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Every military operation faces external threats. Each also carries the potential for internal difficulty - through sheer accident or poor judgment, or as the result of deliberate action. How the structures of the military are designed to respond to these internal problems and how the leaders actually respond to them reveal whether the problems are aberrations in an otherwise wellfunctioning military justice system or whether they are evidence of systemic deficiencies.
Despite the time constraints facing us, we have been able to examine important intheatre and postdeployment disciplinary incidents. It is abundantly clear that the military justice system is replete with systemic deficiencies that contributed to the problems we investigated. Without substantial change to the system, it will continue to demonstrate shortcomings in promoting discipline, efficiency, high morale and justice.
Essential to an understanding of the issues raised in this chapter is an appreciation of the extent to which the commanding officer is the central figure in the military justice system. The commanding officer has discretionary powers at most stages of the military justice process-before and during investigations, prosecutions and sentencing, and in the application of administrative and informal sanctions. This discretion is pervasive, overwhelming and largely unfettered.
In short, a commanding officer who learns of possible misconduct can convene a board of inquiry or order a summary investigation, a Military Police (MP) investigation, or an informal review of the allegation. Alternatively, the commanding officer may decide to take no action at all.
If the commanding officer chooses to have alleged misconduct investigated, the investigation may result in a recommendation for action against an individual. Again, the commanding officer may respond in any of several ways, among them disciplinary or administrative action or no action at all. If the commanding officer chooses a particular course of action within the present disciplinary system-summary trial, for example-he or she often holds further discretionary powers.
Military Police may also decide to investigate possible misconduct. They can choose of their own accord to investigate and, within the law, select their investigative methods. However, their powers are, in practice, limited because they are in the chain of command. As well, other factors limit their effectiveness in traditional policing roles: their relative lack of investigative experience, their conflicting loyalties as soldiers and police, and the reluctance of superiors to allocate investigative resources.
The role of the Judge Advocate General (JAG) in investigations and the decision to prosecute is more limited than that of Military Police. In discharging the responsibility to provide legal advice to the decision makers in the military justice system, JAG officers may advise Military Police or the commanding officer on the legality of a particular investigative tool or they may help determine the appropriate charge. However, there is no requirement that JAG representatives be involved in investigations or charging decisions. JAG officers do, however, prosecute and defend Canadian Forces (CF) members for service offenses in courts martial. The discretionary powers of the commanding officer, Military Police and JAG officers are described more fully in Volume 1, Chapter 7.
The following two sections of this chapter identify a broad range
of difficulties that arose in investigating and responding to
misconduct of CF members shortly before, during and after the
deployment to Somalia. The fourth section describes the conditions
within the military justice system that contributed to these difficulties.
It also discusses the factors limiting the effectiveness and fairness
of the military justice system and, ultimately, the ability of
the CF to discharge its mandate. In a final section we argue for
a significantly restructured military justice system to remedy
many of the shortcomings of the present system. Appended to this
chapter are two sets of tables-the first outlining over 100 incidents
related to the Somalia operation and requiring investigation,
and the second outlining the disciplinary and administrative action
taken in response to them.
This section deals with the response of the military justice system
to incidents with potential disciplinary implications or requiring
investigation which occurred intheatre and postdeployment.
There are many examples of cases where the decision to investigate,
the investigation itself, and the reporting of the investigation
deviated from required procedure or from what would normally be
expected in a fair justice system.
As discussed in Chapter 7, commanding officers have primary responsibility in the decision to investigate and the mode of investigation. In some cases, such as when a charge is laid, they are required to investigate.1 In other cases, they are required to investigate using a certain form of investigation. For example, if a CF member dies for reasons other than as a result of wounds received in action, a summary investigation or board of inquiry must be held.2 As well, Military Police have powers to initiate their own investigations, although when they do so they must brief the appropriate commander, commanding officer or other person in charge at the earliest practical moment regarding the circumstances surrounding their investigation. However, in most cases the commanding officer decides whether to investigate and what kind of investigation to conduct.
Throughout the deployment to Somalia, and particularly before the March 16, 1993, death of Shidane Arone led to sending Military Police to examine this and other incidents in theatre, incidents that should have been investigated were not investigated in a timely manner, or were not investigated at all.
According to the documentation reviewed by the Inquiry, 62 incidents that required investigation occurred between the beginning of the deployment and March 16, 1993.3 These included allegations of serious criminal or disciplinary misconduct, such as mistreatment of detainees, killing of Somalis, theft of public property, and selfinflicted gunshot wounds. Yet not one of these incidents was investigated by Military Police at the time they occurred, not even the serious ones that ought to have been investigated by Military Police.
Summary investigations, which are conducted by a CF member (not Military Police) appointed by the commanding officer,4 were called promptly in only eight of the 62 cases, and informal or other investigations were likely held in an additional 27 cases.5 However, as explained in greater detail below, a summary investigation was sometimes an inappropriate choice, and some of the investigations themselves were performed inadequately.6
This leaves 27 incidents before March 16th that were not investigated at all in the period immediately after they occurred. These ranged from Canadian vehicles striking a land mine to allegations that the Force Commander stated, "I am looking forward to the first dead Somali" and "A case of champagne to the first one who gets (or kills) a Somali", allegations of mistreatment of detainees, selfinflicted injury, theft, and the injury of a Somali by what was intended to be a warning shot.7
Of these 27 cases, 11 were never investigated.8 Summary investigations were conducted in two cases within a few months and, in the 14 remaining cases, investigations by Military Police were eventually conducted.9 However, eight of the MP investigations did not begin until over a year after the incidents took place.10
It is possible, of course, that a certain number of these incidents
were not investigated at the time they occurred because those
in authority were not aware of them. However, other problems occurred
with investigations. There were too few Military Police. Regimental
MP did not perform even the most limited investigative roles.
Commanding officers were too slow to call in Military Police after
some incidents occurred, and commanding officers paid little attention
to guidelines indicating which types of investigations were appropriate.11
Too Few Military Police and Military Police with Inappropriate Skills
There were no MP investigations before March 16th, in large part because only two Military Police accompanied the CARBG to Somalia. Furthermore, both operated as regimental Military Police, reporting to the commanding officer of the CAR. As regimental MP, their responsibilities should have included movement of troops, detention of detainees, and minor police duties (for example, investigating minor incidents).12 However, because there were only two of them and they did not have any support, they did not fulfill even these roles. Instead, the two served primarily as a security escort for senior officers.13 They conducted no investigations and were not primarily responsible for the custody of detainees.14 Even if their numbers had been sufficient, as regimental MP they lacked the training and experience to investigate major disciplinary or criminal incidents.
Normally, regimental MP should be able to call on Military Police directed by a provost marshal or base security officer for technical support-for example, if regimental MP come across an incident that is beyond their investigative capabilities. However, no position for Military Police directed by a provost marshal or base security officer existed in the organizational structure of the CARBG.
Because there were not enough Military Police in theatre, two investigators had to be sent from Canada to investigate the death of Shidane Arone. Subsequently, two other MP teams of two were tasked to investigate the March 4th shooting of two Somali nationals.15 The first team investigated the incident itself, the second a possible coverup of the incident by CF members in Somalia.16
Eventually, in May 1993, an MP unit was dispatched to Mogadishu.
It assumed responsibility for more serious investigations and
conducted several investigations.17 However, the trail
in most cases was several months old. Only one incident that occurred
before their arrival resulted in a prosecution.18
Commanding Officers Slow to Call in Military Police
The JAG suggested in its submission to the Inquiry that Military Police are employed in particular to investigate incidents involving anything other than very minor disciplinary infractions.19 Police policy also provides that Military Police "shall conduct an investigation and report on all criminal and serious service offences".20 However, nothing in the regulations or administrative orders requires commanding officers to call in Military Police in these instances. In only a few cases are commanding officers required to carry out any kind of investigation-MP or otherwise-even if a criminal act is suspected.21
It appears that for Operation Deliverance, commanders chose not to follow the policies on MP investigations set out by the JAG and in the MP manuals. They appeared to believe that MP investigations were not required in an operational theatre and that most matters could be dealt with adequately by the other investigative tools available to the commanding officer.22
Thus, as noted above, Military Police were not called to investigate many instances of possible serious misconduct. As well, in two cases where there was a clear indication of criminality - the alleged theft of a revolver and the death of Shidane Arone - Military Police were not called until after a soldier confessed.23
The revolver incident involved a complaint that a CF soldier had seized a revolver from a Somali national employed by the Intentional Committee of the Red Cross. When the Somali asked for it's return, the Officer Commanding denied the allegation, since the CF soldier had reported returning the weapon. Subsequently, an anonymous call to Commando headquarters revealed that the soldier had mailed the revolver to his wife and later told her to get rid of it. The private at headquarters who received the anonymous call informed the soldier about it, and the soldier then confessed to his superior. Only then did the superior order the regimental MP to investigated
The regimental MP interviewed the soldier, who now claimed that he had tried to return the weapon but that no one would accept its return. When additional Military Police arrived in May and reopened the investigation, they concluded that the weapon seizure had, in fact, been lawful. They also established that the weapon had not been turned over to the chain of command in accordance with the practice and policy of the CARBG. The soldier received an administrative sanction and was sent home. Against the advice of his superior, he was not disciplined.25
It is not clear whether any action was taken against the private who informed the soldier of the anonymous tip. No action was taken in relation to possible offences such as illegal importation of a weapon, illegal possession of a restricted weapon, or illegal use of the postal service.
The second case involved the death of Shidane Arone on March 16, 1993. Maj Seward, Officer Commanding 2 Commando, likely knew shortly after midnight on March 17th that Mr. Arone's injuries were suspicious.26 However, Military Police were not called in to investigate until March 19th, after Pte Brown confessed his involvement.27
The incident of March 4, 1993, involved the shooting death of
one Somali citizen and the wounding of another. The incident was
reported to National Defence Operations Centre on March 4th. The
Director General Security at NDHQ, Col Wells, prepared a team
of investigators for deployment to Somalia. However, the Deputy
Chief of the Defence Staff, VAdm Murray, informed Col Wells that
any decision regarding the deployment of MP investigators would
be made following the receipt of a report from Col Labbé.
The CO's investigation ordered by Col Labbé was to be completed
within 24 hours, but no investigation report was received by NDHQ
until March 23rd. Military police were not sent to investigate
the March 4th incident until April 15th (see Chapter 38).
Guidelines for Calling Investigations Not Followed
The relevant regulations and administrative orders give discretion to commanding officers and certain other officers to decide, in most cases, whether to order an investigation and what kind of an investigation to order. In a few cases, boards of inquiry are mandatory, and in all serious matters, boards of inquiry are generally preferred to summary investigations. As well, the Canadian Forces Administrative Orders set out a list of occurrences where a board of inquiry or a summary investigation is usually required.28 Included in this list are occurrences involving
It is clear that commanding officers paid no attention to these guidelines in several cases. Several summary investigations were ordered, including investigations into the loss of Tilley hats, loss of a mail bag, theft of a sword and the death of Mr. Arone.30 However, according to the guidelines, if those in the position to call an investigation had known about the incidents, a summary investigation or board of inquiry would usually have been conducted in at least the following instances:
(a) all the early instances relating to mistreatment of prisoners,
(b) wounding of a Somali national by what was intended as a warning shot,
(c) shooting of a Somali national at roadblock,
(d) alleged theft of a revolver from a Somali national by a CF member,
(e) shooting at the Bailey bridge,
(f) allegation that a soldier sold a CF weapon to civilian,
(g) injury to a child when CF vehicle allegedly ran over a hut, and
(h) taking of funds from a Somali vehicle.31
Moreover, some of the cases involving potential criminal conduct may also have merited an MP investigation.
In most of these cases, MP investigations eventually occurred. However, the injury to the Somali national by what was intended as a warning shot and the shooting of a Somali citizen at a roadblock-both very serious incidents-were never investigated. The first investigation reports on the taking of the revolver, the alleged sale of CF property, and the injury to a child when a CAR vehicle allegedly ran over his hut were not filed until three to four months after the incidents.32
The taking of funds from a Somali vehicle was not investigated until a year later. In this incident, Col Labbé, Commander of Canadian Joint Force Somalia, led a 'house clearing' operation.33 He and others were driving from the Canadian compound in Mogadishu to the port.34 On the way, Col Labbé spotted a vehicle with a gun mounted on it and ordered a search. After they had swept the premises near the vehicle and found no one and no other weapons, Col Labbé took some Somali money (worth less than a dollar in Canadian funds) from the vehicle. He distributed the money to those who were with him and to others at headquarters in Mogadishu.35
This incident is noteworthy for two reasons. First, the incident took place in Mogadishu north, outside the legitimate area of Canadian operations. Second, it is apparent from the evidence that the money was taken in circumstances that may have violated the National Defence Act and the Geneva Convention.36 Yet no investigation was conducted until a year later. An MP investigation was concluded within a week, and no charges were laid. The money in Col Labbé's possession was turned over to Military Police. The money given to others was not recovered. The delay in investigating this incident illustrates a systemic problem with the current military justice system. Control of military investigations is concentrated in the hands of commanding officers who are responsible for operations and who may also be directly implicated in the incidents, As well, many of the cases that were not investigated immediately involved Somali victims, The military justice system simply may not have responded adequately when harm to civilians was involved.
Twenty incidents of accidental or negligent discharge of a personal
weapon and two incidents of accidental or negligent discharge
of crewserved weapons occurred in theatre.37
One caused an injury and another killed a CF soldier. However,
except for the discharge causing death, no summary investigations
or investigations by Military Police took place. While each incident
by itself may not call for a summary investigation, the frequency
of these events surely demanded some investigation.38
Summary Investigations
Many summary investigations that were undertaken were incomplete
or flawed, In some, CF guidelines were not followed. In others,
witness statements should have been taken but were not, and in
still other cases, those conducting or ordering the investigations
had a conflict of interest.
Guidelines not followed
The summary investigation following the March 4th shooting most clearly illustrates the flaws with respect to controls governing summary investigations (see Chapter 38). Commanders are not obliged to follow the guidelines. However, the guidelines exist to help ensure that investigations are effective.
On March 5th, Col Labbé ordered LCol Mathieu to have the March 4th incident investigated.39 That same day - March 5th - LCol Mathieu ordered Capt Hope, his intelligence officer, to carry out the investigation.
Several of the guidelines for summary investigations were not followed. For example, Capt Hope did not receive an appropriate briefing on the incident, nor was he freed from his regular duties to carry out the investigation.
Capt Hope had never conducted a summary investigation of an incident of such a serious nature. Yet with little guidance, Capt Hope was ordered to complete a very complicated investigation, potentially involving a conspiracy, within 24 hours. He received a short extension and completed his investigation on March 6, 1993. Much important information was omitted from the main text of Capt Hope's report, including Maj Armstrong's suggestion that the death was, in fact, murder. By his own admission, Capt Hope accepted without challenge the statements of those within his unit about the incident. Capt Hope admitted in his testimony that, as a member of the unit, he had a clear conflict of interest and that this made it more difficult for him to question the word of his unit colleagues or his commanding officer, LCol Mathieu.
Col Labbé directed that the report be changed. He first asked that a significant phrase describing a controversial interpretation of the Rules of Engagement, which he had allegedly approved, be deleted. He then provided specific instructions for what should be added in order to provide more contextual information. Ultimately, he concluded that the report was "incomplete and in some places misleading" and resolved to write his own report.
Col Labbé sent his own report to NDHQ on March 23, 1993, but did not include Capt Hope's report, to which Maj Armstrong's statement that the victim had been "dispatched" was appended.40 Capt Hope's report was forwarded to NDHQ only after JAG personnel reviewed Col Labbé's report, found it unsatisfactory, called for further investigation, and specifically requested Capt Hope's report. Shortly after, Military Police from NDHQ were given the permission and the resources to go to Somalia to investigate.
The problems in this investigation go far beyond a commanding
officer's right not to follow established rules and guidelines
and call into question the propriety of ordering a summary investigation
as opposed to an indepth police investigation. This investigation
illustrates the attitude of superior officers that it was acceptable
in the military culture for them to deviate from, or even ignore,
rules and guidelines. It is also an example of the conflict of
interest inherent in a system where the person responsible for
upholding the military justice system is also accountable for
the success of operations.
Witness statements not taken
As noted above, the summary investigation into the March 4th incident
missed important witness statements. Several other investigations
were also incomplete. Only four statements were taken in respect
of the shooting death of one Somali and injury of two others at
the Bailey bridge on February 17, 1993.41 None of the
Somalis and few of the soldiers who were there were interviewed.
The lack of attention to witness statements was especially surprising
since the incident could have given rise to a claim against the
Crown.42 The regulations require that such cases be
carefully documented in order to be able to defend against any
claims.43
Conflict of interest
In at least four of the summary investigations ordered, conflicts of interest arose when those responsible for operations were also involved in investigating problems in the operation. These conflicts are inherent in the formal role and responsibilities of a commanding officer. The conflict of interest can taint the appearance of fairness the investigations and may affect their outcome as well.
In the first of the four cases, Col Labbé's subordinate ordered and, more significantly, Col Labbé approved, an investigation into a motor vehicle accident even though Col Labbé had been a passenger in the vehicle and was therefore a witness.
The second case involved a much more serious incident - the shooting death of one Somali citizen and wounding of another on March 4, 1993. In this case, the Commander instructed the Commanding Officer to investigate problems in a patrol operation which the Commanding Officer had approved.
The third case also involved a serious incident - the death of Shidane Arone. In this incident, Maj Mackay, the acting Commanding Officer, ordered a summary investigation. He tasked Capt Gilligan of Service Commando, a junior officer, to investigate. Maj Seward, the Officer Commanding 2 Commando, and Capt Sox, the Officer Commanding 4 Platoon, whose members were responsible for guarding Mr. Arone that night, took statements from their fellow unit members for Capt Gilligan.
A fourth investigation involving a conflict of interest was the
alleged theft of a sword from a Somali national by a member of
2 Commando. The deputy commander of 2 Commando was ordered to
conduct a summary investigation. It concluded that the incident
did not involve 2 Commando personnel. As later MP investigations
found, the 2 Commando logs contradict the claim in the summary
investigation report that there was no patrol in Belet Huen at
the time of the incident.
Problems in Military Police Investigations
Military Police attempted to carry out their investigations professionally and adequately. Most of the individuals involved in the two most serious incidents - the shootings on March 4th and the death of Mr. Arone on March 16th - were identified by Military Police. Most of the evidence the Military Police collected appears to have met the standards of admissibility in the military justice system.
However, there were investigative shortcomings. Most stemmed from the systemic challenges faced by the Military Police. There were too few appropriately trained Military Police to carry out the investigations adequately, and many investigations were conducted long after the event and under tight deadlines. Sometimes no effort had been made to secure the crime scene. Above all, where there was a potential for a criminal charge, commanding officers were reluctant to call in Military Police to investigate.
Military Police also had problems conducting individual investigations,
including a lack of cooperation from soldiers and officers,
difficulty in investigating their superiors, limits imposed by
commanding officers on investigations, and frustration of their
investigations because of prior disciplinary investigations. Moreover,
some of the investigations were incomplete in part because the
choice of investigative tactics was sometimes governed by irrelevant
considerations, and some individuals were inappropriately cautioned,
thereby restricting the information that could be gathered. These
issues are discussed in greater detail below.
Lack of cooperation with Military Police
The reluctance of commanding officers to call in Military Police for serious criminal investigations was symptomatic of the dismissive attitude of both senior officers and noncommissioned officers toward the Military Police. In three incidents in 2 Commando in the autumn of 1992, noncommissioned officers counselled soldiers to not cooperate with their own senior officers and MP investigators.44 In several investigations within the CAR during the predeployment period, Military Police met a wall of silence that seriously hindered their investigations.45 Military police investigating the March 4th incident also noted this as a problem in their investigation. Their report states:
Throughout the conduct of this investigation, there was an evident lack of cooperation and a reluctance on the part of most personnel to come forward, to provide information or to get involved in the inquiries. Regardless of the perceived status (suspect or source) of the personnel contacted by investigators, information had to be slowly and laboriously acquired from those personnel.46
At least one MP investigating the March 4th incident felt that
superior commanders went beyond simple lack of cooperation
and actually interfered with the investigation.47
Difficulty investigating superiors
Military Police are part of the chain of command. They take orders from their commanding officers about which incidents to investigate, and their chances for promotion are affected by their commanding officer's assessment of them. This makes it difficult for MP to treat their superiors as ordinary witnesses or suspects. If they had been asked to investigate LCol Mathieu's alleged statement, "Kill the bastards. I'll cover for you", the regimental MP who served as LCol Mathieu's bodyguards would no doubt have found it difficult to question him.48
Gen Boyle was interviewed about his involvement in the alleged
withholding, destruction or alteration of documents in the Directorate
General Public Affairs after their release was sought under the
Access to Information Act. Some aspects of the interview
appeared to favour Gen Boyle. He was permitted legal counsel even
though he was not a suspect and was also given, on request, a
transcript of the interview. Neither of these was normal procedure.
It was suggested during his testimony before us that this unusual
treatment was accorded him because the noncommissioned MP
who interviewed him may have been intimidated by his rank.49
Gen Boyle agreed that it was possible that MP treated him differently
than they might have treated other witnesses or potential suspects.50
Influence of commanding officer on investigations
Military Police can undertake investigations of their own accord-at least in theory. However, commanding officers can exert tremendous influence over investigations because Military Police fall within the chain of command. That influence may be intentional or unintentional, but it can affect the scope of an investigation and the resources available to carry it out.
The potential for this kind of influence can exist in an investigation such as that of the death of Shidane Arone. The death of Mr. Arone was eventually treated as a potential murder case. Yet, there was ample reason to go beyond the criminal investigation and look into more systemic problems, such as the understanding of the Law of Armed Conflict and the treatment of detainees. However, a commanding officer might be tempted to hinder such a broad investigation if it might cast the commander, the commanding officer, the unit, or the CF in a bad light.
Perhaps the most striking example of command influence comes from
the March 4th incident. Senior officers at NDHQ and in Somalia
delayed the MP investigation of the incident for nearly six weeks,
despite the obvious need for a thorough and immediate MP investigation.
Incomplete investigations
Additional Military Police did not arrive in Somalia until May 1993. When they did arrive they were required to investigate numerous incidents, many of which had happened months before, within a short time. Several investigations were therefore left incomplete.
In general, few attempts were made to obtain statements from Somali witnesses. For example, this was true of the incident involving the alleged injury of a child by a CAR vehicle and the investigation of the shooting at the Bailey bridge.51 This may be a systemic problem-the reluctance of organizations investigating their own potential misconduct to approach outside witnesses.
Later investigations, in 1994, also exhibited several deficiencies because they took place long after the incidents and under tight deadlines. In one investigation of the alleged mistreatment of detainees, no written statements were obtained from Col Labbé or from others who recalled seeing the detainees.52 Similarly, in the investigation of alleged orders to destroy photos of detainees, no written statements were obtained from the key witnesses.53 The investigation of the taking of money from a Somali vehicle during a 'house clearing' operation was also not well documented.54 Only one written statement was obtained, and that person was not a witness. No written statements were taken from those who had accompanied Col Labbé and witnessed his actions.
In other cases, the document record reveals that investigators
reached conclusions prematurely. For example, the MP investigation
into the shooting at the Bailey bridge concluded that the soldiers
acted properly.55 However, the investigation failed
to clarify contradictions between the statements of the soldiers
involved and statements contained in briefings about the incident
to the Minister of National Defence. As well, significant questions
about the incidents were left unanswered.56
Inappropriate cautions
Soldiers were sometimes cautioned even though they were the only
witnesses to an incident.57 For example, everyone interviewed
by MP about the March 4th incident was cautioned about the right
to silence, thereby complicating the investigation.
Criminal investigations frustrated by investigations ordered by commanding officers for general disciplinary purposes
The criminal investigation of the theft of a sword from a Somali citizen was made more difficult because a summary investigation had already been held.58 The summary investigation may have provided an opportunity for witnesses and suspects to rehearse their version of events.
We understand from our investigations that the officers in charge
initially treated the March 16th incident as a general disciplinary
problem. We also understand that no attempt was made to preserve
the crime scene or evidence, that Shidane Arone's body was washed,
and that MCpl Matchee's camera was not seized and retained, despite
knowledge that photos had been taken and that MCpl Matchee was
involved in the death. Moreover, we understand that MCpl Matchee's
guards helped him dispose of potential evidence, perhaps unknowingly,
by passing the camera ultimately to MCpl Matchee's friend, Cpl
McKay. As well, it appears that no effort was made to preserve
the crime scene after the March 4th incident. In both the
March 4th and the March 16th case, those who might
have preserved the crime scenes may not have understood the importance
of doing so.
These incidents highlight two problems in the reporting of investigations. The first is the alteration of reports. The second is inconsistency in reporting incidents.
Col Labbé asked for significant deletions in the summary investigation report of the March 4th incident before the report was sent to NDHQ. Eventually, the following statement was deleted: "The policy of shooting at Somalis inside or running away from CDN wire was formulated by LCol Mathieu... on 28 Jan 93 after consultations with, and approval of Comd CJFS, Col Serge Labbé.59
It also appears that there was no consistent procedure for forwarding investigation reports to NDHQ. In some cases, NDHQ was informed immediately after an incident occurred. In other cases, the information seemed to pass up the chain of command much more slowly. For example, the shooting of a Somali wielding a weapon was the subject of a Significant Incident Report (SIR).60 A SIR was also filed about a Somali who was injured by a shooting at a roadblocks.61 Although neither of these incidents was investigated, both were immediately reported and discussed at NDHQ. In the first case, the SIR was sent to the Chief of the Defence Stafff or consideration by the Minister. The SIR for the second incident was sent the same day to NDHQ and discussed at daily executive meetings on January 29 and 30, 1993.
By contrast, Col Labbé's personal investigation report on the March 4th incident was not received at NDHQ until March 23rd. As well, the Minister claimed to know nothing of the circumstances of the death of Mr. Arone until March 23, 1993.
Similarly, there was a lack of written communication and detailed
information on MCpl Matchee's apparent attempted suicide on March
19, 1993. There appears to have been an oral briefing in the Minister's
office on the afternoon of March 19th, but no written communication
to the Minister until March 26, 1993. The written communication
appears to have been prompted by an inquiry from a member of Parliament.
This was the first acknowledgment of a connection between this
incident and Mr. Arone's death.
Even when investigators identified misconduct, military leaders did not always respond appropriately. It is not possible to discuss in detail all the problems associated with the application of the military justice system to the events in Somalia. However, the problems identified below typify the difficulties that permeate the system:
(a) problems related to the deployment of legal officers,
(b) problems related to deciding whether to respond to misconduct, and
(c) problems related to actual or perceived bias.
The Decision to Send Only One Legal Officer
As the only JAG legal officer sent to Somalia, Maj Philippe was
expected to provide legal advice to the commander, the officers
involved in misconduct, and the Military Police investigating
the misconduct. This placed him in a position of clear conflict
of interest that undermined the solicitorclient relationship.62
In attempting to avoid a conflict of interest, Maj Philippe had
to refuse the request of his operational CO, Col Labbé,
that Maj Philippe provide legal advice to others.
Lack of Clarity about Authority of Legal Officers
It was not clear under whose authority Maj Philippe was sent to
Somalia. Confusion about the authority and roles of legal officers
arose again when additional legal officers were sent to Somalia
following the March 16th incident. Initial communications stated
that legal officers were under the authority of the Deputy Chief
of the Defence Staff, while later communications between NDHQ
and CJFS Headquarters stated that they were under the authority
of the JAG.63
Reluctance to Use the Services of Legal Officers
The office of the JAG report, "Lessons Learned - OP Deliverance", states that the most important lessons reaffirmed during Operation Deliverance were that the Legal Branch must participate in crisis management and that legal officers must go with units and headquarters abroad.64 The report emphasizes the value of having legal officers 'on the ground'.
The lack of clarity about the role and authority of legal officers indicated that there was a failure to understand that there are many operational areas where legal issues may arise and that there were continuing concerns about legal officers participating effectively in operational aspects of the mission.65
Commanding officers clearly need to consult with legal officers
during operations.66 Yet statements by Maj Philippe
and other legal officers at CJFS show that their efforts to provide
advice to CARBG on anything other than routine personnel or disciplinary
problems were rebuffed.67 Maj Philippe suspected that
the March 4th shooting involved excessive and illegal use of force
and said so.68 Yet senior officers who lacked legal
expertise did not involve Maj Philippe in their discussions about
the incident or about the type of investigations warranted.69
Commanding officers have significant discretion in deciding whether
and how to respond to misconduct. They can ignore it or deal with
it through informal, administrative or disciplinary sanctions.
The Decision to Prosecute
Annex B to this chapter (Disciplinary and Administrative Action Taken) outlines the action taken as a result of intheatre and postdeployment misconduct. Charges were laid as a result of the torture and death of Shidane Arone. As well, soldiers and officers were charged for passing on orders that prisoners could be abused.70
They were also charged for failing to issue instructions to subordinates to prevent the mistreatment of prisoners, ensure that a Somali prisoner was safeguarded, exercise command over their subordinates following the capture of Mr. Arone, and intervene in the mistreatment of the prisoner.71 There was also evidence in the courts martial that other soldiers knew of the torture but were not punished.
Several officers were convicted, but others who were in a position to promote discipline and the lawful conduct of operations escaped accountability. We can only wonder why they were not called to account for failing to intervene in these events. Indeed, we believe that the Code of Service Discipline and the Queen's Regulations and Orders (QR&O) provide ample authority for holding officers accountable for neglecting to intervene to prevent misconduct by those under their command.
One case would seem initially to suggest that there is no general duty to intervene to prevent misconduct by others. In R. v. Brocklebank, the Court Martial Appeal Court found that Pte Brocklebank had not violated section 124 of the National Defence Act, which creates an offence for negligently performing a military duty imposed on the person.72 Pte Brocklebank had heard the beating of Shidane Arone on March 16th, but made no attempt to intervene. The Court found that Pte Brocklebank did not violate section 124, because no military duty had been imposed on him to protect Mr. Arone. The Court concluded further that a military duty under section 124 "will not arise absent an obligation created by statute, regulation, order from a superior or rule emanating from the government or Chief of Defence Staff."73
This judgment may absolve lower ranks of responsibility for failing to prevent harm to others when there is no specific military duty to intervene. However, it cannot be taken to absolve more senior ranks of responsibility under section 124 when confronted with misconduct by those under their command. The QR&O impose on all officers the general responsibility to enforce the National Defence Act and promote the "good discipline" of all subordinates.74 Officers are also obliged to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline when the officer cannot deal adequately with the matter.75 Thus, officers have a clear military duty that makes them liable to prosecution under section 124 if they do not perform that duty.
In addition, the National Defence Act creates the offence of scandalous conduct by an officer, an offence that some might argue can be committed by failing to intervene when, for example, subordinates engage in reprehensible conduct.76 One can also argue that neglect by an officer to intervene could be considered "neglect to the prejudice of good order and discipline", also a service offence.77
And all CF members, not merely officers, can be punished for behaving
in a cruel or disgraceful manner - an offence that might be proved
by showing that any CF member did not intervene to prevent or
stop another member from harming someone.78
Choice of Mechanism for Responding to Misconduct
In at least one situation, a career review board (CRB), an in camera process with no appeal mechanism, may have been used arbitrarily to penalize a soldier who spoke out about problems in the CF. Using this subterranean process rather than an open, formal process such as a court martial, undermined the appearance of fairness.
The case of Cpl Putnelle, one of the witnesses who testified before us, was especially troubling. In order to prevent any possibility of intimidation or harassment of Inquiry witnesses, we intervened repeatedly to ensure that Cpl Purnelle was treated fairly.
Cpl Purnelle was charged with eight counts related to conduct prejudicial to good order and discipline, and one count of disobeying an order of a superior.79 The charges related to his criticisms of the CF in a book he wrote, subsequent media interviews, and his leaving his base to present evidence to us.80 One charge related to a media interview for the program Enjeux, given in contravention of CF regulations prohibiting criticizing the CF in public or in the media. Cpl Purnelle alone was disciplined from among a group of soldiers interviewed for Enjeux.
On April 26, 1996, Cpl Purnelle was served with a counselling and probation report for publishing his book and making public comments. Cpl Purnelle also attracted censure after informing his commanding officer early in the morning of April 26, 1996, that he would be attending this Inquiry to give evidence about events in Somalia. One hour later, an oral order from this Inquiry was conveyed to Somalia Inquiry Liaison Team officials at DND, and a notice of this order was forwarded to the superior officer of the commanding officer. Later the same morning, Cpl Purnelle was arrested and detained for failing to attend as previously required at the offices of his commanding officer. To secure his appearance before us, we had to issue a written order requiring him to attend.
Initially, the charges against Cpl Purnelle were to be the focus of a court martial. NDHQ later decided to proceed with an in camera CRB. Then, in September 1996, the Commander Land Force Quebec Area agreed to dispose of the charges by the more open, transparent court martial process before convening the CRB. This decision to use the court martial first came after our correspondence with the Chief of the Defence Staff, the office of the JAG and members of Cpl Purnelle's CRB, and after meetings and correspondence with the Department of Justice.
In February 1997, Cpl Purnelle pleaded guilty to five charges. Two related to media interviews, two to his book, and one to leaving La Citadelle against an order to remain on premises. Another charge for leaving La Citadelle after being ordered to remain on premises was stayed. Cpl Purnelle was found not guilty on three charges relating to his media interviews, including his interview with the program Enjeux.
The Purnelle case highlights several problems in the military justice system.
Following the Généreux decision by the Supreme Court of Canada, the QR&O were amended to reduce the influence of the commanding officer over the decision to lay charges for service offences.84 As well, the National Defence Act and the QR&O were amended so that, although a 'convening authority' can order a court martial and stipulate the kind of court martial to be held, the convening authority can no longer appoint its president and members.85
However, the following examples show that the legislative changes
may not have been sufficient to ensure independence and fairness.
In practice, commanding officers can still participate in the
decision to charge, even if they have been involved in the investigation
or incident itself.
Potential for Bias
As Commanding Officer, LCol Mathieu signed the charge sheets for the first courts martial of Pte Brown, Pte Brocklebank, MCpl Matchee, and Sgt Boland, all of whom were charged in relation to the death of Shidane Arone.86 LCol Mathieu initiated the court martial process by signing Pte Brown's charge sheet, referring the case to a higher authority and recommending a general court martial (GCM). He did this while under investigation himself as a result of certain orders he had given in Somalia, although at the time it was not certain whether these orders were directly connected to the events on March 16th.
The Judge Advocate of the GCM for Pte Brown concluded that LCol Mathieu's involvement raised a reasonable apprehension of bias, which tainted the convening process. The original charges laid were not affected, but all subsequent actions were nullified, and the case was sent back to the convening authority.
The Judge Advocate in the first court martial of Pte Brown stated that the commanding officer's role in signing the charge sheets must be executed "with quiet and impartial objectivity".87 He noted that this was difficult to achieve because LCol Mathieu was himself the object of an investigation so related by "location, time, [and] general subject matter, with the same unit, having the same mission".88 The Judge Advocate concluded that a very real possibility of perceived bias on the part of LCol Mathieu existed in that, no matter what course of action he took, he could be seen to have been motivated by selfinterest.89 The issue of bias was especially significant here because, as the Judge Advocate noted, the charges were serious and the potential consequences for the accused very grave.90
A legal brief prepared by the office of the JAG noted that the possible impropriety of LCol Mathieu signing the charge sheets had been raised at least three times before the court martial of Pte Brown.91 In one instance, a legal officer advised the DCDS and the CDS in "the strongest possible terms" that LCol Mathieu should be removed from the process immediately.92
At his appeal of conviction and sentence from his second court martial, Pte Brown argued again that the role of a commanding officer (in this case, LCol Chupick) in signing the charge sheet was quasijudicial in nature, thus requiring actual and perceived impartiality. To the contrary, the Court Martial Appeal Court rejected Pte Brown's submission and found that the law does not require independence or impartiality:
[T]his submission is entirely without merit. It misapprehends the nature of the role of a commanding officer who signs a charge sheet and then refers the matter to higher authority. Contrary to the situation where the commanding officer decides himself to dispose of a matter summarily, there is nothing judicial or quasijudicial in the commanding officer's decision here. His function, like that of the convening authority to whom he refers the case, is wholly administrative in nature and there is no requirement that he act judicially.93
Because LCol Chupick, not LCol Mathieu, signed the charge sheet
for Pte Brown's second court martial, the concerns about bias
that had been raised when LCol Mathieu signed the charge sheets
for Pte Brown's first court martial were not present. Even so,
characterizing the signing of the charge sheet as "administrative"
from a legal standpoint does not address our concern about commanding
officers being involved in the charging process for serious offences.
Giving commanding officers the authority to sign charge sheets
still enables conflicts of interest and bias to affect charges.
This in turn damages the integrity of the military justice process.
Lack of Concern about the Appearance of Bias
JAG officers also had concerns about possible bias when MGen Vernon acted as convening authority in courts martial relating to the March 16th incident. According to the JAG officers, MGen Vernon had been involved in the cases before the courts martial and had made comments on issues relating to the charges. Nevertheless, as convening authority, he could dispose of the charges.94
After the first GCM of Pte Brown, the office of the JAG stated that there was a strong argument for a reasonable apprehension of bias on the part of MGen Vernon as convening authority.95 Correspondence from the office of the JAG identified multiple grounds for concern about his involvement as convening authority:
(a) his participation in Commander's Council [Land Force Command] and discussions on:
(1) Somalia disciplinary cases-in particular these cases, and
(2) the de Faye Board of Inquiry;
(b) his receipt and review of BGen Beno's paper, "The Way Ahead";
(c) his public statement at a staff meeting in respect of the "search
warrant,, issue arising out of search of LCol Mathieu's property;
(d) his responsibility to the Comd LFC, who has made several statements regarding alleged misconduct of members of CAR and the requirement for remedial action;
(e) his personal visit to CAR in the attendant circumstances (indicating a continuing personal interest/responsibility for conduct of the unit);
(f) his statement on CBC news, after Brown charges were referred back to him, that he was not biased (he protests too much);
(g) his participation in the convening of courts martial in respect of these same charges earlier as Convening Authority and as a superior commander who supported the CO, LCol Mathieu; and
(h) his role, as COS (Ops) at LFC, in the deployment of the CAR BG to Somalia.
In another memorandum, Capt Maybee of the JAG office noted that MGen Vernon would not likely transfer the Brown case to another convening authority, since MGen Vernon appeared to be "of the firm view that he is not biased". Capt Maybee added that, "it is the opinion of this office that the Judge Advocate [in the first court martial of Pte Brown] avoided deciding this issue directly to save face for MGen Vernon."96
We share the concerns of the JAG officers. The apparent disregard
within senior ranks of the potential for, and appearance of, bias
calls into question the very integrity of the disciplinary process.
Some incidents in Somalia should have been investigated but were not. Many of the investigations that did occur took place long after the incident, in some cases, well over a year later. The findings of at least one summary investigation were unreliable because the commanding officer ordering the investigation both approved the investigation report and witnessed the incident. Other investigations were left incomplete. Commanding officers sometimes used their authority over Military Police to limit their investigations. Reports and investigations were seriously delayed, and at least one report was altered in a substantial way by a superior officer.
Commanding officers exercised the discretion to apply administrative or disciplinary action and to lay charges according to inappropriate criteria. In several cases, commanding officers who may have been biased nonetheless continued to act. Problems of conflict of interest and bias were not rectified quickly or, in some cases, at all. Moreover, the office of the JAG was not consulted in cases where it should have been. The JAG legal officer himself encountered a conflict of interest when he was asked to advise people who were adverse in interest.
These problems relating to investigations and prosecutions have their roots, in part, in six related systemic problems that affect the military justice system as a whole.
(a) command influence;
(b) wide, unfettered discretion of commanding officers;
(c) the lack of independence of the Military Police;
(d) deficiencies in the organizational structure of the office of the JAG;
(e) attitudes toward the lawful conduct of operations; and
(f) the lack of distinction between disciplinary and criminal
misconduct.
We discuss each of these underlying systemic problems in turn.
Command influence refers to the impact of the command structure on decisions that should be independent of command prerogatives and policy.97 The power of commanding officers to limit the scope of an MP investigation, even if that power is not used, creates the appearance that command prerogatives do in fact influence what should be independent investigations. There need be no intention to subvert the military justice system. However, the result may be just that.
Command influence is inevitable in a military justice system where the commanding officer also makes the key decisions in disciplinary matters. Command influence is a significant obstacle to the necessary independence of various players in the military justice system.
Both actual and apparent command influence are problematic, since
both justice and the perception of justice are vital - justice
for those serving in the military, and a perception of justice
for those serving in the military and for the public.
The substantial unstructured discretion vested in commanding officers has diminished the effectiveness and fairness of the military justice system. Leaving discretion to commanding officers - discretion over whether and how to investigate possible misconduct, and how to proceed if misconduct is uncovered - gives them the flexibility to apply appropriate measures to promote military discipline. At the same time, broad discretionary powers can lead to arbitrariness, unjustifiably harsh treatment of some individuals, much too lenient treatment of others and, in some cases, the complete avoidance of accountability for misconduct.
Several studies suggest that higher ranking members enjoy preferential treatment in disciplinary matters. One report argues that significant numbers of CF members, especially those in the lower ranks, believe that the military justice system lacks fairness. Moreover, many junior noncommissioned members thought that the opinion of senior ranks was given disproportionate weight in complaints and grievances, particularly within units.98 These issues are not unique to the CF. In some other jurisdictions, officers tend not to be prosecuted for actions that would lead to the prosecution of those of lower rank.99
The commanding officer is not a peace officer, is not subject to a peace officer's oath of office or code of conduct, and has no overriding obligation to advance the administration of justice. In fact, the commanding officer's primary goal is to develop and maintain an effective and efficient unit. The commanding officer may also have less than laudable motives for applying discretion in one way or another. Disciplinary incidents within a unit may reflect poorly on the commanding officer's leadership ability. They may also limit future opportunities for the unit. The commanding officer may come to see his or her discretionary powers as a vehicle to soften the full impact of the military justice system or to manipulate the system for some personal goal.
Thus, the commanding officer may decide not to investigate a matter, or may refuse to take action, not because it serves the goals of the CF, but because it serves the commanding officer's more parochial interests. In other words, considerations that should not figure in the decision to investigate or prosecute - for example, the value of the offender to the unit and his or her personal history in the unit, the offender's rank, or the adverse impact of prosecution on subordinates who have become close comrades - can influence the commanding officer's use of discretion. And the exercise of that discretion occurs without political accountability or any form of public review.100
In short, allowing commanding officers to bring inappropriate considerations into the exercise of their discretion damages the military justice system. This is among the most significant systemic issues revealed by our examination of the military justice system in relation to the Somalia deployment.
Later in this chapter we recommend how commanding officers can
retain discretion within the military justice system where that
discretion is necessary for the efficient functioning of the system.
However, we also propose significant checks on the commanding
officer's discretion in cases of "major disciplinary misconduct"
and "criminal misconduct" (described in detail later),
to prevent the type of abuses of the military justice system that
occurred in Somalia.
Situating Military Police within the chain of command affects their ability to investigate misconduct.101 The problem is twofold. Organizationally, Military Police are subject to the orders of commanding officers; attitudinally, they see themselves as soldiers first, police officers second. This implies a loyalty to the military and a comradeship with the rank and file soldier. This 'soldier first' ethos may lead to overzealous pursuit of a matter by Military Police and the chain of command to salvage the reputation of a colleague, unit or the CF as a whole. In other cases, Military Police may not pursue a matter aggressively because the unit or colleagues in the unit would not be well served by a thorough investigation.
The attitude of Military Police, who see themselves as soldiers first, police officers second, can also influence the choice of investigative tactics. Such Military Police may be reluctant to use techniques such as informers or offers of immunity, techniques that might be seen as repugnant to the military ethos of comradeship, especially if used within one's own unit.
The soldier first ethos may also determine the information Military Police pass up the chain of command. Many Military Police and, more important, their nonMP superiors, appear to confuse loyalty to the military with loyalty to their officers, their chain of command, and the public reputation of the military.
In a routine civilian police investigation, the investigator is confronted with one and sometimes two objectives - identifying who committed the act and proving that the act constitutes a particular offence. To a large extent these objectives dictate the investigative methods used.
In the military context, Military Police also focus on identifying those who may have done something wrong. However, they pay less attention to proving that the act constitutes an offence. On a number of occasions, Military Police have said to us that their duty is to determine the facts and that it is for others to decide the implications of the facts.
Because of the civilian police focus on proving the commission of an offence, rates of crime solution and conviction are important. These rates are routinely used to audit efficiency and effectiveness. Among Military Police, case solving and conviction rates are not as important. They do not track rates of solving cases or measure their effectiveness in this way.102 Military police may never even learn the disposition of a case they have investigated.
The absence of such an orientation in MP investigations makes it more difficult for them to focus their investigations. It is also difficult for them to decide when an investigation is complete, since the goal of the investigation is not clear. Clear investigative goals would resolve both these problems.
Effectiveness and efficiency within the Military Police seem to be measured mainly by client satisfaction - the client being the commanding officer. However, the commanding officer usually has no expertise in law enforcement or criminal justice matters and may not be able to decide whether an investigation is adequate. Yet if the commanding officer requests nothing further from the Military Police, they consider the investigation complete - whether or not the case is ultimately solved or a successful prosecution occurs. In essence, Military Police investigate only to the point of satisfying the commanding officer. This poorly serves the needs of the military justice system, for the system in fact needs investigations that will support convictions, not simply satisfy commanding officers. At the same time, setting the commanding officer's satisfaction as the benchmark for deciding whether an investigation has been adequate fosters an environment ripe for command influence.
A good example of the inadequacy of present investigative goals
can be men in the MP security audit that occurred at the National
Defence Operations Centre.103 The investigation was
deemed complete when the office that had initiated the investigation
accepted the report as adequate. Yet we later learned that the
investigation had overlooked several important leads.
Unlike Military Police, the office of the JAG is theoretically independent of the chain of command. Nonetheless, the organizational structure and the operation of the office of the JAG exhibit several deficiencies.
This example highlights one problem flowing from the JAG's overlapping
roles. While this advice may be appropriate for the JAG to give
as a legal adviser, acting as adviser may appear to taint other
functions of the office of the JAG, particularly the judicial
function.
Senior officers in Somalia appeared to act as if the rules governing conduct of CF members were different in Somalia than on other CF operations. There appeared to be little concern to ensure the lawful conduct of operations. Investigations were not held when they should have been. Leaders counselled their subordinates not to cooperate with Military Police. Basic principles, such as avoiding conflicts of interest, were not sufficiently respected in the charging and prosecutions process. Mistreatment of detainees continued throughout the deployment, even after it was forbidden verbally by the commander.
If some of the early disciplinary incidents we examined had been
investigated thoroughly and expeditiously, legal advice sought
and followed, and appropriate charges laid, the tone set for the
Somalia operation would have been much more conducive to effective
discipline. It would have promoted respect for the law. Subsequent,
and much more serious, incidents might have been prevented.
The current characterization of all misconduct under the Code
of Service Discipline as a service offence carrying a possibility
of detention or imprisonment also has an impact on investigations
by Military Police. Each investigation is undertaken to meet the
standard of proof (proof beyond reasonable doubt) required for
a criminal trial, with the full panoply of Charter rights at the
investigative stage. However, the great majority of misconduct
could be dealt with by tribunals with reduced standards of proof.
This would streamline the military justice process greatly, with
no loss of rights in the serious cases where rights are most critical.
It would be consistent with the standards of other federal employment
legislation to permit an investigator appointed by the commanding
officer or an MP to order a soldier to provide a statement, so
long as no possibility of detention or imprisonment would attach
to the misconduct.
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