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In the conduct of our investigation we encountered
two unanticipated but related obstacles that, in our view, cast
a large shadow on the degree of cooperation exhibited by
the Department of National Defence (DND) in its dealings with
our Inquiry as well as on the openness and transparency of the
Department in its dealings with the public. Through its actions,
DND hampered the progress and effectiveness of our Inquiry and
left us with no choice but to resort to extraordinary investigative
processes to discharge our mandate appropriately.
The first obstacle relates to compliance by DND with
our orders for production of documents under the Inquiries
Act and the delays and difficulties we faced in dealing with
the Somalia Inquiry Liaison Team (SILT).
The second obstacle, related to the first, concerned
the manner in which DND's Directorate General of Public Affairs
(DGPA) failed to comply with our order for disclosure and attempted
to destroy Somaliarelated documents requested by us. Also
related was DGPA's treatment of requests for information about
the Somalia incidents made by CBC journalist Michael McAuliffe.
This matter became a subject of concern for us, since the documentation
requested by Mr. McAuliffe embraced information covered by our
order to DND for the production of documents.
Our terms of reference required us to investigate
certain matters that inevitably became intertwined with actions
and decisions taken by DND in responding to our orders
for production of documents and in processing Access to Information
requests in relation to documents that were simultaneously the
subject of our investigation. As things turned out, these events
lent further weight to conclusions we had reached concerning the
poor state of leadership and accountability in the upper echelons
of Canada's military- issues that have become recurring themes
throughout our investigation and this report. These appear as
the prevalence of individual ambition, the blaming of subordinates,
and blind loyalty to the military institution over public disclosure
and accountability.
The story of DND's compliance with our orders for
production of documents and later requests for specific documents
might appear to lack the drama of the events that transpired in
the Somali desert. However, these issues of compliance evoke much
broader policy concerns, such as leadership in the military, allegations
of coverup and, ultimately, the openness and transparency
of government-concerns that are of great importance to those planning
the future of the Canadian Forces and, indeed, to government
and Canadians in general.
The Inquiries Act gives commissioners appointed
under its terms broad powers of investigation and the right of
access to any information considered relevant to the subject under
study. Actions directly or deliberately leading to delay in producing
documents, or the alteration of documents and files ordered for
the purposes of fulfilling a mandate under the Inquires Act,
should be seen by all Canadians as an affront to the integrity
of the public inquiry process, to our system of government, and
to themselves as concerned citizens. In that light, the story
of noncompliance with the orders of a public inquiry and
the role played by SILT in that story, which is recounted in the
following pages, becomes all the more shocking.
On the surface, the events described here suggest
either a lack of competence or a lack of respect for the rule
of law and the public's right to know. As we dug deeper, the difficulties
we encountered involved tampering with or destruction of documents.
The seriousness of these actions and their impact on the investigation
conducted by our Inquiry demand that we recount these events in
detail.
DND recognized, at a very early stage, the need to
create an entity to assist
us and coordinate various aspects of the Department's actions
in related matters. But as it turned out, these two purposes were
constantly in conflict. Either military officers and officials
at National Defence Headquarters (NDHQ) failed to
appreciate this, so accustomed had they become
to treating all crises
as situations to be tactically managed and controlled, or it was
a calculated strategy to obstruct and discredit our Inquiry. Even
if it were the former, which would indicate a degree of naïveté
at NDHQ, the result was the same. Our work was made far more difficult
than it should have been, and our Inquiry was needlessly and expensively
protracted. In the end, these tactics significantly impeded our
work but at a heavy cost to the reputation of the military and
to the trust that Canadians had heretofore shown in the effectiveness
of the public inquiry process.
Even before the official announcement of this Inquiry, DND began
to assemble a team and attend to personnel and administrative
matters.1 SILT was established officially in April
1995 by a directive from Gen de Chastelain, Chief of the Defence
Staff (CDS), and John McLure, the Acting Deputy Minister.2
The directive established SILT within the ADM (Policy & Communications)
Group "to act as a focal point for all matters related to
the Inquiry". The mandate of SILT was specified as
When it was first created, SILT comprised four members: the director
of SILT, a public affairs officer, a secretary, and an administrative
clerk. They reported to the Associate ADM (Policy & Communications),
who at that time was MGen Boyle.
Additional resources were authorized to establish the SILT office.3
As the number of document demands grew, SILT expanded in an attempt
to keep up with those demands. Ultimately it had to struggle with
inadequate resources because of its initial "misestimate"
of what would be required to do the job.4
The CDS directive also addressed the issue of the Department's
cooperation in providing documents to us via SILT. It directed
that all of DND/CF was required to comply with SILT's requests,
that "[no] documents, in whatever form they exist, shall
be withheld from the SILT", and it gave SILT the authority
to contact anyone it required to fulfil its mandate.5
In June 1995, LGen (ret) Fox was appointed Special DND/CF Adviser
to "advance the CF/DND interests in respect of all matters
under the mandate of the Somalia Commission of Inquiry".
LGen (ret) Fox had five primary responsibilities:6
This order expresses the inherent contradiction built into SILT
between managing the Department's position or political response
to the Somalia affair and assisting us to investigate it and the
conduct of the CF in relation to it. The predominance and priority
given to managing the Department's responses are also clearly
evident. LGen (ret) Fox was given the responsibility of overseeing
SILT as part of his duties. He reported to LGen Boyle, who had
recently been promoted to ADM (Personnel).
One of the most important factors enabling us to begin our investigation
was the receipt of Somaliarelated documents. We sought such
information from many sources but gave three formal orders for
production to the Privy Council Office (PCO), the Department of
Foreign Affairs and International Trade (DFAIT), and the Department
of National Defence.7 The first two organizations had
relatively few Somaliarelated documents; it was DND that
held the vast majority of the materials we would require.
The order dated April 21, 1995, addressed to the Minister of National
Defence, required the production, within 30 days, of all documents
relevant to our terms of reference in the possession or control
of the Department and the Canadian Forces.8 The Department
applied for an extension of time and by our order dated May 29,
1995 it was granted an extension until June 30, 1995.9
See Figure 39.1 for a graphic representation of the adequacy and
timeliness of production of documents.
It was on June 30th that counsel for the Government of Canada
wrote to us outlining the documents that had been identified pursuant
to the order, providing lists of those documents and stating that
all documents listed had been provided to us or would be provided
shortly. Counsel also stated their belief that the requirements
of the order of April 21, 1995 had been met but that the Department,
through SILT, would continue its efforts to provide additional
materials to us and to respond to our requests.10
In the weeks before this order, SILT had already begun obtaining
documents relating to Somalia.11 Requests, in the form
of telephone calls and memoranda, were made to offices within
NDHQ asking for documents. SILT's idea was to begin at the top
of the chain of command and move downward as the search extended
to more documents. In this way, policy documents would be collected
first and then the search would extend to working documents relating
to the Somalia deployment.
This method was almost guaranteed to protect the military's interests.
If a coverup is suspected, a topdown investigation
courts the risk of failure. By definition, coverup is invisible
at the top and contains no clues at that level
as to its lower origins. Only an investigation
that starts at the bottom of the process has any hope of uncovering
the facts that are eventually hidden.
To cite an analogy from history: if SILT had been charged with
gathering documents about Watergate, its strategy would have been
to ask President Nixon and the White House for all available documents
and then follow these down through the system. The secret tapes
would never have been discovered.
Originally, we accepted SILT's profession of good faith, repeated
by the CDS and the Minister of National Defence, and waited to
see what emerged. To do otherwise would have shown a degree of
skepticism in our institutions unwarranted by Canadian traditions
and the history of previous inquiries. And so we embarked on what
proved to be a long and disillusioning process.
The director of SILT, Col Leclerc, made verbal requests because
he felt that these would allow him to gauge better the level of
cooperation he received. He considered the cooperation
of senior staff in NDHQ in response to his
verbal requests to be excellent. He also felt that the general
response to SILT was excellent in that there were no complaints
about having to provide the documents.12 That positive
response, however, did not mean that everything required was being
provided.
Upon receipt of our order, SILT extended its search for documents
to all relevant documents. SILT sent a formal request in the form
of a message dated June 2, 1995 to the commanders of Land Force,
Maritime, and Air commands, asking that these three headquarters
take the appropriate measures to provide the required documents
to SILT no later than June 9,1995.13
Many of the documents were in the possession of SILT by midJune,
but it would turn out that many crucial documents arrived at SILT
later. Other documents had been destroyed or lost and were never
made available to us, Examples of documents that were not provided
at that time include documents from the Directorate General of
Public Affairs and National Defence Operations Centre (NDOC) logs
from headquarters.14
SILT's initial estimate was that there were 7,000 documents.15
The number of documents it received in the summer of 1995, however,
quickly exceeded that estimate by a huge amount. The sheer volume
meant that SILT began sending documents to us without first registering
and copying them.16 According to its records, by September
1, 1995, SILT had received and delivered to us approximately 30,000
documents.17 This would turn out only to be a fraction
of the final amount.
We always recognized the importance of the documents issue. When
the number of documents started to grow beyond SILT's initial
estimate, we retained specialized consultants to implement systems
to handle the increased volume. From September 1995 until the
end of the hearings, we employed at least 10 and as many as 20
persons fulltime in document management.
We put into place a number of systems to track,
manage, and review the documents, including a data base to manage
the paper documents received and a specialized software program,
Folio Views, to provide electronic access
to electronic files received.
To ensure full control of the documents, our staff developed a
standard procedure to handle documents received. Documents were
processed, catalogued into a data base, and then categorized according
to the issues they addressed.
Once a document was received, the first step consisted of numbering
every page using a unique identifier generated by and recorded
in our data base system. In the case of documents received as
computer disks, each file was printed out onto a paper copy and
then processed. Once numbered, a document could be unambiguously
identified by the number on its first page. In addition, a procedure
was used to identify documents that contained other documents,
for example, a memorandum attached to a covering letter. It was
important to identify these documents within documents to
have full control of the information we received.
Next, each document was catalogued by entering key descriptive
information into a relational data base system. This allowed us
to retrieve documents by several criteria, including the title
of the document, the type of document, its date, and information
about the document's author and recipient.
A critical element of our ability to deal
with huge volumes of documents was the review of the documents
after they were recorded in the data base. To allow a systematic
review, a list of issues of importance to us was developed. The
purpose of the review was twofold: to identify documents that
were not relevant to our work and to catalogue those that were
relevant by identifying them with applicable issues on our list.
This categorization of the documents, along with the information
used to catalogue the documents, allowed our staff the flexibility
to research issues, prepare for hearings and
create hearing books.
Because not all documents were complete and questions inevitably
arose in working with large volumes of material, SILT was responsible
for assisting us in obtaining additional relevant information.18
Formal requests were numbered sequentially for ease of reference.
These numbered requests typically asked SILT to supply
missing documents or missing portions of documents or to
provide other additional information. As an integral part of document
management, a data base was used to record and manage these requests.
Apart from describing the particulars of the information requested,
we assigned to each request a priority of high, medium or low
to reflect its relative urgency.
On the assumption that there would be only 7,000 documents in
total, SILT arranged to have all documents scanned into an electronic
format to facilitate search and retrieval. Initially this undertaking
began inhouse. As the size of the task grew, however, an
outside company was retained to complete the job. By early September
1995, about 30,000 documents had been scanned. At that point,
SILT decided not to scan any additional documents but simply to
provide them to us in paper form.19
At first, the documents we received were identified by a number
assigned by SILT (the 'SILT number'). In addition, when the documents
were scanned, a 'control number' was also used to identify the
document in the electronic information base. Later the SILT number
was discontinued in favour of the control number. After SILT's
decision to discontinue scanning, however, many thousands of documents
arrived over a two to threemonth period without any
type of reference number assigned by SILT. In November 1995, documents
began to arrive under a new identification system using socalled
R numbers. This method had no apparent connection with the earlier
systems, nor were we alerted to the fact that this was a new system
being used by SILT. The meaning of the new designation was clarified
only after Commission counsel wrote to SILT asking for an explanation
of the Rnumbered documents.20 As a consequence,
we found it necessary to modify the system several weeks after
the changes were implemented, resulting in both inconvenience
and time delays.
A problem that arose several months later and that was exacerbated
by the absence of a reliable tracking system at SILT was the elimination
of duplicates.
SILT's delivery of documents showed that little effort had been
made to organize the material. Typically, thousands of documents
would arrive in unmarked boxes accompanied by only a transit slip
and a brief covering letter containing little useful information.
Worse still, documents had pages missing; documents did not contain
attachments or appendices; documents were unintelligible as a
result of poor photocopying (we received virtually no originals);
documents referred to in other documents could not be found; and
documents that belonged together were not delivered together.
Often what we received were pieces of information rendered nearly
useless by an absence of context and because of inconsistent quality
and unreliable integrity. Huge amounts of time were ultimately
spent searching for missing attachments and attempting to reconstitute
documents or sets of documents from individual fragments
To address our concerns about SILT's response to the order for
document production we made numbered requests to SILT asking the
Department for additional information. Using the protocol we had
established with SILT, requests were made by Inquiry staff for
better copies of documents, missing pages, additional documents,
and other information. In many instances, these requests were
handled by SILT in a prompt and helpful manner. However, we had
to rely on SILT and the Department for the processing of virtually
all of these requests and in many cases, the responses were disquieting.
The most troublesome aspect of the SILT's response was its lack
of timeliness. As part of each numbered SILT request, we assigned
a priority to the request and a target date for SILT's response.
Responses were often received after the target date. Although
interim responses were sometimes received, many requests were
resolved only several months after the target date, and others
were never resolved satisfactorily. Also, even with a priority
system, the response time and the urgency of the request were
not correlated.
In January 1996, we were concerned about the tardiness of SILT's
responses and assessed all numbered requests we had made since
September 1995. The result: of the 196 requests at that time,
62 per cent remained outstanding after the target date, with the
average delay being 40 days.
Most of the documents we were interested in from PCO and DFAIT
came pursuant to orders for production to the two organizations,
but a few requests were made to DFAIT through SILT. Unfortunately,
these relatively few requests were not answered speedily. For
example, in October 1996, we requested a list of records relating
to weekly executive committee meetings of senior departmental
staff at DFAIT from July 1992 to August 1993.21 DFAIT's
response (through the Office of Counsel for the Government of
Canada) came in March 1997, six months later, only to say that
it had no such material.22 In another example, a request
was made for materials documenting interdepartmental meetings
relating to Eastern and Southern Africa.23 We were
advised to expect receipt of those documents by early December
1996,24 but nothing was received by late March 1997,
when our evidentiary hearings concluded.
Because of the breadth of our mandate, we consistently stated
that SILT was to provide all requested documents relating to our
terms of reference, and we would decide on the matter of their
relevance. In at least two cases, however, government counsel
questioned the relevance of the documents requested and wrote
to ask for an explanation. In one example, we requested the briefing
materials of a particular cabinet minister. Government counsel
failed to understand the relevance of these materials because
that minister had been briefed only after the Canadian Forces
members participating in Operation Deliverance had been redeployed
to Canada. The matter was resolved only after we pointed out that
the Inquiry's mandate included matters of response and the aftermath
of the intheatre incidents.25 This type of interim
exchange did little to expedite the progress of the requests,
especially since any clarifications could have been made by telephone.
Other aspects of the responses were also troubling and difficult
to understand. For example, two numbered SILT requests,26
made in the fall of 1995, asked for minutes and agendas for Daily
Executive Meetings (DEMs) and related documents. These highlevel
meetings were held on a regular, almost daily, basis. It is difficult
to imagine that the minutes and other documents that relate to
them are not all kept together in a secure facility and easily
retrievable.
The fact is, however, that the request for DEM minutes was outstanding
for over three months before a response was received. The first
DEM documents we received from SILT arrived inexplicably without
a covering letter, without an index, and without reference to
the original request, The records were also incomplete and not
arranged in any apparent order. It was only after intervention
by our senior counsel that a more acceptable response was provided.27
That response did not, however, satisfy all the requests for information
in respect of DEMs, and many requested documents remained outstanding.
The partial explanation that "the older agendas are not readily
available and/or may have been destroyed" was vague and unsatisfactory.28
In addition, an analysis of SILT's responses revealed inconsistencies
in the information provided. For example, agendas were missing
for some DEMs, but more alarming was that agendas existed for
days on which SILT had stated that no meetings were held.29
The Department's response was inconsistent with an organized and
complete set of records being held in a central location. Yet
the absence of such an approach would be puzzling given the high
level and potential importance of these records.
The value of the DEMrelated documents was in their identification
of the issues discussed at those meetings and their indication
of what information was available about those issues. It was therefore
unsatisfactory that these hundreds of outstanding documents arrived
only in October 1996,30 leaving us less time than we
had anticipated to analyze the information received and make further
inquiries for the hearings then going on.
Once all available DEMrelated documents from 1990 to 1995
were received, we carefully reviewed their contents. A pattern
emerged from the DEM minutes whereby less and less information
became available over time about the sensitive issues relating
to Somalia.
Taking the records up to 1992 as a baseline, minutes were produced
for the large majority of DEMs, and those minutes gave
a good idea of what was discussed at the meetings. In 1993, however,
at the time of the intheatre events, references to important
incidents in Somalia were suspiciously sparse, given the high
profile of issues such as the incidents of March 4th and March
16th. By contrast, the minutes did record matters such as why
mail for the forces in Belet Huen was experiencing continual delays.31
The pattern continues through 199495, where DEM minutes
are kept less frequently and contain less content, to the point
where they are not kept at all in the latter months of 1995.32
This pattern is inconsistent with the Department's earlier practice
of keeping minutes and with the written departmental procedure,
which states "Minutes covering DEMs will be prepared by D
NDHQ Sec and distributed to all concemed".33
When the outstanding DEM minutes were delivered in October 1996,
SILT indicated that briefing materials were available upon request:
"A number of briefings were presented at DEM/PostDEM,
many of which did not relate to Somalia. It is requested that
the Commission identify the specific briefings which are of interest
to them".34
In November 1996, after reviewing the DEM minutes, we asked for
briefing notes, background materials, and other documents relating
to 46 matters discussed or referred to in the DEMs and PostDEMs.35
By the end of January 1997, we had received no response and repeated
the request.36 We also emphasized that the new deadline
for a final report greatly increased the urgency of the situation
and asked SILT to send whatever materials it had gathered by early
February.
SILT's reply came only in March 1997, as the Inquiry was in the
process of winding down.37 Of the 46 requests, many
of the documents could not be located; in other instances, responses
were incomplete. From these results and SILT's explanatory notes,
it appeared that the search had been ad hoc and that there was
no orderly system of storage and record keeping of these materials.
SILT added that the minutes often did not contain enough information
to allow retrieval of the materials referred to and that copies
of the briefings were rarely left with the NDHQ secretariat or
handed out to attendees.
The search for information related to DEMs began in late 1995
and ended, as our last witnesses were being heard, with a disappointingly
large number of materials of interest to us ultimately being unavailable.
In January 1996, Inquiry staff mace request number 239 to SILT
for copies of the Red Book since 1990.38 The Red Book
was an annual document containing guidance from the Chief of the
Defence Staff to commanders about where they should focus their
efforts. This is a well recognized and important document that
should have been readily accessible and easily reproduced.
More than four months later, we received boxes of files, once
again unaccompanied by any letter, index, or reference to any
of our requests. These boxes contained some Red Book material,
but in no way can this response be viewed as satisfactory.
This example illustrates the labours involved in the examination
of documents. The copies of Red Books should have arrived in a
complete package. Instead, the materials we received were piecemeal,
incomplete, and intermingled with other documents. After considerable
effort, Inquiry staff were unsuccessful in reconstructing the
requested documents from the fragments received. In particular,
they lacked sufficient material to reconstruct a copy of the Red
Book in effect during the predeployment period.
A reminder had been sent to SILT in June 1996,39 but
we received no response until February 1997, when a copy of this
key Red Book was received in response to a different request for
a related document.40 SILT offered no explanation for
the delay of more than one year in providing the requested information.
In December 1995, we requested a number of documents relating
to highlevel meetings, including the agendas for Defence
Council meetings from 1990 to 1995.41 The Defence Council
is a forum for discussion to inform senior management and to facilitate
decision making. It is chaired by the Minister of National Defence,
and its members include the CDS, the VCDS, the DM and other senior
officials. The Defence Council is a main avenue for briefing the
Minister of National Defence on developments within the DND/CF
and should normally meet once a month.
In March 1996, SILT replied that in the period 1990 to 1995, there
appeared to have been only six such meetings,42 a surprisingly
low figure. After additional research, the final response in October
1996 was that one of the six meetings had been cancelled, no minutes
were produced for another, and two sets of minutes could not be
located.43 The result was that the minutes of only
two meetings were available in the sixyear period.
In February 1997, we requested documents relating to communications
with the Minister of National Defence about our request for extensions.
We were interested in documents that either advised the Minister
about the matter or documents that contained the views of the
Minister.44 After we received no response, a reminder
was sent in March.45
Later that month, SILT's reply was that none of the documents
described in that request could be located.46 SILT
added that because the Honourable Doug Young had been appointed
minister (replacing the Honourable David Collenette) "any
papers from his predecessor would have been sent to the Archives".
SILT also wrote that we had received documents from the PCO and
that "[a]ny additional documentation would likely fall into
the categories of Cabinet Confidences or Solicitor/Client Privilege".
These comments are troubling. Any reply by Mr. Collenette to his
officials would certainly have remained within the Department.
It is not the practice to gather all the documents signed by an
outgoing Minister and send them to the archives. Similarly, as
regards correspondence sent to the Minister, any copies retained
by the authors were not archived. Even more unsatisfactory is
SILT's uncertain comment that documents were "likely"
to be privileged. It appears that SILT did not bother to search
for such documents, on the assumption that these were protected
by a privilege. Documents that are not privileged were required
to be released to us. Documents for which privilege was claimed
should have been identified, and a list of
such documents should have been sent to us.47
A final example along these same lines is our request in May 1996
for the Combined Joint Task Force (CJTF) Somalia operations plan.48
This key document sets out the whole concept of the operations,
missions, and tasks in Somalia. SILT's reply
in August 1996 was that these documents could not be found in
the Canadian Forces. We cannot understand how the Department was
unable to find such an important and highprofile document
over a threemonth period following our request.
SILT's mandate, as specified by Gen de Chastelain in his April
1995 directive, included collating and cataloguing "all documents,
notes, email, diskettes, videos, etc." relating to
the mission in Somalia.49 Despite this and our order
to produce all documents and other recorded information, very
little was received in the way of email, either in paper
copy or in an electronic version. As this was a matter of considerable
interest to us, on May 21, 1996 the Commission Secretary wrote
to the head of SILT asking about the status of the disclosure
of email.50 By June, SILT had still not responded,
and we wrote a second time asking for a response.51
SILT replied that it had requested detailed information about
the email systems in place at NDHQ and the CF since 1992
to allow us to assess
its use.52 This appeared to miss
the point completely; we wanted copies of the email transmissions,
not information about email systems. A letter making that
clear was sent to SILT.53 After additional discussion,
SILT's final response was that it had passed
on all email that the Department was aware of and that it
considered the matter closed.54 The matter might have been closed,
but Inquiry staff did not feel that they had received much cooperation
in obtaining email communications that might have been relevant
to our mandate.
The significance of email is that it is often used to communicate
internally within an organization and may be more candid than
formal correspondence. One significant example was brought to
our attention by counsel for one of the parties with standing.
That was a series of email transmissions concerning an attempt
by MGen Vernon to organize several colleagues to present evidence
before us and LGen Reay's response to that effort. LGen Reay's
reference to "the idea of producing the King James Version
of events"55 and his statements "How we respond
is entirely up to us and we control what is written",56
and "Equally, every time the Commission asks for amplifying
info or more briefs or whatever, we will respond and we control
how we respond"57 are especially noteworthy.
In his testimony, LGen Reay conceded that these words could be
interpreted to mean that he wanted to control the flow of information
to the Inquiry, but he added that this had not been his intention.58
As it turns out, what LGen Reay said he did not mean was precisely
what was reflected in our rueful experience with the disclosure
of documents.
Although we were aware of the email transmissions, reliance
was placed on SILT to provide copies of the email for the
purposes of the hearings. It is of interest to note that even
though the quantity of email made available to
us was incredibly sparse, this particular example was available
and easily retrieved by SlLT.59 However, this particular
message was not actually disclosed to us until we advised senior
officials that we were already in possession of a copy obtained
from another source.
This example illustrates the candour in a less formal communication
medium such as email and the value of such records for our
work, MGen Vernon testified that it was an everyday occurrence
for members of the CF to use email or the telephone to communicate
about "demiofficial" matters.60 He
described demiofficial correspondence as being private correspondence
and contrasted it with official correspondence which "belongs
to Her Majesty".61 He explained
that demiofficial communications were a normal method of
staff work: establishing consensus through this less formal liaison
before the results are presented to superiors for official consideration.
He also testified that the "demiofficial net"
accounts for a great deal of the consultation and discussion behind
official decisions.62
From this testimony, it is clear that had it been more available
to us, email could have proven invaluable as a window on
the frank consultations that were held on that "net"
every day.
Another of the frustrations we encountered was the way SILT responded
to a request for a particular document by providing a related
but different document.
Following a tour of the NDOC for Inquiry staff, we wanted to know
what procedures existed for the handling of information received
by that office, In October 1995, we requested a copy of the standing
orders of the NDOC in effect during Operation Deliverance.63
SlLT's response was to enclose a copy of the National Defence
Operations Centre Instruction, October 1995 (two
years after Operation Deliverance), with the explanation
that "this is a 'living' document which is updated as required
but at least reviewed annually" and that it would continue
to look for a copy of the Instruction dating back to 1992/1993.64
By June 1996, eight months later, there had been no further response
from SILT. We wrote again to ask what progress
had been made to locate or reconstruct the 1992/1993 version of
the document, and if none, we wanted copies of the Instruction
used in the two annual reviews that bracketed Operation Deliverance.65
SILT replied in October (one year after our
original request) that the document had not been found and that
it was unable to reconstruct it. SILT added
that "the Instruction is a 'living' document and as such
there is no utility in retaining a copy which is no longer current.
In fact, retention of 'living' documents which are not current
often leads to confusion and can be a serious liability"
and considered our request to have been fulhlled.66
The result was that one year after our request, the only document
that had come into our possession was current but not relevant
to the period we had specified and was therefore of no use to
us.
A similar situation arose when we requested a copy of a twopage
summary written by VAdm Murray and referred to in another document.67
SILT's response was to send a different document
"concerning the same issue" and to state that "[s]ubject
to further direction from [us], this request will be considered
closed".68 It is difficult to understand how providing
"a new document concerning this same issue" in any way
satisfied the original request.
Beyond the failure to receive the materials requested, a considerable
amount of energy was spent in clarifying matters for SILT or attempting
to get SILT to respond to the request made.
An example already discussed concerns SILT's research into email
systems instead of providing us with copies of the email
transmissions themselves.
Another example is our request for DEMrelated documents.
In June 1996, more than six months after the initial request for
these types of documents, SILT did not appear to understand fully
what was being requested. We wrote to SILT regarding this matter:
"Your response on this issue is unsatisfactory in a number
of respects. The main problem is that it does not appear to respond
directly to [the] request but, rather, it appears to build on
your response to another request dealing with different material."69
A final example is that of request number 096.70 During
a 1995 general court martial case, a witness stated that there
was a sheet of paper inside a guardhouse that outlined the duties
of the guard. In October 1995, request 096 asked SILT to provide
a number of documents, including the sheet outlining gate guard
duties. Our request made specific reference to page 168 of the
general court martial documents, where the statement about the
sheet was made.
Eight months later, in June 1996, SILT replied that this outline
of guard duties could not be located and that SILT officials did
not believe that it existed.71 We had little confidence
in this response, however, because SILT also had difficulty finding
the reference on page 168 of the court martial transcripts and
stated, erroneously, that there was no such reference.
We were also often frustrated in our attempts to get documents
known to have existed but that were unavailable to us. Examples
include the National Defence Act Review, the Chief Review
Services (CRS) studies, and the Kipling Reports.
In September 1995, Inquiry staff requested a copy of the National
Defence Act Review.72 Other documents in our possession
describe this work as a review of the military justice
system conducted internally by the Department and presented
to the Defence Management Committee (DMC) in January 1994. A month
later SILT replied, stating that the document
was under consideration by the Judge Advocate General (JAG) and
that it was "not possible to give an exact date when the
request will be answered".73
In February 1996, SILT forwarded to us a letter
from the JAG stating that the Department had established a process
to review the National Defence Act and brief the DMC, and
ultimately the Minister, on recommended changes to that
act. Although the consultation phase had ended in the summer of
1994, the report was not yet finalized, and the draft would not
be released to us.74
Over a year after the original request, in November 1996, we sent
a further letter to see what progress had been made. SILT's
response, a month and a half later, was "[a]lthough
the current rationale for withholding this documentation remains
unchanged, the Office of the Counsel for the Government of Canada
remains willing to discuss the process. For these reasons, SILT's
perspective is that this request will be considered closed".75
After nearly a year and a half, we were no further ahead in obtaining
the desired information. We wanted to study the review to understand
the areas identified for change by the Department and the nature
of those changes. Instead, well over a year after the creation
of a draft report, the Department continued to deny us a copy,
giving no indication when the report would be available. SILT's
final comment on the matter was that it considered the request
closed.
In November 1995, we asked for a complete list of the studies
prepared by the Chief Review Services in DND since 1991.76
The CRS is responsible for the internal investigation of issues,
often at the request of senior departmental officials. Its studies
were of interest because the Department's own views of issues
being investigated could prove quite revealing and helpful to
our work. In December, we amended that request, asking for a list
of all studies and reports by the CRS since the position was established.77
This list was provided in March 1996. In April, we asked for a
number of documents of interest from that list.78 This
request remained outstanding as of August, and we sent a reminder
to SILT, increasing the priority of that request.79
In December, SILT forwarded the majority of the requested documents.
In January 1997, additional documents were forwarded. A number
of documents were not included, however, because they had been
"destroyed" in June 1994.80 No other information
was provided about these documents, which included an evaluation
entitled "Departmental Evaluation and Accountability Reporting"
and an assessment entitled "Public Information", presumably
covering the dissemination of information to the public.
In December 1995, we made a highpriority request asking
SILT for information about documents known as the Kipling Reports
and asking for copies of such reports produced in the years 1993
and 1994.81 In February 1996 SILT replied that the
Kipling Reports are biweekly reports compiled by the NDHQ
Secretariat to inform senior staff of current DND issues and are
based on information supplied by NDHQ directorates. SILT reported
that, based on telephone conversations with the NDHQ Secretariat,
"all KIPLING Reports from 1993 have been destroyed and copies
are not being kept any more".82 However, no mention
was made of the Kipling Reports from 1994, which we had also requested.
After receiving nothing more on this matter, we wrote back to
SILT in December 1996, asking for a more thorough search.83
SILT's response was that a broadened search revealed that all
recipients of the report had destroyed the 1993 and 1994 copies
according to records disposal guidelines and that the documents
were not available in the Department or the government.84
Once again, documents that were of interest to us were ultimately
unavailable after many months of waiting. Even more disappointing
was the fact that a comprehensive search was conducted by the
Department only upon a specific request from us and that SILT
did not take this step on its own initiative.
The CRS studies and the Kipling Reports are just two
examples of the destruction of highlevel documents
with no apparent regard for the loss to corporate memory. It is
understandable that copies distributed to individuals have become
unavailable, but we have more difficulty accepting that the individuals
or offices responsible for producing such documents would not
retain any records.
Because SILT had failed to deliver all the relevant documents
on time, we had no choice but to begin hearings before we had
received all the documents. Evidentiary hearings began in October
1995, and as they proceeded through the fall of 1995 and continued
through the winter of 1996, we continued to receive, process,
and review new documents, including documents of direct relevance
to the hearings already under way.
Because of the serious difficulties that we had encountered in
obtaining disclosure from SILT, we were obliged to hold public
hearings to determine why we were not receiving documents necessary
for us to fulfil our mandate and whether this deficiency was deliberate.
Pursuant to our terms of reference, we began hearings in April
1996 related to the integrity of the documents delivered to us,
The main issues explored were noncompliance with our orders
for production of documents; the alleged destruction and alteration
of Somaliarelated documents; discrepancies in the NDHQ logs;
and missing intheatre logs.
Later in this chapter, we detail the complexities surrounding
the alteration and subsequent attempted destruction of Somaliarelated
documents. This issue resurfaced within the DGPA as a result of
our order for the production of all relevant documents. While
other areas of the Department submitted Somaliarelated materials
pursuant to SILT's instructions, the DGPA had not complied, although
it knew of the requirement. On the contrary, arrangements were
made by supervisors in DGPA to destroy documents requested by
us to cover up their previous deceptions. This plan was unsuccessful,
however, because the arrangements were discovered before they
were carried out.
During the hearings, many details of the affair were examined,
and witnesses for the most part denied responsibility. It was
clear, however, that the Department had failed blatantly to comply
with our order for production. The actions of the Department were,
we concluded, dishonest and deliberate. To cover the original
deception, the severity of misdeeds had escalated from artifice
to lies to noncompliance with an order for production and
finally to the attempted destruction of evidence.
The National Defence Operations Centre at NDHQ was responsible
for coordinating the flow of communications related to operational
matters and was the information centre that received all message
traffic.85 Any information received from OF theatres
of operations was required to be recorded in the NDOC log by the
NDOC desk and watch officers.86 Col Leclerc testified
that the NDOC log was kept by duty officers and contained a record
of all message traffic that went through them, that is, telephone
calls, messages, and reports from various alert systems that come
into the headquarters.87
We attempted during the summer of 1995 to obtain the NDOC logs;
SILT provided three different ones.88 During our review
of these, we discovered a number of unexplained anomalies, including
entries containing no information, entries missing serial numbers,
and entries with duplicate serial numbers. The concern was that
there may have been deliberate tampering with these logs.
A military police investigation was launched on October 11, 1995,
but it was frustrated by the fact that the computer's hard drive
had been reformatted and backup tapes were not available.
The investigation was unable to determine whether the inconsistencies
in the logs were the result of tampering and suggested that they
were the result of poor operating procedures, insufficient training,
and a lack of system audits.89
As a result of the military police report, Commission counsel
interviewed NDOC personnel and discovered that the computer system
in operation during 1993 actually consisted of two hard drives,
one that mirrored the other.90 The mirror drive was
found at NDHQ and, contrary to what had been suggested in the
military police report, it had not been reformatted and disposed
of, although much of the data had been deleted.91 As
a result, the military police reopened their investigation into
the question of tampering. The second investigation revealed no
evidence to support the theory that tampering had occurred,92
but could not eliminate the possibility.
These investigations did, however, reveal a number of other serious
problems with the NDOC logs. Despite the key role the NDOC log
would play in any investigation, management and staffdid not appreciate
its importance and accordingly did not give it priority.93
Most of the problems seem to have resulted from the lack of standing
operating procedures with regard to the log and a tendency to
bypass this awkward system.
One major problem was the lack of policies and practices with
regard to creating and maintaining a complete record of communications
from field units to NDHQ. To begin with, the
purpose of the log was not clear in the minds of NDOC personnel,
and perceptions of the role it played at NDOC varied from one
individual to another.94 In addition, oneofficer
interviewed stated that there were no standing operating procedure
regarding the inputting of information into the NDOC logs, and
a National Investigation Service (NIS) report found that "[s]tandard
operating procedures were nonexistent".95 The
decision about what information was entered was left to the desk
officer or watch officer.96 When it was decided that
information needed to be entered in the log, the fact that NDOC
staff received no formal computer training compounded the problem.97
A review of the logs shows that there were large gaps in the records
of communications that flowed from the intheatre headquarters
of CARBG and CJFS to NDHQ during Operation Deliverance, and in
particular after the incident of March 4, 1993. Despite the contention
that the NDOC was an "allinformed staffsystem",98
a clear cause for concern was the fact that the NDOC was not always
used for official communications. Operational information was
often provided directly to senior NDHQ officers
without passing through proper channels, bypassing the information
system that was in place. Such a prominent violation of NDOC policy
demonstrates an ingrained lack of appreciation for the importance
of an accurate record of NDOC activities and a serious problem
of discipline within the CF.
The security system in place at NDOC was completely ineffective.
One officer stated that typing in a user ID followed by a password
gained access to the system, and that he had the passwords for
the three desk officers because he was regularly required to access
their accounts.99 Another noted that he did not need
a password to use the NDOC operations log because it was open
and running 24 hours a day.101 The NIS investigation
also noted that there might be concern if the public received
information regarding how inadequate the NDOC system was during
this period.102
The implications of this investigation and of our own review of
different versions of those logs is that NDOC logs are not a reliable
record of transactions at the operations centre. Even apart from
the question of deliberate tampering, the logs were compromised
by problems with the database system and the absence of
proper procedures for the operators.
Another type of log, intheatre operational logs, were of
great interest to us. In addition to the logs
kept by the NDOC operations centre, operational logs were kept
daily with respect to the Somalia deployment. "The [operational]
log provides an abridged chronological record of all incoming
and outgoing information, actions taken and decisions made. It
[also] provides a continuous story of the operation in progress,
a check upon action yet to be taken and a basis for the writing
of the war diary."102
A war diary is a historical record that units are required to
create when engaged in certain operations, including peacekeeping,
In relation to Operation Deliverance, the only mandated war diaries
were for the Joint Force HQ and for CARBG.103 However,
other units also maintained diaries. While war diaries have stringent
requirements for the preservation of written information, "[i]t
is particularly important that Operations Logs...be included".104
A properly maintained log would "provide the minutetominute
sequential information as it occurred within Operation Deliverance
deployment to Somalia".105 Of special interest
to us were the logs from three commando units (1 Commando, 2 Commando,
and 3 Commando) as well as the Service Commando logs.
Logs were critical to our understanding of events in Somalia,
yet the logs we received in June 1995 were incomplete.106
SILT did not follow up with inquiries about the missing information
or monitor the obvious gaps in the information that was resumed
to us.107 Even more problematic was the lack of documentation
from SILT outlining which logs did exist, which were missing,
and why they were missing.108 After beginning work
on the logs in the fall of 1995 and struggling with these problems
for months, we wrote to SILT on January 17, 1996 and made it clear
that an order would follow requiring production of the logs kept
in Somalia unless the Department began to make progress in this
regard.109 SILT replied on February 1, 1996 identifying
some of the logs, but the response was far from satisfactory.
A further letter from SILT, dated February 9th, had attached as
an annex a more comprehensive listing of Somaliarelated
logs and those that were missing.110 That letter confirmed
that 2 Commando communications logs for a period of several months
were missing, and nearly all 1 Commando communications logs were
missing. It made no mention at all of the logs from 3 Commando
or Service Commando. Inquiries with respect to the missing pages
appear to have started only on March 11,1996.111 As
a matter of fact, the search for logs became frantic only after
we informed the military authorities that we would call the CDS,
Gen Boyle, as a witness to account for the lack of compliance.
By the beginning of April 1996 we had assembled a list of the
operational logs for the intheatre phase of the operation.
This list indicated which of those logs had been delivered to
us; practically nothing we received constituted a complete set
of documents.112
In the months of March and April, a number of logs began to appear
because of the heightened attention to them. The Airborne Field
Squadron's logs were provided to us on April 18, 1996, after being
found among closed files that had not been checked before the
April 9th search ordered by Gen Boyle. We found that a copy of
the Service Commando logs was held by the military police. In
March, SILT informed us that the 1 Commando logs had been destroyed
by water while in Somalia.113 Maj Pommet was surprised
that both copies of the 1 Commando log could have disappeared
and noted that they would have been useful to the Inquiry, as
they contained a critical evaluation of the shortcomings and unsatisfactory
procedures of the operation.114
Following the CDSordered search in April, the 2 Commando
logs were discovered at CFB Petawawa.115 Despite the
importance of the operational logs to our work, the Department
appeared to have made little effort to ensure their delivery and
completeness. What was produced voluntarily was scant and unacceptable,
with no attempt to account for the very substantial portions that
were missing. It was not until we had made several demands and
finally resorted to the possibility of an order that a more comprehensive
search was made. Even the results of those searches were not entirely
satisfactory, and many portions remain outstanding.
Incredibly, despite its own mandate to maintain war diaries and
certain logs, the Department failed to understand the importance
of these documents and failed to explain the unacceptable state
of its records. For example, Gen Boyle testified that one reason
for missing log pages was that they could have been considered
less important once the war diary had been produced.116
The reality, however, was that there was no evidence that such
logs were used in the creation of war diaries and that the diary
entries did not refer to the logs or attach them as annexes.
An even more startling example concerned the Canadian Intelligence
Staff Branch (J2) intelligence logs. These logs recorded significant
information received and action taken by Canadian Joint Force
Somalia (CJFS) headquarters, They were concerned with information
about activities that could affect the CJFS.117 A properly
completed J2 log could have provided us with critical objective
information concerning such things as the reality of, or lack
of, Somali groups engaging in hostile activity on February 17,
1993 or in sabotage activities on March 4, 1993. Therefore, this
log could have either confirmed or refuted the sabotage theory
surrounding the events leading up to the March 4th incident (see
Chapter 38).
There were apparently three copies of these logs,118
but only one copy can be accounted for. These logs were stored
in a filing cabinet escorted back to Canada under armed guard119
and sent to CFB Kingston. Twelve filing cabinets of Somaliarelated
documents, including the J2 logs, were shredded by First Canadian
Division Intelligence Company in January or February 1996 because
of the desire for storage space.120 Maj Messier, who
authorized the shredding, considered the material to be of no
value to us,121 as it was "nonessential
documentation".122
This position is untenable, because
A telling comment came from WO Beldam, who personally inspected every page of the Somaliarelated documents before their destruction in midFebruary 1996.'24 The Sumary Investigation officer asked him whether he had any reservations concerning the destruction of the Somaliarelated files. WO Beldam responded:
none [of the documents] had and have no bearing on the matter at hand. We carefully thought the requirement through and decided we were not destroying anything of value. I had a job to do and the filing cabinets were an impediment, we had the disc copies of the material we required. Had I to do it again, I'd shred them again.125
This response not only shows that, in WO Beldman's mind, this
act of destruction - and a clear violation of our order - was
not a mistake, but also shows that it was "carefully thought"
out and would be repeated today.
By April 1996, LGen Boyle had been promoted to Chief of the Defence
Staff. Because of numerous questions arising from our investigations
into missing documents, including the Somaliarelated logs,
Gen Boyle issued a CANFORGEN (a message to all units of the Canadian
Forces) on April 3, 1996, ordering the Department and the Canadian
Forces to "stand down all but essential operations on Tuesday
9 Apr. to conduct a thorough search of all their files, to identify
and forward to NDHQ/SILT any Somalia related document not previously
forwarded. ..not later than [11:59 p.m.] of that day".126
SILT's records indicated that the search resulted in 39,000 additional
documents being forwarded.127 A major concern was that
those 39,000 documents would contain a large amount of duplication
of materials already in our possession. Anticipating that this
could be problematic, the Commission Secretary wrote to SILT on
April 11, 1996, requesting that "[o]nly documents which had
not previously been provided to us be delivered".
By the end of April 1996, SILT had established a data base containing
entries for the documents received. This meant that a listing
of the documents could be given to us on a computer disk. In addition
to information used to identify each document, SILT had classified
the documents according to "priority" to indicate the
likelihood that a document contained new information. Approximately
28,000 documents fell into the low end of that classification.
Although SILT did not know whether these documents were duplicates
of earlier documents given to us, the team classified these documents
as unlikely to contain new information. We could not rely on this
classification, however, because it was clear that the Inquiry
and SILT had very different views about what was important in
terms of documents.
The point that only nonduplicates were to be provided was
emphasized in numerous meetings in April and May. This daunting
task was undoubtedly made more difficult by the absence at SILT
of a single system of tracking documents and by the apparent incompleteness
of what systems did exist. It was acknowledged that our tracking
system was more comprehensive and, to facilitate SILT's culling
of duplicates, we offered to aid SILT by using computers to identify
the most likely candidates for duplication. After additional meetings,
the result was a plan of action, the exchange of computer data,
and a time frame that was acceptable to both the Inquiry and SILT.
In a letter dated May 28, 1996, SILT indicated that a copy of
all nonduplicates would be delivered by dune 21, 1996.129
Unfortunately, in a subsequent meeting on June 12th, SILT stated
that approximately 28,000 of the 39,000 documents would not be
reviewed for duplicates, because SILT considered that those documents
were unlikely to contain new information and that to do so would
take far longer than the time afforded by the June 21st delivery
date. Although SILT had committed on more than one occasion to
go through the exercise of eliminating duplicates, the size of
that undertaking appeared to overwhelm the organization.
At this point the vast majority of the documents from the search
remained at SILT, where they had been since April. Nearly two
months had elapsed with very little progress in getting the documents
to us for review. We had no choice but to deal with the problem
of duplicates ourselves.
In a letter dated June 13,1996, we demanded delivery of all of
the documents from the April 9th search by the beginning of the
following week.130 Despite the earlier commitment to
deliver the documents by June 21st, and numerous telephone conversations
and letters prompting SILT for timely delivery, it was not until
September 27,1996 - more than five months after the search was
conducted and the documents had been received by SILT - that we
finally received all the documents.
Starting in June, when we began to receive documents, Inquiry
staff catalogued and reviewed them over a period of four months.
Following this initial stage, staff spent many hundreds of hours
more eliminating duplicates and updating hearing books affected
by the additional documents.
We agreed to a protocol whereby documents to be included in hearing
books would be sent to SILT for final review. After each hearing
book was compiled and Commission counsel had approved its contents,
SILT reviewed the documents before the hearing books were sent
to the printer. The purpose was to identify any missing information
and to allow SILT to request in camera hearings for documents
that could affect matters of national security or to request the
severance of information of a sensitive nature not necessary for
our work.
Initially SILT's review of the hearing books was done on a timely
basis and with few difficulties. As hearing books increased in
volume, sometimes accompanied by requests to supply missing documents,
SILT took longer and longer to review them. Delays of two, three,
or four months were not uncommon, and in some instances, it took
SILT nearly six or seven months to return a series of hearing
books, as in the case of those relating to Cpl Matchee's alleged
suicide attempt.131
When these delays became apparent, we took a proactive approach
and attempted to manage the situation. We determined which books
had the greatest priority and then asked SILT to work on those
books first. To have a workable arrangement, in many instances
we also asked SILT itself to determine when overdue books would
be ready. The results of this approach were also unsatisfactory
some of our requests were ignored,132 other requests
for the return of hearing books were met with promises of delivery
within an unspecified time frame. When delivery dates were specified,
SILT often did not keep those commitments.133 The result
was that the filing of hearing books prepared months in advance
became unduly delayed.
On January.10, 1997 the Government announced that we were to end
our hearings by the end of March 1997 and to complete the final
report by June 30, 1997.
At the time of the announcement, we had made 391 numbered requests
to SILT, of which 59 remained outstanding. For these 59 requests-some
dating as far back as September and October 1995, when the original
request system was implemented-we had either received no documents
or had received incomplete deliveries and awaited additional information.
They collectively addressed a wide variety of issues, from maps
of Belet Huen to communications logs to minutes of highlevel
meetings within the Department. Of the 391 requests at that time,
342 of them were no longer "outstanding" in the sense
that they were no longer active. However, in a number of cases,
including the National Defence Act Review and the NDOC
standing orders discussed earlier, we had never received the information
we sought. To our consternation, it was SILT that considered the
requests closed because it was unable to find the requested information
after some effort.
As we altered our plans and time lines to accommodate the Govemment's
surprising announcement, documents stemming from SILT requests
and the original order for production continued to arrive, sometimes
in quantity.
One example was the war diaries. Hearing books dealing with the
war diaries had been compiled early in 1996 and were sent to SILT
for review in April. These hearing books were resumed by SILT
in July and filed when hearings recommenced in September 1996.134
Additional war diary documents on computer disk arrived in January
1997, with the explanation from SILT that although the disks were
received in early April 1996, "a cursory examination"
at that time led the researcher to believe that the materials
were duplicates.135 Another eight or nine months had
passed before SILT reexamined the disks, found additional
new documents, and forwarded the disks to us in 1997.
A more important example was documents for which the Government
was claiming privilege. Pursuant to paragraph (i) of the Inquiry's
order for production, the Department was required to produce "A
list of all documents for which privilege is claimed, a description
of the privileged information, and the basis on which privilege
for claimed".136
By the fall of 1995 we had received a list containing a small
number of documents for which solicitor/client privilege was claimed.
In March 1996, during a visit to the Office of Counsel for the
Government of Canada (OCGC), we were given an updated list specifying
134 documents for which privilege was claimed. We were given access
to these documents and, after reviewing them, disputed the Govemment's
overly broad claim of privilege for many of those documents.137
On September 27,1996, more than a year after the list
was due pursuant to the order for production, we received
a new list of 2,617 documents for which privilege was claimed,
documents referred to by SILT and the OCGC as the "LD"
or legal documents. Starting in October, Commission counsel went
to the OCGC offices to review those 2,617
documents. As part of ongoing discussions, the OCGC indicated
that the list of 2,617 documents was a working document, and accordingly
the OCGC would review the list to eliminate duplicates and nonprivileged
documents.138 In November 1996, as the painstaking
effort to go through the 2,617 documents was under way, we were
informed that additional documents were being added to the LD
list.139 The number of documents to be reviewed had
grown to 8,000 by November140 and then to 12,000 by
December 1996.141
Apart from the frustration of huge increases in the number of
documents to be reviewed, duplicates of documents
already received or reviewed were regularly found among the legal
documents, despite the earlier commitment by the OCGC to remove
duplicates. In addition, the OCGC appeared to be taking the extraordinary
position that privilege was claimed for documents on the LD list
based on their being in the possession of counsel:
Commission counsel stated their disagreement with this assertion
of privilege and, in the interests of expediency, asked that the
alleged privilege be waived in documents of interest to us.143
Subsequent to those communications, arrangements were made to
have urgent documents delivered by midDecember and
the rest delivered by December 20, 1996. Neither target date was
met. Instead, the bulk of the documents arrived a month later,
after the Government's announcement had drastically reduced the
time available to review these documents.
An enormous amount of material was received over the life of the
Inquiry. More than 150,000 documents containing 650,000 pages
were catalogued into a data base and reviewed by our staff.144
That we had over 150,000 documents also meant that SILT had delivered
over 150,000 documents. Many of these, particularly those that
had been scanned into electronic format by SILT, proved invaluable
to our work, Approximately 400 hearing books were produced, which
meant that the same number of books were reviewed by SILT staff
members. In many ways, our tremendous efforts to retain control
over the flood of documents that continued until the end of our
hearings were mirrored by the efforts of the members of SILT.
Our serious concerns about the motivation and structure of SILT
make it difficult to recognize the efforts that many individuals
made within this system. Despite the difficulties, personal contacts
between ourselves and SILT personnel were for the most part businesslike
and courteous. Even in a flawed system, one cannot work for several
years without establishing friendly relations and coming to have
a high regard for the personal capabilities of many of the people
one is associating with almost daily at times.
Generally speaking, individuals at SILT returned calls promptly
and appeared to do what they could to address specific problems.
There are instances where individuals made helpful suggestions
and provided more than was asked of them. Col Leclerc certainly
worked long and hard at the task that was given to him, and we
were also impressed by a new spirit of cooperation and professionalism
that became evident at SILT in the later stages under the leadership
of MGen Tousignant.
But the purpose and design of SILT placed everyone within it in
an impossible position, caught between adherence to
our order of production and respect for the public inquiry
process, and loyalty to their own institution and leadership-a
leadership by its own admission disinclined to recognize the public's
right to information and willing to resort to legalistic hairsplitting
and subterfuge to avoid divulging that information.
Despite these efforts by individuals at SILT, our work was hampered
by many systemic difficulties, principally the late delivery of
documents; the delivery of documents in an incomplete and disorganized
form; and a failure to manage the production of documents.
The late delivery of documents is a recurring theme throughout
the history of this Inquiry Our original order required
production by May 1995. At the Department's request, the time
period was extended until June. Documents continued to arrive,
however, throughout the rest of 1995. MGen Boyle's search in April
1996 produced many more documents that should have been included
in the initial production. The delivery of this second set was
not complete until September 1996, nearly a year after evidentiary
hearings had started and nearly a year and a half after the original
order for production. Even then, documents on the LD list were
not delivered until early 1997.
Of necessity, we depended on the promptness of the Department
to meet our own time lines. The delay in production of documents
inevitably meant delay in our work and the progress of the hearings.
The most notable example was the delay of the intheatre
portion of hearings until September 1996 because of the Department's
failure to produce all the required documents, the consequent
need to conduct documentrelated hearings, and the arrival
of new documents following the April 9,1996 search. The research
of many individual issues was also delayed by our unanswered requests
to SILT and the poor state of the delivered documents.
Given the quantity of documents being delivered, their breadth
of scope, and the variety of sources from which they originated,
it was crucial that SILT deliver them in an organized manner.
Instead, these documents arrived in disarray, often without a
covering letter identifying the contents of the delivery or an
explanation of their significance or context. Indexes were included
in later deliveries, but these were unreliable because they contained
many errors and often did not correspond with the documents delivered.
As a result of these deficiencies, we spent thousands of hours
reviewing the documents, eliminating duplicates, organizing them
into meaningful categories in order to conduct research and assemble
document hearing books, and attempting to reconstruct documents
that arrived piecemeal, for example the DEMrelated documents
and the Red Book materials.
A similar situation arose in documents relating to the March 4,
1993 shooting of two Somali nationals. The military police report
of that incident was a key document and one of the natural starting
points for investigation.145 That report was delivered
in pieces, however, and had to be reconstructed over several days.
Because we encountered this type of difficulty many times, Inquiry
staff and counsel had to take extra time to work on documents
before they could work with them.
The second wave of documents from the April 9,1996 search only
added to these difficulties. Despite Gen Boyle's
instructions that only documents not previously provided should
be forwarded,146 many duplicates were sent and had
to be eliminated. Because these documents were received so late,
entire series of hearing books had to be updated or supplemented.
Also, since document disclosure continued throughout all phases
of the hearings, much of the information was received after we
had dealt with the relevant issue. By the time the April 9, 1996
documents arrived, we had already completed months of hearings
on the predeployment phase of Operation Deliverance. Inquiry
staff had also produced many working papers based on testimony
from those hearings and on the documents already in our possession.
The arrival of tens of thousands of additional documents meant
that many of the working papers had to be revised to incorporate
the new information and that documents of potential assistance
to Commission counsel came too late.
The quantity of incomplete documents, the absence of a system
for ensuring complete delivery, and SILT's inability to account
for long delays in fulfilling some requests illustrate its reactive
approach to the issue of document production.
Col Leclerc's testimony described the initiative and organization
that existed very early in SILT's work. That early plan quickly
became inadequate, however, in the face of the enormous volume
of documents arriving at SILT.
Although SILT was charged with the challenging task of collecting
documents from the entire Department and the Canadian Forces,
it did not establish a method of ensuring their receipt.147
Even when it became obvious that documents were missing and that
SILT's methodology was flawed, there was no attempt to correct
the situation. The alteration and attempted destruction of documents
at the DGPA demonstrates this point. SILT also did not bother
to inform us of these serious difficulties, despite almost daily
contact with Inquiry staff. There was no apparent effort to organize
the documents that were delivered, and when important documents
such as operational logs were obviously deficient, SILT was content
to pass them on without ensuring their completeness.
Finally, as discussed earlier, in a number of SILT requests, SILT
prematurely declared documents to be unavailable even though it
had not exhausted all possible avenues of search. For example,
in the case of request 307, SILT recognized that copies of the
Combined Joint Force Somalia operations plan could be held by
the U.S. Department of Defense, but instead of pursuing that obvious
route, SILT considered the matter closed. In another example,
SILT's search for the Kipling Reports consisted simply of a series
of telephone conversations with a single office before it was
satisfied that such documents were no longer available. In these
and many other examples, it was only because of additional prodding
on our part that SILT took further action.
SILT failed to manage actively the production of documents and
played only a passive role as a conduit for the materials it received.
The Department seems to have made inadequate provision for the
supervision of matters related to our Inquiry.
In many instances throughout the process of document production,
it was only when we highlighted a problem that the Department
addressed it. The fact that DND would wait until a problem had
assumed crisis proportions before responding is amply illustrated
by the second sweep for documents in April 1996. After several
months of investigation into incomplete logs and other documentrelated
issues, Gen Boyle was so troubled by his Department's problems
in responding that he ordered the entire Department and the Canadian
Forces to stand down and search for documents for a day. Despite
such extraordinary efforts, the Department is still unable to
account for many documents.
Under paragraph 2 of our terms of reference, we were authorized
to adopt such procedures and methods as were considered expedient
for the proper conduct of the Inquiry. In light of the allegations
of coverup, we believed that the most, if not the only,
expedient and reasonable way of securing the material we needed
was by issuing a request to the Minister of National Defence for
production of Somaliarelated documents.
On April 21, 1995 we issued an order requesting the transfer of
all Somaliarelated documents to us within 30 days.148
On May 29, 1995 we gave the Department additional time to comply,
extending the delivery date to June 30, 1995, in response to a
request from the Attorney General of Canada.
However, by September 5,1995, the Directorate General of Public
Affairs had still not complied with the order, even as extended.
The testimony of Ms. Ruth Cardinal, then Director General of DGPA,
reveals that some time in April she was informed verbally of the
existence of the order, but she never received a copy of it or
any written instructions as to what measures she should take to
ensure proper compliance within the time frame stipulated. Although
she does not recall having seen the CANFORGEN issued on June 16,
1995, she testified that she must have received it.149
As described previously, SILT was established in April 1995. The
team, led by Col Leclerc, initially reported to LGen Boyle, and
its mandate included the collection and cataloguing of all Somaliarelated
material and a duty to assist the Inquiry in obtaining relevant
information from the Department of National Defence. All DND employees
and CF members were required to comply with requests made by SILT,
and no DND or OF documents, in whatever form they existed, were
to be withheld from SILT.150 Eventually, in June 1995,
LGen (ret) Fox came to occupy a newly created position, Special
Adviser.151
According to Ms. Cardinal s testimony, she received no instructions
from LGen Boyle, Dr. Alder or SILT as to what documents she should
be collecting and what form or method she was to adopt to comply
with our order.152 She in turn issued no written instructions,
orders or directives to her personnel to ensure compliance with
the order.153 Only in September 1995 - that is to say,
some four and a half months after the service of the order and
three and a half months after its original expiry date - did the
DGPA staff most knowledgeable about the existence and handling
of Somaliarelated documents (Mrs. Nancy Fournier, Lt (N)
Brayman and Mrs. Claudette Lemay) become aware of the existence
of the Commissioners order and the need to collect relevant documentation.154
Notwithstanding that Ms. Cardinal was asked by LGen Boyle to make
another sweep to ensure that all documents had been transferred
to SILT in compliance with the order and that Lt (N) Wong had
told her that there was something going on with the documents
and SILT had not received them,155 she took no followup
action.156
In addition to these stunning developments, the evidence reveals
that, on September 5, 1995, Ms. Nancy Fournier was placing Somaliarelated
documents, including Responses to Queries (RTQs), into a bum bag
for destruction when she was interrupted by Lt (N) Wong, who ordered
her to cease her activities immediately and to secure the material.
Ms. Fournier testified that she had been instructed by Col Haswell
to get rid of Somaliarelated documents.157
There were in existence, at that time, two sets of Somaliarelated
RTQs in binders, one set containing the originals of these RTQs,
the other the altered copies given to the CBC reporter, Michael
McAuliffe. The originals contained the original signoffs
and indicated who, in senior management, authorized their release.
This information was unavailable anywhere else.158
Lt (N) Brayman, who became aware of the destruction in progress
and went to discuss it with Col Haswell, testified that he was
told by Col Haswell that two sets of RTQs could not be permitted
to coexist, because if the originals were transferred to the Commissioners
and publicly released by them, the CBC reporter would then realize
that he had been given altered documents.159 This conœm
was first voiœd by Mrs. Fournier, who passed it on to Col
Haswell.160
We are satisfied that there was a deliberate and blatant attempt
within the DGPA to avoid compliance with our orders and the CANFORGEN
and that there was also an attempt to cover up the fact that on
two prior occasions-one of which was pursuant to a formal request
under the Access to Information Act
- altered documents had been given to a
media reporter.
The events subsequent to September 5, 1995 are telling in this
regard and confirm the prevailing mentality at the DGPA. Lt (N)
Wong testified that on September 6th, he informed the Director
General of Public Affairs, in general terms, of the problems associated
with the transfer of documents to the Inquiry. She acknowledged
as much in her testimony.161 Lt(N) Wong testified that
on September 15, 1995, he suggested to the Director General that
she talk to her captains and that an investigation be conducted.
Lt (N) Brayman indicated that as of September 14th, he felt that
the chain of command had still not been properly informed of the
problems of alteration and destruction of Somaliarelated
documents. He met with LCol Carter, a lawyer of the JAG office
working at SILT who appeared before us, to alert her to the problem.
On September 21, 1995, he met with the Director General and other
officials of the DGPA at a staff meeting and was surprised and
concerned by the fact that the Director General did not seem to
have a complete knowledge and understanding of the nature and
scope of the problem. He and Nancy Fournier went to meet with
Ms. Cardinal after the meeting in an attempt to acquaint her more
thoroughly with the facts.
Only on September 22nd, that is, 17 days after the problems of
alteration, destruction, and noncompliance with the orders
were brought to light, was an investigation finally ordered,162
a remarkable state of affairs in an organization that prides itself
on its efficiency. What is even more remarkable,
in view of the serious, possibly criminal, nature of these alleged
shortcomings (improper alteration of documents under the Access
to Information Act, failure to comply with orders, allegations
of an illegal military order to destroy documents under legal
request, interference with a legal process, allegations of coverup),
is that only an internal investigation was ordered-an internal
administrative review by the Chief Review Services (CRS). In fact,
the limited CRS review was to address only the alteration of documents.
This device was chosen rather than a military police investigation
of all the alleged violations.163 At a staff meeting
of September 26, 1995, the whole matter was presented, in general
terms, as one involving an administrative problem with a file.164
To summarize: the chain of command at DGPA failed to react diligently
to the serious problems identified on September 5, 1995 and to
take the appropriate and necessary measures to inform the Inquiry
immediately of the problems previously described, the existence
of Somaliarelated documents, and its failure
to comply with the Inquiry's order and the CANFORGEN order. Only
on October 3, 1995, after being confronted with our knowledge
of the facts, did SILT admit to the events. This situation notwithstanding,
only on Novémber 8,1995 were we given some samples of altered
and unaltered RTQs. (Despite our regular contact with SILT representatives,
these samples were mailed to us by 4th class mail by LCol Carter
on October 27th.) Further evidence of undue delay is manifest
in the fact that it was not until after Mr. McAuliffe broke another
story, on October 27th, that was critical of LGen Boyle for having
provided misleading information that LCol Carter saw fit to deliver
a copy of the CRS report to us. That same afternoon, we received
three boxes of documents with no accompanying explanatory letter.
Eventually, the military police gave us a copy of the report of
its investigation but we received no letter or communication from
SILT. The Somaliarelated documents in the possession of the DGPA,
which we had requested on April 21, 1995, were finally handed
over to us on November 8, 1995.
Sadly enough, the DGPA chain of command is not the only one that
failed to assume leadership and its obligations under the Inquiry's
order.
The evidence reveals that on September 5th and 6th, Col Leclerc
and LGen (ret) Fox of SILT were informed by Lt (N) Wong of the
allegations with respect to the alteration and destruction of
documents and of the failure to comply with
our request for documents. The briefing to LGen (ret) Fox was
given in the presence of Col Leclerc,165 who himself
had already received a full briefing by Lt (N) Wong.166
LGen (ret) Fox served 39 years in the Canadian Forces167
and moved through all levels of command in the army and a number
of senior staff appointments.168 He is a very experienced
officer and has been described as very capable and very bright.169
He claimed in his testimony that he was informed simply of the
alleged destruction of documents and that he did not inquire
about what had happened and why it was happening. He asserted,
to our astonishment, that he did not regard the attempted destruction
as a big problem.170 We cannot give credit to his explanations,
especially in view of the fact that he told us that from that
time forward he and Col Leclerc had to intensify their supervision
of DGPA relations and that one of their subordinates, Lt (N) Wong,
was therefore to monitor the situation closely in the DGPA.171
LGen (ret) Fox also admitted in examination that the destruction
of officially sought documents was an unusual and extraordinary
occurrence.172
We are also unable to credit his testimony to the effect that
as of September 14, 1995, he did not know of the alterations of
the documents that were the subject of the destruction order.173
Indeed, LCol Carter testified that she informed him of her meeting
with Lt (N) Brayman and that she told him of the alteration of
documents, the inaccurate memoranda signed by LGen Boyle, and
the attempt to destroy the documents.174
LGen (ret) Fox told us that he recalled that, at the end of his
meeting with LCol Carter, "something" was to be told
to LGen Boyle, but he did not recall in detail what that "something"
was. Nevertheless, he recalled that it was the DGPA's responsibility
to inform LGen Boyle of that "something".'75 This explanation
strained credibility. LGen Boyle was the immediate superior of
LGen (ret) Fox and, to the knowledge of everyone, especially LGen
(ret) Fox, he exerted strict control over Somaliarelated
issues. It is unthinkable that LGen (ret) Fox would not have given
a warning to his superior, LGen Boyle, even if only to alert him
that "something fishy" was going on, involving both
LGen Boyle and the DGPA. As we pointed out to the witness, if
we were to believe him, the responsibility to inform LGen Boyle
would have rested with the very people at the centre of the controversy
in the DGPA.176
The testimony of LGen Reay with respect to a sensitive letter
sent by MGen Vernon on May 23, 1995, regarding cooperation
with our Inquiry, showed that news usually spread very rapidly
within the chain of command177 and that LGen Boyle,
even if he was not in the chain of command, was rapidly informed
of any Somaliarelated issue, since he acted as a clearing
house on these matters.178 Indeed, when LGen Reay met
with LGen Boyle to discuss MGen Vernon's letter, he found that
LGen Boyle was already aware of it.179 The witness
admitted that this kind of news spread like wild fire.180
We have good reason to believe that the same swift passage of
information would have occurred with respect to events that involved
alterations to and attempted destruction of Somaliarelated
documents, especially since serious concerns about inaccurate
or false memoranda signed by LGen Boyle himself were involved.
LGen (ret) Fox testified that he did not get a proper briefing
from LCol Carter on September 14, 1995 about the issues raised
with her by Lt (N) Brayman.181 In this regard, LCol
Carter, whose own testimony at times was coloured by evasiveness
and ex post facto rationalizations,182 asserted
that she reported the three significant incidents (destruction
and alteration of documents and false memoranda signed by LGen
Boyle) but did not provide LGen (ret) Fox with many details since
she was unaware of them.183 In reality, this was a
good reason for her to make further inquiries, so as to be in
a position to provide her superior with the necessary details.
Surprisingly, LCol Carter stated that she thought that other people
were better able than she was to acquire and pass on this information.184
We find it hard to believe that, on September 14, 1995, LGen (ret)
Fox was not aware of the attempted destruction and the alteration
of documents. He had been briefed on these matters on September
6th by Lt (N) Wong in the presence of Col Leclerc.185
Col Leclerc, as the official responsible for SILT's collection
of documents for the Inquiry, discussed developments on a daily
basis with his superior, LGen (ret) Fox. Between September 6 and
September 14, 1995, Col Leclerc, who had been fully briefed, must
have provided more information to LGen (ret) Fox. We also find
it difficult to credit LGen (ret) Fox's assertion that he sought
no explanation about the attempted destruction from either Lt
(N) Wong or LCol Carter, who both reported to him, when each,
in some manner, informed him of this serious incident.186
In any event, we base this credibility finding in large measure
on our belief that, as a bright, experienced, and able officer,
he had enough information to appreciate well what was transpiring
and the seriousness of the situation.
LGen (ret) Fox testified that he did not connect the CRS investigation
on DGPA documents with the DGPA documents about which Lt (N) Wong
and LCol Carter informed him.187 At best, this is wilful
blindness. In addition, he offered, without justification, the
incredible explanation that he thought that the attempt to destroy
the documents was simply inadvertent, a mistake, and an illfounded
action by a person who had misunderstood the Commissioners' order
for the production of documents.188
LGen (ret) Fox asserted that he did not connect the attempt to
destroy documents with an attempt to circumvent or not to comply
with the Commissioners' order or an attempt to erase evidence
of alterations made to these documents.189 We found
his testimony in this regard to be selective and evasive. LGen
Fox left the distinct impression that he was trying to
protect Gen Boyle, the individual to whom he reported on
a daily basis.190 His loyalty to his superior, who
eventually became the CDS, in our view clouded his vision as a
witness before us.
The SILT chain of command failed to react diligently to the serious
problems identified on September 5, 1995. No letters were sent
to Col Haswell or his group, or to the Director General of the
DGPA, and no steps were taken or procedure put in place immediately
to collect or retrieve the documents that were the subject of
the destruction attempt.191 In addition, SILT failed
to take the appropriate and necessary measures to inform us of
such problems, the existence of Somaliarelated documents,
and the failure to comply with our order. It was SILT's duty to
maintain liaison with the Inquiry and to facilitate the obtaining
and disclosure of relevant documents to us.
Notwithstanding our almost daily contact with SILT, we were never
informed of the problems at the DGPA and the lack of compliance
by the DGPA with our order.
In fact, LCol Carter, a lawyer in the JAG's office, an officer
of justice, and a member of the SILT team assigned to assist us
in our work, was informed as early as September 14, 1995 of the
alleged violations, including the violation of our legal order.
When informed on September 14th, she gave Lt (N) Brayman a week
to sort out and remedy the matter within his own chain of command,
at the end of which she would inform her own chains of command.
(As a lawyer, she had a chain of command within the JAG's office,
and as a military officer and a member of SILT, she had a chain
of command within and through SILT.) The fact remains, however,
that she was an officer of justice assigned to work with us and
appearing before us. We would have appreciated receiving complete
and timely advice. Eventually, she was informed that it was necessary
that she be called as a witness in these matters and, consequently,
she was invited to withdraw from the proceedings on account of
her potential conflict of interest. She declined to do so, and
she had to be disqualified and removed by order of the Commission
from the record of our proceedings on May 14, 1996.192
In the course of his testimony, LGen (ret) Fox tried to explain
SILT's failure to obtain the DGPA documents by the fact that they
had established some priority in obtaining the documents. The
explanation would appear to be that they concentrated their efforts
on the predeployment phase and, in this context, the DGPA
documents were seen as postdeployment documents.193
However, our order requested that all documents be transferred
and did not authorize SILT to assign priorities to the material.
In addition, the DGPA had in its possession material that also
related to the predeployment phase and yet it was not transferred
to the Inquiry in this socalled prioritization process.
To help the reader gain a full appreciation of the complexity
of the events relative to the DGPA phase of our proceedings, we
are providing, as an annex to this chapter, a chronology of the
events as they unfolded (see Annex A).
In September 1993, Mr. McAuliffe, a CBC reporter, made a telephone
request for copies of existing RTQs relating to Somalia. It was
the first time such documents had been requested by the media.
During a tour of the DGPA premises, Mr. McAuliffe became aware
of the existence of RTQs. His request created turmoil within the
DGPA and eventually resulted in a decision to transmit to him,
unofficially and informally, a number of altered RTQs.
The oral and documentary evidence heard and filed at our hearings
clearly reveals a concerted and deliberate decision by the Director
General of Public Affairs and his subordinates to alter the format
of RTQs requested by Mr. McAuliffe.194 This approach
was consistent with the policy of containment reputedly favoured
by MGen Boyle and the Deputy Minister.195 We are satisfied,
on the basis of the evidence we heard, that both Dr. Calder and
MGen Boyle were aware of the decision to release altered documents
informally and gave their concurrence to such process.196
In testimony before us, Mr. Gonzalez stated, "I left that
meeting with the clear understanding that I had their concurrence
in principle".197 Indeed, at the time, no Somaliarelated
document could be released to the media without the prior approval
of MGen Boyle, who was heading the Somalia Working Group under
the direct supervision of the CDS and the Deputy Minister. In
this context, Mr. Gonzalez, who had just been recruited for this
position
by Dr. Calder,could not and would not have decided independently
to release such sensitive documents. There is no reason to believe
that he would not have mentioned to his superiors, Dr. Calder
and MGen Boyle, the consensus that existed among his senior staff
to release informally only portions of the requested RTQs to Mr.
McAuliffe.198
MGen Boyle was described to us as a meticulous man, a micro manager,
a man who was a stickler for details.199 It is unthinkable
that a new Director General would have wished or been able to
run altered documents by him without his knowledge, especially
since these documents were to be the subject of release to the
media.
Furthermore, it was common knowledge in the media liaison office
that Mr. McAuliffe was to receive altered documents.200
The alterations were to involve the deletion of information identifying
the originator and those who had approved the RTQs, and the removal
of sections of the documents reserved for comments and sensitive
background information. Also, the documents were to be reformatted
so as to appear full and complete.201 There was also
evidence before us that, at times, the substance of the remaining
information on the RTQs to be given out was altered.202
It is not necessary for our purposes to determine whether the
alterations made the altered RTQs more accurate, as some have
contended.203 The fact is that the request was for
the existing RTQs, not for RTQs that were surreptitiously modified
to suit the Department's desire to minimize any potential negative
impact.
On January 20, 1994, Mr. McAuliffe made an official request under
the Access to Information Act for "all documents known as
Response to Queries prepared by or for the Media Liaison Office
or Director General of Public Affairs branch at [NDHQ] between
the dates of May 15, 1993 and January 16, 1994".204
This official Access to Information (ATI) request encompassed
RTQs that had already been released to him. Fearing that Me McAuliffe
would realize that the documents he had been given unofficially
had been altered, the senior authorities at DGPA decided to carry
on with the pattern of deception already adopted and therefore
proceeded to alter the RTQs requested under ATI.205
These altered RTQs were sent to Mr. McAuliffe on May 16, 1994,
more than three months after they were due under the act.206
In June 1994, when Mr. McAuliffe made a second request for RTQs,207
he was denied access to them. He was informed by the DND Coordinator
for Access to Information and Privacy (ATIP), who in tum had been
so informed on May 11th and June 17th by MGen Boyle, that RTQs
were no longer produced. The explanation was that, as of January
1994, RTQs were no longer produced as a result of a change in
official policy and the introduction of a 1800 media information
line.208 However, the evidence before us clearly revealed
that the memorandum from MGen Boyle was seriously misleading,
if not dishonest, since RTQs were still produced in January, February,
and March 1994.209 According to the change in policy,
RTQs were to be replaced in January by Media Response Lines (MRLs).
However, some 35 RTQs were produced, and MGen Boyle himself signed,
reviewed, or initialled some on January 14, 25, 28, and February
9, 1994.210
The evidence of senior officials is replete with unconvincing
attempts to convince us that RTQs were an undefined concept rather
than a document.211 We were also told that what was
given to Mr. McAuliffe, both officially and unofficially, were
RTQs.212
The truth is that the RTQs requested by Mr. McAuliffe had a format
that was largely defined, and those that were released to him
were reformated before release in such a way that the deletions
made would not be apparent.213
In this process of deletion, the requirements of the Access to
Information Act were not followed. The requester was never informed
of the deletions, and consequently no reasons were ever provided
to justify such deletions. The result was a clear and successful
attempt to deceive the requester.
In addition to the machinations within the Department just described,
there was also an unsuccessful attempt to deter Mr. McAuliffe
from making an ATI request for documents. The activities of DND
at this time cannot be viewed as other than an attempt to frustrate
the proper functioning of our access to information laws. For
example, the estimate of the cost of searching for and analyzing
documents subject to the first formal request established an inordinate
number of hours and prohibitively high costs (413 hours and $4080).214
In point of fact, these documents were readily available.215
According to a letter signed by Maj Verville and addressed to
Lt (N) Brayman, LCdr Considine, and Cdr Caie, the estimate was
nonsensical, especially since Lt (N) Brayman had confirmed that
he knew how many RTQs had been written and where they were.216
Mrs. Foumier found the estimate outrageous. She had collected
all the RTQs in two days, and the books containing them were sitting
on the shelves.217 MGen Boyle and Col Haswell also
agreed with Maj Verville that the time and cost estimates made
no sense.218
A time log was made and reconstructed after the events.219
This log reflects the fact that Ms. Fournier was acting as instructed
by her superior220 and, as one would expect, the time
log has no entry for the editing of the RTQs.221 There
were other efforts to evade detection of the document alteration
scheme: Lt (N) Brayman testified initially that he put four hours
in the time log for services that he did not perform, as the staff
was required to accumulate hours.222 Upon resumption
of our hearings after a weekend break, he produced a new explanation
and asserted that these same four hours might have been for services
rendered on a different file in which Mr. McAuliffe had initiated
a request for Significant Incident Reports.223 This
new explanation was far from convincing. In any event, even if
it were true, it meant that he knowingly proceeded to charge these
hours illegally to the ATI file concerning the RTQs,224
He also tried to convince us, in the context of his earlier explanation,
that he was requested to record these hours on behalf of LCdr
Considine for work LCdr Considine had done, but LCdr Considine
flatly denied having done so.225
Finally, the change of name from RTQs to MRLs was, in our view,
nothing less than a vulgar scheme to frustrate access to information
requests and was so perceived by the personnel within the public
affairs branch.226 MGen Boyle admitted that RTQs and
MRLs both served exactly the same function in the workings of
the media liaison office.227 We were told that MRLs
were nothing more than transitory documents and, as such, not
public, thus permitting their destruction after 72 hours.228
In our view, however, the destruction of MRLs after 72 hours was
an attempt to defeat access to information requests directed to
the media liaison office.229
A memorandum from Col Haswell to MGen Boyle is indicative of the
attempt to frustrate the act.230 In that memorandum,
he wrote that Mr. McAuliffe's request had been anticipated and
"fortunately" the authorities were in a position to
tell the requester that RTQs were no longer produced for the period
requested. DND officials did this obviously without telling Mr.
McAuliffe that RTQs had simply been replaced by MRLs.
This willingness to deceive, prevalent in the DGPA, is also apparent
in a draft memorandum prepared for the signature of MGen Boyle.231
In this memorandum addressed to his superior, Dr. Calder, MGen
Boyle suggested that, in these times of increased Access to Information
requests, it might be prudent to remove any references from all
pertinent documents to the name of a journalist who had been critical
of the Department. We were unable to ascertain whether the original
was eventually signed by MGen Boyle, but the memorandum reveals
a willingness within DGPA to alter existing documents before their
public release under the Access to Information Act. MGen Boyle
obviously knew of this negative orientation with respect to access
to information matters under his control.232 Indeed,
senior officials in the DGPA were obsessed with access to information
problems and adhered to a negative and restrictive interpretation
of a citizen's right to access. This obsessive and restrictive
approach was manifest in a policy of editing draft correspondence
by affixing removable yellow notation stickers on documents. These
stickers were subsequently removed, thereby precluding an examination
of all relevant observations and reactions to the material in
question.233
It was surprising for us to hear that the new director of DGPA,
Ms. Cardinal, considered MRLs to be nonpublic documents
because they required updating after 72 hours and therefore could
be destroyed.234 Yet, in January 1994, three months
before her arrival at DGPA, LGen Reay concluded, after having
consulted the ATI people, that documents with regard to an officer's
reproof could not be altered, destroyed, or substituted once a
request under the Access to Information had been made. Presumably
the same reasoning should apply even to transitory documents,
such as MRLs. Under Ms. Cardinal's approach, it was justifiable
to destroy government documents, provided one was quick enough
to do so before an access request was made. This approach is certainly
not in keeping with the spirit of the Access to Information Act.
Furthermore, as early as August 20, 1993, prior to Mr. McAuliffe's
informal request for RTQs, the VCDS, LGen O'Donnell, wrote to
a number of senior officials, including the ADM (Policy and Communications)
and MGen Boyle, expressing concerns over the fact that some replies
provided by various offices and Group Principals in response to
Access to Information requests for Somalia records were incomplete
and, in some instances, erroneous. He stressed the importance
of the matter and the serious consequences that such failings
could have for the integrity of the Department. In his communication
he spoke of the necessity for DND to act not only in accordance
with the letter, but also with the spirit of the legislation.235
In a memorandum sent three days later by MGen Boyle to Dr. Calder,
his superior, MGen Boyle addressed the concerns of the VCDS by
asserting that he controlled every information request that went
through the office and that he would sign off (i.e., assume responsibility)
on Dr. Calder's behalf. He went on to add that the same process
would be followed for all ATI requests.236 Therefore,
MGen Boyle was aware of the continuing problems before Mr. McAuliffe's
request and pledged himself to exert strict control and ensure
compliance with the act.
However, in his testimony before us, Gen Boyle defined his role
narrowly as one of ensuring compliance with the letter of the
act.237 Also, he acknowledged his failure to ensure
compliance with the spirit of the law.238
The result was to discredit a new system purportedly designed
to bring greater transparency to the Department's relations with
the media and the public.239 To the contrary, the actual
effect was a gradual erosion of transparency and accountability.
Second, the failure by this important government department to
obey the spirit of laws enacted by Parliament had the potential
to undermine public confidence in the state of civilmilitary
relations. Third, these events served to undermine discipline
within the Canadian Forces. Apparently, to judge by these events,
disobedience to the spirit of laws (indeed, even the spirit of
any lawful order issued through the chain of command) and the
shirking of an officer's responsibilities would be condoned.
The letter of the VCDS certainly amounted to a serious warning
and a reprimand to the entire Department of National Defence.
Strikingly, according to the evidence before us, the remarks of
the VCDS were subsequently ignored by those who received them.240
The mentality whereby one need only obey the letter of the law
continued to flourish during GenBoyle's tenure. As one witness
put it, a requester will get only what is specifically asked for,
and this may mean that he or she will receive nothing if the wrong
terminology is employed.241
The RTQs requested by Mr. McAuliffe dealt with highly sensitive
issues related to the Somalia deployment, such as the incident
of March 4, 1993 involving the killing and wounding of Somali
nationals, the March 16, 1993 beating death of a Somali teenager,
and the apparent attempted suicide of MCpl Matchee on March 17th.
While it was perhaps to be expected that the public affairs branch
of a department would try to minimize the adverse impact of such
incidents on the department, the end cannot justify the means.
It cannot justify the establishment of a process that, through
deceit, provides the public with misleading, incomplete, or inaccurate
information under the Access to Information Act. It cannot
justify, under the cover of a change in policy, the ruse of allowing
a change in the name of official documents, from Response to
Query to Media Response Line, to
avoid disclosure obligations under the Access to Information
Act. Finally, it cannot justify impeding the public's legitimate
right to know about important aspects of the Somalia operation
or covering up embarrassing or controversial information relating
to that operation.
The effect on our work of the shortcomings in the production of
documents cannot be overstated. We depended on the receipt of
accurate information from the Department on a timely basis to
be able to decide which issues to investigate and how the hearings
were to be conducted. The fact that the production was not timely
and the documents were incomplete to such a large extent meant
that the work of the Inquiry was delayed and that our staff were
constantly occupied with documentrelated issues.
Despite these obstacles, we were able to examine a number of issues
carefully and thoroughly. Although we made steady progress in
our work, the cumulative effect of the documentrelated setbacks
was not limited to inconvenience and delay. Ultimately, in conjunction
with other factors, the delay caused by documentrelated
issues resulted in the Government's sudden announcement calling
for an end to the hearings and an accelerated reporting date.
The unfortunate result was that many important witnesses were
not heard, and several important questions that prompted the creation
of our Inquiry remain unanswered.
Perhaps the most troubling consequence of the fragmented, dilatory,
and incomplete documentary record furnished to us by DND is that,
when this activity is coupled with the incontrovertible evidence
of document destruction, tampering, and alteration, there is a
natural and inevitable heightening of suspicions of the existence
of a coverup that extends into the highest reaches of the
Department of National Defence and the Canadian Forces.
It is clear that rather than assisting with the timely flow of
information to our Inquiry, DND adopted a strategic approach to
deal with the Inquiry and engaged in a tactical operation to delay
or deny the disclosure of relevant information to us and consequently
to the Canadian public.
From the preceding analysis of events involving the reaction of
the Somalia Inquiry Liaison Team (SILT) and the Directorate General
of Public Affairs (DGPA) within the Department of National Defence
(DND),
We find that the Department of National Defence, through DGPA
and SILT, failed to comply with our order for production of documents
by failing to ensure the integrity of the documents, and by failing
to provide them in a timely manner. More specifically,
We recommend that
The following chronology is based on evidence before us.
| January 3 | Significant Incident Reports (SIRs) commenced. |
| January 4 | Ms. Kim Campbell becomes Minister of National Defence, |
| January 22 | Mr. Robert R. Fowler, the Deputy Minister of National Defence, tells the Daily Executive Meeting (DEM) that Ms. Campbell enjoyed excellent media relations and was not about to jeopardize them. |
| February | MGen Boyle becomes Associate Assistant Deputy Minister for Policy and Communications. |
| March 1 | Mr. Fowler directs DND to keep as low a profile as possible; practise "extreme sensitivity" when making public statements; senior staff to prepare a list of "politically sensitive" subjects and to re turn it to the Vice Chief of the Defence Staff (VCDS), LGen O'Donnell, no later than March 3, 1993; pointed out the need for DND to inform Ms. Campbell fully about any operational or emergency situations that might oblige her to respond quickly, |
| March 4 | The March 4th incident (shooting of two Somali nationals at the Canadian compound at Belet Huen) occurs in Somalia, |
| March 8 | LGen O'Donnell receives list of "sensitive" subjects,
Mr. Fowler asks that the list be updated and provided to him before his regular weekly Monday meetings with Ms. Campbell, Adm Anderson, Chief of the Defence Staff (CDS), tells officers in Somalia to keep a low profile and not to make waves, |
| June | The Ottawa Citizen contemplates legal action to get information about Somalia.
Michael McAuliffe, CBC radio news reporter, makes informal request to DND for Somalia related information. Mr. Roberto Gonzalez becomes Director General of Public Affairs (DGPA). "Tiger led by Col (later BGen) G,K, McDonald, Director of the NDHQ Secretariat, charged with analyzing Phase I of the report of the Board of Inquiry, Canadian Airborne Regiment Battle Group (the de Faye Board of Inquiry). |
| July 19 | The de Faye Board of Inquiry submits Phase I of its report to the CDS. |
| July 28 | MGen Boyle directs the commanders of all CF commands to work through the DGPA when releasing Somaliarelated information, |
| August | Mr. Gonzalez formulates plans for a system of account managers within the DGPA; provides his plans to Dr. Calder via MGen Boyle. |
| August 20 | LGen O'Donnell writes to Dr. Calder, the Deputy Chief of the Defence Staff, the ADM (Personnel), the Senior ADM (Materiel), the ADM (Finance), the Judge Advocate General (JAG), and the commanders of OF commands acknow ledging that DND had responded incompletely and on certain points erroneously to some recent Access to Inflation Act requests for information about Somalia and the Canadian Airborne Regiment (CAR), He orders DGPA to coordinate all information releas ed with the offices of the CDS and the Deputy Minister and urges them to ensure that requests are treated in accordance with the letter and spirit of the act, |
| August 24 | Mr. McAuliffe submits questions in writing to SLt Keough in the Directorate of Information Services Centre of Operations, raising 10 questions about the Significant Incident Report of March l9, 1993, concerning the ap parent suicide attempt of MCpl Matchee, |
| August 30 | Mr. McAuliffe writes to Lt (N) Brayman posing three questions about compensation paid by DND with respect to the incident. |
| August/September | Mr. McAuliffe visits DGPA, |
| September 7 | MGen Boyle institutes new procedures for the DGPA, including registering all calls (establishing a record of all conversations with the media) and requesting systems for recording conversations. |
| September 20 | Mr. McAuliffe informally requests Somaliarelated Responses to Queries (RTQs) in a telephone call to Lt(N)Brayman, who communicated it to LCdr Considine, who passed it to Cdr Caie, |
| September/ November | Some time between September 21 and November 2, 1993, Ms. Nancy Fournier, WPA staff member, alters 22 RTQs using a template given her by LCdr Considine. |
| September 27 | Somalia Working Group under MGen Boyle formed (by the Deputy Minister). |
| September 29 | From May 19 to September 29, 1993, DND received 15 requests under the Access to Information Act from Mr. McAuliffe. |
| October | MGen Boyle and Dr. Calder discuss Mr. McAuliffe's request for the DGPA's Somaliarelated RTQs. |
| October 26 | Mr. Gonzalez's memorandum to MGen Boyle concerning Mr. McAuliffe's request for all RTQs about Somalia and related topics. It alludes to attached RTQs and recommends they be passed to him. |
| November 1 | Letter from Mr. Gonzalez to Mr. McAuliffe, accompanying Somalia related RTQs. In office copy of letter, MGen Boyle adds a handwritten note to Dr. Calder commencing with the words "We spoke". |
| November 2 | Col Haswell, Director of Public Affairs Operations, signs a letter, on behalf of Mr. Gonzalez, to Mr. McAuliffe that accompanies the Somaliarelated RTQs. |
| November 15 | MGen Boyle orders that all requests for historical documentation proceed through the Access to Information Act. |
| late 1993 | Col Haswell, becomes Director of Canadian Forces Public Affairs, |
| January | DGPA undergoes major reorganization, a 1 800 Media Info Line becomes operative, and the media start to receive written weekly summaries of CF operations based on the morning daily executive meeting notes, |
| January 11 | E mail message from Mr. Milsom to Ms. Petzinger shows Mr. Fowler's staff as participating actively in processing an ATI request from Mr. McAuliffe under the act. |
| January 20 | Mr. McAuliffe files Access to Information Act request (A) 93/0411 seeking all RTQs prepared by or for the Media Liaison Office or Director General of Public Affairs branch of NDHQ between |
| May 15, 1993 and January 16, 1994, | The request reaches Mr. Gonzalez, who relays it to Cdr Caie who assigns it to LCdr Considine. |
| January 24 | Ms. Petzinger forwards Mr. McAuliffe's request to MGen Boyle, |
| February 1 | LCdr Considine writes to Maj Verville, estimating that it will take 413 hours to search and review the RTQs, He states 304 hours necessary to search the DISCO at a cost of $4,080. |
| February 7 | Ms. Foumier consults the DISCO's 1993 RTQ binder, photocopies the originals and returns them to a grey binder. |
| February 8 | Ms. Fournier searches the DGPA's computer library for RTQs missing from the 1993 RTQ binder, prints out RTQs from the library, and inserts them in the grey binder-90 RTQs in all- to December 1993. (Mr. McAuliffe had expressed interest in RTQs until January 16, 1994), |
| February 10 | Ms. Petzinger writes to the DGPA, pointing out that the RTQs should have reached the Access to Information and Privacy office (ATIP) a week earlier. |
| February 15 | LCdr Considine instructs Ms. Foumier to alter the RTQs. |
| mid February | Mr. McAuliffe complains to ATIP, |
| February 21 | Ms. Petzinger writes Mr. Milsom enclosing for his signature a memorandum to Dr. Calder, She asserts that she had received neither a reply to her reminder to the DGPA nor any explanation for the delay, |
| February 26 | Mr. Milsom writes to Mr. McAuliffe, advises him that the analysis of his request is not complete and that he can complain to the Information Commissioner, |
| March 4 | Ms. Fournier completes and checks RTQs and returns them to LCdr Considine, |
| March 8 | Col Haswell forwards a memorandum to the Deputy ATIP Coordinator, Ms. Petzinger, attaching 68 RTQs prepared by the DGPA between May and December 1993. He includes no RTQs for January 1994, explaining that the regu lar format for RTQs was abandoned after the 1800 Media Info Line became operative in January 1994. |
| March 11 | Maj Verville dispatches a Minute Sheet to Cdr Caie stating Col Haswell's signature did not represent a valid sign off, |
| March 11 | RTQ package allegedly passed to MGen Boyle, |
| March 15 | Ms. Fournier forwards a note to Cdr Caie reporting that she and Lt (N) Brayman had completed the time log on the inner cover of the folder for Mr. McAuliffe's request, |
| March 18 | MGen Boyle forwards a note to the DGPA asserting that the RTQs spanned the responsibilities of all group principals and affirming that he assumed that the various account managers had examined the RTQs falling within t heir sphere and assumed responsibility for their release, He asks Mt Gonzalez to institute the proper sign offsystem. |
| March 21 | Cdr Caie makes a note to file stating that RTQs were going to each group principal for review, |
| May 2 | Maj Verville calls for a situation report-still has received no RTQs. |
| May 10 | LCdr Considine writes to MGen Boyle asserting that each DGPA account manager, acting for the respective ADM, has approved releasing the RTQs, |
| May 11 | MUen Boyle signs the memorandum to Mr. Milsom stating that all 68 enclosed RTQs were ready to be released without severance with three exceptions, |
| May l6 | Mr. Milsom writes to Mr. McAuliffe, conveying the records received from MGen Boyle, |
| June 7 | Mr. McAuliffe files a second Access to Info7Tnation Act request for RTQs. He requested copies of all RTQs "prepared by or for the Media Liaison Office or Director General Public Affairs branch at National Defence He adquarters between the dates of January 1 7th, 1994 and June 7th, 1994." |
| June 15 | Mr. McAuliffe's request (A) 94/0136 reaches the DGPA, |
| mid-June | The DGPA has about 35 RTQs as described in the request, |
| June 15 | Memorandum from Ms. K.l. Namiesniowski, Mr. Fowler's Special Assistant, to Mr. Milsom about the staffing of sensitive requests under the act. Ms. Namiesniowski observes that Mr. Fowler liked to be apprised before any se nsitive information was released under the act, She added: "This process must continue". |
| June 17 | MGen Boyle's memorandum to Mr. Milsom(ATIP) that RTQs had not been produced from January 1994 on and that the request was therefore "redundant", |
| June 20 | Col Haswell comments, "Fortunately,,,we now do not have official records of RTQs on subjects that have yet to be uncovered by the Media". |
| June 23 | Mr. Milsom writes to Mr. McAuliffe advising him that RTQs went out of use in January 1994, |
| June 24 | MGen Boyle forwards a note to Ms. Cardinal in which he affirms that he thought that RTQs were no longer in currency, |
| July 29 | MGen Boyle provides a definition of the Somalia Working Group's mission. |
| September 29 | RTQs now in a file in Col Haswell's office. |
| Spring | Commission of Inquiry into the Deployment of Canadian Forces to Somalia orders Somaliarelated information from DND under Inquiries Act, |
| April 21 | Chairman's order for production. |
| September 5 | Attempt within DGPA to destroy Somaliarelated documents, |
| September 15 | Lt (N) Wong meets the director of the DGPA and suggests that an investigation be conducted on the attempt to destroy Somaliarelated documents, |
| September 22 | Internal administrative review by the Chief Review Services ordered on the alteration of documents, but not on the attempt to destroy Somaliarelated documents, |
| October 16 | Mr. McAuliffe complains to Mr. Grace, the Information Commissioner, that the records forwarded on May 16, 1994 had been wrongfully altered before release,
The National Investigation Service (HIS) is tasked to investigate allegations that documents within were destroyed and altered. |
| January 24 | NIS police report produced, |
| March 12 to April 12 | Commission of Inquiry receives the NIS police report. |
| March 26 | Mr. Grace presents his findings to the Deputy Minister, Mme Louise Fréchette. |
| April 9 | MGen Boyle institutes CF wide search for Somaliarelated documents. |
| April 15 | NIS Police reopens its investigation. |
| June 11 | Second NIS police report (Addendum) produced as a result of the reopening of the investigation. |
| June 17 | Commission of Inquiry receives the second NIS police report. |
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