R. v. ZATREPALEK, 2024 SKCA 27, MARCH 8, 2024.
FACTS: The accused was convicted of the offences of possession of child pornography, distribution of child pornography and accessing child pornography, contrary to sections 163.1(3), 163.1(4) and 163.1(4.1) of the Criminal Code. At his trial, the Crown led evidence that the accused’s family computer was seized and searched. Child pornography sites had been accessed.
The accused testified and “denied having downloaded, viewed or uploaded the images in question. He testified to using Internet PC primarily for streaming adult pornography on PornHub, and occasionally for work. He averred that Internet PC was accessible remotely to anyone who had the requisite credentials. Both he and his wife had the necessary credentials to log on, but there was no suggestion that his wife had done so” (see paragraph 10).
On an appeal from conviction, the accused argued that the trial judge erred in failing “to consider and make findings on Mr. Zatrepalek’s evidence” (see paragraph 17).
HELD: The appeal was allowed and a new trial ordered. The Saskatchewan Court of Appeal indicated that “the trial judge failed to address the whole of Mr. Zatrepalek’s evidence in a meaningful way. While that evidence was summarized by the trial judge, there was no indication of what aspects were accepted or rejected. There were no findings made respecting Mr. Zatrepalek’s credibility or reliability. The trial judge did not mention his evidence in the context of R v W.(D.), [1991] 1 SCR 742. All that can be discerned from the reasons is that the trial judge rejected the defence theory (as he interpreted it) that a hypothetical hacker accessed Internet PC and downloaded the images as being ‘speculative’” (at paragraph 20).
The Court of Appeal concluded as follows (at paragraphs 20 and 24):
Just as an error in a credibility assessment can result in appellate intervention…a failure to make a credibility finding with respect to the testimony of an accused can, in some circumstances, constitute an error…As noted in R v M.J., 2022 SKCA 106, “[f]ailing to assess the accused’s credibility in the context of all the evidence could undermine not only the assessment of the accused’s evidence but the assessment of the other evidence”…
[T]he failure to make findings on Mr. Zatrepalek’s evidence affected the trial judge’s ability to meaningfully assess the remaining evidence of the Crown. Mr. Zatrepalek gave more than a bare denial. He provided detailed evidence that, combined with the technical evidence of D./Cst. Seidel, raised questions as to his accessing of the images, conducting of the suspicious searches in the browser history, and the likelihood that he would have been available to perform the hundreds of downloads that occurred on March 30, 2020. This went directly to the issue of whether reasonable inferences inconsistent with guilt existed.
