R. v. Skrok, 2017 CM 1007

COURT MARTIAL Citation: R. v. Skrok , 2017 CM 1007 Date: 20170512 Docket: 201641 Standing Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen - and - Major C.S. Skrok, Offender Before: Colonel M. Dutil, C.M.J. REASONS FOR SENTENCE (Orally) [1] Major Skrok admitted his guilt to one count of neglect to the prejudice of good order and discipline under

section 129 of the National Defence Act . The particulars read as follows: “on 21 January 2016, onboard HMCS Winnipeg, alongside Singapore, when on duty as Watch Leader, failed to remain vigilant, as it was his duty to do so.” [2] We are in the presence of a joint submission on sentence by counsel. They recommend that the court impose the punishments of a reprimand and a fine in the amount of $1,500. This joint submission is made in the context of the applicable law in Canada with regard to joint submissions on sentence as it was stated by the Supreme Court of Canada in R. v.

Anthony-Cook , 2016 SCC 43 , where the Court exposed the legal test that trial judges must apply when they are facing a joint submission by counsel on sentence. [3] Unless the joint submission is contrary to public interest or will bring the administration of justice into disrepute, the presiding trial judge cannot depart from it. The Supreme Court of Canada in R. v.

Anthony-Cook was absolutely clear that it is a desirable practice for the prosecution and for the defence to agree on joint submissions on sentence, but it also highlights the fact that they are responsible and accountable for those joint submissions. In other words, the judge cannot alter their recommendation by tweaking it even a little bit. Agreements of that nature are commonplace and they are vitally important to the well-being of any justice system, whether it is the military justice system or the criminal justice system, because it frees up resources, and allows justice

participants to put their resources to needier cases. We have to trust the judgement, the experience and the competence of counsel in the legal system making those submissions. [4] Joint submissions have many benefits, one of the most important ones is that, of course, the prosecution can secure a conviction even when its case has some weaknesses, but most importantly, it saves resources by not having to call witnesses, and spares plaintiffs sometimes or victims from having to testify about the experience that led to the charges.

It also assists the defence in knowing in advance or at least to provide them with some sense of certainty as to what they expose themselves to.

So it provides both parties with a high probability that if they discharge their burden, as they have done today, that their recommendation will be accepted. [5] When I referred briefly as to the advantage to the prosecution to secure a conviction when their case has some weaknesses I will draw your attention to the Statement of Circumstances as were read by the court and the Agreed Statement of Fact provided as well and most specifically at paragraph 8 where, after elaborating on the health of the offender prior to the offence, they say that: . . .

Maj Skrok felt that he could not ask to be relieved of his watch duties as he had to conduct the helicopter tours for foreign officers. In hindsight, he recognizes that asking to be relieved would have been the responsible course of action, and he regrets his lack of judgement. [6] That exposes some of the weakness of the prosecution’s case today with regard to the issue of the mens rea for the offence. So, that’s what happens in a joint submission.

As opposed to challenging the essential element of the offence with regard to mens rea , counsel agreed to come up with that joint submission that would not bring the administration of justice into disrepute.

As I said, the prosecution and defence have provided the court with a very complete Statement of Circumstances and an Agreed Statement of Fact which highlights all the relevant events and factors that were considered to come up with that joint submission. [7] A Statement of Circumstances and an Agreed Statement of Fact were provided to the court as a result of the plea of guilty and are hereby reproduced to provide a detailed rendering of the events that led to charges before the court as well as relevant information in the determination of a fair and fit sentence.

They read as follows: “Statement of Circumstances 1 . Major Skrok enrolled in the Canadian Armed Forces (CAF) on 21 June 1994. He is a pilot. In January of 2016 he was assigned to Task Force ARTEMIS in the Gulf of Aden, onboard HMCS Winnipeg. He has been posted to 443 Squadron in Esquimalt, B.C. since April of 2016. 2 . On 21 January 2016, HMCS Winnipeg was in port Singapore. Major Skrok was assigned as the Watch Leader. Lt(

N) Gray was the Force Protection Officer (FPO). The Duty Watch Brief was conducted at 1000. Maj Skrok volunteered to take the first three-hour watch as he would then be able to assist with tours of the ship that were being provided that day for members of the Singaporean Navy. 3 . After the brief, the FPO went below for approximately 20 minutes to write up the watch schedule. On returning to the flight deck, the FPO looked for Major Skrok to give him his copy of the duty watch rotation, but was unable to find him. She asked several members of the crew. No one had seen him.

At this time, members of the Singaporean Navy were coming onboard the ship in large numbers. It was shortly reported that Maj Skrok had been located in the helicopter. The FPO was taken to the helicopter, where Maj Skrok was sitting with the door fully open, in a semi-recumbent position, with his mouth open and his eyes closed. A non-commissioned crewmember had photographed Maj Skrok in this position. As the FPO stood and discussed the situation with Lt(

N) Brun, Maj Skrok appeared to become alert. The FPO did not immediately discuss the situation with Maj Skrok as Maj Skrok outranked her, and she did not want to draw attention to the situation as a group of Singaporean sailors was approaching the helicopter. Later, the Executive Officer approached Maj Skrok and asked him if he had slept earlier in the helicopter. At that time, he said that he had not. 4 . Ship’s Standing Orders require Watch Leaders to supervise the Force protection Component, conduct rounds, and when not conducting rounds, remain at or near the brow of the ship.

The helicopter in which Major Skrok sat had been traversed onto the flight deck and was about ten feet from the brow. 5 . A charge was laid 21 February 2016. Maj Skrok elected trial by court martial on 5 May 2016. Charges were preferred on 3 November 2016.”

“Agreed Statement of Fact 1. On 20 January 2016, HMCS Winnipeg hosted a cocktail party for Singaporean military personnel. For the event, an awning was erected over the flight deck and all the deck tracks were filled with large rubber filler strips. 2. On 21 January 2016, the awning and track strips were still in place at 0730 hours. The deck department is normally responsible for the removal of this equipment. A static helicopter tour provided by the Air Det for Singaporean naval officers, as well as repair work on a main rotor blade, required that the helicopter be brought on the flight deck for the day. 3.

Major Skrok was responsible for the deployment of the helicopter on the flight deck. He noted the encumbered deck at 0730 hours. Major Skrok and some members of the deck department removed the awning and track fillers. The job took approximately 2 hours and involved exhausting manual labour. The temperature, wind, and humidity that day produced a “felt like” temperature that rose from 34 degrees to 44 degrees Celcius between 0700 hours and 1300 hours. 4.

Around 0930 hours, Major Skrok and two Air Detachment subordinates traversed the helicopter onto the flight deck from the hangar and prepared it for the planned repair work. The helicopter did not automatically spread as it should have. Major Skrok and his staff were required to manually spread the tail and carry the main rotor blades over the flight deck netting. In addition, the main rotor blades needed to be positioned once spread. For that process, Major Skrok had to be in the Landing Signals Officer compartment (a small glass enclosure on the flight deck), which exposed him to intense heat conditions. 5.

Maj Skrok assumed his watch duties at 1000 hours as he was required to conduct the helicopter tours on the flight deck for the Singaporean officers. The start of the tour was delayed until after 1100hrs as Maj Skrok waited on the flight deck. When the tour did begin, it started inside the ship while Maj Skrok remained outside, exposed to intense heat. 6 . Maj Skrok took shelter from the sun in the back in the helicopter while he waited for the tour to reach him. He sat in the helicopter troop seat. After the morning’s work in the heat, Major Skrok felt abnormal. His energy was unusually low.

He felt sick, tired, and developed a headache. 7 . Maj Skrok tilted his head back to relieve some stress and closed his eyes for a period of time. He believes he remained fully aware of his surroundings. He could hear the conversations of other people on the flight deck. At some point, he was approached by the Executive Officer of the ship who asked him if he was sleeping. Maj Skrok stated that he was not. 8 . At the time of the offence, Maj Skrok felt that he could not ask to be relieved of his watch duties as he had to conduct the helicopter tours for foreign officers.

In hindsight, he recognizes that asking to be relieved would have been the responsible course of action, and he regrets his lack of judgment. His behaviour was not premeditated. 9 . Major Skrok was the Highest Flown Pilot at 12 Wing for the past two years. That is, he has logged the most time in the air, having readily accepted all taskings and missions. 10 . Major Skrok has been his squadron representative at Honour Ranch, a facility for Veterans with PTSD.

He volunteered to referee for the Canadian Forces Basketball Nationals and has been involved with the Air Cadet program as a reviewing officer on numerous occasions. 11 . LCol Ryan Sexsmith, is the Officer-in-Charge of the Air Component Coordination Element (Pacific), and Major Skrok’s former supervisor. He has worked professionally alongside Major Skrok in the Maritime Helicopter community and in staff roles for close to 17 years. LCol Sexsnith describes Major Skrok as an unfailingly “go-to” member of whichever unit he has been employed at, trusted to execute tasks with little to no oversight.

He states that Major Skrok is a thorough military planner who can always be relied upon to volunteer for duties and get the job done. LCol Sexsmith describes Major Skrok as an experienced senior pilot who embraces leadership challenges and takes all opportunities to mentor and develop junior aircrew, instilling in them a pride for service and a desire for excellence as military aviators. LCol Sexsmith was very surprised to hear of Major Skrok’s involvement in the offences.

LCol Ryan Sexsmith states that this offence represents actions that are not congruent with Major Skrok’s normal behaviour, and he does not feel there is any risk for re-offence.

12 . LCol Shawn Williamson, Major Skrok’s current Commanding Officer, describes him as hardworking, dedicated, and enthusiastic. He says Major Skrok is completely reliable and has his trust to handle a wide range of responsibilities with a keen sense of professionalism and resourcefulness. LCol Williamson maintains that Major Skrok knows and cares greatly for his subordinates, and that he tempers this with the knowledge of the needs of the service to ensure that the squadron meets its mandate in providing operational airpower to the Royal Canadian Navy and Canada.

He states that Major Skrok is widely respected for his ability as a Pilot and Maritime Helicopter Crew Commander, and that he relied on him as his lead Major Pilot Flying Supervisor for the past year. In this role, Major Skrok has provided excellent leadership and mentorship to junior pilots and aircrew, and represents the squadron very well with other organizations. LCol Williamson states that Major Skrok certainly goes above and beyond, giving his personal time for operational taskings.

He states that overall Major Skrok is a solid, balanced, and dependable officer whom he trusts, who positively contributes to 443 Squadron’s mission success, and who clearly cares deeply for his children. 13 . Major Skrok is married, has four young children and is the sole source of income for his family.” [8] Not only did counsel take into consideration the relevant aggravating and mitigating factors surrounding the commission of the offence and with regard to the offender but they also addressed the applicable principles and objectives of sentencing in this case as stated by the prosecution.

That exercise in the making of a joint submission is theirs and I have no reason to question or doubt that they did not do their work on that issue. [9] We have an offender who has joined in 1994, and has served his country for 22 years with an outstanding record. He is seen as as an outstanding, trustworthy officer with significant leadership, is the father of four, the sole income provider for his family and there is absolutely no aggravating personal circumstances in this case for Major Skrok. This case is strictly about a minor lack of judgement where the health condition of the offender was not at its best.

I am satisfied that all documents provided to the court provide us with a clear, complete picture of both the offence and the offender and I agree with the prosecution certainly that the need for general deterrence, denunciation and rehabilitation are certainly well met with their joint recommendation today. So, I have no room to alter it, to play with it, and it would be totally inappropriate for the court to do so in the circumstances. Therefore, I accept that this joint submission is in the public interest and that it does not bring the administration of justice into disrepute.

FOR THESE REASONS, THE COURT: [10] FINDS you guilty of one count of conduct to the prejudice of good order and discipline contrary to

section 129 of the National Defence Act . [11] SENTENCES you to a reprimand and a fine in the amount of $1,500 payable in 10 consecutive and equal monthly instalments of $150 starting on 15 May 2017. Counsel: Major E.J. Cottril for the Director of Military Prosecutions Major A. Gelinas-Proulx, Defence Counsel Services, Counsel for Major C.S. Skrok