NOTES

1. Section 161 of the National Defence Act (NDA, R.S.C. 1985, Chapter N-S, as amended) provides, "Where a charge is laid against a person to whom this Part applies alleging that the person has committed a service offence, the charge shall forthwith be investigated in accordance with regulations made by the Governor in Council." The Queen's Regulations and Orders (QR&O) 107.04 confirms the requirement for an investigation of a charge. QR&O 107.03 advises that an investigation should also be conducted before a charge is laid.
2. QR&O 21.46
3. See Annex A to this chapter, Somalia-Related Incidents.
4. In some cases, summary investigations must be ordered. However, in general, commanding officers can order a summary investigation where they require to be informed on "any matter connected with [their] command. ..base, unit or element or affecting any officer or non-commissioned member under [the commanding officer's] command." QR&O 21.01(3) Summary investigations can thus be used to investigate possible misconduct by an individual or systemic problems. Canadian Forces Administrative Order (CFAO) 21-9 sets out detailed guidelines on how to conduct summary investigations, including terms of reference and the briefing of the person conducting the summary investigation, administration of summary investigations, time limits within which reports should be filed, review, and so on.
5. The first eight incidents are 11, 24, 28, 35, 39, 45, 51, and 55 (see Annex A, Somalia-Related Incidents). In the 27 cases referred to in the text, the Inquiry received no record of any investigation; however, we assume that some kind of investigation did take place, since in 26 cases charges were laid, and the NDA and regulations require an investigation when charges are laid (NDA, section 161 and QR&O 107.04). These cases were incidents 1, 3, 4, 5, 6, 7, 9, 14, 15, 16, 17,18, 19, 21, 22, 23, 37, 38, 41, 44, 48, 56, 57, 58, 59, and 62. The 27th case that was likely investigated was incident 61 (March 14,1993), an aircraft accident. Flight safety investigations are required by the regulations in these circumstances.
6. For example, a summary investigation was inappropriate given the circumstances of the March 4th incident. See the conclusions of Military Police Report, Document book 48A, tab 6, p.3/S, and the discussion later in this chapter and in Chapter 38, earlier in this volume.
7. The references are to incidents 33, 2, 8,13, 26, 30, 31, 20, 42, 43, and 12 respectively. The incidents occurring before March 16, 1993 that were not investigated are as follows: 2, 8,10,12,13, 20, 25, 26, 27, 29, 30, 31, 32, 33, 34, 36, 40, 42, 43, 46, 47, 49, 50, 52, 53, 54, and 60 (see Annex A).
8. Incidents 12, 20, 25, 27, 29, 33, 34, 40, 50, 52, and 53 (see Annex A).
9. Incidents 10 and 36 were investigated within a few months, and incidents 2, 8, 13, 26, 30, 31, 32, 42, 43, 46, 47, 49, 54, and 60 were investigated eventually (see Annex A).
10. Incidents 2, 8,13, 30, 31, 32, 54, and 60 (see Annex A).
11. Although there were neither adequate numbers of nor adequately experienced Military Police in theatre to deal with anything other than the most minor incidents, commanding officers could have called for additional MP from NDHQ, as was eventually arranged in May 1993.
12. In fact, in Canada, even minor investigations were normally conducted by secondline MP (MP attached to the base, as opposed to the unit, CAR). See "Operation Deliverance After Action Report - Military Police Operations", May 17, 1994, Document book 24, tab 7, p.5.
13. In the After Action Report, Maj Wilson, a security officer, notes that MP were also involved in military confinement and police duties but, significantly, he notes that limited police duties were performed, because "Most incidents were viewed by senior commanders as issues which would be dealt with by other than an MP investigation." See "Operation Deliverance After Action Report - Military Police Operations", p.6.
14. Responsibility for custody of detainees was handed over to 2 Commando.
15. Incident 55 (see Annex A). Message, DCDS Tasking Order, 152301Z Apr 93, "MP Investigation - Alleged use of excessive force, Belet Uen, 4 Mar 93", Document book 48B, tab 20.
16. Memorandum, "MP Investigation - Somalia, Alleged Use of Excessive Force", April 26, 1993, Document book 48B, tab 20. The investigations into the incident of March 4, 1993, and possible cover-up were carried out by different teams but reported in the same MP report.
17. The unit consisted of Maj Wilson, MWO Gosse, Sgt Barrow, Sgt Dallaire, and Sgt Gipp. See Annex A, Somalia-Related Incidents, MP investigations ordered in May and June 1993 for incidents occurring before May 1993.
18. Incident 70: a corporal acted in a discreditable fashion while drunk in Mombassa (see Annex A).
19. DND, "Brief for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia: Military Justice", June 1995, p.11.
20. Security Orders for the Department of National Defence and the Canadian Forces, Military Police Procedures (1991), A-SJ-100-004/AG-000, vol.4, p.15-1-1.
21. QR&O 21.43 and 21.46. Investigations are also required in the following circumstances:
    1. where there is a claim by or against the Crown (21.21),
    2. missing or absent officers and non-commissioned members (non-voluntary and not due to action) (21.41),
    3. illegal absence of longer than 14 days (21.43),
    4. absence due to enemy action (21.44),
    5. death otherwise than as a result of wounds received in action, injury a medical officer certifies is serious, likely to cause a permanent disability or suspected to be the result of his own wilful act (21.46),
    6. aircraft accidents (21.56(3)),
    7. damage to property caused by fire or explosion (21.61), and
    8. missing classified material (21.75).
    Although there are inconsistent statements in QR&O 107.02 and 107.03 about the requirement to investigate an alleged offence ("shall" versus "should"), it appears that an investigation is required only after a charge is laid. See discussion in Volume 1, Chapter 7, Military Justice, under the duty to investigate.
22. See "Operation Deliverance After Action Report-Military Police Operations", p.2/19: "The Commander and some senior staff did not feel MP investigations were required in an operational theatre and that most issues could be adequately dealt with by CO's/unit investigation, summary investigation or board of inquiry."
23. Incident 42 and incident 63 (see Annex A).
24. This investigation is referred to in the MP reports of May and June 1993, although the Inquiry was not given a copy of a report prepared by regimental MP.
25. Testimony of CWO Jardine, Transcripts vol.105, pp.21084-21093; Maj Pommet, Transcripts vol.107, pp.21440-21483; and LCol Mathieu, Transcripts vol.174, pp.35950-35962.
26. Document book 38, tab G, DND 014854.
27. Document book 38, tab B, DND 014834.
28. CFAO 21-9, paragraph 13, note 2, Annex A to CFAO 21-9.
29. If a case involves a claim by or against the Crown, a board of inquiry or summary investigation must be held (QR&O 21.19 and 21.21). Note that it may be possible to interpret these articles as permissive, not mandatory. Boards of inquiry or summary investigations are also required in the following cases:
    1. missing or absent officers and non-commissioned members (non-voluntary and not due to action) (QR&O 21.41),
    2. illegal absence of longer than 14 days (QR&O 21.43),
    3. absence due to enemy action (QR&O 21.44),
    4. death otherwise than as a result of wounds received in action, injury medical officer certifies is serious, likely to cause a permanent disability or suspected to be the result of his own wilful act. (QR&O 21.46),
    5. aircraft accidents (QR&O 21.56),
    6. damage to property caused by fire or explosion (QR&O 21.61), and
    7. missing classified material (QR&O 21.75).
30. Incidents 24, 28, 43 and 63 respectively. Summary investigations were also held in incidents 4,10, 11,35,36,39,51,55,64, 66, and 83 (see Annex A).
31. These cases are all examples of the types of incidents requiring investigation by a board of inquiry or a summary investigation as described in the text at notes 28 and 29:
    1. Incidents 8,13,31,32;
    2. Incident 12;
    3. Incident 34;
    4. Incident 42;
    5. Incident 46;
    6. Incident 47;
    7. Incident 49; and
    8. Incident 80 (see Annex A).
32. Note that incident 49 was investigated by Military Police again in 1994.
33. In war, 'house clearing' typically refers to operations to clear premises of the enemy. See, for example, testimony of Sgt MacAulay, Transcripts vol.54, p.10750.
34. Travelling with Col Labbé were LCol Mathieu, Cmdr Williams, Cpl Richardson-Smith, Capt Mair, and Cpl Polauskas. See testimony of Col Labbé, Transcripts vol.163, p.33206; and Cpl Richardson-Smith, Transcripts vol.109, p. 21946.
35. Testimony of Col Labbé, Transcripts vol.163, pp.33212 and 33222.
36. Section 77 of the NDA makes it an offence to steal any money or property that has been left exposed or unprotected in consequence of warlike operations, or take otherwise than for the public service any money or property abandoned by the enemy. The 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War, article 33, paragraph 2, prohibits any act of pillage. It is not clear whether, under international law, the Convention was applicable to the UNITAF operation. However, it seems quite clear that at least the officers of CARBG were advised to comply with the principles of the 1949 Geneva Convention in Somalia; see James M. Simpson, Law Applicable to Canadian Forces in Somalia 1992/93, study prepared for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Public Works and Government Services, 1997).
37. Incidents 3, 6,14, 15,16,18,19, 20, 23, 38, 48, 56, 57, 58, 59, 69,76, and 83. Two of these incidents involved two CF members in each case. Incidents 40 and 88 involved the accidental discharge of crew-served weapons (see Annex A).
38. The Board of Inquiry into the leadership, discipline, operations, actions and procedures of the CARBG remarked that accidental discharges occurred "to an unacceptable degree"; see Annex C to the Narrative, Board of Inquiry (CARBG), Phase I, vol. XI, p. C-5.
39. See Chapter 38 for details underlying the following analysis.
40. Document book 48AE, tab 7; and testimony of Maj Armstrong, Transcripts vol.178, pp.36795-36796.
41. Incident 46 (see Annex A).
42. The Commander was in fact asked for compensation by the elders of the tribe of the person killed: letter, Ugas Ali Ugas Hassan Ugas Rage to Commander of the Canadian Troops, May 31, 1993, DND 064267. The request was denied on the grounds that the CF soldiers "were forced to respond to a life threatening situation in accordance with UNITAF and Canadian Forces Rules of Engagement": letter, Col Labbé to Ugas Ali Ugas Hassan Ugas Rage, June 2, 1993, DND 064266.
43. QR&O 21.19 and 21.21.
44. These incidents were the illegal use of military pyrotechnics at a party at the junior ranks' mess at CFB Petawawa; the setting alight of a car belonging to the 2 Commando duty officer; and the setting off of illegally held pyrotechnics and ammunition during a party in Algonquin Park by members of 2 Commando. These are described in more detail in Volume 2, Chapter 18, Discipline.
45. This was the case in the investigation of a 1 Commando initiation party that took place at CFB Petawawa in August 1992, as well as an investigation into a break-in and vandalism of a room at CFB Petawawa in May 1992.
46. Military Police Report, Preface, Memorandum 2106-10-4 VCDS, March 11,1994, DGS 855-05-94, Document book 40, tab A3, p.1/3.
47. Testimony of Maj Buonamici, Transcripts vol.176, p.36271. For further discussion of this issue, see Chapter 38.
48. Incident 54 (see Annex A).
49. Cross-examination of Gen Boyle by Mr. Bright, Transcripts vol.91, pp.17709-17718.
50. Testimony of Gen Boyle, Transcripts vol.91, p.17713.
51. Incidents 49 and 46 (see Annex A). Note that no written statements were obtained from Somali witnesses for the summary investigation of the shootings at the International Committee of the Red Cross compound (incident 64), even though it would have been relatively easy to locate the Somalis employed by the ICRC.
52. Incident 13 (see Annex A).
53. Incident 32 (see Annex A).
54. Incident 80 (see Annex A).
55. Incident 46 (see Annex A).
56. Document book 52A, tab 25, DND 017794, DND 12701. See also Document book 60A, tab 12. The contradictions between the statements and the briefings and the questions left unanswered included the following:
    • Statements indicate that the mission of the soldiers was to protect the bridge; the briefing to the Minister indicates it was to prevent passage of the crowd.
    • Statements describe crowd throwing rocks; the briefing to Minister suggests that the soldiers feared that the rocks were grenades.
    • MP investigator was told that there was no unit investigation of the incident; the briefing to the Minister states that there was.
    • Col Labbé concluded that the CF soldiers were blameless; on what basis?
    • On what basis was Col Labbé able to conclude that the soldiers had acted within ROE?
57. For example, in incident 32 (see Annex A), involving instructions to destroy photos of detainees, potential witnesses (not suspects in relation to this incident) were cautioned on their right to silence on the basis that they were suspects in a similar incident.
58. Incident 43 (see Annex A).
59. Document book 48A, tab 6, section 9, p.9-3.
60. Incident 12 (see Annex A).
61. Incident 34 (see Annex A).
62. Testimony of Maj Philippe, Transcripts vol.159, February 5,1997, pp. 32299-32300, 32434-32435, 32439, vol.160, p.32678, and vol.158, p.32463. Maj Philippe testified that he felt himself to be in a potential conflict of interest on several occasions. For example, while he was providing advice to Col Labb6, Col Labbe' asked him to provide what amounted essentially to legal counsel to members of the Reconnaissance Platoon. In addition, the Military Police asked Maj Philippe for assistance.
63. Document book 129, part A, tab 2, p.3 is a message dated April 15, 1993, saying that two legal officers from the defence group were required, referring to them as the "legal team deployed [independently] under authority of JAG". This is a revised version of a document in Document book 38Y, tab 29, p.3, which states that the "legal team forms part of investigating team deployed under authority of DCDS and will remain under DCDS comd." This change is pursuant to Exhibit 388, DND 210388, a handwritten note saying that "Kirby Abbott will call to have message amended to read 'JAG' vs. 'DCDS', so as to read "legal team forms part of investigating team deployed under authority of JAG and will remain under JAG comd."

    Recent regulatory changes may have resolved this confusion. The changes make it clear that the JAG has command over all officers and non-commissioned members posted to positions established within the office of the JAG. Furthermore, the changes clearly state that the duties of a legal officer are determined by, or under the authority of, the JAG. Legal officers performing these duties are not subject to the command of officers who are not legal officers: QR&O (Amendment List 1-97), section 2 - Office of the Judge Advocate General, 4.081(2).

64. Office of the Judge Advocate General (JAG), "Lessons Learned - OP Deliverance", February 16,1993.
65. See also memorandum, LCdr MacDougall, D Law/I2, to D Law/I, reporting on her activities as a legal officer in the former Yugoslavia, June 22, 1993, p.2, DND 338900.
66. The importance of lawyers in theatre has been recognized in a number of other jurisdictions. In the U.S. military, for example, 'operational lawyers', as they are called, were closely involved in high-level decision making in an advisory capacity, assisting commanders in determining the legality of various options available to them in a given situation. One U.S. commentator notes that possible responses to a commander's illegal actions include
    1. advising the commander of the potential illegality and the conflict with Army interests,
    2. asking the commander to reconsider,
    3. requesting permission to seek a separate legal opinion or decision on the matter,
    4. referring the matter to the legal authority in the next higher command.
    See Colonel Fennis F Coupe, "Commanders, Staff Judge Advocates, and the Army Client", The Army Lawyer (November 1989), pp.4-10.
67. LCol Watkin's diary, "Personal Involvement in Somalia Incidents", Document book 90, tab 9, p.1, states that he was "astounded that he [Maj Philippe] had not provided any briefings in theatre to the Cdn Ab Regt and that they had appeared to rebuff his attempts to provide any advice on other than routine per/discipline problems Maj Philippe stated that he had offered to provide briefings on the ROE in theatre but his offers were not accepted: Transcripts vol.160, p.32624. A handwritten memorandum from Capt Blair, Document book 90D, tab 2, p.3, refers to the legal officer's repeated offers, in theatre, of guidance with respect to the ROE.
68. Testimony of Maj Philippe, Transcripts vol.160, pp.32544 and following, 32547 and following, 32575 and following.
69. Testimony of VAdm Murray, Transcripts vol.152, p.31039, and vol.155, pp.31670, 31697.
70. See Annex B to this chapter, Disciplinary and Administrative Action Taken.
71. Actions 33, 34, 36, and 37 (see Annex B).
72. R. v. Brocklebank, Court Martial Appeal Court (C.M.A.C.), April 2, 1996.
73. R. v. Brocklebank, C.M.A.C., April 2,1996, p.21.
74. QR&O 4.02.
75. QR&O 4.02.
76. NDA, section 92.
77. NDA, section 129.
78. NDA, section 93.
79. The charges and counts were as follows:

    Charge #1
    Count	Description	Disposition
    First Count section 129	Conduct Prejudicial to Good Order and Discipline	not guilty
    	Interview on Enjeux
    Second Count section 129 (alternative to #3)	Conduct Prejudicial to Good Order... Interview for Journal de Québec	not guilty
    Third Count section 129 (alternative to #2)	Conduct Prejudicial to Good Order... expressing opinions without permission for publication in Journal de Québec	not guilty
    Fourth Count section 129	Conduct Prejudicial to Good Order... answering questions without permission on CKVL	guilty plea
    Fifth Count section 129	Conduct Prejudicial to Good Order... answering questions without permission on CHRC	guilty plea
    Sixth Count section 83 (alternative to #7)	Disobeying the order of a superior left the Citadel notwithstanding order to remain on premises	stayed
    Seventh Count section 129 (alternative to #6)	Act Prejudicial to Good Order.... left the Citadel in contravention of order	guilty plea
    Charge #2
    First Count section 129	Conduct Prejudicial to Good Order... publicly criticized government and departmental decisions and policies in book he published	guilty plea
    Second Count section 129	Conduct Prejudicial to Good Order... section 129 made statements tending to discredit his superiors and the CF in book he published	guilty plea

80. Document book 11 8B, tab 20L-M.
81. Letter, Gen Boyle, Chief of the Defence Staff (CDS), to Chairman of the Commission of Inquiry, September 6, 1996.
82. Statement by the Chairman of the Commission of Inquiry, Transcripts vol.66, p.12826 and following.
83. CBC Radio, As it Happens, April 30, 1996.
84. R. v. Généreux, (1992] 1 S.C.R. 259,70 C.C.C (3d) 1, pp.34, 35.
85. The role of convening authorities in courts martial is discussed more fully in NDA, section 165.1 and QR&O 111.051(4).
86. QR&O 106.10(2). Charge sheets are signed by the commanding officer, although the CO does not lay the charge.
87. General Court Martial of Kyle Brown, October 18-21, 1993, vol.2, p.239.
88. General Court Martial of Kyle Brown, vol.2, p.242.
89. General Court Martial of Kyle Brown, vol.2, p.242.
90. General Court Martial of Kyle Brown, vol.2, p.242.
91. Legal brief addressing whether the actions of the commanding officer and/or the convening authority in the cases of Brown, Brocklebank, Boland and Matchee raised a reasonable apprehension of bias that was incompatible with their involvement in the laying of charges and convening of those courts martial (Document book 90, tab 5). The brief notes (p.3/41) that in late April 1993, LCol Tinsley informed MGen Vernon that he had reservations about LCol Mathieu's role. The brief states (p.5/41) that Capt Blair advised the DCDS and the CDS in "the strongest possible terms" that LCol Mathieu should be removed from the process immediately. The brief states (p.6/41) that the issue was discussed at a post-daily executive meeting. Following the execution of search warrants at LCol Mathieu's residence, LCol Tinsley spoke with MGen Vernon with regard to the propriety of LCol Mathieu staying on as commanding officer of the Canadian Airborne Regiment (p.10/41). MGen Vernon said he was not prepared to do anything that would show a lack of faith in LCol Mathieu or prejudge him; therefore he would not consider action to remove him from that position.
92. Legal Brief on Reasonable Apprehension of Bias (re Mathieu and Vernon), undated, Document book 90, tab 5, p.5/41. On May 13,1993, Capt Blair advised the DCDS and the CDS in "the strongest possible terms" that LCol Mathieu should be removed from the process immediately.
93. R. v. Brown (1995), 35 C.R. (4th) 318 (C.M.A.C.) at 330.
94. Correspondence, Capt W.A. Reed, DJAG, to JAG, November 5, 1993, Document book 90A, tab 25.
95. Correspondence, Capt W.A. Reed to JAG, November 5, 1993.
96. Memorandum, Capt Maybee, JAG Somalia co-ordinator, to MGen Boyle, October 26, 1993, Document book 90A, tab 15, discussing the options available to the CF regarding the general court martial of Pte Brown, p.3, DND 428912.
97. Captain Teresa K. Hollingsworth, "Unlawful Command Influence", The Air Force Law Review (1996), p.262.
98. Canadian Forces Personnel Applied Research Unit Report, "Mechanisms of Voice: Results of CF Focus Group Discussions", Sponsor Research Report 95-1 (October 1995), p.20.
99. Ben Shalot, "Discipline", in The Psychology of Conflict and Combat (New York: Praeger, 1988), p.128.
100. Compare this with the civilian system, in which police can lay charges or, alternatively, a civilian complainant can do so. If the prosecution subsequently withdraws or stays those charges, this is done in a public forum. This transparent process allows the issues to be placed before the public and, ultimately, holds the individuals involved accountable.
101. We acknowledge, however, that Military Police have major tactical responsibilities. In discharging these tactical responsibilities, they must be part of the operational chain of command.
102. In fact, the unit does not seem to keep such statistics. When asked specifically about this, the senior persons at the MP Platoon, CFB Petawawa, indicated that such statistics were not kept and the only way they would learn about the results of their investigations was through happenstance.
103. Incident 100 (see Annex A).
104. During events in Somalia, daily executive meetings lasted as long as 90 minutes. Commission of Inquiry, Meeting with Judge Advocate General, April 20,1995, per BGen Boutet, p.21.
105. Minutes, daily executive meeting (DEM), July 9,1993, Document book 127A, tab 1.
106. Handwritten note, VCDS to CDS, September 20, 1993, Document book 129, part A, tab 5, DND 020915. See also correspondence from Patrick McCann, counsel for Pte Brown, to LCol Tinsley, Assistant JAG, requesting that prosecution of his client be moved to civilian courts, September 15, 1993, Document Book 129, part A, tab 5, DND 020916-020918.
107. Memorandum, office of the JAG, November 28,1995, DND 432200.
108. R. v. Généreux, [199211 S.C.R 259 at 293.
109. Section 2 of the National Defence Act defines "service offence" as "an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline". For an analysis of the offences contained in the NDA, sections 73 to 130 and 132, see QR&O, chapter 103, "Service Offences".
110. NDA, section 2.
111. NDA, section 88, section 85, and section 74, respectively.
112. The offences referred to in QR&O 108.31(2) include those provided for in the following sections of the National Defence Act: 73 (offences by commanders when in action),
     74 (offences by any person in presence of enemy),
     75 (offences related to security),
     76 (offences related to prisoners of war),
     77 (offences related to operations),
     78 (offence of being spy),
     79 (mutiny with violence),
     80 (mutiny without violence),
     81 (offences related to mutiny),
     82 (advocating governmental change by force),
     84 (striking or offering violence to a superior officer, but only where striking or using violence to a superior officer is charged),
     88 (desertion),
     92 (scandalous conduct by officers),
     94 (traitorous or disloyal utterances),
     98 (malingering or maiming, but (a) and (b) only where on active service or under orders for active service),
     99 (detaining unnecessarily or failing to bring up for investigation),
     104 (losing, stranding or hazarding vessels),
     105 (offences in relation to convoys),
     107 (wrongful acts in relation to aircraft or aircraft material), but only where the act or omission is wilful),
     111(1) (a) and (b) (improper driving of vehicles),
     113 (causing fires, but only where the act or omission causes fire or is wilful),
     114 (stealing),
     115 (receiving),
     119 (false evidence),
     128 (conspiracy),
     130 (service trial of civil offences), and
     132 (offences under law applicable outside Canada).
113. Except where the conduct is of a type now covered by QR&O 108.31(2).
114. QR&O 4.01 (officers) and 5.01 (non-commissioned members).
115. For example, the two regimental MP accompanying the CARBG to Somalia served as bodyguards for Lcol Mathieu.
116. QR&O 106.01.
117. For example, the federal Crown Counsel Policy Manual (Minister of Justice and Attorney General of Canada, January 1993) provides that, in addition to sufficiency of evidence, Crown counsel should always consider whether the public interest requires a prosecution. Public interest factors that may arise on the facts of a particular case include
     1. the seriousness or triviality of the alleged offence;
     2. significant mitigating or aggravating circumstances;
     3. the age, intelligence, physical or mental health or infirmity of the accused;
     4. the accused's background;
     5. the degree of staleness of the alleged offence;
     6. the accused's alleged degree of responsibility for the offence;
     7. the likely effect of the prosecution on public order and morale or on public confidence in the administration of justice;
     8. whether prosecuting would be perceived as counter-productive, for example, by bringing the administration of justice into disrepute;
     9. the availability and appropriateness of alternatives to prosecution;
     10. the prevalence of the alleged offence in the community and the need for general and specific deterrence;
     11. whether the consequences of a prosecution or conviction would be disproportionately harsh or oppressive;
     12. whether the alleged offence is of considerable public concern;
     13. the entitlement of any person or body to criminal compensation, reparation or forfeiture if prosecution occurs;
     14. the attitude of the victim of the alleged offence to a prosecution;
     15. the likely length and expense of a trial, and the resources available to conduct the proceedings;
     16. whether the accused agrees to co-operate in the investigation or prosecution of others, or the extent to which the accused has already done so;
     17. the likely sentence in the event of a conviction; and
     18. whether prosecuting would require or cause the disclosure of information that would be injurious to international relations, national defence, national security or that should not be disclosed in the public interest.

     The application and weight to be given to these and other relevant factors depend on the circumstances of each case.

     The proper decision in many cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution. Mitigating factors present in a particular case can then be taken into account by the court in the event of a conviction.

     The guidelines also outline irrelevant criteria, including

     1. the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the investigation;
     2. Crown counsel's personal feelings about the accused or the victim;
     3. possible political advantage or disadvantage to the government or any political group or party; and
     4. the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.

118. The commanding officer, the officer commanding a command, and the Chief of the Defence Staff.
119. M.L. Friedland, Controlling Misconduct in the Military, study prepared for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Public Works and Government Services, 1997), p.67.
120. Statutory Instruments Regulations, C.R.C., Chapter 1509, section 15(1).