We have set aside this portion of our report to address the Inquiry's unfinished mandate.

Under the revised terms of reference given to us in the aftermath of the Federal Court judgement that characterized as unlawful the Government's decision to curtail our Inquiry, we were instructed to report on the predeployment phase of the Somalia operation and were given discretion to report on all other matters in our original mandate, to the extent that we deemed advisable. In compliance with this adjusted mandate, our report describes, in detail, all the many matters that we have been able to canvass in the time available. It also traces the outline of what we were originally asked to investigate but were unable to complete because of the truncation of our work.

There is an obvious public interest in discovering what remains to be inquired into with regard to the Somalia affair.

The Senate passed a motion and established a special committee on the Somalia deployment in an endeavour to pick up where we had left off, but that committee soon aborted its proceedings. Despite this initial setback, Senators have expressed an interest in attempting to resurrect this committee in the next Parliament. Whether they do so, or whether the task of completing this investigation must fall to historians, there is merit in promoting a greater understanding of what we had accomplished, in a preparatory sense, regarding our hearings for the remainder of the in-theatre phase and in relation to the post-deployment phase. The full dimensions of the problems we were actively probing and wished to explore before our efforts were cut short deserve to be known.

Before describing what, in our view, remains to be done, we offer a brief summary of the events that led to the truncation of our Inquiry.

The Inquiry's original terms of reference stipulated a reporting deadline of December 22, 1995. Recognizing soon after we began that the time allotted would be insufficient to investigate and report effectively, we requested additional time to complete our mandate. In the end, however, we were prevented from completing the assigned task by a Government decision to end the Inquiry.

As a result, although we have been able to report on almost all of the 19 items set out in our original terms of reference, we have not necessarily been able to do so to the extent initially contemplated.

We have completely and exhaustively inquired into and reported on all nine of the items listed in the order in council under the heading Pre-Deployment (prior to IO January 1993).

Regarding the nine items listed under the heading In-Theatre (1O January 1993 to 10 June 1993), we have been able to probe effectively the institutional and systemic issues raised there. We were able to do so by combing through and analyzing the myriad documents we had accumulated, while conducting and amassing a wealth of research on these subjects. This effort was supplemented by our consideration and evaluation of the voluminous testimony received in our hearings on the in-theatre phase of the deployment.

Where we were hampered and where our efforts were curtailed is with respect to certain key incidents and events, such as the death of Shidane Arone, and with reference to our ability to pursue the central issue of coverup from the operational theatre in Somalia into the boardrooms of National Defence Headquarters (NDHQ). (We were able to trace the origins or genesis of cover-up in relation to the March 4, 1993 incident involving the shooting death of a Somali citizen.) We were also prevented by the truncation of our mandate from pursuing more exhaustively "the manner in which the chain of command of the Canadian Forces (CF) responded to the operational, disciplinary and administrative problems related to the Somalia deployment",¹ that is, the nature of the response of the upper ranks and senior officials at NDHQ to the problems encountered.

This chapter begins with an account of our efforts to gain the time needed to do justice to the Inquiry's mandate. We go on to examine the Government's decision to truncate that mandate. We conclude with a review of the portions of the mandate that we were forced, by reason of the Government's decision, to abandon - the Inquiry's unfinished business.

All these considerations were built into the request for an extension of time that would have led us to report by December 1997, as opposed to June 1997. We were ready to proceed with these matters. Issues and witnesses had been identified, and interviews of witnesses had begun.

There were three requests for additional time to complete our mandate: in June 1995, just over two months after the Inquiry was established; in March 1996; and in November 1996. Some additional time was given following each request, but never the full amount of time requested on the basis of our analysis of the task and a work plan for completing it.

The first request took the form of a letter from the Chairman of the Inquiry to the Clerk of the Privy Council and Secretary to the Cabinet, dated June 2, 1995. In it the Chairman identified the factors that prompted the Inquiry's request to extend the reporting deadline to the end of September 1996:

• the fact that the parties had underestimated the amount of time required to prepare a report of the magnitude required by the Inquiry's mandate;
• the lag time between the appointment of a new commissioner and the date when he was able to take up his duties;
• delays in the hand-over of documents from the Department of National Defence to the Inquiry;
• the large volume of material expected to be delivered from DND to the Inquiry - at that time anticipated to consist of some 7,000 documents;
  
• the emergence, during the Inquiry's early hearings, of new issues requiring the Inquiry's attention (specifically, allegations of additional cases of killing and torture); and
  
• the unavailability of certain military witnesses during the summer months to be interviewed and to prepare for subsequent hearings.
  

In the period leading up to this request, the Government's public statements, in the House of Commons and elsewhere, focused on the Inquiry as a vehicle for eliciting all the relevant facts surrounding the Somalia deployment and answering all the questions raised about it. Indeed, the press release issued when the Inquiry was established stated that its terms of reference were broad enough to "answer all allegations made concerning the activities of the Airborne Regiment and the actions and decisions taken by all levels of the chain of command and the Department of National Defence during the pre-deployment, in-theatre and post-deployment phases of the Somalia operation."²

Government spokespersons also said that there was "nothing to hide" and an independent commission" was needed to get at the truth.³ The Minister of National Defence told the House that to "get to the bottom of all the sorry events that unfolded in Somalia [the Inquiry had been given] the most wide-sweeping investigative powers probably in Canadian history."⁴

Despite this emphasis on the Inquiry's exceedingly broad mandate and the thoroughness with which the Government expected us to approach the task, the Government did not give the Inquiry the full amount of time requested, and the reporting deadline was extended only to June 28, 1996 three months short of the time sought. No reasons were given for the decision or for the Government's implicit rejection of our assessment of the projected time frame as one that was both realistic and expeditious.

Three months before the June 1996 deadline set in the first extension, developments in the conduct of the Inquiry necessitated another extension request. By the spring of 1996, evidentiary hearings on the pre-deployment phase had been completed, but several new factors had come into play. (These are described further in Chapter 39.) As the Chairman of the Inquiry explained in his letter requesting the extension:

• there had been further delays on the part of the Department of National Defence in handing over essential documents and material, despite assurances that all material would be provided by June 30, 1995;
• the number of documents received had increased to 80,000 from the original estimate of 7,000; and
• the hearings would inevitably be prolonged by the fact that 17 counsel had already been given standing to appear at evidentiary hearings, and more grants of standing were expected.

This was also the period in which evidence of missing or destroyed documents came to light, raising the troubling issue of cover-up. Given these factors, the Chairman wrote in his letter of March 6, 1996, that a new reporting date of September 30, 1997 would be realistic and expeditious.

While the March 6th request was under consideration by the Government, the Prime Minister and the Minister of National Defence again expressed confidence that the Inquiry was doing the job it was supposed to be doing. The Prime Minister told the House of Commons that the earlier deadline had been extended to "make sure that everything is in the open and that the people of Canada know what happened".⁵ The Minister of National Defence, responding to questions in the House, affirmed the propriety and relevance of the inquiry's investigation. "The Inquiry is to look into cover-up," he told the House on April 17, 1996. "The inquiry is to look into the destruction of documents. The inquiry is to determine if there is wrongdoing ... We will get the answers from an impartial commission which is doing its job and doing it well."⁶

The Minister repeated these and similar assertions throughout the month of April. On April 30th he was joined by the Minister of Justice, who stated that "the government does not question for a moment the right and jurisdiction of the inquiry to look into the whole question of cover-up. That is well within the mandate of the commission ." ⁷ Added the Minister of National Defence on May 3rd:

... we owe all those people involved in this matter the courtesy of being allowed to give their views at the commission so that it is done in a very systematic, calm and rational way. I think most Canadians feel that is the appropriate way to go about it.⁸

Again, the Government agreed to the Inquiry's request for an extension, but again, the time given fell short of the time requested. The reply from the Clerk of the Privy Council, dated June 21, 1996, extended the reporting deadline to March 31, 1997, six months short of the Chairman's request, and added, "The Commission's progress can be assessed further in the fall."

By the fall, it was clear to us that although progress had been substantial, work remained to fulfill the terms of reference. The Chairman wrote to the Government on November 2 7, 1996, outlining progress to date and the elements of the terms of reference still outstanding. By the date of the letter, we had completed preliminary policy (background) hearings; hearings relating to the predeployment period; and hearings relating to the early part of the in-theatre phase of the deployment (the arrival of Canadian Forces in Somalia); and we were conducting hearings relating to the shooting incident of March 4, 1993.

The matters still to be dealt with to fulfill the terms of reference were completion of hearings on the March 4th incident; receipt of evidence from LCol Mathieu and Col Labb6 up to and including the March 4th incident; evidence relating to the March 16th incident; evidence on other in-theatre incidents; evidence relating to the actions and decisions of key figures at National Defence Headquarters, including the Chief of the Defence Staff, the Deputy Minister of National Defence, and the Minister of National Defence; and evidence relating to issues of cover-up at the highest levels in the chain of command and within the civilian staff of NDHQ.

In addition, to ensure procedural fairness, an opportunity was to be given to parties with standing at the hearings to reply to evidence or provide supplementary evidence related to all phases of the deployment and for parties and affected individuals to make submissions.

Finally, by this time the number of documents received from DND and in the process of being reviewed by Inquiry staff had grown to 150,000, totalling more than 600,000 pages. This was nearly double the number of documents received by the time of the second extension request, and more than 20 times the number estimated by DND in the initial stages of our work.

The Chairman's November 27th letter went on to outline a plan for the expeditious completion of our work - including briefings by DND and the military on changes in policies and practices since the Somalia deployment and to propose three scenarios for completing the Inquiry. The earliest proposed deadline was the end of December 1997, which we emphasized was the minimum time needed to complete the work assigned in a comprehensive, reasonable, and effective manner.

In the meantime, the Government continued to assure Canadians that they wanted "the inquiry to finish the job". "As soon as we get the report from the commission," the Prime Minister told the House, "we will be able to see what happened, what is wrong, and what action is required."⁹The Minister of National Defence reiterated the Govemment's commitment to a thorough, careful approach:

This demonstrates...why we had to have the inquiry in the first place ... to put it in ... an impartial setting so that everyone could be heard fairly and all the evidence could be examined clearly and thoroughly.¹⁰

On October 4, 1996, however, the Hon. David Collenette resigned as Minister of National Defence. The new minister, the Hon. Doug Young, said on October 8th that he was prepared, if he had the support of the House of Commons, to ask the Inquiry to report by the end of March 1997 and that he would encourage the Inquiry to report "as quickly as possible on what happened, why it happened, and who was responsible for what happened in Somalia."¹¹ The following day he said in the House that he wanted a "thorough investigation of everything that happened in connection with the situation in Somalia" and that he wanted the Inquiry to "report as scheduled on March 31, 1997 ". ¹²

The Minister informed the House of Commons on December 10th that the Inquiry had requested an extension. He sought members' views on the extension request in these words:

I hope all members of this House will express their views on whether or not the Inquiry should continue on, if they would like it to go for a year, two years, three years or four years, or if they think there might be some value in trying to learn the lessons of what happened in Somalia so that we can avoid a repetition of the intolerable incidents that took place there... I guess it is all a question of whether it happens in our lifetime or not.¹³

With this apparent change in attitude on the part of the Government, it was perhaps not surprising that the Government responded to our third extension request with a letter, dated January 10, 1997, stating that even the shortest scenario proposed by us was "not in the national interest". The letter also specified a final reporting date of June 30, 1997. Despite our explicit request, in the November 27, 1996 letter, for guidance on which items in the terms of reference could be eliminated or shortened in the interests of achieving the shorter time frame, the Government's letter of response was silent on this issue.

It was not until April 3, 1997 - following a court decision on a case brought by an individual who might have been called as a witness had the Inquiry not been truncated - that the Government amended our terms of reference to specify which items must be reported on and which items we could leave aside if we determined that the time frame was inadequate.¹⁴

The six-month extension requested in November 1996 would have given us until the end of December 1997 to report. This would have allowed the Inquiry to canvass all the major issues set out in the original terms of reference and discussed in the next few pages. Instead, the Government's decision of January 10, 1997, and the amended terms of reference of April 3, 1997, severely restricted the Inquiry's ability to examine crucial aspects of the original mandate.

More specifically, in summary, the Inquiry would not be able to consider fully:

• the nature and adequacy of the response of NDHQ to the events in Somalia;
• the nature and scope of the events of concern that occurred during the deployment;
• a possible cover-up in the upper reaches of NDHQ and the Canadian Forces;
• whether the failure to provide information and documentation to us was evidence of a continuing cover-up; and
• the testimony of military, bureaucratic and political officials at the highest levels.
  

The messages implicit in the Government's decision are as important as the issues left unexplored by truncation of the Inquiry. First, after giving every indication for a period of 18 months that the Inquiry would be allowed to complete its comprehensive, systematic approach to gathering and analyzing evidence and reaching conclusions and recommendations, the Government abruptly changed course. We saw this decision as unwarranted interference with the independence of a public inquiry, interference that is also alien to our political traditions and endangers principles of democratic accountability.

The Government's January 10th decision and subsequent statements also reflected and reinforced attitudes, already apparent in dealings between Government officials and the Inquiry, of antagonism toward the work of our Inquiry. This also established a foundation for some parties to bring motions in court, arguing that the Inquiry would not or could not afford them the fundamental fairness required by law and should therefore be stopped from proceeding or issuing a report. The Department of National Defence was also given an opportunity, by virtue of the truncation, to delay the production of documents - many of which were already long overdue - until they would be of little or no value in completing our work.

Also of concern to us was the message that would be sent to young soldiers about the accountability of the upper ranks compared to their own. The Inquiry was established, in part, to alleviate concerns about imbalance in the official reaction to the events in Somalia. The feeling was that the military justice system had paid too much attention to the behaviour of soldiers of lower rank, and that not enough effort had gone into examining the role and responsibility of the leaders, higher-ranking officers, senior bureaucrats, and govemment officials. The imposed deadline made it difficult to redress this imbalance properly.

What follows is a summary of the unfinished business before the Inquiry.

We have fully investigated and completed the pre-deployment phase. With respect to the in-theatre phase of the deployment, we received and considered sufficient testimony and extensive documentary evidence pertaining to the vast majority of the matters specified in our terms of reference. In this context, the extensive probing of the shootings in the back of two fleeing Somali civilians on the night of March 4, 1993, has provided substantial, significant, and cogent evidence for the fulfillment of almost all items of our terms of reference.

However, some of our work remains undone. We obviously cannot address, in full detail, the overall post-deployment response of the chain of command to the problems encountered during the Somalia mission or the behaviour of senior officers and officials for the purpose of assessing their personal accountability, because our hearings were brought to an end before the most important witnesses relevant to that issue and time period could be called. Our schedule was aborted just as we were beginning to question the highest levels of leadership of the Canadian Forces and the Department of National Defence and to explore the allegations of cover-up with respect to some incidents. An immediate result was the withdrawal of a number of notices already sent to individuals warning them of possible adverse comment on their conduct. Thus, we could address systemic issues arising out of in-theatre and post-deployment events, but could not, in our report, identify any individual misconduct or failings involved. The Government's decision effectively allowed many of those in senior leadership positions during the deployment to avoid entirely accountability for their conduct, decisions, and actions during and after the mission.

More specifically, we were not able to hear all relevant testimony of the senior leaders, who, at the material times, held the offices of Minister of National Defence, Deputy Minister of National Defence, judge Advocate General (JAG), and Chief of the Defence Staff. These were the very officials ultimately responsible and who would, in the normal course of events, have been ultimately accountable for the conduct of the deployment; the policies under which it was carried out; errors, failures and misconduct that may have occurred in its planning, execution and aftermath; and ensuring that appropriate responses were made by the Canadian Forces and the Department of National Defence to problems that arose or were identified.

We would also have called to testify the executive assistants and senior staff in the offices of these senior officials and leaders, not only to receive their evidence with respect to their own conduct and that of their superiors and associates, but also to understand how their offices were managed; the functions, roles and responsibilities they and their staff were assigned and performed; and the policies or operating procedures in place to guide the management of their offices.

Further, in accordance with the mandate given to us to inquire into and report on the manner in which the chain of command of the Canadian Forces responded to the operational, disciplinary and administrative problems encountered during the Somalia deployment, we also would have received evidence from senior officials associated with the earlier internal de Faye Board of Inquiry; officials who conducted investigations of events and incidents in theatre; and officials in the office of the judge Advocate General who managed the response of the military justice system.

Government spokespersons have frequently asserted that the decision about whether and when to call senior leaders or officials to testify was entirely our responsibility and within our discretion. They have stated that we could easily have called anyone we wished within the time allotted to us to complete our work. One need only examine the terms of reference drafted by the Government, however, to recognize immediately how unrealistic these assertions were. Clauses relating to senior leadership essentially directed us to examine their responses to the "operational, administrative and disciplinary problems" encountered during the deployment. In order to assess those responses, it was first necessary to identify, independently and painstakingly, what the problems were (and they were legion). Had the military admitted to some of the problems at the beginning, it would have simplified our work. But their persistent denial - until overwhelming evidence was adduced in our proceedings and emerged from incidents in Bosnia - made this exercise necessary. We would have been justly criticized had we relied on the very leaders and investigators whose conduct and responses we were examining and assessing to define the problems arising out of the deployment for us. Even more, we would have been justly criticized had we examined senior leaders about their possible involvement in a cover-up without first establishing or receiving evidence from which it could be inferred that a coverup might actually have occurred or been attempted; the nature and scope of any cover-up; what information had been covered up; and how the leader in question might have participated.

Our findings on the March 4th incident (see Chapter 38) illustrate the effectiveness of proceeding from the ground up, as it were, in investigating a cover-up, and clearly indicate what we might have achieved if left to finish our work.

Mr. Young, then Minister of National Defence, also asserted frequently and to our amazement that all that needs to be known about what happened in Somalia is known. We continue to believe that important facts concerning both the deployment and its aftermath are not yet known or remain obscure. We thought, because of its public statements, that the Government also believed that it was essential, and in the interests of the Canadian military and its renewal, publicly and in an independent, non-partisan setting, to expose, understand, confront, and analyze the facts and address all the important matters raised in the terms of reference. Obviously, we were mistaken in our belief, as the Government abandoned its earlier declared interest in holding to account senior leaders and officials who participated in the planning and execution of the mission and responded to the problems that arose. Once again, history repeats itself. only the lower ranks have been made to account for the marked failures of their leaders.

We fear that implementing hastily crafted and mostly cosmetic reforms, coupled with the abandonment of an interest in accountability, and implementing reforms unrelated to specific facts and problems identified and assessed in a thorough, independent, and impartial process, will serve merely to postpone the day of reckoning that must surely come. In this regard, one might well ponder whether the incident of March 16, 1993 might have been avoided if the March 4th incident had been investigated property, the facts had been quickly exposed, efforts had been made to identify and remedy defective policies immediately, and those ultimately responsible for the conception and execution of the activities of March 4th had been required to account, along with those who more directly erred, engaged in misconduct, or displayed a lack of discipline. One might also ponder, on a broader scale, whether the sad and strikingly similar events and problems that happened during the Bosnia deployment, as identified in the board of inquiry and the Thomas report, might have been avoided if greater efforts had been made, early on, more directly and objectively to identify, confront, and insist on accountability for the personal and systemic problems, errors and failures surrounding the deployment to Somalia. Many who were in the senior chain of command for Somalia also had responsibilities for what transpired during the Bosnia deployment.

Although the truncation of our investigation and hearings has prevented us from fully addressing some significant facts, problems, errors, and failures associated with the deployment, we have concluded that it is our duty and in the interests of the Canadian public and the Canadian Forces, at least to identify unresolved questions and issues arising from some of the significant incidents that occurred and from the actions, inactions, decisions and responses of senior leadership related to those incidents. It is to be hoped that these issues and questions will be addressed and resolved and appropriate remedial measures taken.

On February 17, 1993, two Somali nationals were shot by CF members and one was killed during a riot in Belet Huen. We know from documents provided to us and interviews conducted that some segments of the Belet Huen population were upset with LCol Mathieu's handling of the local population and the organization of their local government committees. We have received information that could support a conclusion that the Canadian Forces made some faulty decisions that resulted in elements of Belet Huen society feeling that Canadian Forces were showing favouritism among warring factions. The CF has suggested the riot was an orchestrated event instigated by the clan leader Mohammed Farah Aideed. While it is doubtful that our hearings could have determined its real causes, we would have examined more thoroughly what the CF did to understand the dynamics and make-up of the local society and how it distributed benefits to the local population. Information received on this issue would have been directly relevant to our assessment of the preparation, planning for, and execution of the mission and the relevant actions and decisions of leadership. Had we been able to examine and report on the facts, our conclusions would likely have been useful in planning CF involvement in future missions in like circumstances.

Documentation in our possession also suggests that the CF went on this mission without clear parameters for the use of crowd control mechanisms and was poorly equipped for such situations. Decisions about the use of chemical riot control agents were reserved for the Commander of the Unified Task Force (UNITAF). It became necessary to approach UNITAF Headquarters during the disturbance itself for permission to use tear gas. Permission was refused. We would have explored whether the failure to obtain advance approval for the use of chemical or other riot control agents, and for the type of agents that could be used, reflected planning deficiencies. It seems apparent that, in a mission intended in part to deliver supplies to a starving population, crowd control should have been a primary concern and that the identification of agents that could be used to control crowds would have been settled in advance with the UNITAF Commander. As the decision not to use tear gas was made in the middle of the event itself, and by the UNITAF Commander instead of personnel on the ground who were aware of the circumstances, we would also have explored whether the CF agreed to unreasonable limits on its discretion to deal with some matters within its sector when it joined UNITAF.

Information in our possession suggests that the crowd may, in fact, have been incited by the fact that the bridge was blocked. According to statements from Somalia provided to us, the demonstrators had earlier demonstrated peacefully in the town and simply wanted to conduct a second march through town. If this was so, we would have examined more closely the reason the CF members blocked the bridge. If the facts supported a conclusion that this decision reflected bad judgement on the part of CF leadership and eventually resulted in the use of deadly force, we would have considered whether and to what extent the eventual result was traceable to a lack of preparation, poor planning, poor intelligence, or weak leadership.

There is also a question whether the deployment of personnel in the vicinity was adequate in the circumstances (one platoon to deal with a crowd of 300). The rationale for this would also have deserved further exploration. We might have concluded that a more substantial deployment of personnel would have avoided the need for use of deadly force.

In general, our information suggests that the CFs training and preparation for crowd control should be examined and compared with that of other organizations having similar responsibilities.

We were able to explore thoroughly the in-theatre aspects of the March 4th incident. In essence, we canvassed elements of the incident with the exception of the role of persons in high office in NDHQ who may have contributed to, or been responsible for, a cover-up in relation to this incident.

We concluded in our chapter addressing the March 4th incident (Chapter 38) that a number of specific actions and omissions by the chain of command in Somalia and at NDHQ delayed the required military police investigation and, initially at least, served to cover up the truth about this incident from the Canadian public.

The cover-up in Somalia and at NDHQ manifested itself in a number of ways. There appeared to be no pressure from anyone at NDHQ to have Col Labb6 deliver the report of the Commanding Officer's investigation when it was delayed. We have questioned why NDHQ appeared to take a hands-off approach to the suspicious behaviour in Somalia. We have expressed our concern about what NDHQ knew or chose to know about the incident at material times, particularly with regard to the fact that those in the chain of command were almost immediately aware of the seriousness of Maj Armstrong's allegations and that Col Labb6 was in daily contact with NDHQ. We have concluded that NDHQ used an after-the-fact questioning of the understanding of the Rules of Engagement as justification for its failure to order an immediate investigation by military police. Further, parallel actions in Somalia and by NDHQ senior officials produced a complex 'damage control' project that attempted to mislead the media and the Canadian public. Finally, we have concluded not only that a cover-up was carried out of the actual events of March 4th, but also that fundamental problems were not adequately disclosed through the chain of command in Somalia and not resolved by this chain of command in a timely fashion.

Although the evidence we heard enabled us to draw these conclusions, some questions remain. Because of the compressed time frame allotted to our work, we were unable to call key witnesses who might have enabled us to determine the identity of all who may have participated in, and were responsible for, the cover-up mounted in connection with this incident, particularly the full nature and extent of involvement, if any, of NDHQ and its personnel.

We had intended to, but could not, question the officials then in office: the Chief of the Defence Staff, Adm Anderson, the Deputy Minister, Robert Fowler, the Minister of National Defence, the Rt. Hon. Kim Campbell, the judge Advocate General, and relevant officials employed in their offices about what they knew or information they received concerning the events of March 4th. We also could not question them about what they knew about the cover-up that was mounted; the 'go slow' policy applied to the investigation of the incident; the failure to press Col Labb6 for the long-delayed report on the CO's investigation; and the development of the ROE justification for failing to mount a timely military police investigation. We would also have questioned them about the inquiries they made, responses they received, or discussions they participated in about the incident, in light of the fact, as we have found, that the seriousness of the incident and allegations surrounding it were known almost immediately at NDHQ.

We had intended to, but could not, question the CDS about any efforts he may have made to obtain information, or information he may have received when he visited the troops in Somalia from and after March 8, 1993. During this visit, in the presence of Maj Armstrong, he toured the hospital in which the wounded Somali was housed, and he had meetings with Col Labb6 in Nairobi. We would have questioned him about what he did with any information he received about the incident or its handling during this visit, and whether he discussed it with the Deputy Minister, the Judge Advocate General or the Minister of National Defence. We do not know whether he saw or discussed a draft of Capt Hope's initial investigative report at that time; whether he was aware the report should have been completed within 48 hours; what he did to obtain the report when it was delayed; and when he was actually given copies of the reports prepared by Capt Hope and Col Labb6. We do not know whether he was briefed before receiving them or what his responses or reactions, if any, were on reading them. We do not know when, or whether, he was told that there would be a Military Police investigation; by whom or by what means he might have been told; the rationale he thought applied or was given for ordering the Military Police investigation; or what his response was on being advised that it was to take place.

T'here were other questions about the March 4th incident and the related actions and decisions of senior leadership that would have been explored, had time permitted. What was Adm Anderson's rationale, when visiting the troops in Somalia shortly after March 4th, for advising them to keep a low profile? Had he been specifically advised or instructed to do so, or did he, on his own initiative, simply pass on the Deputy Minister's message at the Daily Executive Meeting (DEM) of March 1, 1993, that "the department should take as low a profile as possible" and recognize "the extreme sensitivity in all matters relating to public statements, speeches, press releases, etc. by all members in the department over the next few months, in view of the expected candidacy of the Minister for the leadership of her party"?¹⁵

We have concluded that this message set the tone for many of the questionable activities that followed. Since the Minister did not announce her candidacy until March 25, 1993, we would have inquired whether the Deputy Minister acted on speculation or whether the Minister, or anyone acting on her behalf, had already advised him of her plans and asked him to pass on to participants in the DEM her concerns about the departmental profile.

As we noted in our chapter addressing the openness of the Department of National Defence in its dealings with our Inquiry and the public (Chapter 39), almost immediately after the Minister assumed the defence portfolio in early January 1993, the DM, Mr. Fowler, reminded those attending the DEM of January 22, 1993, that "the MND enjoyed excellent relations with the media, and that she was not about to jeopardize this relationship."¹⁶ What message was intended to be conveyed by this statement, and how did those receiving the message interpret it? Again, was the DM asked by the Minister to pass on her concerns, or did he make the statement on his own initiative? To what lengths were the Minister, the Deputy Minister and those receiving the message prepared to go to protect the Minister's media relations or image? We would also have explored the extent to which the senior leadership believed it was appropriate to inject political considerations into military deliberations and operations.

We would have explored the reactions of others attending the DEMs or the troops on receiving these directives. Did the CDS or the JAG have any views about the wisdom of directing (or receiving instructions to direct) the troops to relate their conduct to political considerations? How did the desire to avoid interference with the Minister's political aspirations or media relations influence or relate to the 'damage control' policy mounted in relation to the incident? Further, by what process and with whose authority or approval was the damage control policy, revealed at our hearings, put in place? Were the CDS, the DM, the JAG, or the Minister involved in the decision of April 14, 1993, to send the Military Police to investigate the incident? Who actually made the decision and by what process? When and why was that decision made? Did the CDS or the JAG have any concerns about the involvement of the Deputy Chief of the Defence Staff (DCDS), VAdm Murray, Col Labb6, or LCol Mathieu, in investigating their own conduct and actions?

We intended to ask officers in the office of the judge Advocate General to testify about legal advice sought by and given to the DCDS and the chain of command throughout the March to May 1993 period, on issues such as the development and implementation of the Rules of Engagement (ROE); the decision not to call in Military Police in the days following the March 4th incident; the response to Col Labb6s report received March 23, 1993; the decision to demand a copy of Capt Hope's report; their inquiries, if any, about why Cot Labb6 did not send it to Ottawa immediately; their reaction to LCol Watkin's report of April 14, 1993, which criticized Cot Labb6s report; the decision of April 14th to call in the Military Police; their reaction to the Military Police report; their reaction to Cot Wells' "inexplicable delay" comment; their decisions about who should be charged and what charges should be laid; and the conduct of the courts martial. Finally, we would have explored whether and, if so, to what extent, claims of solicitor/ client privilege were used to enable senior officials to mask or deny knowledge of information that had, in fact, been forwarded through either the operational or the JAG chain of command.

We would also have probed whether the office of the JAG was consulted about the directives issued by the DM and the CDS and any opinions they might have held or expressed about their advisability. We would have considered, further, the evidence of other military police investigators, as well as prosecutors who were involved at various stages of the incident and its aftermath. We would have questioned LCol Watkin further about his report on the ROE and examined the consideration and assessment of the ROE by the de Faye Board of Inquiry.

We would also have explored the Chief of the Defence Staffs understanding of the ROE and whether the DCDS advised him or the DM about any misunderstandings of them that the troops may have had. We heard evidence that the office of the JAG did not inform the DCDS of Maj Armstrong's allegations related to the March 4th incident until April 14, 1993. We would have asked why there was this delay, in light of evidence we heard that the office of the JAG had a document containing the allegations in its possession on April 2, 1993. If, as we were told, there was such a concern in Ottawa about the application of the ROE and a desire to prevent further incidents, why did officials wait so long for an incomplete report from the field? One would have thought that the March 16th incident would have generated even more pressure to review previous incidents, the reports on them, and the ROE to which they were connected. The order to abuse prisoners, issued by Maj Seward on March 16th, suggested that an imperfect policy was still being applied and that the troops' interpretation was still incorrect. Hence, we would have explored further why officials failed to take corrective measures more quickly in the wake of the March 4th incident.

Finally, we would have explored more fully whether and to what extent, if any, NDHQ itself, and/or the present or previous Government, in collusion with NDHQ personnel, participated in a campaign to smear the character and reputation of Maj Armstrong; the nature and extent of efforts generally to discredit persons who were perceived to be ready to dissent publicly from the military's official version of the March 4th incident; and the extent to which any such campaign or effort, if established, might have been part of a broader, continuing attempt to cover up elements of the March 4th incident. Our investigation of this matter would have added significant insights into leadership in the CF chain of command; the ethics and values of the leaders; the willingness of senior officials to be held accountable for their conduct and decisions; their manner of responding to problems that arose during the Somalia deployment; and their willingness, generally, to confront problems in the military.

On March 9, 1997, a Toronto Star reporter, Allan Thompson, wrote that, in November 1994, he had unwittingly been used by senior DND officials in a sophisticated attempt to discredit Maj Armstrong's credibility by releasing a pathology report that contradicted Maj Armstrong's conclusions about the March 4th shooting, while keeping other less helpful police documentation "under wraps"¹⁷. According to Mr. Thompson, DND officials reportedly did not want the release to be seen as an overt attempt to discredit Maj Armstrong, so they "decided to orchestrate a leak of the document that wouldn't look like a leak". Mr. Thompson was told by a DND source that if he were to call and ask the Defence department for a copy of the autopsy report, it would be made available. Mr. Thompson called a public affairs officer, Lt (N) Al Wong, and was faxed a copy of the previously undisclosed report the same day.

Mr. Thompson concluded that this action was carefully masked by a paper trail" laid down by Defence officials to "cover their tracks".¹⁸

In a subsequent newspaper article, it was revealed that Mr. Thompson's unnamed "trusted government source" was John Williston, then Press Secretary to the Minister of National Defence. Mr. Williston was quoted as stating he "did nothing wrong" and that what he had done did not amount to leaking information. However, it was revealed that Mr. Williston had not notified any other media organization that the report was available. It was also noted that, when Maj Armstrong's allegations were first released, the reporter who "broke the initial story" suddenly began to receive anonymous phone calls slandering Maj Armstrong - "calling him everything from a drunk to a loose cannon". ¹⁹

We would have made further inquiries about these events, at least for the purpose of determining whether the release was a component of broader continuing efforts to reinforce the official version of the March 4th incident promoted by the Department and the chain of command and to suppress or discredit any other interpretation.

We would have explored further whether this alleged attempt to discredit Maj Armstrong was an isolated event or was part of a broader patterns.²⁰ If a more pervasive pattern became evident, it would have been of interest to examine the manner in which military regulations governing the public release of information have generally been applied in practice and whether they are used to restrict the freedom of speech of members of the Canadian Forces unduly. The existence of a broader pattern of questionable practices relating to the release of information would also have spoken loudly to our assessment of cover-up, its possible systemic dimensions, and the values, ethics and leadership of any officers and officials involved.

The incident of March 16, 1993, involving the torture and death of Shidane Arone and the subsequent attempted suicide of MCpl Clayton Matchee, shocked Canadians and were significant influences on the decision of the Government to establish our Inquiry. We had intended to examine this incident in some detail, because, contrary to popular belief and to assertions made on behalf of the Government, many questions remain about the handling of the investigation and the issue of cover-up. We would have probed the alleged severe beatings of two Somalis by members of 2 Commando on the preceding nights, March 14th and 15th. We found the following entries in MWO O'Connor's personal diary:

March 14: 2 Cdo caught a Somali in their wire last night. I guess they kicked the living shit out of him.

March 15: Apparently 2 Cdo caught a thief at the airport, they kicked the living shit out of him just like they did the one yesterday.²¹

A number of entries in this diary are significant, indicating uncontrolled aggressiveness in 2 Commando and excessive alcohol consumption. As early in the deployment as December 25 and 26, 1992, MWO O'Connor wrote:

December 25: All of 2 Cdo has this kill-crazy attitude and it does not seem as if the NCOs have a grip on the troops.

December 26: Everyone is getting geared up for the upcoming operations (air mobile), even kill-crazy 2 Commando.²²

The diary contains numerous references to heavy alcohol consumption throughout the deployment, both during the day and at night, including the entries for the following dates in 1993: January 5th, 12th, 14th, 27th, 28th and 29th; February 2nd, 7th, llth and 22nd; March 13th, 14th, 17th, 25th and 31st; April 15th, 22nd, 27th and 29th; and May 4th, 14th, 19th, 25th and 26th.

In fact, the actions, decisions, and responses of the senior political and military leadership in relation to the March 16th incident have yet to be thoroughly and adequately explored and understood.

The March 4th and March 16th incidents raise questions about the adequacy of policies applicable to military investigations of unusual deaths or the deaths of detained individuals. A policy appears to exist whereby a criminal investigation is started only if there is hard evidence pointing to the involvement or guilt of one or more specific individuals, when an investigation should actually start when there is a reasonable suspicion that a criminal offence has been committed. The failure to treat the March 16th death of Shidane Arone as a possible culpable homicide from the beginning resulted in the potential loss of physical evidence from the scene and evidence that might have been found on potential suspects. It resulted in the detention of MCpl Matchee in a very sloppy and inappropriate way. We would have examined whether he was allowed to keep in his possession a camera that might have contained vital evidence and that was never recovered. We would also have examined whether MCpl Matchee wrote a document amounting to a confession, and whether this document was destroyed. We would have probed further into the exact details of the confession and whether it incriminated others. Although we have information suggesting that the method and circumstances of MCpl Matchee's detention would have allowed him to attempt suicide, we were unable to hear evidence that would have clarified the extent and nature of the failures to take measures for MCpl Matchee's safety as a detainee and the adequacy of CF policy applicable in these circumstances.

We would have explored whether there were any similarities between the plan for the March 4th mission and the plan for the mission organized by Capt Sox on March 16th, including the use of bait to lure the local population into the Canadian compound. We would have explored the conduct of the investigation into the March 16th incident. We would have tried to determine whether the investigation reached appropriate conclusions about who participated in the torture and killing of Shidane Arone; whether appropriate charges were laid against those who participated; and the reasons for any deficiencies in investigating or charging that might have been established on the evidence. We would have explored whether Capt Gibson and Maj Seward acted diligently in carrying out their duties in relation to the investigation of the March 16th incident and the extent to which any lack of diligence by either in initiating or pursuing aspects of the investigation, if established, reflected poor training, ignorance, or ineptitude or, on the other hand, their possible participation, or the participation of others, in an attempt to cover up or prevent exposure of the true facts.

No matter what the conclusion might have been, it is essential that the adequacy of policies and procedures guiding medical and senior personnel with respect to the investigation and handling of an unexplained death be reviewed. The apparent absence of even rudimentary examinations of bodies for signs of the cause of death and the lack of any protocol, let alone the failure to conduct an autopsy, would have been obvious questions deserving further exploration. We would have explored why Capt Gibson failed to record that Shidane Arone had a broken nose, even though he apparently knew that this was the case, because he later informed his superiors of it. There appears to be no equivalent of provincial legislation requiring coroners' inquests in CF policy or practice. Had the incident occurred in Canada within provincial jurisdiction, it is likely that suspicion of a murder would have arisen and been acted on much more quickly. We would, therefore, have tried to determine whether there was a vacuum in CF policy, its nature and extent, and what needs to be done to remedy the situation, if it still exists.

Aside from the horrific facts, the most disturbing aspect of the information we received about this incident relates to the possibility that it was either the subject of another, separate cover-up or that the cover-up initiated in relation to the March 4th incident expanded to include the circumstances of this incident as well. Around the time of the March 16th incident, allegations were made in the media and by opposition members of Parliament that the Minister of National Defence, the Hon. Kim Campbell (who announced her candidacy for her party's leadership on March 25, 1993), had failed to make adequate public disclosure of, or had covered up, information of which she was aware or that she should have pursued more diligently. Some suggested the former Minister of National Defence had misled Parliament about what she knew and when she knew it. On the other hand, suggestions also surfaced that the Deputy Minister of National Defence or the CF chain of command, either independently or in concert, might have concealed information about the incident from the Minister. We have received documents, including affidavits, raising disturbing questions about the working relationships among personnel in some senior leaders'offices at the time and the management of those offices. We would have explored the decisions and actions, in the aftermath of the March 16th incident, of the highest ranking officers and officials of DND and CF, and the Deputy Minister and Minister of National Defence.

We have already referred to the directives of January 22 and March 1, 1993, issued by the Deputy Minister, Robert Fowler, at daily executive meetings, reminding those present that the Minister was "not about to jeopardize her excellent relations with the media" and urging all in the Department to be sensitive to her political aspirations, to tailor their public statements accordingly, and to keep a low profile. We have stated that we believe there was a relationship between these directives and the cover-up ultimately mounted in relation to the March 4th incident. We would also have explored their relationship to the responses of senior leadership and the chain of command to the March 16th incident. We would have explored whether those direction

tives were issued at the request, on the instructions of, or with the actual or tacit approval of the Minister, or whether the Deputy Minister issued them on his own initiative.

We do not know whether the Minister reviewed DEM minutes, was interested in or was briefed on what took place or decisions made there, or otherwise came to learn of the Deputy Minister's directions. We would have questioned her about her reaction to them and her reaction on learning of the related admonition of the CDS to the troops in Somalia. We would have explored whether the Minister was aware of, or approved in advance, Adm Anderson's intention to admonish the troops to keep a low profile in light of her expected candidacy for the leadership of her party. If the Minister did not know or approve in advance, we would have sought her views about what might have motivated the CDS to make the statement and what steps, if any, she took when she did learn about it. If the Minister did not appear to know of these extraordinary directives issued and statements made at the DEMs by her Deputy Minister, we would have asked Mr. Fowler whether the Minister was advised or knew of his intentions in advance or, if not, why she was not informed, and what might have motivated him to issue these directives on his own initiative.

One document filed in our proceedings reveals that Mr. Fowler, on October 14, 1993, wrote to the Assistant Deputy Minister for Policy and Communications, with copies to the Vice Chief of the Defence Staff, the Deputy Chief of the Defence Staff, and the Assistant Deputy Minister (Personnel), criticizing a response to query that had been prepared by the Public Affairs

Branch and expressing a keen interest in controlling "the agenda".²³ According to evidence received when we considered the adequacy of the production of documents pursuant to our order, Mr. Fowler was fully, if not excessively engaged in the management of the information flow within and from NDHQ, and he monitored closely the release of Somalia-related information to the media." We would have inquired of Mr. Fowler and other witnesses the role he played in managing the flow of information within and from NDHQ at the time of the March incidents. We would have questioned Mr. Fowler about what "controlling the agenda" might have involved in practice, both in general terms and, more specifically, in relation to the March 4th and 16th incidents. We would have explored the lengths to which he might have been prepared to go, or to direct others to go, to affect the information flow within and from NDHQ as a means of either controlling the agenda, accommodating or promoting the Minister's political ambitions, or promoting any damage control or cover-up process that might have been implemented or ongoing. We would have questioned him about his perception of the extent, if any, of the Minister's approval of, knowledge of or involvement in attempts to control the agenda.

Appearing on March 21, 1995 before the House of Commons Committee on Foreign Affairs and International Trade, in connection with his appointment as Ambassador to the United Nations, Mr. Fowler stated that, in his role as Deputy Minister of National Defence, he made all efforts necessary to ensure that he was aware of all matters that should be brought to his attention as Deputy Minister and then made sure that the Minister was, at all times and in a timely fashion, made aware of such information.²⁵ On the other hand, Mr. Fowler told the Toronto Star, on September 20, 1996, that details of the March 16th torture and killing could not be made public until investigators "had established what happened that night in Belet Huen" and that, in any event, it "wasn't his job as Deputy Minister to tell (Minister) Campbell what Canadian soldiers had done." As he was quoted:

It sounds like I'm passing the buck and I hope you will agree that I'm not, but I was never responsible for telling the Minister what the troops did or didn't do. ²⁶

We would have asked the Deputy Minister what kinds of matters he believed should have been brought to his attention; the nature of the efforts he made to ensure he was aware of those matters; and what categories of information, of which he was aware, he ensured were forwarded to the Minister and when he did so. We would have attempted to probe, with the Deputy Minister and also the CDS and the judge Advocate General, what specific information they had about the March 16th incident and "what happened that night"; when they learned it and by what means; and whether any of them withheld any of the information they learned from the Minister or from each other, because it fell within the definition "what the troops did or didn't do" or, for that matter, for any other reason. We would further have explored who, in their view, would have had the responsibility to advise the Minister of that information and to decide what information might be withheld, and whether any of them took steps to ensure that the responsible official did advise the Minister. We would have inquired whether, in their view, the commission of serious criminal acts, breaches of international law, or breaches of the Geneva Conventions by Canadian troops would have or should have been included in the category "what the troops did or didn't do", so as to justify a decision to withhold that information from the Minister. We would have asked them what information about the March 16th incident the Minister was in fact told or should have been told and when, to enable her to carry out her duties, under the National Defence Act, to direct and manage the Canadian Forces.

We would also have considered whether there were ambiguities in the definitions of these leaders' responsibilities and changes in legislation or policy that might be appropriate now to clarify them. We would have questioned witnesses about, and brought the former Deputy Minister's attention to, documents and information in our possession that could support a conclusion that the former Deputy Minister issued directions related to military operations and the conduct of the troops, and could suggest that, even if he states now that he did not have certain responsibilities, powers or duties, he nevertheless, over time, may have usurped them.

We would have inquired whether the opinion or views of the JAG were sought or offered on these issues or on courses of action proposed by senior officials during the relevant period and what the content of any advice given might have been.

In sum, we would have explored and revealed what the former Deputy Minister, the former CDS, the DCDS, the former Minister and the judge Advocate General in fact knew or were advised about the March 16th incident at material times; when they knew it; what efforts they made to obtain information about the incident; and what they did with information they did receive. We could not explore what steps were taken by senior officials either to inform or conceal information from the Minister, or to ensure the Minister was informed. We would also have wanted to ask these officials and others what effect the directive to keep a low profile, issued only two weeks earlier, might have had when they came into possession of 'sensitive' information or information they believed might damage the Minister's political interests or aspirations. The answers to these questions would ultimately have allowed us to consider and possibly reach conclusions about more fundamental issues directly relevant to the terms of reference, including the response of senior leadership to problems arising out of the deployment; whether there was an attempt to cover up information about the March 16th incident; and, if there was a cover-up, whether it represented an effort, even if Misguided, to protect or promote the career or ambition of the Minister of National Defence or to protect the image and reputation of the Department of National Defence. We would have explored whether, and to what extent, any attempt to cover UPI if established, might have had more fundamental, systemic roots in the culture of the military that had evolved at the time, a culture that had perhaps become excessively secretive and inward-looking, alienated from the surrounding society; that had come to tolerate a progressive erosion of its moral and ethical standards, lawlessness, a lack of discipline, and the dominance of careerism; and that may have developed a hostility to the 'civilian' values of respect for the rule of law and accountability.

We also do not know the purpose or content, or the use the Minister of National Defence made, of lists of issues "that could be sensitive if not handled carefully", which the Deputy Minister directed all group principals to prepare at the DEM of March 1, 1993 or whether, contrary to Mr. Fowler's assertion, those lists might have included reference to "what the troops did or didn't do". At the DEM of March 8, 1993, the Deputy Minister indicated that the lists were discussed at weekly Monday afternoon meetings held with the Minister. We asked to be provided with the lists but were told they could not be located. It would appear that even the copies retained by the various group principals who prepared them could not be located. The lists and issues clearly were discussed regularly with the Minister. Did the Minister ask, or perhaps even direct the former Deputy Minister to issue the directive at the DEM to produce them? We would have inquired, of appropriate witnesses, whether information about the incidents of March 4th and March 16th, of which the Minister to date has denied knowledge, was considered sensitive enough to be included in the lists and discussed at the weekly meetings. We would have questioned appropriate witnesses about what was thought to be 'sensitive' and what 'careful handling' meant or was intended to mean, in practice.

Further, although a Somalia briefing was a regular feature of almost every DEM before March 1993, our review of the DEM records from March 1993 onward revealed a striking absence of references to Somalia-related issues. We would have explored the reasons for the change, whether it was a response to the specific instructions of specific officials, and whether it was a component of the "careful handling" policy applied to sensitive issues that was described at the DEM of March 1, 1993. Finally, we would have questioned why, when there seemed to be such intense concern at NDHQ to be fully apprised of and to manage and discuss sensitive issues in a timely way, officials there at the same time seemed unable to accomplish the same goal in relation to information about incidents occurring in Somalia.

Ms. Campbell has asserted publicly on numerous occasions that, although she was briefed the next day that a death had occurred, it was not until March 31, 1993, that she learned that criminal conduct of some kind might have been involved; that it was only on that date that she first learned that Shidane Arone had been tortured to death; that soldiers, including MCpl Matchee, were being investigated for his murder; and that 'trophy pictures' had been taken of soldiers and the body.²⁷ Ms. Campbell asserts in her memoir that, on March 17, 1993, the CDS and the DM together briefed her in her office about the death of Shidane Arone and that she was told only that Mr. Arone had been apprehended trying to rob the Canadian camp in Belet Huen and was later "found dead in his cell". She states she was further told that there had been a scuffle at the time of his arrest and that his injuries did not appear serious enough to explain his death. The Minister asserts that it was suggested that some sort of pre-existing condition may have caused his death and that she was told that an investigation would be carried out. She asserts that "no indication was given to me that there was anything to be concerned about" and that she asked to be kept informed. The Minister was also informed of MCpl Matchee's suicide attempt, but asserts that "no connection was made between the death of Arone and the attempted suicide of Matchee".²⁸ Later in her memoir, she states that Adm Anderson said, in the days following, "that the department knew as early as March 18th of possible criminal intent in the death of Arone" and thereby led the media and opposition to suggest she was engaged in covering up what she knew about the death. She also states that she did not know why, as Minister responsible for administering the Canadian Forces, she should first have learned the CDSs views on the subject from a magazine. Further, although acknowledging that as Minister of National Defence she held a position in the military justice hierarchy as well as having responsibility for the administration of the Canadian Forces, she could not understand why the CDS could express himself in a way that she had been advised was inappropriate for the Minister.²⁹

Therefore, the former Minister has suggested that, although the chain of command knew criminal intent was involved on March 18th, she was not informed of criminal implications until March 31st. In the alternative, the former Minister suggests that, if she was informed before then, she was somehow constrained in revealing, or intimidated not to reveal publicly what she knew. We would have questioned her more closely about what she knew and when; what she believed or now believes she should have known or been told and when; and what she might reasonably have inferred from the information she did obtain. For example, we note that Marianne Campbell, a policy adviser to the Minister at the time, states in an affidavit dated January 26, 1997, and filed in our proceedings that on or soon after March 19, 1993, she reviewed a March 19th memorandum sent to her office under the signature of the DCDS, copied to the DM and others, that stated that, on the advice of the Commander, Canadian Joint Force Somalia, the DCDS had directed that a Military Police investigation be conducted into the events surrounding Mr. Arone's death in custody; that an investigation team of two Military Police and a JAG-appointed defence counsel would arrive in theatre March 23, 1993; and that, as a result of the CO's ongoing investigation, a master corporal had been placed under close custody the previous afternoon, later attempted suicide, and remained unconscious. The memorandum further stated that the role of the master corporal in the incident was unknown. ³⁰

We would have asked whether this memorandum was passed to or discussed with the Minister and whether the references to the dispatch of a JAG-appointed defence counsel and the information that a master corporal had been placed under close custody "as a result of the CO's ongoing investigation into this matter"³¹ alerted or ought to have alerted the Minister, who had been Minister of Justice and Attorney General for a number of years, that the death and MCpl Matchee's situation were connected and that the investigation might be taking on a criminal dimension. We would also have explored the efforts, if any, the Minister made or directed her staff to make to learn more before March 31st. We would have asked the CDS what information, from what source, led him to conclude by March 18th, and later disclose to the media, that criminal intent was involved in the March 16th incident; who, if anyone, he discussed his conclusion with at the time; and what efforts, if any, he made or directed his staff to make, to obtain and to disseminate the information received to appropriate officials. We would have asked the former Minister and others what proportion of her time was being spent attending to her ministerial responsibilities, as opposed to planning for her upcoming candidacy for the leadership of her party, and whether the time spent on the latter might have prevented her from being available to receive or digest information or otherwise attend to departmental business in a timely way.

Disturbing events and conflicts among personnel are disclosed in the affidavits of John Dixon and Marianne Campbell, both policy advisers in the office of the Minister at the time. Both affidavits were filed in our proceedings in late January 1997 and were appended to their applications for standing before our Inquiry. The affidavits raise questions about the timeliness and adequacy of information about the March 16th incident provided to them by the chain of command. They allege that the Department mounted a campaign of misinformation or cover-up in relation to the March 16th incident. The affidavits refer to the destruction of documents by the former Deputy Minister of DND and the former CDS and state that an assistant to the former CDS attempted, unsuccessfully, to induce the Minister's Chief of Staff to destroy documents; that an officer in the office of the judge Advocate General wrote a note regarded as a serious threat to the Minister; that Military Police were tasked to seize and destroy computer equipment in the residence of that JAG officer; that the Minister, in a telephone conversation, directly alleged to the Deputy Attorney General that a note sent to her by that JAG officer amounted to "intimidation and blackmail"; that the JAG officer, in a note written on November 2, 1994, admitted knowing, on March 26, 1993 that members of 2 Commando may have been involved in torture; that the same JAG officer's assertion on November 22, 1994 that the Minister's staff were given this information on March 26, 1993 was an "utter and complete falsehood";³² that the failure to pass on this information to the Minister or her staff until March 31, 1993 was evidence of a cover-up; and that such withholding of vital information by senior officials made the Minister vulnerable to allegations that she was a party to a cover-up.

We would obviously have explored these allegations in greater detail. We would have inquired into the relationships, both personal and professional, that developed between the offices and personnel of the JAG and the Minister; and also among the offices and personnel of the JAG, the CDS and the DM. We would have sought the testimony of Capt (N) Blair to hear his reaction to Mr. Dixon's allegations and to discuss his own apparent statement that the Minister's advisers were told of torture and the involvement of 2 Commando members on March 26th. If the Minister's staff were told on March 18th or March 26th, did they choose not to tell the Minister, or did they follow the Minister's instructions, direct or tacit, not to tell her? Or, was the former Minister not available to receive the information because of other commitments? If the Minister did not know until March 3 1 st, did the DM or the CDS keep the information from her? What information about the incident passed between Somalia and NDHQ, and to whom was that information distributed?

We would also have probed into ambiguities, inconsistencies and omissions in the affidavit filed by Mr. Dixon, and between his affidavit and related public statements of the former Minister. For example, Mr. Dixon states in his affidavit that after he became aware of the allegations about destruction of documents and his own perception of threat to the Minister described earlier he "wrote a note to Minister Campbell about the affair."³³ However, this note³⁴ contains no reference to an alleged destruction of documents by the CDS and the DM or to a threat to destroy computer equipment, or any suggestion that Mr. Dixon perceived that Capt (N) Blair's note amounted to a threat to the Minister. Mr. Dixon states in his affidavit that he told the Minister about these matters on an unspecified date when he "next had an opportunity to physically meet with her".³⁵ He asserts that the Minister was "thunderstruck",³⁶ and she immediately telephoned John Tait, the Deputy Attorney General of Canada, read Capt (N) Blair's note to Mr. Tait, and alleged to him that it amounted to "intimidation and blackmail."³⁷ However, the former Minister, in her memoir, does not mention having telephoned Mr. Tait and alleging intimidation and blackmail, or that Mr. Dixon told her about document destruction by the CDS and the DM and an attempt to have him destroy documents. She states only that, on reading the note, she "hit the roof' and sent her Executive Assistant, Richard Clair, to see the Deputy Attorney General to seek legal advice of a better quality than she perceived she was getting from the JAG. Her memoir, although referring to her pursuit of a request made to the Department of Justice about her "options in pursuing the Somalia issue",³⁸ does not refer to any further pursuit of a resolution of the issue that had purportedly caused her so much consternation.

It is interesting to note from these events the reluctance of the parties to commit accusations of serious wrongdoing to paper at the time and the absence of any such reluctance now. We would have explored, further, what Ms. Campbell was told by Mr. Dixon or other staff members about these matters and when she was told. We would have considered whether Capt (N) Blair's note could reasonably have been regarded as containing a 'threat' to the Minister. We would have questioned her about the alleged telephone call to Mr. Tait and whether she made the allegations to Mr. Tait that Mr. Dixon has sworn she did. If she did make the allegations, what did Mr. Tait do about them? We would have asked relevant witnesses whether Mr. Dixon at any time advised Ms. Campbell, either in writing or orally, of the alleged destruction of documents, the demand that he should destroy documents, or that he perceived a threat to her in the note received from the office of the JAG. We wonder why no suggestion that he did is made in Ms. Campbell's memoir or Mr. Dixon's note to her, or why she did not mention, in her memoir, her perception of a threat and the call to Mr. Tait. We note that, in a statement to the press on January 31, 1997, Ms. Campbell stated that she did see Capt (N) Blair's note as a threat at the time. ³⁹

We would have explored why nothing, apparently, was done, at the time or subsequently, to pursue further the various serious allegations made by Mr. Dixon if he in fact communicated them to the Minister and the Minister then communicated them to Mr. Tait. The answers to these questions might have ultimately affected assessments that we cannot now make about the handling (or mishandling) of information by senior officials at the time of the Somalia deployment; the reason why information was handled as it was; the attitudes of those officials toward information management and recording generally; and their attitudes toward the legal and policy requirements imposed on them in relation to their handling, retention and disposal of documents. Such evidence would have enabled us ultimately to draw conclusions about the relationships between these alleged events and the actions of senior leaders and their staff and also about the more fundamental issue specified in the terms of reference, the response of the chain of command and senior leadership to the problems arising from the Somalia mission and whether the response might have included an attempt to cover up information about the March 16th incident.

Finally, one important issue with systemic dimensions was raised in this material, and its resolution might have been most relevant in determining recommendations relating to the fundamental issue of the appropriate roles and functions of the Minister of National Defence in relation to the military justice system. The conflicts described above flowed from an apparent disagreement that developed between the Minister's office and the office of the judge Advocate General about the extent to which the Minister could seek, obtain, or publicly disclose information about incidents occurring in Somalia, in light of the duties she might have been called on to perform within the military justice system in relation to those same incidents and the implications of doing so. The Minister received opinions from the JAG in essence warning her (or, as some have alleged, threatening her) that seeking or obtaining information might be construed as attempting improperly to exercise political influence over the course of military justice proceedings. The Minister and her staff, for reasons that are not entirely clear, disagreed with or were not satisfied with these opinions. The affidavits filed in our proceeding suggest that this problem was a matter of serious, if not all-consuming concern to the Minister and her staff, during the whole period of her tenure as Minister. This concern eventually caused her, on April 22, 1993, to formally direct the Deputy Minister to seek an alternative opinion from the Deputy Attorney General on the matter.⁴⁰ The former Deputy Minister wrote to Mr. Tait seeking the opinion on the same day.⁴¹ However, after this letter was sent, the concerns of the Minister and her staff seem to have evaporated completely. We would have questioned witnesses to ascertain whether the opinion was ever produced and if not, why not, and if the matter was of such concern, why no effort was made to have it produced or to pursue the issue further and have it resolved. Further, we presume that, if the matter was of such great concern then, it would continue to be of concern even now. However, we note that the Hon. Doug Young did not even ask the special panel he commissioned as Minister of National Defence to review the military justice system to look into the matter. Their report did not address the issue.

Perhaps the most striking aspect of these events that would have deserved further examination was the relative indifference displayed by senior officials to the fact that a brutal and senseless torture and killing had occurred, an indifference that contrasted sharply with their concern about publicity the incident might receive, the management of information about the incident, and the potential effect publicity might have on the image of the Canadian Forces.

On the day following the torture and killing of Shidane Arone, a guard at the compound of the International Committee of the Red Cross was wrestling with a Somali national and his weapon discharged into the ground near a CF soldier. The Canadian fired on the guard and killed him.

The Commander CJFS, Col Labb6, had decided to allow non-governmental organization (NOO) guards to carry weapons for defence of their compounds. CF soldiers were providing security for convoys delivering supplies to NGOS. We received information that no co-ordination plans existed between these armed units. It was not clear who had responsibility for what area, or what the arcs of fire would be, and there seemed to be no communication link between them or, if there was one, it was not used. When a crowd of protesters gathered around the ICRC compound on March 17, 1993, the convoy proceeded to make the delivery, even though they were obviously outnumbered. A person who was actually trying to maintain the security of the compound and working in conjunction with the CF was shot and killed by a Canadian soldier.

This incident raised a number of questions. Was there any co-ordination of plans between the NGOs and the CF regarding security and use of weapons during delivery of supplies? If not, why not? Was there adequate training regarding the deliveries? Why was the delivery not aborted when the security problem became apparent? Why did the description of the guard who was shot and killed change in reports written about the incident? The guard was carrying his weapon with the approval of the CE Why then, after initial situation reports described him as a Somali or ICRC guard, did the briefing note forwarded soon afterward by the DCDS, VAdm Murray, to the Minister of National Defence, describe the guard as an "armed thug"?⁴² As is the case with the March 4th incident, we again see the body of a report about an event embellished with a judgemental, pejorative description of the person shot and killed. We sense a warning sign of 'spin', as we did in relation to the March 4th incident, when those reporting on an event felt compelled to describe Somali civilians as "armed thugs", rather than simply setting out the facts. We would have explored whether the investigation of this incident was defective and whether the defects bore similarities to those found in the March 4th investigation. Was there also reason, in this case, to question the wisdom of relying on the reporting of an incident by the very parties who later might have been accountable for any failures in planning, preparation, or training in relation to the same incident? One would think that, in both peacekeeping and war, the accuracy of information about events and incidents is and would be considered vital to a military organization.

We are aware of evidence that, in early January 1993, Col Labb6 advised LCol Mathieu that he did not want to see Somali nationals detained in a fashion that would humiliate them. Yet the practice seems to have continued through January and February. In fact, there is evidence that it continued in May at the Royal Canadian Dragoons camp in Matabaan. This clearly suggests some kind of breakdown. We would have explored further this evidence as it would have related to the clause in the terms of reference requiring us to consider the attitude of all rank levels toward the lawful conduct of operations, including the treatment of detainees. We would have examined whether any apparent mistreatment of detainees reflected a communication problem, a lack of discipline, individual or personal failure, systemic defects, or whether it was, in fact, reasonable in the circumstances.

We therefore could not conduct the thorough examinations and analyses of some of the significant incidents in Somalia during the deployment that were mandated by various clauses of the terms of reference, particularly paragraph (k), which asked us to inquire into the manner in which the Task Force conducted its mission and tasks in theatre; other paragraphs that indirectly required us to identify operational, administrative, and disciplinary problems encountered in theatre before assessing the responses of the chain of command and others to those problems; and specific clauses referring to issues transcending individual incidents, such as the "attitude of all rank levels towards the lawful conduct of operations, including the treatment of detainees",⁴³ an issue that could be assessed only by examining a possible pattern of conduct and attitudes of CF members over a longer period of time.

Many unanswered questions relating to the conduct of senior leaders and officials have already been raised in the preceding discussion focusing on incidents. However, it would ultimately have been necessary to consider the actions and decisions of senior leaders and officials from the wider perspective of their personal responsibility and accountability for the planning and execution of the mission as a whole and the actions and decisions involved. For this purpose, we would have been required to focus on the adequacy with which they discharged the duties and responsibilities of their respective offices and commands. This would have required the application of a wider perspective transcending specific incidents and events. We have already stated our view that assessments of these matters are an essential prelude to meaningful renewal of the Canadian Forces. We had painstakingly prepared the groundwork for an examination of essential issues involving senior leaders and officials, but without the necessary calling and questioning of witnesses we are unable to draw all the conclusions on these vital issues. At the risk of repetition of some matters already considered in our discussion of questions arising out of incidents, we can only define some issues and ask some questions.

We would have examined the roles, duties, authorities and responsibilities of these officials and how they and their offices managed information and made decisions. Ultimately, we would have assessed whether, and to what extent, organizational decisions and methods of operating within NDHQ, at senior levels affected accountability and responsibility for the actions and decisions of officials and leaders involved. We would have examined whether there were effective checks and audits on the actions, decisions, and record keeping of senior officers and executives, and whether any weaknesses in this regard may have contributed to poor decision making and provided opportunities for senior officers and officials to obfuscate their actions and decisions, as well as accountability for those actions and decisions. We would have explored whether, and to what extent, the so-called 'diarchy' of the CDS and DM at the pinnacle of NDHQ obscures accountability for actions and decisions, particularly of these two leaders, and the ultimate effect such a state of affairs might have on the ability of Parliament to supervise and control the activities and management of the Canadian Forces and the Department of National Defence.

To demonstrate the functioning of the organizational relationships and decision-making processes in practice, and to demonstrate how authority was exercised by relevant leaders and officials, and how decisions were routinely made in this joint organization, we would have examined the actions and decisions of the leaders in relation to selected critical issues, for example, the establishment of personnel ceilings for Operation Deliverance, the decision to order or authorize a Military Police investigation of an incident, and so on, by hearing the testimony of the leaders involved, their executive assistants, and members of their staffs.

We would have considered the extent to which the Deputy Minister is accountable and responsible for the actions and decisions of officials in the Department of National Defence and the extent to which, by custom and practice at NDHQ, the DM is jointly accountable and responsible with the CDS for actions and decisions within NDHQ affecting the CF and DND.

We would have probed the extent of the Deputy Minister's influence on decisions taken at NDHQ, by examining the role he played in NDHQ committees, particularly the DEM, and by reviewing his actions and decisions at NDHQ regarding recommendations to Ministers and to the Government in relation to specific issues that arose in relation to the mission and its aftermath. This includes, among other matters, the composition of the force, the personnel ceiling, the in-theatre public information program, the conduct of investigations, the formation and composition of the internal Board of Inquiry and the disposition of its findings, the formation of the Somalia Working Group, Directorate General Public Affairs, reactions to criticisms of DND and NDHQ, and the management of the release of information under the Access to Information Act. Evidence of the Deputy Minister's actions and decisions in relation to these matters would have enabled us to judge the extent, if any, of his accountability and responsibility for many significant decisions in the CF, DND and NDHQ, notwithstanding the roles and functions nominally assigned to him as head of the Department; to assess whether, and to what extent, he may have usurped aspects of the authority and responsibility of the CDS in the period leading up to, during and after the mission, and acted, in important ways, to "control and administer" the CF and should therefore have been correspondingly accountable for his decisions and actions in this regard; to assess to what extent, if any, the CDS might have abdicated some or all of his responsibilities in favour of the Deputy Minister; and to assess whether, and to what extent if any, the lines of responsibility at NDHQ may have been blurred because of the ambiguity inherent in the NDHQ diarchy, thus preventing anyone from being accountable, in practice, for actions and decisions taken at NDHQ.

We would have examined the extent, if any, to which the Deputy Minister was responsible for decisions on the strategies, plans and responses to 'incidents involving' the CF in Somalia, including investigations, reports to Ministers, and responses to requests for information about them.

We would further have examined the extent, if any, to which, under his direction, the management of the Department and the control of information flowing within and from it came to be linked; and the extent to which the Deputy Minister's management of the information flow may have been used, with his approval or concurrence, or under his direction, to implement damage control in relation to, or a cover-up of information about, the incidents occurring in Somalia, at the expense of addressing operational deficiencies that may have been involved. We would also have considered what role, if any, he played in the recruitment of staff and the control of staff agencies concerned with the information flow to and within NDHQ generally during the Somalia deployment and, later, in DGPA. We would further have probed whether he personally participated in any cover-up or process of damage control with respect to the incidents occurring in theatre or with respect to the transmission of information to our Inquiry. We would have considered his role, if any, in the alteration or destruction of documents at DOPA and the extent to which he might have been responsible for problems, failures, or deficiencies in relation to the management of the Department's responses under the Access to Information Act.

We would have examined the extent to which the Chief of the Defence Staff and the Deputy Chief of the Defence Staff holding the offices at relevant times adequately carried out their respective responsibilities for "control and administration" of the CF under the National Defence Act and in relation to the Somalia mission, including the adequacy of their involvement in decisions about operational matters, including the Canadian Forces plan, force structure, command arrangements, orders issued to Col Labb6, the Rules of Engagement, and the logistics plan. We would have probed further their participation in any cover-up or process of damage control with respect to the incidents.

We would also have assessed whether the occupants of these offices during the deployment adequately monitored and took appropriate measures to respond to and rectify logistical, support, operational, disciplinary, and other problems that arose in Somalia during the deployment, for example, the incidents that occurred and the problems that became apparent with respect to the ROE. We would have considered their involvement in the determination of how incidents would be investigated and the adequacy with which they monitored and reported on the progress of the investigations as well as the adequacy with which they provided information and timely advice to the Minister of National Defence with respect to the incidents and operational matters generally. We would have considered whether, and the extent to which, they might have participated in a cover-up or process of damage control with respect to the incidents or other problems that occurred in theatre. Finally, we would have considered the extent to which the CDS signalled a view that political and public affairs factors should predominate over military considerations when, in the summer of 1993, he acquiesced in the decision to turn over the 'Somalia file' to the Associate Assistant Deputy Minister (Policy and Communications), rather than to the Vice Chief of the Defence Staff, the DCDS, or the Assistant Deputy Minister (Personnel).

The Minister is responsible and accountable to Parliament for the significant actions and decisions of leadership within DND and for the outcomes of the decisions and actions taken in response to the operational, administrative, and disciplinary issues encountered during and after the deployment to Somalia. We would have explored whether the Minister adequately fulfilled her responsibility to "preside" over the Department of National Defence; to manage and direct the Canadian Forces, in respect of the deployment to Somalia, as required by sections 3 and 4 of the National Defence Act; and to account to Parliament for the manner in which she, the Canadian Forces, and the Department performed their tasks and carried out their duties and responsibilities.

We would have received evidence to help us assess whether the Minister diligently attended to her duties in relation to the deployment after she assumed office in January 1993. We would have explored whether she took adequate steps to ensure the receipt of the information and advice necessary to enable her to carry out her duties. We would also have explored whether the Minister adequately informed Parliament of what she knew about the incidents in Somalia and the response to them at NDHQ. We would have considered whether she actively participated in or approved or tolerated, in any way, a cover-up or process of damage control with respect to the incidents.

In addition to questions already noted that we would have posed to the Judge Advocate General in relation to the March 4th incident, we would have questioned him and other witnesses about the manner, adequacy and effectiveness with which he generally carried out his functions, duties and responsibilities in relation to the deployment and its aftermath. At the time, the judge Advocate General essentially had four roles: to superintend the CF system of courts and military justice, to act as senior legal adviser to the CF, to act as senior legal adviser to the Department of National Defence, and to manage and direct the legal branch. We would have considered his role, and the role of legal officers under his supervision, in relation to the investigation of serious incidents; and the legal advice that may have been sought of and given by the office of the JAG, in relation to actions and decisions taken and problems that arose throughout the deployment. We would have inquired into his role in relation to and advice he may have given with respect to the duties to be performed by legal officers and the numbers to be deployed; the deployment and tasking of Military Police; decisions made as to whether and what kind of investigations of incidents should be conducted; monitoring of the progress of the investigations; the decisions made as to who should and should not be charged or otherwise dealt with in relation to incidents that occurred; the role he may have played in the development and understanding by the troops of the ROE and in bringing to the attention of the CDS, all other CF commanders, the Minister, and other Department of National Defence officials, Canada's obligations under the Laws of Armed Conflict; and the role JAG lawyers may have played, under the direction of the Deputy Minister, in preparing the terms of reference for the internal Board of Inquiry created to examine the problems that arose during the deployment.

We would have inquired into whether the duty of the JAG to provide legal support to peace support operations would also have included an obligation to conduct a legal review Of, and input into, the ROE, the nature of any formal process for such review in existence at the time, and whether it was followed. We would have asked about any authority (or the adequacy of any authority) the JAG might have had to ensure the legality of the ROE.

We also would have inquired as to whether recommendations on the Somalia ROE were made by, or on behalf of, the JAG before, during, and after the deployment and, if so, what they were. We would have asked the JAG to explain evidence that the DCDS, in early April 1993, indicated that the JAG had reviewed the ROE and was satisfied they were suitable to the mission, whereas a legal review conducted by LCol Watkin on April 14, 1993 suggested that legal officers were not sufficiently involved and that the ROE contained gaps and ambiguities.

We would have explored further information we received through documents that the JAG has a duty to oversee the review and validation for legality of headquarters and command operations, plans, and orders, and to provide legal guidance in the execution of those plans and orders. How did this process occur within the Somalia context? Were proposed operations, plans, and orders checked for conformity to the rule of law? If so, what was the process and what was done? To what extent, if any, was the JAGs involvement subject to the discretion of the CDS or other military authority? Did the JAG identify any problems in relation to the roles assigned to legal officers in theatre?

We would have considered the perceptions of the JAG about the necessity for independence of his office and functions from the chain of command and NDHQ officials; the extent to which the independence of the JAG was maintained and reinforced in the period surrounding the deployment; and whether he identified any impediments, policies or practices or conflicts of interest that impaired his ability to maintain an appropriate measure of independence. As previously indicated, We would have explored the extent, if any, to which solicitor/client privilege may have been used to conceal the extent of knowledge of the facts by the chain of command. We would have explored who could properly give and who actually gave instructions or orders on specific matters to the JAG at the time and to what extent the JAGs office was subject to and accommodated undue or unlawful command influence. We would have explored whether proper distinctions were drawn, particularly in relation to the investigation of conduct at NDHQ relating to the handling of Access to Information Act requests, between advice given by the JAG to the CDS personally as opposed to in his official capacity. Further, in light of information we received that, after 1990, the JAG regularly attended the daily executive meeting, we would have sought the views of the JAG and others as to whether such attendance was and is appropriate, having regard to the possibility that matters might be discussed on which the JAG might later be called on to exercise his role in relation to the management of the military justice system. We would also have explored the role of JAG in reviewing and advising on the release by the CF and DND of information about the deployment and the incidents and investigations that occurred.

We have previously referred to our ruling of August 3, 1995, in which we stated our view that the issue of cover-up was an example of a matter we could investigate and were investigating, that might be "of an ongoing nature". We noted that decisions could still be taken to destroy or suppress existing evidence and that it was within our terms of reference to investigate any such decisions to determine whether they were or are part of an alleged cover-up. We have also noted the statement of the Minister of justice agreeing with our interpretation of the terms of reference in the House of Commons on April 30, 1996. We have considered, in detail, evidence relating to the response of the chain of command to allegations of cover-up in relation to the March 4th incident. Regrettably, we have concluded that efforts were made, in various ways, to cover up or conceal information about that incident.

However, we could not, even in relation to the March 4th incident, explore the full scope of cover-up efforts and of participation in the conception and execution of those efforts. In considering this question we would have received and addressed evidence clarifying the relationship to possible cover-up of a number of actions, decisions, and issues arising during and after the deployment, including

1. the facts, already discussed, that have come to our attention, and further evidence that might have come to our attention, with respect to the management of information relating to the March 16th incident;
2. the manner in which investigations of other significant incidents were conducted and disposed of;
3. the extent to which the internal Board of Inquiry commissioned to investigate the problems that arose out of the deployment may have been structured and used to avoid focusing on the accountability and responsibility of the senior leadership of the CF and DND, taking into consideration criticisms that were later expressed about its structure, process, and conclusions;
4. recording, record-keeping, and record-disposal policies and practices that may have been implemented either in theatre or at NDHQ to preclude investigation into facts and accountability for conduct, actions, and decisions, for example, the already noted change in recording of information at daily executive meetings as incidents in Somalia began to occur;
5. the possible manipulation of legal mechanisms, such as solicitor/client privilege and Cabinet confidence, to preclude scrutiny of documents and disclosure of information contained in them; ⁴⁴
6. as already referred to, the selective leaking of information designed to discredit individuals having views or willing to disclose information deviating from 'official' positions; and
7. advice and comments provided to the Government, by senior officials in the very Department under investigation, that may have been designed to induce the Government to curtail our investigations and proceedings, or at least to create an atmosphere that would make the Government receptive to taking such action. In this regard, we refer particularly to speaking notes provided by LGen (ret) Fox, then head of the Somalia Inquiry Liaison Team, to the CDS, Gen Boyle, and the DM Mme Fr6chette, at the request of the CDS, to be used by them in discussing, with the Minister of National Defence, our request for an extension dated March 6, 1996, in which LGen Fox, among other things, suggested that we were embarking on a "dangerous road" by not accepting or by questioning the original Military Police investigations into the incidents; that any versions of events deviating from the conclusions reached in investigations already conducted would only be "speculative"; and the fact that we were challenging the validity of previous investigations in order to "prove cover-up". In addition, the speaking notes suggested that our work was becoming irrelevant because "change was already taking place in the CF" and "no new facts [were] being uncovered".⁴⁵

We would have addressed one further systemic issue. We would have considered comprehensively the issue of prosecutions in the military justice system, including (a) jurisdictional issues, such as those surrounding the choice of military or civilian jurisdiction; (b) issues relating to the choice of trial, including summary trials by commanding officers, delegated officers, or by referral to a superior commander; (c) the process of summary trial, including the role of the CO or delegated officer; the status of the prosecutor; the procedures involved, including, among others, the right to an assisting officer; and (d) the process of the general court martial, including issues relating to the appointment and role of the prosecutor, the military trial judge, and the panel; the appointment process; the verdict that can be rendered by majority vote; the right to counsel; sentencing; and appeals.

Although many other questions might be raised about the conduct of the Somalia deployment and the more than 100 incidents of varying seriousness that occurred related to it, we always recognized that our mandate was not to try to identify every possible issue and answer every question. Our terms of reference directed us to address specific issues, and we attempted to confine our investigation to significant matters that would enable us to answer the specific questions posed.

Some of the general but perhaps most profound questions are these: What was the motive for the torture and killing of Shidane Arone? How could the values and culture of the Canadian military and its leadership have allowed the atrocities in Somalia to occur and tolerate subsequent attempts to cover them up? Why did so many soldiers look the other way in relation to the incidents of March 4th and March 16th? Why did any ethical sense or sense of compassion for the victims appear to be almost totally absent during the deployment and its aftermath?

How did discipline and cohesiveness in some parts of the Canadian Forces become dysfunctional to the point where walls of silence were erected, accountability was shunned, and little value, if any, was perceived in admitting and confronting errors and deficiencies? Why have so many in the junior ranks been held to account or punished, while the higher ranks have escaped accountability?

The death of Shidane Arone, the initial stimulus for our Inquiry, might have been given a greater meaning had Commissioners been permitted to complete their work. The same might also be said of the demise of the Canadian Airborne Regiment, the ending of military careers, and the sullying of the good name of Canada's soldiers. As Commissioners, we were given an opportunity to turn all of this to a greater purpose. We were in a position to allow the next generation of Canada's soldiers and the Canadian public to remember this as the point in our history when we corrected the mistakes of the past and resolved the systemic problems that appear to have plagued the Canadian Forces long before Somalia.

The Government apparently believes that the problems with which Commissioners have wrestled for the last two years are simply a matter of issuing new policies and guidelines. This is evident in its decision to truncate the Inquiry and to proceed with change in the Canadian Forces and the Department of National Defence behind closed doors, without reference to Commissioners' conclusions and recommendations, and without exploring such issues as the response of the senior political and military leadership to the problems encountered during the Somalia deployment. As Commissioners we wish we could share the Government's confidence that this approach will be successful in resolving the problems that led to the establishment of our Inquiry.

All the unanswered questions raised here were on our agenda and incorporated in our work plan when we provided the Government, on November 27, 1996, with various scenarios for the completion of our work that committed us to providing a comprehensive report on all matters in our terms of reference by the end of 1997. This proposal went into considerable detail, outlining a schedule of hearings and providing a list of important witnesses that we would call.

We were confident that we could examine all the issues outlined here in a thorough and meaningful way, and complete our report by the end of 1997. We were fully aware of the need for economy and efficiency in public inquiries when we made this commitment. We had experienced extreme frustration when delays we encountered in obtaining important documents and in investigating reports of the destruction of military records forced us to ask for more time. Had it not been for these unforeseen developments, we certainly would have completed our work in little more than two years from the date of our appointment.

By the end of 1996, we were clearly on schedule to submit a report by the end of 1997 that would have covered all the concerns we have just listed.

1. Minutes of a meeting of the Committee of the Privy Council, March 20, 1995, article (s).
2. Press release, March 22, 1995.
3. House of Commons, Debates, November 17, 1994, p. 793 1, and May 12, 1995, p. 12534.
4. House of Commons, Debates, May 12, 1995, pp. 12535-12536.
5. House of Commons, Debates, March 28, 1996, p. 13 69.
6. House of Commons, Debates, April 17, 1996, pp. 1587, 1589.
7. House of Commons, Debates, April 30, 1996, p. 2138.
8. House of Commons, Debates, May 3, 1996, p. 2308.
9. House of Commons, Debates, September 16, 1996, pp. 4224, 4225.
10. House of Commons, Debates, September 20, 1996, p. 4499.
11. House of Commons, Debates, October 8, 1996, p. 5 243.
12. House of Commons, Debates, October 9, 1996, p. 5 289.
13. House of Commons, Debates, December 10, 1996, p. 7314.
14. Order in Council PC. 1997-456.
15. Document book 127, tab 12, p. 2.
16. Document book 50A, tab 9, p. 2.
17. Allan Thompson, "Liberal aide's leak targeted whistleblower", Toronto Star, March 9, 1997, p. Al.
18. In Mr. Thompson's view, the paper trail originated with a memorandum dated November 21, 1994, written by Ruth Cardinal, Director General Public Affairs, NDHQ, to MGen Jean Boyle, at that time Associate Assistant Deputy Minister for Policy and Communications. The memorandum put on the record the fact that the pathology report was released only after a reporter called to request it. Ms. Cardinal wrote that the JAG was consulted on whether the document could be released without a formal Access to Information request and the JAG had given his approval. In another letter to file, the Deputy Chief of the Defence Staff, VAdm Lynn Mason, wrote that "the release of the independent pathologist's report was entirely proper. The pathologists' reports were released only upon receiving a request for them" (Thompson, "Liberal aide's leak targeted whistleblower", p. Al).
19. See Mark Bonokoski, "The Smearing of a Name", Ottawa Sun, March 11, 1997.
20. We note the occurrence of other instances of improper leaks of information about individuals who presumed to criticize publicly military policies, conduct, or decisions or attempted to probe military records for information, as well as attempts to prevent some members, for example, Cpl Purnelle, from disclosing information to our Inquiry. A complaint, brought before the federal Privacy Commissioner, that in 1994 the former Deputy Minister, Mr. Robert Fowler, in letters to various government departments, including the Canadian Security Intelligence Service and Revenue Canada, had improperly identified and questioned the motives of an individual who had made numerous Access to Information requests of the department, was held to be "well founded". Also of interest was the treatment accorded Maj Buonamici when he questioned the responses of senior military officers to incidents in Somalia, questioned the exercise of improper command influence over the course of investigations, and sought to expose and counter the 'damage control' policy relating to the March 4th incident. See Jeff Sallott, "Identifying gadfly breach of rules", Globe and Mail, March 6, 1997, p. A8; and see generally testimony of Maj Buonamici, Transcripts vol. 176, pp. 36261-36267.
21. DND 395316,395317.
22. DND 395265, 395266.
23. Exhibit P-181.
24. Testimony of Mr. Gonzalez, Transcripts vol. 58, pp. 11544-11545.
25. House of Commons, Standing Committee on Foreign Affairs and International Trade, Minutes of Proceedings and Evidence, March 21, 1995, pp. 19:44-19:45.
26. Allan Thompson, "Fowler calls Somalia coverup 'preposterous"', Toronto Star, September 20, 1996, p. A2.
27. See, for example, her memoir, Time and Chance (Toronto: Seal Books, McClelland-Bantam Inc., 1997), p. 281.
28. Campbell, Time and Chance, p. 281.
29. Campbell, Time and Chance, p. 282.
30. Document book 38X, tab 27, p. 1.
31. Document book 38X, tab 27, p. 1.
32. Affidavit of John Dixon, Motion Book Application for Standing for John Edward Dixon, paragraph 41.
33. Affidavit of John Dixon, p. 14, paragraph 35.
34. Affidavit of John Dixon, Exhibit 1.
35. Affidavit of John Dixon, pp. 14-15 paragraph 35.
36. Affidavit of John Dixon, paragraph 35, p. 15.
37. Affidavit of John Dixon, paragraph 35, p. 15.
38. Campbell, Time and Chance, p. 280.
39. Allan Thompson, "Letter was 'clear' bid to intimidate: Campbell", Toronto Star, January 31, 1997, p. 1.
40. Document book 3 8AA, tab 11C.
41. Document book 3 8AA, tab 11E.
42. Briefing note for Minister of National Defence (MND), March 17, 1993, Document book 43, tab 11D.
43. Commission of Inquiry, Terms of Reference, paragraph (m).
44. See, for example, Document book 118A, tab 15, suggesting that, with the approval of the JAG, information was set out in a document under the JAG's signature in order to "preserve the protocols of access to info..." in relation to recommendations made.
45. Speaking notes for the CDS and the DM, meeting with MND, "Commission of Inquiry Request for Extension", DND NS 180309, DND 448172-3 (unfiled).