An inside look at a dark episode in the history of the Canadian military, and the Canadian government. Power was abused actively by our troops in Somalia, and passively by our government.
The Somalia Affair began as a scandal within the military, but eventually involved all of the “estates” of the Canadian establishment – the executive and legislative branches of the federal government, the federal civil service, the media, and finally, the legal culture. Originally billed as a kind of fierce interrogation of our political elites, it came to a very quiet conclusion, some five years after its beginning, with the tabling of Justice Dickson’s report on the Military Justice System. That report accomplished little beyond confirming the old saying in the Department of Justice that “military justice is to justice what military music is to music.” No national institution, inside or outside the military, either suffered or enjoyed significant reform as a consequence of the Somalia Affair.
This is, in large part, a tribute to the very deft management of the Chrétien government. Ultimately, however, the government’s triumph of damage control depended upon a characteristically Canadian disinterest in pursuing the matter to a bitter end. “Scandal fatigue” was a popular description of the condition, though I will argue that Canadians couldn’t wait to be bored.
I was a minor actor in the drama, and so bring, I am sure, a full measure of myopic animus to my account. On the other hand, I was, I believe, an unusual observer, interestingly placed.
I came to that place in a roundabout way. In January 1990, I was seconded from my position teaching philosophy at Capilano College in BC to serve as Senior Policy Advisor to the then Deputy Minister of Justice and Attorney General for Canada, Mr. John Tait. At the time of my secondment, I was president of the BC Civil Liberties Association, and although I severed my connection with the BCCLA for the Ottawa period, I could not imagine giving up my work as a civil right activist for a protracted period. Indeed, I had been originally approached with an offer of an appointment in Ottawa that would have required a commitment from me of seven years, and I refused. I was never, in any sense of the phrase, on a “career track” in Ottawa – a condition that freed me from many of that city’s standard forms of discipline.
I served Mr. Tait for two years, during which time he came to use me as a kind of interlocutor between his office and the office of his Minister, the Honourable Kim Campbell. Though I answered to Mr. Tait, I addressed – with his permission – all of my notes “To Minister, Deputy Minister,” and these were simultaneously routed to both recipients.
When Minister Campbell was shuffled from Justice to National Defence in January of 1992, she borrowed me from Mr. Tait to serve as her Special Policy Advisor on National Defence. She also took Richard Clair and Marianne Campbell with her, both of whom had been key members of her policy staff at Justice. I had long experience of collegiality with her staff, and Minister Campbell wanted a seasoned team. All of us were cleared to the highest NATO level of Top Secret/Cosmic Access.
This is relevant, because it meant that during the period of the emergence of the Somalia Affair, the Minister of National Defence and her staff were fresh from – literally – years of experience of working together on the most consequential and delicate legal files in the nation. We were not a pick up team for a novice or second tier minister; nor were we strangers to the restraints and prerogatives of judicial institutions. Further, when trouble came, we reflexively turned to our colleagues in Justice. More on this below.
But first, the “facts” of the case – the events that set the Somalia Affair in motion. On March 16th, 1992, a 16-year-old Somali youth, Shidane Arone, was tortured to death by several members of the Canadian Forces Airborne Division, which was engaged in a humanitarian mission in Somalia. Arone had been detained as he attempted to infiltrate the Canadian compound, presumably on a mission of theft. Exasperated and embarrassed by the success of such thieving expeditions directed at the Airborne, the responsible Canadian officer had directed his troops to make an example of anyone they caught. Arone’s body was broken with pipes and boots, he was suffocated, burned with cigars on the soles of his feet, and probably sodomized with a riot baton before he died of his injuries. Arone’s screams and cries of “Canada! Canada!” were heard by practically the entire regiment through his long night of agony. No one intervened. Over 30 “trophy pictures” of his torment were taken by Canadian soldiers. The following day, one of the torturers was taken into custody, and later cut down when he was found hanging in his cell.
This story was covered up by the National Defence establishment for over two weeks. That is, the military did not communicate it to the civil authority established by the National Defence Act, which is the Minister of National Defence. Instead, the Minister and her staff were fed a thin trickle of half truths and misinformation.
The first drop of this trickle was a couple of Significant Incident Reports (SIR in the endless array of military acronyms). The first of these, on March 17th, informed the Minister that a Somali national had died the previous day in Canadian custody. The death was characterized in both the report and in an accompanying note from the Vice Chief of Defence Staff as “mysterious” and “perplexing” because “a medical officer’s preliminary investigation indicates that the Somali had only one bruise in the area of his mouth and another on the right side of his chest….The Headquarters of the Canadian Joint Force in Somalia is attempting to obtain the services of a pathologist so that the cause of death can be determined.” (March 17th, 1993, Secret Briefing Note for MND signed by Vice Chief of Defence Staff)
It is important, when reading the words of this official briefing note for the Minister, to recall that they describe a person who had been, literally, beaten to death. Photographs of Arone, taken by his torturers, and published a year later in Maclean’s Magazine, show that his injuries were so severe that he was scarcely recognizable as a human being. There was no need for refined study to determine the cause of Shidane Arone’s death. In a second, unrelated SIR, we were informed that a Canadian soldier in Somalia, Master Corporal Clayton Matchee, had apparently attempted suicide by hanging while under detention.
Both of these SIRs were noticed by the relevant Minister’s staffers – Richard Clair on the Peacekeeping desk and Marianne Campbell on Personnel – and mentioned to me in passing. Neither, however, was viewed as particularly worrisome by us. In this connection, it is important to note that a Minister’s staff exists in an environment in which very large numbers of very serious issues are the norm. These were “significant” matters, but not ones requiring Ministerial intervention.
The second drop of the trickle, which came a day or so later, was the information that there was some connection between the death of the Somali and Matchee’s attempted suicide. By utter chance, a Pembroke reporter had seen Matchee being carried from his cell, and in the context of its development of appropriate communications “lines” for this incident, the military informed us that a “connection” was an element of the matters under active investigation. We were cautioned by the military to keep it a secret until the investigative team had completed its work.
This raised the profile of the SIR incidents for us and introduced a nagging question into our discussion of them. Why would someone attempt to commit suicide over an incident in which the Canadian contribution to the death had been established by medical examination to be two small bruises?
I recall that Marianne Campbell suggested the hypothesis that, perhaps Corporal Matchee had used excessive force in effecting the capture of Arone, and (since he, Matchee, was an Aboriginal person) then felt particularly guilt stricken when his captive subsequently died. Or perhaps some predisposing health condition of the Somali was poised to push him over the edge of mortality in any case. Malnutrition was endemic among the Somali population: indeed, the principal purpose of the military intervention was to facilitate the distribution of food. When we asked the military for clarification, the response was always the same. The matter continued to be under investigation and, until that investigation was concluded, the connection between the dead Somali and Matchee had to be treated as a secret.
This raised a second question for us. Why was the Army itself so anxious about the “connection” between Matchee’s attempted suicide and Arone’s death? What could Matchee have done that was so horrible, given the medical finding that the Somali’s body carried no evidence of significant trauma? This was the thread that the Minister’s staff continued to pull on with more and more urgency as days grew into weeks with no credible explanation. What initially had seemed to be a fairly straightforward set of circumstances came to the forefront of our daily concerns.
On March 30th, in response to an urgent March 29th request from our Office for information, we were informed in a note that “an autopsy was not conducted” because the body of Shidane Arone had been quickly retrieved by the family, that the “investigation is ongoing….” and that “there is the possibility that up to a total of seven persons may have been involved.” Seven persons involved, we asked, in what!? How could seven persons be involved in inflicting two minor bruises? At this point, Marianne Campbell informed the Minister that “we are having trouble getting information out of the Department.”
Finally, the military abandoned its attempt at an almost complete cover up. On the morning of March 31st, 1992, over two weeks after the murder and following renewed demands from us on March 30th for frankness, Richard Clair and I were briefed by the Acting Judge Advocate General (JAG). We were informed that Arone had been tortured to death by Matchee and others, that videotaped confessions had been obtained, that torture implements and trophy pictures had been seized as evidence, and charges would soon be laid by the commanding officer in the field. Mr. Clair and I were flabbergasted.
Appended to his revelations of fact, JAG issued a legal caution. Because the National Defence Act prescribed several roles for the Minister in the administration of military justice, she must say or do nothing that could be construed as prejudicial of anything that could become an issue at the trials of the accused. An investigation had begun which would be ongoing for some period of time, and it was important that its work not be compromised by public discussion of the facts.
When we adjourned, I immediately went to my office and wrote a full note to the Minister recounting what we had just learned and discussing how she should view and react to this stunning turn of events. At that time, she had begun her campaign for the leadership of the PC party, but my notes were transmitted to her in time for her to review each evening. Of course, she did not depend upon a policy wonk for knowledge of breaking news of consequential developments such as this. She would be (and was) independently advised by the Deputy Minister and the Chief of Defence Staff (CDS). I advised her in my note that “The Forces wanted to keep separate, in their communications, the death of the Somali and the attempted suicide of Matchee. We insisted that this simply invited a later implication, by the media, that a cover up was attempted. We did not imagine, until this morning, what actually had occurred. If anything, it makes more urgent a course of openness which is conditioned only by the rights of the accused.”
From this time forward, the Minister and her staff were engaged in a kind of covert war with the National Defence establishment over the issue of “openness.” First of all, it was obvious to us that there had been an attempt at a cover up, and – perhaps more to the point – it was obvious to the military that we understood this.
What was not at all obvious was the level of command at which the cover up had been contrived, and the extent to which we were now confronted with an effort to “cover up a cover up.” Where, precisely, had the crucial information about the torture/murder been from March 16th to March 31st? Had it come forward to Defence Headquarters in bits and pieces, or all at once? Who had created and then maintained the principal cover story of the “medical examination” that revealed only two small bruises? Was this an “in country” initiative that became untenable, or a spin put on the story as it proceeded up the chain of command? And, of the greatest and most urgent consequence: what else was going on that we did not know about?
It was the last question that caused us the greatest immediate concern. The National Defence Act unequivocally identifies the Minister of National Defence as the official bearing ultimate responsibility for the conduct of Canadian Forces. “The Minister,” the Act provides, “has the management and direction of the Canadian Forces and of all matters relating to national defence….” (Part 1, Section 4, National Defence Act) The Chief of Staff, by way of contrast, is “charged with the control and administration of the Canadian Forces…subject to the regulations and under the direction of the Minister.” (emphasis added) (Part 1, Section 18(1)) The Minister bore final responsibility for whatever Canadian Forces were doing in Somalia. What was to be done?
When we think of “abuse of power,” we usually have in mind the arrogant over stepping of legitimate authority. But sometimes the very possession of legitimate authority requires its dutiful and diligent exercise, and the failure actually to use power in such circumstances can become a form of abuse. There are both positive and negative abuses of power.
We certainly did not miss this fundamental point, and neither did Parliament. In the wake of a cryptic announcement by General Reay on April 1st that blandly described Arone’s death as a homicide occurring “after contact with several members of the Airborne Regiment,” Members of the Opposition began demanding an explanation in the House of Commons. Where had this information been languishing? Was the Minister awake and alive to her duties to Canadians and Parliament? The media, as the saying goes, already smelled blood, even though the “torture” word had not yet been publicly uttered. That shockwave would not hit until the actual charges were laid, almost two months later.
The media treatment of the Somalia Affair, through its various stages – the first shocking revelations, the long process of the military trials, the longueurs of the early Commission slogging, the final dramatic shut down by the government – is a subject deserving extensive treatment on its own, but one or two brief observations should be made. In general, the only media organization that “got” the story and followed it with professional tenacity from beginning to end was the Toronto Star. The Globe and Mail, which was then a much more consequential national force (and as distinctly Tory as the Star was Grit), decided at the outset that Somalia was a Star story, and that they would not squander resources in challenging the lead. The Globe tended to treat the story as an “Ottawa” piece about bureaucratic warfare and the Southam papers echoed this perspective. Only at the very end, when the Commission was shut down, did all Canadian media join in their recognition that something very serious was happening – or, it would be more accurate to say, had happened.
The period from March 31st until May ?, when it was finally revealed that Canadian soldiers were being charged with torture, was excruciating. At one point, soon after General Reay’s April 1st press conference, I was briefing the Deputy Prime Minister for Question Period in the small conference room used for this purpose in the Office of the Privy Council. Minister Campbell was not in Ottawa, and Mr. Harvie Andre was taking questions for her. Several other Ministers were present, and the Deputy PM made it clear that he intended to aggressively “stick up for our boys,” who were doubtlessly carrying out their duties in Somalia in the best tradition of the Canadian Armed Forces. Peacemaking, like war, is Hell, and our soldiers deserve the unqualified support of Parliament.
As noted above, JAG had advised us that we had a duty of strict secrecy with respect to any of the facts of the Affair as they had been revealed to us, and that on no account were we to communicate those facts to other Ministers. If, however, I failed to give Mr. Andre some sense of what was actually happening, I would certainly be setting him up for future embarrassment and – at least arguably – misleading Parliament. I took Mr. Andre firmly by his arm, led him out of the conference room to his office, and gave him at least the bare outline of what we knew. Mr. Andre was as astonished as we had been on March 31st. I pointed out that we had been advised by JAG that none of what I had told him could be communicated to Parliament, but that at least his tone and demeanor could (and should) reflect the gravity of the situation.
This was an intolerable state of affairs. I strongly felt that JAG’s advice to the Minister effectively drew her – and, unwittingly, other Ministers – into collaboration in a cover up. I did two things. First, I went to the Special Counsel to the Deputy Attorney General of Canada, Mr. David Merner, and told him everything we knew. Secrecy might be the drug of choice at National Defence Headquarters, but I was convinced that it was causing brain damage. From April 1st forward, I regularly briefed Mr. Merner, who briefed Mr. Tait, and I spoke directly to Mr. Tait himself about the Somalia Affair on several occasions.
Secondly, I made an urgent request to the Acting Judge Advocate General to prepare a comprehensive note for the Minister, documenting his precise legal sense of the Minister’s dilemma along with her options, and providing her with an account of how the Defence culture had dealt with similar instances in its past. We reflected at this time – a point emphasized by Mr. Merner, who vigorously approved of getting the full advice of JAG on paper – that at the Department of Justice such a note would have appeared before the Minister or her staff had recognized the need for it.
JAG responded, on April 4th, not with the requested note to the Minister, but with a fateful memo to me which began with the observation that “I understand that in spite of the explanations that have been provided to you, you still have difficulty with the idea that the Minister should not attempt to exercise political influence over the unfolding of these processes.” The note goes on to threaten that “one may imagine the effect on the Minister’s present situation [contesting the leadership of her party] should it be revealed that she had interfered, or attempted to do so, with the course of military justice in this highly sensitive case.” As a specie of such reckless interference, JAG darkly referred to an instance of the Minister actually talking to the CDS about Somalia: “I believe that the preceding (sic) paragraphs should explain the concern in the Canadian Forces about the Minister’s telephone call to the Chief of the Defence Staff on Thursday last.” This in reference to a woman who had just served for three years with distinction as Minister of Justice and Attorney General for Canada.
Since the note was addressed to me (and copied to the Chief of Defence Staff and the Deputy Minister), it was not advice to the Minister, and hence accessible under the provisions of the Freedom of Information Act by anyone who knew of its existence. The “should it be revealed” clauses would strongly suggest, to anyone ignorant of the innocent and appropriate request that had brought forth the note, that the Minister had, in order to advance her political fortunes, actually “interfered, or attempted to do so with the course of military justice.” In the heated atmosphere of a race for the office of Prime Minister, the damage flowing from such a misperception would be very difficult to deflect or undo. JAG had made a bomb and was holding a lighted match to its fuse.
Upon receipt of this note, we dispatched Mr. Clair to meet with the CDS and the DM to demand that JAG retract his insinuations and apologize for the note. Their counter suggestion was that the three copies of the note would be shredded, and the hard drive from JAG’s home computer, upon which the note had been composed, destroyed. If no note exists, the problem disappears.
When Mr. Clair returned to us with this proposal, we quickly determined that participation in it would involve us in the wrongful destruction of a public document. However dangerous the existence of JAG’s note was to the Minister, complicity in its destruction would fatally compromise the integrity of our office. It would also, we noted, put the Minister in the compromising position of sharing a guilty secret with the military establishment.
We locked up JAG’s note to me in Mr. Clair’s safe and refused, in the face of the most pressing demands, to destroy it. On April 23rd, JAG sent a note to the Deputy Minister unreservedly retracting the inferences of his note of April 4th. We then gave the Office of the CDS and the DM copies of the original note for their files. These photocopies, Marianne Campbell pointed out, bore the stamp of the Office of the Minister of National Defence, making it clear that they were not the documents originally sent to the CDS and the DM by JAG.
When Mr. Clair and I showed the original JAG note to the Minister, her response was immediate and unequivocal. She asked me to get the Deputy Attorney General on the phone so that she could read the note to him. In the presence of Mr. Clair and myself, she reported to Mr. Tait our information concerning the destruction of copies of the note in DND and added that she would be formally seeking his advice. The Minister then directed me to prepare a concise version of my original question, as I had posed it to JAG, for the Attorney General. I did so and on April 22nd the Minister wrote to the Deputy Minister, effectively discharging JAG as her legal counsel and directing the Deputy Minister of National Defence to communicate the crucial question to the Deputy Attorney General.
The text of the question for the AG outlined the responsibilities of the Minister as per the National Defence Act and noted the quasi judicial functions she performed in the system of military justice – principally certain powers of mercy. “The question raised by these considerations,” the note concluded, “is as follows: how ought the Minister of National Defence conduct herself when it appears that she may be fettered by her limited role within the system of military justice from the timely discharge of her duty and responsibility to govern the Canadian Forces?”
This note of April 23rd brought the Deputy Attorney General and several of his officials to the National Defence offices on April 24th. It was immediately decided and advised by Mr. Tait that the Minister’s duty to manage and direct the Canadian Armed Forces could not and should not be nullified by her very limited role within the system of military justice. It was determined that she could immediately convene a Special Inquiry to go to Somalia and determine, on an emergency basis, whether Canadian Forces were capable of an honourable continuance of their service there. As long as the inquiry did not press into those areas under active investigation in connection with the murder of Arone, it should be possible to determine if there was a crisis of either morale or leadership. At the very least, the Minister could discharge her responsibility to ensure that, if it were necessary, she would have the information needed to withdraw our Forces to prevent further criminal activity and national disgrace.
There was no attempt at this time, either on our part, or on the part of the Attorney General, to address the underlying cover up issue. There were two reasons for this. Firstly, it was very difficult to see how such an initiative could avoid interference with the still ongoing investigation of the actual torture and murder, not to mention the subsequent trials of the persons who would be charged in connection with that crime. (Canada’s system of military justice provided that only officers in the field could lay criminal charges, and that crucial step had still not been taken by late April. Of course, any suggestion on the part of the Minister’s Office that the delay seemed excessive was rebuffed by dark implications of “political interference.”) Secondly, it was clear that nothing less than a full Public Inquiry could imaginably marshal the resources and authority needed to win its way to the bottom of the affair. In this connection, it seemed obvious to us that once the trials were concluded and their findings public, the Government of Canada would be under tremendous political pressure to convene such an Inquiry.
Thus it was that, in early 1995, the present government Commissioned an Inquiry into the Deployment of Canadian Forces to Somalia. The Commission’s mandate was to cover all aspects of the Affair – pre deployment, in theatre, and finally, the issue of a possible attempt at a cover up.
From the outset, the Commission experienced the most tenacious and determined opposition to its work by the military. Relevant documents were lost, or were not produced in a timely fashion, or were “hidden” in – literally – thousands of pages of extraneous and irrelevant material. At one point, after almost an entire year of examination of an egregious instance of document alteration in the Communications Directorate, the then Chief of Defence Staff was implicated and forced to resign.
This delay in coming to grips with the central issue of an attempted cover up proved, however expensive, to provide the government with a bolt hole. Citing the need for thrift and the pressing need to move forward with reforms to Canadian Forces, Cabinet refused to extend a routine request for an extension of the Somalia Commission’s reporting deadline, effectively ending its existence. Never mind that the promised reforms would necessarily exclude consideration of any possible participation of the highest officials of the defence establishment in an attempted cover up.
I felt very strongly that this result was a travesty of justice and a national disgrace. What First World nation would tolerate the intervention of government in a Public Commission of Inquiry charged with the investigation of a cover up of a torture/murder on the part of its highest officials? If I did not literally find it impossible to believe, I certainly found it impossible to accept. That the Cabinet possessed the raw power to shut down the Commission was obvious – it accomplished that purpose by simply refusing to extend its mandate. The Commission was, in strict legal terms, the creature of the government; and what the government hath given, the government could take away. Such a step had, however, never been taken before in the history of our country. Commissions struck under the Public Inquiries Act had come to take on what the Supreme Court of Canada has identified as “a vital role in our democratic institutions,” and (as is often the case in a Parliamentary democracy) an inviolate robe of traditional practice had come to protect them from even the prospect of government interference.
I retained counsel and brought forward an application for standing to testify before the Commission. It had several weeks left to run and I reasoned that, if Marianne Campbell and I had an opportunity to testify concerning our experiences, it would be impossible for the government to persevere in its plan.
In this connection, I wish to make it very clear that I did not possess – nor did any other members of the Minister’s staff or the Minister herself possess – knowledge concerning the participation of any specific individual in the cover up of the torture/murder. Knowing that there has been a cover up is a very different epistemic condition from knowing who is responsible for it. Only the Commission of Inquiry, with its power to command documents and testimony, could imaginably throw revelatory light on these dark matters. In a sense, the most telling information we had to offer concerned what we did NOT know, and should have known, very soon after March 16th, 1993. I could not and did not prejudge, on the basis that I had not been informed of the torture by official X or official Y that X and Y were involved in a cover up. For all I knew then (and know now) X and Y could have been as much a victim of a cover up as were the Minister and Parliament.
Only the Commission could do justice, and it could only do justice if it were permitted to discharge its mandate. In the event, the Commissioners decided to reject my application for standing, arguing that my testimony, which I outlined to them in a supporting affidavit, would necessitate their hearing the Chief of Defence Staff, the Deputy Minister, and the Minister herself. This could not imaginably be accomplished, at least not in a manner consistent with the demands of due process, in the time remaining to them. They praised Marianne Campbell and me for our diligence, roundly condemned the abusive arrogance of the government, but declared that, in the final analysis, they were bound by the will of cabinet.
Although I respected the difficulties faced by the Commission, I could not accept this decision. As quickly as possible, I filed an application in Federal Court for a Writ of Mandamus against the Commission and brought an action against the cabinet for exceeding its lawful authority in shutting it down. Mandamus is prerogative writ ordering an official or governmental institution to discharge its full, lawful duty. The mandate of the Commission, established by Orders in Council, included inquiry into a possible cover up of the Somalia atrocity. I had made it clear in my affidavit that there had, indeed, been a cover up, and that I was anxious to give sworn testimony which would establish that fact. As long as the Commission was still in force, and knew of the significance of my testimony, it had a duty to hear me.
I expected the Somalia Commission to defend against my application for Mandamus by testifying that, although they regarded my testimony as highly significant, they could not responsibly hear it without committing to hear testimony from those persons implicated by it. This was not imaginably possible in the several weeks remaining to them. So their defence against mandamus would be that the government effectively prohibited them from discharging the very mandate that they – the government – had imposed upon them. That defence I then expected to use in support of my principal legal thrust, which was to argue that it was not lawful for the government to establish a legal duty for a Public Inquiry and then withhold from that Inquiry the bare resources needed to discharge that duty. This was the core of my argument that, in shutting down the Commission, the government had acted ultra vires – literally “beyond its lawful authority.”
Both my counsel, Mr. Joseph Arvay, and I understood that this was a hard case in which we were advancing novel legal concepts. On the other hand, we had good authority for the democratic importance of Commissions of Inquiry in recent decisions of the Supreme Court of Canada and a strong general sense throughout the country that the government’s action was an arrogant abuse of power.
In the event, I won. Judge Sandra Simpson of the Federal trial division decided that a writ of mandamus could not lie against the Commission because it was clear that the government had effectively deprived them of the means to discharge their mandate. Further, and most importantly, she ruled that the federal cabinet had acted ultra vires in shutting down the Commission without issuing new or amending Orders in Council relieving it of those elements of its mandate that it could no longer discharge. The Commission might be the creature of the government, but it was a special sort of Canadian creature that had come to occupy a special role in the preservation of confidence in the integrity of government. If the Somalia Commission was to be shut down by government, then government was going to have to accomplish that purpose in a manner that made its action politically transparent.
Of all of the disappointments that I felt in connection with the Somalia Affair, none is more keen than my disappointment that the Commission did not take the opportunity afforded them by the decision in Federal Court to immediately summon me to Ottawa to testify. In subsequent conversations with the President of the Commission, Giles Letourneau, and Commissioner Desbarats, they pointed out that by the time the Simpson decision was rendered, they were so demoralized that they could not conceive of carrying on. While I appreciate the honesty of this excuse, I do not think, given the gravity of their mandate and duty to Canadians, that it is acceptable. As it was, the Commissioners cooperated with the Privy Council in crafting a new Order in Council to shut themselves down in accordance with the Simpson decision; and they got on with packing up their desks.
In the following months, Mr. Desbarats published a book about his experience as a Commissioner, based upon notes he made during the tenure of the inquiry. Just before its publication, he approached me with a request for an extensive set of interviews from which he hoped to glean the material he needed to give his book – which was to be titled Somalia Coverup – some real punch. I suggested that, along with my sworn affidavit, he must have had, as a Commissioner, access to far more information than I could ever provide him. He responded that, in order to protect himself from charges of conflict of interest when he published his book, he had made it a point of honour not to read any document that touched on the issue of the actual torture/murder or subsequent cover up. This was, I believe, an inappropriate balancing of his duties as a Commissioner and his professional journalistic principles.
Clearly, the central “abuse of power” in the Somalia Affair was perpetrated by the federal cabinet. However, as I suggested earlier, the failure to use legitimate power can be a form of abuse as well. Such “negative” abuse coloured, to some extent, the final days of the Somalia Commission; but it was most egregiously present in the passivity of the sovereign People.
The ultimate political elite in a democratic polity is the citizenry. They stand at the apex of their system of government as its genuine, as opposed to figurative, sovereign. But there is a big problem with the Canadian sovereign these days, because, as I noted at the outset, when Somalia interrogated the citizenry of our country, they essentially responded that they were tired of trying to pay attention and were ready to go along with the government’s inclination to bury it.
How could this happen? Why were Canadians so ready to be tired: a condition almost obsessively tracked by government polling – of the work of the Somalia Commission? Why did they feel no sense of connection with them or responsibility for the Commissioners? How has so much political power managed to cut itself off from its authorizing source and hence escape any genuine accountability? It is as though, to borrow an idea of John Ralston Saul, Canada is increasingly becoming an “unconscious civilization” – a polity in which the ultimate political agents are unconscious of their own great office along with its related powers and responsibilities.
I will conclude with a very brief suggestion of what I think are the most important contributing elements to this political malaise. The first and worst problem is that our educational system simply neglects to awaken the citizenry to the fact of their great office or to give them the powers of the culture that could lift their incumbency beyond the range of mere formality. That would take generations to change, but the second largest component of the problem might be changed more quickly.
The fundamental political act of a citizen is to vote for their most immediate governing instruments – legislative representatives. Members of Parliament have, however, gradually become non entities in the Canadian system. Not only the executive, but even the legislative business of government is now transacted by a handful of cabinet ministers who are advised and directed by a proportionally tiny number of unelected, anonymous, and supremely unaccountable deputy ministers. To an extent unexampled in any of the other Western parliamentary democracies, Canadian political parties maintain a tyrannical discipline over the voting of their members, and this has transformed Parliament from a genuine political assembly into a highly stylized theatre.
The simplest step needed to restore our legislative assemblies to some semblance of political vigour and authenticity is reform of this distinctly Canadian practice of iron caucus discipline. Without such reform, Canadians will become more and more alienated from their politics, which they will come to understand as a lottery of political will which, at regularly scheduled intervals, endorses a kind of regency. This is precisely the condition of democratic decay that Rousseau warned against (as always, slightly overstating the case) in his 1762 criticism of English parliamentary government in The Social Contract:
The citizenry of Canada hold the great sovereign office that can never be delegated or authored away, and when its incumbents nod off – as they did at the close of the Somalia Affair – all hope of political accountability disappears.
The Somalia Affair was originally a talk given at Simon Fraser University in 1998. It was later published in the anthology Abusing Power: The Canadian Experience, Susan Boyd et al., Fernwood, 2001.