had no knowledge of the facts or circumstances ought to have inquired or to have known what was transpiring, or whether they relied unjustifiably on inadequate sources for the information at issue. An executive officer who has been kept deliberately in the dark by subordinates about important facts or circumstances affecting the proper discharge of organizational responsibilities cannot, by that fact alone, escape being held to account. In such circumstances it will be relevant to understand what processes and methods were in place to ensure the provision of adequate information to those in authority. It will also be important to assess to what extent the information in question was well-known or commonly held and whether the result that occurred could reasonably have been expected or foreseen. Moreover, how the managerial official responded upon first discovering the shortfall in information will often be germane. (For example, were steps taken to prevent repetition or continuation of the action in question?)
These circumstances apply to responsible officials who raise the claim of "I did not know"1 about important facts or circumstances related to the discharge of organizational responsibilities under their charge. In fact, those accused of responsibility for a harmful outcome often plead ignorance. For example, when blame for a recent riot at Headingley jail in Manitoba was attributed to the provincial Minister of Justice, she offered the defence of ignorance. Despite numerous prominent newspaper stories detailing serious problems at the jail, the Minister insisted that she knew nothing about serious problems of safety and morale. Moreover she invited the public to accept this claim as a robust defence, rather than as an admission of blameworthy failure. The implication of this view is, apparently that when one does not know of a problem, one is never responsible for failing to take corrective action.
Similarly, some witnesses testifying before us claimed that their ignorance excused them from personal moral responsibility. Examples of such claims are explored in Volume 5, Chapter 39, on disclosure of documents. These witnesses, in effect, ask us to consider them blameless for their failure to take action to correct a problem or set of problems of which they were not aware.
Not everyone will agree with the view that officials are never blameworthy for actions omitted or undertaken in ignorance. Indeed, it is one of the responsibilities of a superior officer to put in place the measures necessary to stay informed. A superior officer has an additional obligation, where the proper mechanism has failed, to ensure that appropriate corrective action is taken to remedy the situation.
The plea of ignorance ("I did not know") should be regarded as a weak defence. No automatic grace flows to the benefit of those who, when exercising managerial authority, reap the bitter harvest sown by their own non-feasance, misfeasance or negligence, or that of subordinates. Indeed, some forms of misconduct by subordinates represent failures so large or so devastating to the functioning, morale, or good order of an organization that discharge or enforced resignation of a manager or supervisor is required, even if the superior officer is generally competent, has been diligent, and has acted in good faith. The message this sanction sends to the entire corps of the organization is considered more important than the salvation or preservation of an individual career. We do not mean to say that discharge or enforced resignation of the superior must be the organization's invariable response.2 Context is the controlling variable.
Thus understood, an accountable official cannot shelter behind the actions of a subordinate. Accountable officials are always answerable to their superiors.
Superiors' ignorance of wrongdoing by their subordinates does not excuse them from personal blame if the ignorance resulted from failure to put proper information procedures in place, or failure properly to monitor compliance with existing information procedures. Leaders who plead ignorance as their defence must show, in other words, not only that they did not know of wrongdoing by subordinates, but also that they could not reasonably have known. That is, they must demonstrate that their ignorance was not culpable.
If leaders were instrumental in their own ignorance, they are blameworthy for that ignorance. Those who appeal to the defence of ignorance to excuse or to mitigate their wrongful conduct do not deserve to succeed in their pleading when the ignorance was self-induced.
A further factor may help explain why information of certain kinds does not always reach high-level officials. Some senior officials may want to be kept in a state of ignorance with respect to certain developments. This desire can be communicated to subordinates in a variety of ways, both direct and indirect; subordinates then come to understand that certain kinds of immoral or illegal behaviour will be tolerated by their superiors so long as there is no official communication up the line. If this is effective, the senior officials are cloaked with what is termed 'plausible deniability'. They can then assert, with at least the veneer of honesty, that they gave no orders and knew of no plot to engage in illicit behaviour. Of course, a more objective inquiry into culpability would concern itself with what they knew or ought to have known and whether -- through word, action, or both -- they simply turned a blind eye to consequences that they were instrumental in setting in train.
Naturally, organizations that permit such an ethos to prevail also find it necessary to set boundaries on the kinds of illicit behaviour that will be tolerated. One effective means of communicating this message is through the example set by the organization's top leadership. Organizationally sophisticated leaders know that if they are seen by subordinates to be violating the spirit of certain legislation. Subordinates will take from such an example the message that they, too, should do whatever is necessary to pursue the less correct bureaucratic objective rather than fulfil the aims of the governing legislation.
There are a few recognized occasions when one who is accountable for the actions of others may nevertheless seem not to be responsible for their missteps or misdeeds. The accountable party may appear to escape sanction. In this regard it is helpful to consider two sets of circumstances. Both scenarios turn on the nature and degree of the knowledge possessed by the responsible official.
The first scenario arises when superiors have been kept uninformed of important developments by subordinates under their charge or by the delegate for whom the superior is responsible. In this scenario, if the situation described is one of supervision, not delegation, in being held to account, the emphasis will be on the adequacy of the superior's oversight and supervision. If the situation described is one of delegation, the emphasis on accounting will be on the selection of the delegate and the adequacy of the governing controls surrounding the delegation. In either the delegation or the supervision scenario, even if the superior official is successful in demonstrating appropriate, prudent, diligent personal behaviour, the superior remains responsible for the errors and misdeeds of the subordinate. However, when assessing the appropriate response to the actions of the superior whose subordinate or delegate has erred, the authorities may be justified in selecting a penalty or sanction of lower order or no penalty or sanction whatsoever.
In the second scenario, the supervised subordinate or the superior's delegate acts, by stealth, artifice or fraud, beyond the authority (actual or delegated) that has been conferred. In the case of a delegation, if the superior has done all that can reasonably be expected in terms of selecting the delegate and imposing controls on the exercise of delegated authority, or has taken other prudent steps to prevent such mischief, the superior may escape sanction. As regards the acts of a supervised employee, a superior may, in a similar manner, avoid sanction if all due care and diligence have been exercised in supervising and overseeing the actions of the subordinate.
A leader exercising managerial or supervisory authority has a responsibility to put in place the mechanisms needed to stay informed. Leaders also have an obligation to monitor their subordinates' compliance with official policy. A leader with foresight should certainly anticipate that subordinates might conceal, rather than report, cases of serious wrongdoing. When a pattern of concealment has existed in the past and may have become a thoroughly ingrained part of an organization's ethos, a 'proactive' leader should implement thorough safeguards to prevent breaches and to detect any that do occur despite best efforts at prophylaxis.
These scenarios may suggest an evasion of responsibility by the superior, but on closer examination this impression dissolves. In point of fact, in systems that place appropriate emphasis on accountability, the superior is always held to account. In accounting to the authorities for their actions, superiors must seek to demonstrate appropriate diligence. Whether the situation involves supervision or delegation, if the superior has done all that can reasonably be expected of a responsible manager or supervisor and has taken all prudent steps that might reasonably be expected of one exercising managerial authority, the potential sanction for the miscues of a subordinate may be mitigated.
This analysis of moral responsibility might be applied to the assertion made in testimony before us that if senior officers resigned every time their subordinates made an error, there would never be any leadership. Presumably, the point being made was that in any very large organization, subordinates will invariably make errors. Human beings are fallible, and this fallibility does not vanish when they don the uniform of the Canadian Forces. Minor mistakes will be frequent in any organization. Even systemic breakdowns can be expected from time to time. Hence the point: if those at the top of the bureaucratic hierarchy were found blameworthy and asked to resign every time a subordinate made an error, even a serious error, we would need a revolving door to accommodate a rapid succession of leaders.
Accountability does not demand such draconian measures when a misstep occurs. As the foregoing analysis demonstrates, it would be inappropriate to exact the automatic resignation of the senior executive in response to every error or example of misconduct. The need to account is invariable, but the proper response or sanction must be proportional and conditional upon the nature of the superior's failure or failures.
Hierarchy is an organizational imperative in any complex undertaking. Not all organizations are completely pyramidal in structure, but in most the relationships established to accomplish the organization's business or undertaking reflect lines of authority, communication and, ultimate, accountability. The complexity of the undertaking determines the extensiveness of an organization's chain of authority to a certain degree, but however it is structured, those at the apex of the organization are accountable for the actions and decisions of those in the chain of authority who are subordinate to them. In a properly linked chain of authority, accountability does not become attenuated the further removed one is from the source of the activity. The supervisor's supervisor is no less responsible for the acts of a subordinate simply by reason of being two rungs instead of one rung removed from the subordinate's actions. Rather, when the subordinate fails, that failure is shouldered by all who are responsible and exercise the requisite authority -- subordinate, superior, and superior to the superior. Indeed, those who exercise managerial authority on occasion may be obliged to accept graver consequences for errors and misdeeds than those who serve below them.
All organizations and institutions have, in their upper stratum, a designated executive corps of responsible leaders. All senior officials or executives must bear the burden of accountability for matters under their direction or control. Also, in some contexts, such officials may be made answerable for the activities of the organization as a whole, to the extent that they can be considered to be part of the directing mind or will of the organization.3 A person's liability to sanction for organizational misconduct or error may be determined according to express rules or common understandings, where they exist, but in the absence of such rules or shared appreciation (or in addition to them), liability may be assessed with reference to the individual's position, roles, and responsibilities within the organization. Thus conceived, accountability in its most pervasive and all-encompassing sense resides inevitably with the chief executive officer of the organization or institution.
If an individual is acting only as one part of a large organization -- a 'cog in the wheel' -- and many other people contributed culpably to produce a bad outcome, some would argue that neither the individual nor anyone else is individually responsible. Others would assert that everyone who contributed in any way has an equal moral responsibility.
A more reasonable position is that all and only those whose culpable actions contributed to produce the harm are responsible (blameworthy). Moreover, each is responsible proportionately to the degree of their particular contribution to the outcome. Those who make the greatest culpable contribution to an outcome deserve the greatest blame; but all who contribute, by their culpable actions or omissions, bear some responsibility.
This is a traditional line of moral reasoning, and it would seem to follow from it that officials at the top of the bureaucratic hierarchy will often bear the heaviest moral responsibility when things go wrong, by virtue of their greater power and authority.
When an officer accepts command of troops, he accepts not only the responsibility of accomplishing a mission, but the guardianship of those who serve under his command. The military hierarchy exists and can function because enlisted personnel entrust their well-being and their lives to those with command authority. When those in command authority either abdicate that authority or neglect that guardianship, more is lost than lives. Lost also is the trust that enables those who follow to follow those who lead.4
We accept the view that the profession of arms is unique. No other profession in society "requires the sacrifice of one's life in its service, whereas the military regularly requires it."5 This requirement is what General Sir John Hackett described in The Profession of Arms as the clause of unlimited liability.6 This reality has led commentators to observe that "[b]ecause it is unique, because it imposes special obligations, and because it requires special men to fulfill them, the military profession must be separate even from the society it serves."7
In the context of the military, two virtues or values -- loyalty and obedience -- are intimately linked to the principles of accountability and responsibility. Indeed, for good and sufficient reasons, loyalty and obedience have traditionally been regarded as the highest military virtues. As Alfred T. Mahan points out, "the rule of obedience is simply the expression of that one among the military virtues upon which all the others depend."8 Instant unquestioning obedience must be inculcated in military personnel as a prime virtue, it is argued, because military necessity often requires that soldiers act rapidly and in concert. Delay or hesitation could be fatal. Obedience to one's military superiors and loyalty to one's comrades can, of course, easily express itself in concealment or cover-up of their wrongdoing.
Few authors have offered a more strict construction of the supreme value of military obedience than Samuel P. Huntington:
When the military man receives a legal order from an authorized superior, he does not argue, he does not hesitate, he does not substitute his own views; he obeys instantly. He is judged not by the policies he implements, but rather by the promptness and efficiency with which he carries them out. His goal is to perfect an instrument of obedience; the uses to which that instrument is put are beyond his responsibility. His highest virtue is instrumental not ultimate.9
It is important to note, however, that Huntington qualifies his version of the military ideal with the words "legal" and "authorized". That is, instant obedience is owed only to legal orders issued by an authorized superior. This qualification highlights the crucial subordination of the military to the rule of law. Ultimately, the loyalty of every officer and soldier in the armed forces of a democratic society must be to the rule of law, as even Samuel Huntington, with his extreme emphasis on the military virtue of "perfect" obedience, is compelled to admit.
The principles of responsibility and accountability discussed in this report apply equally -- and in some cases, more stringently -- to leaders and members of the armed forces and to senior executives, public servants, and ministers of the Crown. The military is a highly hierarchical system that confers unusual powers of command, control, and discipline on members of the Canadian Forces. Members of the armed forces operate under the rule of law and are required to obey lawful orders under threat of severe punishment, even when they are in dangerous circumstances. Officers and other soldiers authorized to issue lawful orders benefit from absolute immunity when those orders are issued and obeyed. Members of the armed forces in certain circumstances are authorized to use destructive force, including lethal force, that may result in the injury and death of human beings.
Leaders in the armed forces are at times responsible for the safety of Canada, vast national resources, and the lives of large groups of Canadian citizens in uniform. Richard Gabriel marked these unique, near universal, military duties in the most poignant way, observing that "no [other] profession has the awesome responsibility of legitimately spending lives of others in order to render its service."10 Canadians have a right to know that the authority, responsibilities, and duties given to members of the armed forces, and especially to leaders, are performed effectively, efficiently, and within the law.
Although the modern era has seen the emergence of peacekeeping as a new and important phenomenon, the Canadian Forces, like armed forces throughout history and in most other states today, is still seen largely as an institution fashioned by discipline and ordered toward the chief purpose of fighting wars and winning them. The structure of the armed forces -- its identification of authority in rank, its hierarchical organization, and its system of command -- reflects this purpose. The principal organizing concept of armed force, however, is the idea of command. As used in the armed forces the term 'command' embodies sanctioned authority, unity of direction, and irreducible responsibility for the direction, co-ordination, control and behaviour of military forces under command. Command authority may vary with the rank and circumstances of officers, but these basic elements of command hold true at all levels.
It became obvious long ago that a single commander could not hope to exercise effective direct command over large forces and complex operations. Consequently, the idea of delegating authority to subordinate commanders evolved gradually and has become an essential facet of what is often called a 'system of command'. The concept of delegation, however, has never usurped command responsibility. Delegated command authority is always limited in terms of troops and resources, time, location, mission, and/or degree of powers. Commanders always retain responsibility for the behaviour of their subordinates and for the resources, missions, and authority they delegate to them. Thus the image of a 'chain of command' appears, each link fastened inseparably to the next stronger link until it ends at the superior commander. It is instructive to note that the links in the chain are commonly referred to as 'higher' or 'lower' and as 'up' and 'down', providing a strong semantic indication that the chain of command joins those of lesser authority to those of greater authority.
Not all officers in the Canadian Forces are commanders. Many exercise staff functions and duties and are accountable for the degree of diligence with which they discharge their responsibilities and assume their obligations or use their powers. However, officers who are 'in command' are deliberately set apart from other officers by custom and regulations. Commanders, even at junior rank, enjoy certain customary privileges, such as being allowed to fly individual flags and pennants, and they traditionally have status above other officers. These customs, and others, are derived from the need in ancient times to identify commanders on the battlefield. In modern times these trappings of command may have lost some significance, but the identification of commanders remains a practical and necessary part of the military institution nonetheless.
Commanders must be clearly identified because they are the source of lawful commands, and they have responsibility in law and regulation for the training and safety of people, the proper use of resources, and the efficient accomplishment of assigned missions. In the Canadian Forces, commanders are identified in several ways. Their appointments are routinely announced, changes in command are accompanied by investigations to account for resources, and ceremonies are usually held and documents signed to mark the transfer of command from one officer to another. These types of procedures are followed not only to verify the change of command, but also to mark precisely the time at which it occurs, to avoid any ambiguity about who has command and who can be held responsible for the unit or units under command.
As with rank, officers who hold senior command are usually more experienced and qualified than officers who hold subordinate command. This ranking is another important separator between officers; it is also another important separator of responsibility. As an officer gains rank and seniority in a strongly hierarchical organization like the military, that individual's behaviour becomes increasingly important in directing the behaviour of others and serves as a model for others throughout the organization. This effect is multiplied enormously when commanders have the combined weight of senior rank and command authority. Therefore, although very junior commanders might rightly plead that they can be held responsible only for the behaviour of their immediate subordinates, senior commanders should be held accountable not only for their immediate acts and decisions, but also for the consequences -- intended or unintended -- of those acts for all the units and individuals under their command.
Command fixes responsibility on individuals in the Canadian Forces. In regulations, "a commanding officer is responsible for the whole of the organization and safety of the commanding officer's base, unit or element."11 Although the detailed distribution of work between the commanding officer and subordinates is left substantially to the commanding officer's discretion, a commanding officer shall retain for himself: (a) matters of general organization and policy; (b) important matters requiring the commanding officer's personal attention and decision; and (c) the general control and supervision of the various duties that the commanding officer has allocated to others."12 The complexity of government sometimes makes it more difficult to fix responsibility in some agencies and departments of government, but such is not the case in the Canadian Forces. Command and responsibility are clearly defined in custom and regulation and are inseparable, unless they have been allowed to deteriorate through inattention or neglect.
Although commanders are accountable and responsible for the missions assigned to them and for the behaviour of their troops, failure to achieve a mission, especially in war, is not necessarily a culpable act. Military operations are often conducted in circumstances of great uncertainty and danger. Even the most diligent commander can be defeated by a more clever enemy with greater resources. Military history is replete with examples of honest failure, and they are occasionally marked with great honour.
On the other hand, carelessness, inattention, and lack of due diligence denote negligent failure. In such cases, commanders have usually failed to train their forces adequately, to prepare fitting plans appropriate to foreseeable events, to supervise carefully the deployment of their units, or to lead their troops energetically by example. In the autopsy of any failed military operation, therefore, examiners must decide whether the battle was well fought but lost, or lost through the neglect of the commander.
In the Canadian Forces the basic questions -- who should be accountable, what should be accounted for, and to whom should an organization be accountable -- are answered more easily than they are in other settings, because they are defined by custom of the service and the law. All members of the Canadian Forces are responsible and accountable for their own actions. Moreover, individuals with authority provided by rank or appointment carry a particular degree of responsibility and accountability for their own behaviour as well as that of those under their direction. In this regard, commanders are the most obvious locus of responsibility and accountability.
Although those in authority and especially commanders have various and at times a wide range of things for which they are accountable, customarily, they are all always responsible for obedience to orders, for the state of their units, the accomplishment of assigned missions, and the behaviour -- "the good order and discipline" -- of their subordinates. In regulations, as we have explained, the demands on commanding officers are purposefully inclusive, encompassing every thing and act that falls under the direction of commanding officers in the course of their duties. Regulation and custom of the service, in other words, place no boundaries on what commanding officers should be held accountable for, charging them with all important matters requiring their personal attention and decision.
The Canadian Forces are accountable to Parliament through the government of the day, not as an institution, but through the person of the Chief of the Defence Staff. The Chief of the Defence Staff alone has the "control and administration" of the Canadian Forces, and the National Defence Act specifically prevents anyone other than the Chief of the Defence Staff from issuing orders or directions to the armed forces. Moreover, all members of the Canadian Forces are subordinate to the Chief of the Defence Staff, whose lawful orders they must follow through commanders appointed directly or indirectly by the Chief of the Defence Staff. Thus in custom and in law, members of the Canadian Forces, and especially commanders appointed by the Chief of the Defence Staff, are accountable to the Chief of the Defence Staff who is, in turn, alone accountable to Parliament through the government of the day. The argument that the changing nature of public service makes accountability difficult to define is not nearly as vigorous in the armed forces.
In Canada, control of the armed forces by civilians elected to Parliament is fundamentally important to the safety of the state and its citizens. Control is meant to be exercised through a clearly delineated hierarchy of civil and military authorities where responsibility is fixed and obvious in law. If this inseparable system of authority and responsibility becomes clouded for any reason, the state's control over the armed forces is necessarily weakened. Although Parliament allows officers to have authority to issue orders and to compel obedience in the Canadian Forces, it must demand in return that accountability for that authority be sharply defined in regulations, unambiguously delineated in organization, and obvious in execution. Therefore, it is the duty of elected citizens to respect, guard, and reinforce control over the armed forces by holding those given positions of special trust in the Canadian Forces to a stringent interpretation of responsibility and accountability that allows for no uncertainty.
Accountability is the mechanism for ensuring conformity to standards of action.
Those exercising substantial power and discretionary authority must be answer-able (i.e., subject to scrutiny, interrogation and, ultimately, commendation or sanction) for all activities assigned or entrusted to them -- in essence, for all activities for which they are responsible.
In a properly functioning system or organization, there should be accountability for an individual's actions regardless of whether those actions were properly executed and led to a successful result or improperly carried out and produced injurious consequences.
An accountable official may not shelter behind the actions of a subordinate. An accountable official is always answerable to superiors.
However an organization is structured, those at the apex of the organization are accountable for the actions and decisions of those within the chain of authority who are subordinate to them. Within a properly linked chain of authority, accountability does not become attenuated the further removed an individual is from the source of the activity. When a subordinate fails, that failure is shouldered by all who are responsible and exercise the requisite authority -- subordinate, superior, and superior to the superior.
Accountability in its most pervasive and all-encompassing sense resides inevitably with the chief executive officer of the organization or institution.
Responsibility is not synonymous with accountability. One who is authorized to act or exercises authority is 'responsible'. Responsible officials are held to account. An individual who exercises powers while acting in the discharge of official functions is responsible for the proper exercise of the powers or duties assigned.
A person exercising supervisory authority is responsible, and hence accountable, for the manner in which that authority is exercised.
A person who delegates authority is responsible, and hence accountable, not for direct supervision of that kind a supervisor is expected to provide but, rather, for control over the delegate and ultimately for the actual acts performed by the delegate.
The act of delegation to another does not relieve the responsible official of the duty to account. Individuals can delegate the authority to act, but they cannot thereby delegate their assigned responsibility in relation to the proper performance of such acts.
Where a superior delegates the authority to act to a subordinate, the superior remains responsible, first, for the acts performed by the delegate; second, for the appropriateness of the choice of delegate; third, with regard to the propriety of the delegation; and, finally, for control of the acts of the subordinate.
Even of the superior official is successful in demonstrating appropriate, prudent, and diligent personal behaviour, the superior remains responsible for the errors and misdeeds of the subordinate. In such circumstances, however, when assessing the appropriate response to the actions of a superior whose subordinate or delegate has erred or been guilty of misconduct, the authorities may be justified in selecting a penalty or sanction of lower order, or no penalty or sanction whatsoever.
It is the responsibility of those who exercise supervisory authority, or who have delegated the authority to act to others, to know what is transpiring within the area of their assigned authority.
Even if subordinates whose duty it is to inform their superior of all relevant facts, circumstances, and developments fail to fulfill their obligations, this does not absolve the superior of responsibility for what has transpired.
Where a superior contends that he or she was never informed
or lacked requisite knowledge with regard to facts or circumstances
affecting the proper discharge of organizational responsibilities,
it is relevant to understand what processes and methods were in
place to ensure the adequate provision of information. Also germane
is an assessment of the extent to which the information in question
was notorious or commonly held and whether the result that occurred
could reasonably have been expected or foreseen. Moreover, how
the managerial official responded upon first discovering the shortfall
in information is often of import.
We find that the standards just discussed have not been well guarded recently. The hierarchy of authority in National Defence Headquarters, and especially between the Chief of the Defence Staff, the Deputy Minister, and the Judge Advocate General, has become blurred and distorted. Authority within the Canadian Forces is not well-defined by leaders or clearly obvious in organization or in the actions and decisions of military leaders in the chain of command. Moreover, we find that governments have not carefully exercised their duty to oversee the armed forces and the Department of National Defence in ways that ensure that both function under the strict control of Parliament. Consequently, responsibility and accountability in the armed forces and the Department of National Defence are wanting, and control of the armed forces and the department by Parliament is impaired.
To this point we have concentrated on defining terms and attempting to set out guiding principles. We now move to a consideration and analysis of practical issues that raise accountability concerns.
The Government's action in curtailing our investigation has had the effect of preventing us from exploring the full extent of and accountability for, personal failures. Nevertheless, we have had ample opportunity to investigate fully issues pertaining to individual misconduct and personal shortcomings in relation to the pre-deployment phase of the Somalia mission as well as in relation to the phase of our proceedings in which we explored issues surrounding the disclosure of documents by DND and the CF through the Directorate General of Public Affairs (DGPA). Our findings and conclusions in this regard are found in Volume 4 of this report, entitled "Failures of Individual Leaders".
More generally, we are in a position to identify certain specific institutional or systemic deficiencies in existing accountability mechanisms and processes.
These are apparent in the military itself and in the military-civilian/political relationship. We are also in a position now to advance proposals for reforms designed to improve accountability in practical terms.
Before setting out these reforms, we summarize the most significant deficiencies bearing on accountability that emerged from our consideration of the testimony and the research undertaken. Each deficiency plays a role in diminishing or impeding accountability. The list and description below should be of assistance to the future efforts of policy makers, although we do not regard it as exhaustive.
The foregoing description of notable deficiencies in the accountability of the upper echelons as revealed by the experience with the Somalia deployment suggests a range of possible solutions. Some of these suggestions are proposed and discussed in greater detail elsewhere in this report. However, one particular suggestion dealing with the creation of a new office of inspector general merits consideration here, since its entire raison d'être is the promotion of greater accountability throughout the Canadian Forces and the Department of National Defence.
A comprehensive listing of our proposals for reform, including the creation of the Office of Inspector General, is offered at the end of this section.
Control by Parliament is essential to democracy in Canada and to the well-being of the relationship between the CF and society, but this is made difficult by the vast amount of information in the CF and DND and by the technical nature and necessary secrecy of defence policy and defence relations with other states.
Ministers of National Defence depend mainly on the advice and guidance of the CDS and the Deputy Minister when formulating policies and making decisions. This expert consultation usually serves governments well, but ministers have no established way to examine the CF or DND except through the eyes of their own military officers and officials. At times, ministers have organized evaluations, reviews, and inquiries into the activities of the armed forces and DND, but these studies have been restricted in scope and in time.25 The Auditor General of Canada routinely undertakes assessments of the CF and DND and produces valuable reports on specific issues, but they are also limited.26
Parliament is also dependent mostly on advice emanating from the same two sources and on occasional studies that do not always meet its needs. Clearly, from the evidence before us, ministers require a body to review and report on an ongoing basis on defence affairs and the actions and decisions of leaders in the CF and DND.
Canadian soldiers also lack information and assistance in their dealings with higher defence authorities. Although they voluntarily surrender some rights and freedoms when they join the CF, they retain an expectation that they will be treated fairly by their officers and by officials of DND. Most soldiers are well treated and serve with justifiable pride in their units but occasionally, and too often recently, this trust has been broken.
Members of the CF have reported that they are confused about their rights. They complain also that the chain of command is often unresponsive to their concerns and that those who file grievances may be met with informal reprisals and adverse career actions.27 Members of the armed forces who feel the need to initiate a complaint often feel they face two unpalatable choices -- either to suffer in silence or to buck the system with all the perils such action entails. In our view, Canadians in uniform do require and deserve to have a dedicated and protected channel of communication to the Minister's office.
In other countries, offices of inspectors general and ombudsmen have been established to accommodate respectively these two requirements of review and reporting, and fair hearing for grievances.28 At present, Canada has no inspector general or ombudsman with jurisdiction to oversee or investigate military affairs. There are also no routine reports to Parliament by the CDS or DND beyond those provided during the annual departmental budget estimates process.
This handicaps Parliament in its role of supervising military affairs because it does not have easy access to critical analyses of defence matters. The evidence before us suggests that this has resulted in a serious deficiency in the oversight of the CF and DND by Parliament and in the treatment of members of the CF who have grievances against individuals in the chain of command.
There is evidence that Canadians and members of the CF want a review process that is straightforward and independent.29 We also believe that a civilian inspector general, properly supported and directly responsible to Parliament, must form an essential part of the mechanism Canadians use to oversee and control the CF and the defence establishment. While the CF and its members would merit the primary attention of this new office, the close ties between the CF and DND, and public servants in DND, especially at NDHQ, requires that the Inspector General must act in and for members of both institutions.
The Inspector General of the Canadian Forces should be appointed by the Governor in Council and made accountable to Parliament. The Inspector General should be a civilian and have broad authority to inspect, investigate, and report on all aspects of national defence and the armed forces. The Inspector General, moreover, should be provided with resources including auditors, investigators, inspectors, and support personnel gathered in the Office of the Inspector General of the Canadian Forces.
In our view, the Inspector General should incorporate the concepts of both a military inspector and an ombudsman. These two concepts, while focused on different areas, are plainly related but might be established as separate branches under the Inspector General.
The Inspector General's mission should be to initiate and to inquire into, and periodically report on, any aspect of national defence that the Inspector General determines is important. These matters would include among other things, discipline, efficiency, economy, morale, training, operational effectiveness and readiness, the conduct of operations, and the functioning of the military justice system.
The Inspector General would also have an important responsibility regarding personnel and personal matters in the CF. These duties would include overseeing the efficiency and effectiveness of personnel policies such as promotions, selection of commanding officers, and the conditions of service for members of the CF. The Inspector General would also supervise and report on the redress of grievance system in the CF and provide opportunities for members of the CF to report matters that they think need to be investigated outside the chain of command.
The Inspector General should report to Parliament annually or whenever serious issues come to the attention of the Office of the Inspector General.
The Inspector General should have four main functions:
-- abuse of rank, authority, or position: for example, a failure to investigate, failure to take corrective actions, or unlawful command influence; and
-- improper personnel actions: for example, unequal treatment of CF members, harassment, racist conduct, failure to provide due process, reprisals.
The Inspector General should be empowered:
Any member of the CF and any public servant in DND should be permitted to approach the Inspector General directly for whatever reason and without first seeking prior approval of any other member of the CF or DND.
There should be no need to report a complaint to a superior or reveal any conversation or correspondence between the member and any superior.
Inspections, audits, investigations, or reports that arise from complaints made by members of the CF or DND need not identify the complainant in any way.
Members of the CF or DND who believe that reprisals have been taken against them because of complaints made before the Inspector General should have special access to and protection provided by the Office of the Inspector General. In this regard, a few words concerning our experience with the subject of intimidation, harassment, and reprisals are in order.
From the earliest days of this Commission of Inquiry, concerns were expressed, in the media and elsewhere, that the Inquiry might not be able to get to the bottom of the matter because some witnesses from the military, especially those in the lower ranks, would fear reprisals from the authorities or prejudice to their military careers. In our public pronouncements on this subject we indicated that, at the time, we saw little evidence to suggest that threats of any kind were being made to potential witnesses before the Commission. While there was little real, tangible, or objective evidence to sustain these concerns, we knew that they existed and we were sensitive to them. Looking back on the entire course of our Inquiry, we have come to the conclusion that these concerns were far from fanciful. Certain witnesses who appeared before us did so against a backdrop of fear and intimidation.
We have publicly recognized the great courage that individual soldiers have shown in coming forward to assist the Inquiry in its work and by providing testimony at our proceedings that was not always favourable to the Canadian Forces. Among these we would number Maj Buonamici, Maj Armstrong, Cpl Purnelle, and Cpl Favasoli.31 Cpl Purnelle and Maj Buonamici, in particular, were victims of threatening behaviour and attempts at intimidation. Maj Armstrong had to be protected in theatre against physical reprisals for bringing his important allegations of misconduct to the attention of his superiors. We believe that these officers and non-commissioned members have served as examples to all ranks, particularly soldiers of lower rank, and we are indebted to them for their courage and support of our work.
We publicly undertook, on several occasions, to do everything in our power to protect these soldiers against any recrimination or prejudice to their careers that might flow from their co-operation with us. At the beginning of the in-theatre phase of our proceedings on April 1, 1996 we summarized our activity and plans in this regard:
...a number of steps have been taken to favour the establishment of the truth and protect those who seek to contribute to the inquiry process, including adopting a rule of practice and procedure which treats as confidential the information the Commission receives from whatever source; allowing testimony in camera where necessary, undertaking the investigation of any allegation, complaint or evidence of ongoing reprisals against potential witnesses while the inquiry is in progress; and, if we find it necessary, we are prepared to include in our final report a proposal for a review mechanism whereby a committee of the House of Commons acting as a sort of ad hoc Ombudsman would be called upon to review upon request and systematically every five years the file and career progression of those who will have testified before this Commission of Inquiry.
The Commission is confident that these measures are sufficient to eradicate the possibility of reprisals and protect those who may be vulnerable in the military system.
Those who have testified before us under threat or peril to their careers are entitled to receive protection with respect to their future careers within the military. Regrettably, we have concluded that the reality exists that, for so long as these soldiers remain within the military, both their personal and professional reputations must be protected. Because of the past actions of the chain of command, there must be a mechanism available to these officers and non-commissioned members to redress any reprisals that may be taken against them after the Commission of Inquiry has issued its report.
We therefore believe that there is an urgent need for a new and more effective form of military career review procedure to deal with these cases. Such career review boards should be entirely independent and impartial committees. Also, any career review boards that may be convened with regard to individuals who have rendered assistance to the Inquiry should contain representatives from outside the military (perhaps including judges or other respected members of the larger community) in order to insure transparency and objectivity in the process. Career review board decisions should be subject to a further effective review by someone other than the Minister alone (as is currently the case), such as a committee of the House of Commons or Senate.
A career progression review procedure should provide soldiers who have assisted the Inquiry, and others in similar circumstances, with a mechanism for applying to have their career progression reviewed effectively.32 Individuals who have testified before us and allege that their career progression has been adversely affected as a result of their testifying should be given the right to apply to an independent career review board to have their career progression reviewed. They should possess, as well, an ability to seek a further review of the findings of these special career review boards.
In the event that reprisals have occurred and career advancement has been adversely affected, a mechanism for redress should also be included in the new procedure.
We believe that a systematic, periodic annual report should be prepared by the Chief of the Defence Staff for the benefit of a select committee of the House of Commons or Senate that reviews the career progression of all those who have testified before the Inquiry.
We support the creation of a specific process, under the purview of an independent inspector general, designed to protect soldiers who, in the future, bring reports of wrongdoing to the attention of their superiors.33
In addition to the foregoing and in light of the experience of Cpl Purnelle,34 we are struck by the fact that individual free speech in the Canadian military has been stifled to an unacceptable degree. While reporting requirements and relationships must be observed and dissident activities that threaten unit effectiveness and cohesion must be checked, the military must be open and receptive to legitimate criticism and differing points of view.35 Members of the military should enjoy a right of free expression36 to the fullest extent possible, consistent with the need to maintain good order, discipline, and national security. This should be reflected in official guidelines and directives.
16.1 The National Defence Act, as a matter of high priority, be amended to establish an independent review body, the Office of the Inspector General, with well defined and independent jurisdiction and comprehensive powers, including the powers to
16.6 The Queen's Regulations and Orders be amended to provide for a special and more effective form of military career review procedure to deal with cases of intimidation and harassment related to the Somalia deployment and this Commission of Inquiry.
16.7 Such special career review boards be entirely independent and impartial committees and contain representation from outside the military, including judges or other respected members of the larger community, to ensure transparency and objectivity in this process.
16.8 Decisions of these special career review boards be subject to a further effective review by a special committee of the House of Commons or the Senate or a judge of the Federal Court.
16.9 In the event that a finding is made that reprisals have occurred and career advancement has been adversely affected, a mechanism for redress be available.
16.10 For the next five years, an annual report reviewing the career progression of all those who have testified before or otherwise assisted the Inquiry be prepared by the Chief of the Defence Staff for consideration by a special committee of the House of Commons or the Senate.
16.11 A specific process be established, under the purview of the proposed Inspector General, designed to protect soldiers who, in the future, bring reports of wrongdoing to the attention of their superiors.
16.12 The Queen's Regulations and Orders article 19 and other official guidelines and directives be amended to demonstrate openness and receptivity to legitimate criticism and differing points of view, so that members of the military enjoy a right of free expression to the fullest extent possible, consistent with the need to maintain good order, discipline, and national security.
|
Search | Help | Français | Comments | D-NET
Home (C) Minister of Public Works and Government Services Canada 1997 |