Saskatchewan’s Court of Appeal overturned Brent Zatrepalek’s conviction on child porn charges saying the verdict was unreasonable and a miscarriage of justice.
The province’s top court unanimously agreed that the accused didn’t have a fair trial and the trial judge had reversed the burden of proof.
“If there is a reasonable explanation other than guilt based on the evidence and lack of evidence, the Crown has not met its burden of proof beyond a reasonable doubt,” said Madam Justice Jillyne M. Drennan, in her March 8 written decision.
“To require an accused to prove a reasonable explanation is to reverse the burden.”
During his trial in Saskatoon Provincial Court, Zatrepalek had denied downloading, accessing or sharing the images. He was convicted on charges of possession of child pornography, distribution of child pornography, and accessing child pornography.
The trial judge rejected the defence’s theory that a hypothetical hacker had accessed his computer and downloaded the images.
During Zatrepalek’s appeal, which was heard in November 2022, defence lawyers Brian Pfefferle and Thomas Hynes, argued that the trial judge improperly required the accused to explain the hypothetical hacker conduct.
Justice Drennan, in agreement with Justices Brian Barrington-Foote and Jerome Tholl, ruled that the trial judge didn’t consider Zatrepalek’s evidence within the Villaroman framework. The Villaroman framework requires the trial judge to consider inferences arising from all of the evidence and not just the evidence led by the Crown.
“I agree 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’s failure to make findings on Zatrepalek’s evidence affected his ability to assess the remaining evidence of the Crown, said Justice Drennan.
“The trial judge addressed the hacker theory as the sole alternate theory to Mr. Zatrepalek’s guilt,” said Justice Drennan.
At trial, defence had argued Zatrepalek wasn’t responsible for the images. They suggested someone or something else was responsible, such as potential malicious software, a virus, or malware. A detective testified that he couldn’t rule out these possibilities.
The trial judge, however, had said Zatrepalek should have been able to detect if it was a hacker.
The Court of Appeal disagreed.
“The notion of what a hacker would or would not do was entirely an invention by the trial judge and was not grounded in any proper common-sense assumptions or inferences derived from the evidence.”
During his trial, Zatrepalek’s lawyers provided evidence that, combined with the technical evidence of the detective, raised questions as to whether he accessed the images, conducted the suspicious searches, and made hundreds of downloads on March 30, 2020.
“This went directly to the issue of whether reasonable inferences inconsistent with guilt existed,” said Justice Drennan.
The trial judge relied on unfounded assumptions to conclude that the hacker theory wasn’t a reasonable alternative explanation in the context of his Villaroman analysis, said Justice Drennan.
“In effect, this imposed a burden on Mr. Zatrepalek to prove that alternative explanation by disproving those ungrounded assumptions about the sophistication and habits of an unidentified and unidentifiable hacker."
Court heard that Saskatchewan Internet Child Exploitation Unit and police executed a search warrant at Zatrapalek’s home on May 6, 2020, and seized the family desktop computer. The desktop contained a virtual machine, which Zatrepalek had created for the purpose of accessing content that wasn’t secure and potentially a threat to the home network. This virtual machine was remotely accessible outside the home network.
Defence argued that the trial judge failed to consider evidence that Zatrepalek wasn’t using anti-forensic measures, including a VPN, to protect the computer and that the suspicious internet searches police found were worded as though someone with poor English skills had made them.
“This evidence went to the heart of plausible alternatives to guilt, particularly given that images were in a cache, not visible to the human user without the use of forensic software, and that there was no direct evidence of Mr. Zatrepalek accessing the images,” said Justice Drennan.
During the trial, Zatrepalek had testified he didn’t have the opportunity to download the images, file by file, over a continuous 17-hour period on March 30, 2020.
The detective told the court that the person would have been downloading, one by one, images all night and into the next morning when the rest of his family would be getting up and around him. Defence argued that piece of circumstantial evidence suggests someone other than the accused was using the computer.
The Crown agreed that the trial judge had misinterpreted the detective’s evidence but argued the error wasn’t relevant because the case against Zatrepalek was overwhelming and the issue of downloads happening over a 17-hour period was a weak argument.
“With respect, I disagree,” said Justice Drennan.
“It is my view that the combined misapprehensions of evidence by the trial judge played a crucial part in the reasoning process resulting in Mr. Zatrepalek’s convictions. The trial judge disregarded evidence relevant to a material issue, including the evidence on Mr. Zatrepalek’s non-use of anti-forensic measures, the odd browser history searches, and the organization and accessing of the images.”
Justice Drennan ordered a new trial but didn’t grant an acquittal citing the inability to definitively conclude a properly instructed trial judge would determine the evidence in its entirety eliminated all reasonable alternatives to guilt.
This report by SaskToday first published March 17, 2024.
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