R v Paproski, 2021 SKCA 65

Court of Appeal for Saskatchewan Docket: CACR3346 Citation: R v Paproski, 2021 SKCA 65Date: 2021-04-19 Between:Bradley Neil PaproskiAppellantAndHer Majesty the QueenRespondentBefore: Ryan-Froslie, Leurer and Tholl JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice ThollIn concurrence: The Honourable Madam Justice Ryan-Froslie The Honourable Mr. Justice LeurerOn appeal from: Provincial Court, SaskatoonAppeal heard: February 16, 2021Counsel: Meagan Ward for the Appellant Andrew Davis for the Respondent Tholl J.A. I.

Introduction [1] Bradley Paproski was convicted of sexual offences and drug trafficking in relation to a young girl. The 14-year-old victim,Ms. T.P., communicated with a stranger on Facebook, arranged to meet with him, and exchanged sex for drugs. Mr. Paproski does notdispute that these events occurred, but denies that he was the person involved. On appeal, he submits the trial judge failed to considermaterial evidence, misapprehended and misunderstood Ms.

T.P.’s evidence, erred in her application of the principles from R v W.(D.), (SCC), [1991] 1 SCR 742 [W.(D.)], and applied uneven scrutiny to his testimony versus Ms. T.P.’s testimony. [2] For the reasons that follow, the appeal must be dismissed. II. Background [3] Ms. T.P. resided in Saskatoon. At the time of the events in question, she was 14 years old and addicted to crystalmethamphetamine [crystal meth]. In February of 2018, a person, who she had never met, messaged her on Facebook using the name“Brad”. The account had a profile picture, although the face was partially obscured by a bandana. Ms.

T.P. arranged to meet with theindividual at a house in Saskatoon. When she arrived, Ms. T.P. met a man she confirmed to be the person with whom she had beenmessaging. She observed him to be about 30 years old and he told her that he was 33. They went to a bedroom where they smoked crystalmeth and had sexual intercourse. When the man left the room, Ms. T.P. stole some additional drugs and departed the house. [4] On various occasions between February and May of 2018, the same individual contacted Ms. T.P. using a different Facebookaccount.

The name on this account was Franklin Binouchi, but the profile picture was a photograph of Mr. Paproski. This secondFacebook page contained personal photographs of Mr. Paproski, his wife and his son. The account had been created by a user with thename of “@Bradley.Paproski.1”. Ms. T.P. believed this person to be the same Brad who she had been in contact with in February. Theyexchanged a series of messages on May 4, 2018, in which Ms. T.P. offered oral sex in exchange for crystal meth. Brad gave her a differentaddress than their first meeting and she went to that house.

She was met at the door by the same individual with whom she had had sexualintercourse in February. They went down to the basement, but shortly thereafter a woman came downstairs and told the man that he wasnot allowed to have visitors. As a result, he and Ms. T.P. went out into the backyard where they entered a tent-like structure. Inside,Ms. T.P. performed fellatio on the man she knew as Brad and, when they were done, he gave her some crystal meth and cab fare. [5] Ms.

T.P. met the man named Brad on one other occasion at the Ramada Hotel, where he gave her some crystal meth, but shedid not recall any sexual contact on that day. She did not pay him for the drugs. [6] Ms. T.P.’s parents had discovered that she had been communicating with a person regarding exchanging sex for drugs andcontacted the police on April 4, 2018. Ms. T.P. gave a written statement to the police on April 28, 2018, and a video statement on May 7,2018. During the May 7, 2018, interview, Ms. T.P. gave the police consent to access her Facebook account.

Based on an examination ofthe Facebook communications, plus information provided by Ms. T.P.’s parents, the police identified Mr. Paproski as a suspect. Ms. T.P.subsequently picked out Mr. Paproski from a photo lineup as the individual with whom she had engaged in sexual activity. He wasarrested and charged with sexual assault, sexual interference, communicating for the purposes of obtaining for consideration the sexualservices of a person under the age of 18, and trafficking in crystal meth. [7] At the trial, the Crown called Ms. T.P., her father and a police officer as witnesses. Mr.

Paproski testified in his own defenceand denied that the Facebook accounts were his and further denied that he was the individual with whom Ms. T.P. had exchanged sex fordrugs. He testified he had never met her before the trial. III. Trial decision

[8] The primary issue at trial was identity. Mr. Paproski did not question whether the sexual activity had occurred, that Ms. T.P.was unable to give consent because of her age or that an individual had provided crystal meth to Ms. T.P., but he asserted he was not thatperson. He made lengthy closing submissions regarding inconsistency and reliability issues with Ms. T.P.’s testimony, problems with theaddresses and dates of the meetings, alleged tunnel vision by the police, concerns with the photo lineup and the fact that there wascontinued activity on the Franklin Binouchi Facebook account after Mr.

Paproski was incarcerated. Overall, Mr. Paproski asserted that theCrown had failed to prove beyond a reasonable doubt that he was the individual who had engaged in the impugned activity. The Crownargued Ms. T.P. was a credible and reliable witness and that Mr. Paproski was not. It addressed the issues with the photo lineup and theother perceived weaknesses in the evidence. Overall, the Crown urged the trial judge to reject Mr. Paproski’s testimony and to determinethat she was satisfied beyond a reasonable doubt of his guilt. [9] The trial judge rendered an oral decision.

She reviewed the evidence and commented on its significance. I will discuss thedetails of that portion of the judgment as required in the analysis below. The trial judge then concluded as follows: During the trial, I listened carefully to the testimony of all the witnesses, and have since taken the time to review and consider all theevidence and arguments of counsel. In addition, I have listened to the evidence of both the complainant and the accused. Having done so, Ifind I do not believe the evidence of the accused, nor do I find it to be reliable.

His insistence that his memory continues to get better andbetter, even given the passage of many months, defies all logic and common sense. He acknowledged that in October 2018, he told thepolice that he did not recall what he was doing between February and May of that year. Yet at the time, he testified in August 2019, heclaimed to have distinct memories of where he was and what he was doing. In short, he agreed that he was a heavy user of crystal meth, which does affect memory. However, he says his memory began returningafter the October 2018 interview with the police. This is simply unbelievable.

Further, he would have the Court believe that he had aFacebook account in the name of Bradley Paproski, and that it was linked to an email in that same name, but the Facebook account in thename of Franklin Binouchi, which according to the testimony of Sergeant Parenteau, was linked to a username of Bradley at Paproski wascreated by some unknown person for no articulated reason.

In addition, he would have the Court believe that the Facebook account in thename of Frank Binouchi, which was linked to the Bradley Paproski dot one account was similarly created in spite of the fact that theprofiles for all the accounts bore his photograph, as well as personal photographs of his wife and child. This simply put is preposterous. Ireject his evidence that these were not his accounts and that he did not know or have any contact with the complainant.

This then leads me to the evidence of the complainant with respect to identity and whether I am satisfied that it is sufficiently reliable andcredible to meet the test of beyond a reasonable doubt. I find that it is for the following reasons. First, it is clear from the evidence that thecomplainant met the accused on more than one occasion and that she spent time with him. She had time to observe and become familiarwith his appearance. Second, she made the connection between the picture on Facebook and the accused on their first meeting inFebruary.

That is, she recognized that the person who answered the door was the same as the profile picture on the Facebook account inthe name of Brad. She also noted that the profile pictures on the Frank Binouchi and Franklin Binouchi accounts were the same as theaccount in the name of Brad. In addition, the person depicted in all those profiles was identified as the accused by Sergeant Parenteau andthe accused himself acknowledged that it looked like him. Third and more significantly, there is other evidence which supports her identification of the accused.

For example, she testified that shemet the accused for the first sexual encounter in February at an address in the 200 block of Avenue ‘M’. The accused acknowledged thathe was bound by a recognizance to reside with his mother at 208 Avenue ‘M’, and was quite possibly resident there for part of February.She further testified that she met Brad at his mom’s house on Avenue ‘R’ and 20th Street in May 2018, where she provided oral sex inreturn for crystal meth and some cash.

The accused acknowledged that on April 10th, he was given a lawful instruction to reside at [1]802- 20th Street West, which is located at the corner of Avenue ‘R’ and 20th. Although he subsequently moved from that residence inaccordance with further lawful instructions, the point is that the complainant would not be able to link those two addresses to this accused,and would have no knowledge that it was his mother’s residence, if the accused was not the perpetrator.

These address links support thecomplainant’s identification of the accused and I’m satisfied beyond a reasonable doubt that he is the person who engaged in sexualrelations with her, and provided her with crystal meth. I am therefore satisfied that all of the elements of counts 1 [sexual assault], 2[sexual interference] and 4 [trafficking] have been proven beyond a reasonable doubt. [10] Mr.

Paproski was acquitted of the charge of communicating for the purposes of obtaining for consideration the sexual servicesof a person under the age of 18, because there was no evidence the person identified as Brad had provided any written or verbal responseto Ms. T.P.’s offer of sexual services or that he had initiated such communication. At best, the evidence demonstrated his acquiescence toMs. T.P.’s offer. The Crown has not appealed the acquittal. [11] The trial judge applied the principle from R v Kienapple, (SCC), [1975] 1 SCR 729, and entered a judicial stayin relation to the charge of sexual interference.

She accepted a joint submission and sentenced Mr. Paproski to five years of incarcerationfor the charge of sexual assault, with three years concurrent for the trafficking offence. [12] Mr. Paproski has appealed his conviction on all three offences for which he was convicted. He has not appealed his sentence. IV. Issues [13] The following issues arise: (

a) Did the trial judge fail to consider relevant evidence? (

b) Did the trial judge misapprehend and misunderstand Ms. T.P.’s testimony? (

c) Did the trial judge err in her application of the principles from W.(D.)? (

d) Did the trial judge apply a different level of scrutiny to Mr. Paproski’s testimony in comparison to Ms. T.P.’s testimony?

V. Analysis A. Failure to consider relevant evidence [ 14 ] Mr. Paproski asserts the trial judge failed to consider the following evidence relevant to the issue of identity: (

a) Mr. Paproski was in custody at the time Ms. T.P. alleged she had met with him at the Ramada Hotel; (

b) there were posts to the Franklin Binouchi Facebook account at a time when Mr. Paproski was in custody; and (

c) Ms. T.P. testified that the man told her he had a four-year-old daughter and she had seen photographs of the child on the wall at one of the houses; Mr. Paproski only has sons and neither is four years old. [ 15 ] Mr. Paproski submits the trial judge did not address any of the evidence related to these three issues despite that evidence being key to identity. He asserts it contradicted the Crown’s theory regarding the identity of the perpetrator and should have been considered. Mr.

Paproski further argues that the trial judge’s conclusions regarding credibility and reliability were fatally flawed because of the failure to consider this evidence. The Crown counters this assertion by submitting that a judge is not required to mention every piece of evidence or deal with every issue raised by counsel.

It submits the trial judge did address the issue regarding the Ramada Hotel meeting. [ 16 ] When a trial judge fails to consider evidence relevant to a key issue at trial, or disregards such evidence, that is an error of law: R v Necroche , 2018 SKCA 24 at para 38 [ Necroche ]; R v Ahenakew , 2008 SKCA 4 at para 33 , 289 DLR (4th) 59; and R v R.E.M. , 2008 SCC 51 at para 56 , [2008] 3 SCR 3. However, as stated in Necroche , “a mere failure to record evidence in a decision is not enough to allow an appeal court to step in” (at para 38).

See also, R v J.M.H. , 2011 SCC 45 at paras 31–32 , [2011] 3 SCR 197. [ 17 ] On its surface, the first category of evidence Mr. Paproski alleges that the trial judge ignored appears to be pivotal. He submits the evidence demonstrated that he had been remanded on unrelated charges since the morning of May 8, 2018, and, thus, Ms. T.P. could not have met with him at the Ramada Hotel as she had testified. The evidence regarding the date he was remanded and the date Ms. T.P. gave her video statement to the police was uncontroverted. She could not have met with Mr.

Paproski after she gave her video statement on May 7, 2018. However, there are two reasons to discount the significance of this evidence. [ 18 ] First, Ms. T.P.’s testimony about when she met with Mr. Paproski is not as definitive as he contends. Her testimony during examination-in-chief regarding this issue was as follows: Q Okay. All right. Was that [May 4, 2018,] the last interaction you had with Brad? A No. Q No? Okay. Can you tell us about the time after that? A Well, the last interaction I had with him, I met him at Ramada Hotel. Q The Ramada? A Yeah. Q Okay. A But we -- nothing happened. Q Okay.

And when was that? A I was just getting out of Valley Hill that day, so about a year -- a year ago. Q Okay. A Around there. Q Was it after you spoke to Sergeant Parenteau? A No. Q It was before? A It was before. Q Okay. So, when we see on May 4th, 2018, you spoke with Sergeant Parenteau on May 7th, 2018? A Yeah. Q Okay. So it happened within those three days? A Yeah. It might have been after. Q Okay. Sorry, I know it’s hard to remember everything. A Yeah. … Q Okay. When you gave your written statement on April 28th, do you remember if you were using then as well? A Yes, I was. Q Okay. MS.

MORELLI [Crown counsel]: Your Honour, if I could just have a moment to look at my notes? THE COURT: Okay. MS. MORELLI: Thank you. Q MS. MORELLI: Sorry, there is another question that I wrote and then I forgot to check off. You had told us that you had met Brad two times for drugs and sex. A Yeah. Q Or, sexual (INDISCERNIBLE). Were those your only times that you met him? A No. Q Okay. Can you tell us about the other times then? A I met him at Ramada Hotel. Q Oh, right, the Ramada? A Yeah.

Q Okay. Was there any exchange of drugs? A Yeah. Q Okay. A I fronted like three points. Q Okay. You fronted three points, which means you didn’t give him money for it? A No. Q Ah ha, see I’m starting to get it now. Okay. And that happened after your statement to Sergeant Parenteau, or -- and I’m sorry, I’m not -- not trying to put words in your mouth. I can’t remember what you said. A I think so, it happened after. I’m not totally sure. [ 19 ] During cross-examination, Ms.

T.P. was asked questions about the timing of her meeting at the Ramada Hotel and responded as follows: Q … Now, you also mentioned earlier today that the last time you met with Brad was at the Ramada? A Yeah. Q Okay. And this was after you gave your statement to Sergeant Parenteau? A Yes. Q Okay. And that was on May 7th of 2018; correct? A Yeah. Q Okay. And so, at that time, you had been arrested? A Yeah. Q Okay. Were you released that evening from the police station? A No. Q Okay. So, you were brought to court? A Yeah. Q Okay. And you were released the next day then? A Yeah. Q Okay.

And so, how long after that is this last meeting at the Ramada? If you could -- was it a couple days, a week? A I can’t really remember. Q You can’t really remember? A No. Q Okay. But it wasn’t the day that you got released from court? A No. [ 20 ] As can be seen from the above portions of the transcript, Ms. T.P.’s evidence regarding the date of the meeting at the Ramada Hotel was tentative and inconsistent. This is not surprising given the lack of importance of that event to Ms. T.P. This fact leads to the second, and decisive reason for rejecting Mr.

Paproski’s argument on this point. [ 21 ] While the trial judge did not specifically mention the Ramada Hotel, an examination of her decision discloses that she was fully aware of the inconsistencies and potential impact of this evidence and addressed it in her reasons. In this regard, the trial judge stated the following: Although, counsel for the accused argues that the evidence of the complainant cannot be considered reliable, give[en] certain discrepancies and given her drug use. The essential elements of the offences alleged were not disputed.

There were indeed, minor discrepancies in the testimony of the complainant with respect to dates , the number of times that she met with the perpetrator of these offences, and what she did or did not report to the police. However, it is the view of the Court that these inconsistencies do not affect the reliability of the instances which she did recall. She was able to provide significant details about those events and was not shaken in cross-examination about the two instances that she did recall. She was candid about her role in initiating the exchange of sex for drugs.

At no time was it suggested that these events did not occur. Accordingly, I find that the Crown has proven to the standard of beyond a reasonable doubt, that between February 1st, 2018 and May the 7th, 2018, in Saskatoon, the complainant was 14 years old, and pursuant to s. 150.1(2.1) legally unable to consent to sexual activity with anyone who was more than five years older than she was. (Emphasis added) [ 22 ] The only significant issue with regard to an uncertain date was the timing of the meeting at the Ramada Hotel.

The date of the second sexual activity, May 4, 2018, was precise because the Facebook postings were available and counsel used those printouts to anchor the events to that date. Ms. T.P.’s evidence contained minor incongruities about other dates, but the only one of any consequence was the date of the meeting at the Ramada Hotel. The date discrepancy regarding that meeting must have been what the trial judge was referring to in the passage quoted above.

This excerpt from the judgment demonstrates that the trial judge considered this evidence and determined that it did not cause a concern with regard to the credibility or reliability of Ms. T.P.’s evidence. She was entitled to make that determination. There is no merit in the submission that she ignored the evidence regarding the meeting at the Ramada Hotel. [ 23 ] Mr. Paproski also asserts that the trial judge ignored the fact that there were posts to the Franklin Binouchi Facebook page on a date when he was in custody. He further argues the trial judge ignored Ms.

T.P.’s evidence that the man who provided the drugs told her he had a four-year-old daughter and that she saw photographs of the child on the wall. While the trial judge did not specifically mention these two issues, they were minor and do not carry the exculpatory weight asserted by Mr. Paproski. He admitted his wife had access to his Facebook accounts and that the postings made while he was in custody were additional photos of his family. Whoever was posting had access to the account and access to photographs that were personal to Mr. Paproski. It is hard to see how this evidence assists Mr.

Paproski in any substantial way. With regard to the alleged discrepancy in the gender and age of his child, it would not be probative because an individual using a fake Facebook account to exchange drugs for sex with a stranger might not be truthful about peripheral details of his life. Ms. T.P. never testified that she saw the child, only that she had seen photographs in a home shared with other people and that the man told her it was his daughter. I further note that Mr. Paproski gave the police a false name for his own son when he was interviewed.

[24] In the context of the decision as a whole, I do not see the failure of the trial judge to specifically mention this evidence as anindication that it was ignored. A trial judge is not required to explicitly address all of the evidence or every argument made by counsel intheir reasons. A mere failure to record or comment on every piece of evidence, or mention every frailty in that evidence, is not a groundfor a successful appeal. Here, the trial judge provided reasons that addressed the important evidence and issues. The evidence central tothe defence’s theory was analyzed.

While not necessary, the passage from the trial judgment set out at paragraph [9] of this judgmentdemonstrates that the trial judge reviewed all of the evidence. As I have discussed, the issues raised by Mr. Paproski were in no waycentral to the decisive question in the trial. In the circumstances of this matter, her failure to refer to the evidence in her oral reasons is notan error of law. B. Misapprehension and misunderstanding of the evidence [25] Mr.

Paproski submits the trial judge misapprehended evidence regarding the addresses where the sexual activity allegedlyoccurred, the age of the perpetrator, the dates of his various recognizances, the username that was associated with some of the Facebookaccounts, and the content of some of the Facebook accounts.

The Crown argues that there were no material misapprehensions of theevidence and any errors were minor and inconsequential. [26] A misapprehension of evidence can render a trial unfair and result in a miscarriage of justice: R v Morrisey (1995), (ON CA), 97 CCC (3d) 193 (Ont CA), and R v Lohrer, 2004 SCC 80 at paras 1–3, [2004] 3 SCR 732 [Lohrer]. In order togive effect to an appeal on this ground, a trial judge must be mistaken about the substance of material parts of the evidence and themisapprehension must play an essential

part in the reasoning process. This is a stringent standard. The misapprehension “must go to thesubstance rather than to the detail” (Lohrer at para 2): also see R v C.L.Y., 2008 SCC 2 at para 19, [2008] 1 SCR 5 [C.L.Y.], and R v C.B.,2020 SKCA 65 at paras 21–23. With this framework in mind, I will examine the alleged misapprehensions individually. I am mindful thattheir cumulative effect is also important in determining whether the trial was unfair. [27] Mr. Paproski’s principal contention is that the trial judge misapprehended the evidence regarding the addresses where Ms.

T.P.testified the sexual activity occurred and then used his connection to those addresses as a significant piece of evidence to convict him. Iagree that the evidence regarding the addresses was material and that they were a key part of the reasons why the trial judge wasconvinced of Mr. Paproski’s guilt beyond a reasonable doubt. However, I see nothing in the decision to support the idea that the trial judgemisapprehended this evidence. [28] Ms. T.P. was asked several questions about where the February sexual activity took place.

Her testimony regarding the addresswas as follows: [From the examination-in-chief]QDo you know what that house is or where it is?AOn Avenue ‘M’.QAvenue?A‘M’.… Q… Do you know the address, by chance?ATwo -- I know it’s 22-something, 224, yeah.… Q … I have asked you a lot of questions today. Is there anything that I have not asked you, that you think is important or relevant for theCourt to be made aware of?AWhen I met him on Avenue ‘M’ --QM-hm.A-- there were like pictures of a little girl on his wall.QOkay. So, the Avenue ‘M’, that was the first time in February?

You’re nodding your head?AYes.[From the cross-examination]QAnd you testified here today, that he gave you the address?AYeah.QAnd that address was 224 Avenue ‘M’?APretty sure, yeah, it’s two -- two-something, I know that for sure.QOkay. Was it Avenue ‘M’ South, Avenue ‘M’ --A‘M’ South.Q‘M’ South? Okay, and that’s the address he gives you? Okay.AYes.QAnd you’re pretty certain it was 200-something?AYeah, 200-something.QOkay.

But you’re not sure if it was 224?AYeah.… Q… And I just want to talk to you a little bit more about the residence you go to in February of 2018, okay?AOkay.QAnd this is the residence on Avenue ‘M’ South; correct?AYeah.… Q… And on April 28th, when you give your written statement, you would agree with me that you say it only happened on one occasion?AYeah, on the statement, I only wrote when I went to Avenue ‘M’.… QOkay. Okay. Now, earlier you testified about photos of Mr. Paproski’s daughter that were on the wall; correct?

A Yeah. Q And was that in the Avenue ‘M’ residence, or the Avenue ‘R’? A Avenue ‘M’. Q Avenue ‘M’ residence, okay. And so, at the time you meet Mr. Paproski at the Avenue ‘M’ residence, were you aware that he had a daughter? A No. [ 29 ] In his examination-in-chief, Mr. Paproski did not mention any association with a house on Avenue M in Saskatoon. However, in cross-examination, after being confronted with a recognizance that required him to reside at 208 Avenue M North, Mr.

Paproski reluctantly admitted it was possible that he was living at that address for at least a part of February of 2018. [ 30 ] The testimony provided by Ms. T.P. regarding the location of the second sexual activity was more definitive. She testified that she met with the perpetrator on May 4, 2018, at a house “on Avenue ‘R’, on -- right on the corner of 20th”. It was established through Mr.

Paproski’s testimony that his mother lives on that corner and that he was required to live at her residence at a point in time close to May 4, 2018. [ 31 ] In her reasons for judgment, the trial judge said the following about the evidence regarding the addresses and its significance: The first meeting occurred in February 2018, at a residence in the 200 block of Avenue ‘M’. She believed the house number was 224, but was not certain. … The second instance that she recalled was in May 2018.

That time, she went to an address on Avenue ‘R’ and 20th Street, at his direction, after she contacted him, seeking drugs. … … The accused also acknowledged that he had been released on a $3000 recognizance in November 2017, that required him to live with his mother at 208 Avenue ‘M’. He then -- he entered into another recognizance in February 2018, that contained that same residence condition.

Having been confronted with these documents, he agreed that it was possible that he lived on Avenue ‘M’ for the first two weeks of February, but insisted that he was living with his ex-wife on Valentine’s Day that year. … He then acknowledged -- excuse me -- a written instruction from his probation officer on April 10th, that required him to live with his parents at [1]802 - 20th Street West in Saskatoon.

The Court takes judicial notice of a Saskatoon street map, which shows this address is located at the intersection of 20th Street and Avenue ‘R’. … … Third and more significantly, there is other evidence which supports her identification of the accused. For example, she testified that she met the accused for the first sexual encounter in February at an address in the 200 block of Avenue ‘M’ . The accused acknowledged that he was bound by a recognizance to reside with his mother at 208 Avenue ‘M’, and was quite possibly resident there for part of February.

She further testified that she met Brad at his mom’s house on Avenue ‘R’ and 20th Street in May 2018, where she provided oral sex in return for crystal meth and some cash. The accused acknowledged that on April 10th, he was given a lawful instruction to reside at [1]802 - 20th Street West, which is located at the corner of Avenue ‘R’ and 20th.

Although he subsequently moved from that residence in accordance with further lawful instructions, the point is that the complainant would not be able to link those two addresses to this accused, and would have no knowledge that it was his mother’s residence, if the accused was not the perpetrator. These address links support the complainant’s identification of the accused … . (Emphasis added) [ 32 ] Mr. Paproski submits these findings by the trial judge represent a misapprehension of the address evidence because Ms.

T.P. testified that the house was located at “22-something” Avenue M South, possibly 224, but the recognizance required him to live at 208 Avenue M North. He says the trial judge ignored the specificity of the house number and the direction of the street by referring to it as “the 200 block of Avenue M”. I do not find this argument persuasive. [ 33 ] Ms. T.P. initially, and repeatedly, testified that the house was located on Avenue M without indicating whether it was North or South. She testified she thought the address was 224, but stated it was two something. She did not say it was “22-something”.

She testified, “it’s two -- two-something”. When the testimony immediately before and after that answer is examined, the phrase “two -- two something” appears to simply be a stammer on the way to saying that it was two something not two-two something. In response to a leading question during cross-examination, Ms. T.P. agreed that it was Avenue M South, but her testimony throughout indicates she was highly uncertain about the specific address or whether the street was North or South.

The judge’s finding that the address was the 200 block of Avenue M cannot be classified as a misapprehension of the evidence. [ 34 ] It was highly probative that Mr. Paproski was required to live at a residence in the 200 block of Avenue M North at the same time that Ms. T.P., a stranger to him, says she met with him at a house in that same block. There was no evidence that she had any way of knowing that Mr. Paproski was connected to a house in the 200 block of Avenue M.

The evidence regarding the first house was considered in the context of the evidence pertaining to the location of the second house, which was also closely connected to Mr. Paproski in a way that a stranger could not have known. No error is revealed by this portion of the judgment. [ 35 ] Mr. Paproski submits that the trial judge misapprehended other evidence by concluding that Ms. T.P. testified that she met the perpetrator at his mother’s house on May 4, 2018, when she had testified that she thought the house belonged to his mother or to his aunt.

Specifically, she testified, “I think it was his mom’s house, or aunt”. She subsequently testified, “someone -- I don’t know if it was his mom, aunty, I don’t know, but she came into the room and said he wasn’t allowed to have people over. So then, we went outside.” In her reasons, the trial judge stated, “[Ms. T.P.] further testified that she met Brad at his mom’s house on Avenue ‘R’ and 20th Street in May 2018 …”. Neglecting to deal with the testimony that the woman was possibly his mother or his aunt, in the face of undisputed evidence

that Mr. Paproski’s mother lived at this address, does not go to the substance of this matter and is not the type of reasoning by a trial judge that represents a misapprehension of the evidence. [ 36 ] Mr. Paproski further asserts that the trial judge erred in her consideration of the evidence regarding the age of the man with whom Ms. T.P. engaged in sexual activity. He argues the trial judge ignored Ms. T.P.’s testimony that the man was about thirty and that he had told her he was 33. Mr. Paproski was 37 years old at the time of the offences. In her reasons, the trial judge recounted the fact that Ms.

T.P. testified that the man was in his 30s and that Mr. Paproski was born in 1980. I cannot see how failing to make any further mention of the additional details represents a misapprehension of the evidence. Mr. Paproski fit into the broad description of age provided by the complainant and told to her by the perpetrator. The age evidence had no further probative value with respect to identity and required no further comment. [ 37 ] Mr. Paproski asserts the trial judge misapprehended the evidence regarding the three recognizances he was bound by between November of 2017 and May 8, 2018.

He was placed on the first recognizance in November of 2017 and the second one in January of 2018. Both of these required him to reside at 208 Avenue M North. He was placed on a third recognizance on March 23, 2018, that contained a requirement that he reside at an approved residence. Mr. Paproski argues that the trial judge misapprehended this evidence when she concluded he had entered into a recognizance in February of 2018 that required him to reside at 208 Avenue M North.

He relies on the following passage from the judgment as illustrative of this point: The accused also acknowledged that he had been released on a $3000 recognizance in November 2017, that required him to live with his mother at 208 Avenue ‘M’. He then -- he entered into another recognizance in February 2018 , that contained that same residence condition. Having been confronted with these documents, he agreed that it was possible that he lived on Avenue ‘M’ for the first two weeks of February, but insisted that he was living with his ex-wife on Valentine’s Day that year.

He agreed that he attended addiction treatment on April 3rd, but left before completion. He then acknowledged -- excuse me -- a written instruction from his probation officer on April 10th, that required him to live with his parents at [1]802 - 20th Street West in Saskatoon. (Emphasis added) [ 38 ] While the trial judge stated the recognizance was entered into in February of 2018, this misstatement is of no significance. The fact to which she attached significance was a residency condition in a recognizance that was in place when the first sexual activity occurred. Mr.

Paproski acknowledged that it was possible he was living at that address. The misstatement by the trial judge as to the date that the recognizance was entered into could not possibly have had any effect on her reasoning or on her final conclusion with respect to guilt. [ 39 ] There is one other area where the trial judge arguably did not accurately recount the evidence.

When summarizing the evidence regarding the Facebook accounts, the trial judge seems to have erroneously concluded that all three of the Facebook accounts associated with Franklin Binouchi or Frank Binouchi were created by the same user, Bradley.Paproski.1, and that all contained photographs personal to Mr. Paproski.

Her conclusions in this regard are as follows: [THE COURT] … Further, he would have the Court believe that he had a Facebook account in the name of Bradley Paproski, and that it was linked to an email in that same name, but the Facebook account in the name of Franklin Binouchi, which according to the testimony of Sergeant Parenteau, was linked to a username of Bradley at Paproski was created by some unknown person for no articulated reason.

In addition, he would have the Court believe that the Facebook account in the name of Frank Binouchi, which was linked to the Bradley Paproski dot one account was similarly created in spite of the fact that the profiles for all the accounts bore his photograph, as well as personal photographs of his wife and child. This simply put is preposterous.

I reject his evidence that these were not his accounts and that he did not know or have any contact with the complainant. [ 40 ] The evidence tendered by the investigating officer indicated that there was one account in the name of Franklin Binouchi and two accounts in the name of Frank Binouchi. The Franklin Binouchi account had been created by a user named Bradley.Paproski.1, but there was no evidence that the other two had been created by that same user. The Franklin Binouchi account and one of the Frank Binouchi accounts contained Mr. Paproski’s profile picture, while the other did not.

Only the Franklin Binouchi account contained photographs of Mr. Paproski’s family. The trial judge’s reasons are somewhat ambiguous on this point, but might overstate the nature of this evidence. However, even presuming there was a misapprehension, I do not see it as going to the substance of the matter. [ 41 ] The characteristics of the Franklin Binouchi account were by far the most significant detail with regard to Facebook. The trial judge’s recounting of that evidence is accurate. That account is the one that was used to arrange the meeting on May 4, 2018.

That account was created by the user Bradley.Paproski.1 and contained Mr. Paproski’s profile picture and photographs of his family. This would have formed the key basis upon which the trial judge concluded, in conjunction with all of the other evidence, that Mr. Paproski’s testimony denying he had created and used the Franklin Binouchi Facebook account was preposterous. The details of the Frank Binouchi accounts were peripheral to her analysis.

While the recounting of the evidence was, perhaps, not completely accurate, it does not represent a misapprehension of the evidence that could lead me to conclude that a miscarriage of justice has occurred. [ 42 ] Mr. Paproski has not satisfied me that the trial judge misapprehended evidence in a manner that went to the substance of the matter as opposed to the detail. No miscarriage of justice has occurred. I cannot accede to this ground of appeal. C. Application of the principles from W.(D.) [ 43 ] An alleged failure to apply the principles from W.(D.) is raised by Mr. Paproski as a ground of appeal.

While made in the context of a jury instruction, the oft-repeated analysis from that case sets out the process that a trial judge should generally follow when an accused person testifies (at 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [44] Mr. Paproski contends that the trial judge failed to apply the third step of the W.(D.) analysis. He argues that the trial judgeequated her determination of the credibility and reliability of Ms. T.P. and Mr. Paproski with the question of proof beyond a reasonabledoubt. He suggests the trial judge, having rejected Mr. Paproski’s evidence, only concerned herself with Ms.

T.P.’s testimony and not theremainder of the evidence. The Crown argues that the trial judge did not simply evaluate each parties’ credibility and ignore the whole ofthe evidence. It contends that, while the oral decision does not conform to a predetermined catechism, the trial judge demonstrated whyshe was convinced of Mr. Paproski’s guilt beyond a reasonable doubt. [45] The trial judge did not mention W.(D.) by name, but that is not required.

Instead, as Cory J. noted in W.(D), “the failure to usesuch language is not fatal if the charge, when read as a whole, makes it clear that the jury could not have been under any misapprehensionas to the correct burden and standard of proof to apply …” (at 758). See also C.L.Y. at para 7. The decisive question is whether the trialjudge applied the correct principles in determining she was convinced of Mr. Paproski’s guilt beyond a reasonable doubt.

In my view, shedid. [46] The trial judge stated the following in the course of her analysis: [THE COURT] … Accordingly, I find that the Crown has proven to the standard of beyond a reasonable doubt, that between February 1st,2018 and May the 7th, 2018, in Saskatoon, the complainant was 14 years old, and pursuant to s. 150.1(2.1) legally unable to consent tosexual activity with anyone who was more than five years older than she was. … Further, the evidence establishes two acts that constitute sexual assault and sexual interference.

It has also been established that she wasprovided methamphetamine in return for those sexual acts, and this meets the definition of trafficking pursuant to s. 2 of the ControlledDrugs and Substances Act. The only issue left for the Court to determine, is whether the defence evidence is to be believed or raises a reasonable doubt. If it does not,the Court must then determine whether the Crown has proven the identity of the offender beyond a reasonable doubt. [47] This recitation closely parallels the guidance provided by W.(D.).

The only element of the offences in dispute was identity andthe trial judge clearly indicated it was the main issue for her to determine. In conducting her analysis, she rejected Mr. Paproski’stestimony. In doing so, she critically evaluated all of the evidence, including all of the testimony and the exhibits. She found Mr. Paproskiwas not credible, describing his evidence as preposterous. The trial judge concurrently determined Ms. T.P. to be credible and reliable andaccepted her testimony on the material points.

While the trial judge did not follow the exact formulation of the test from W.(D.), it isobvious from her reasons as a whole that she evaluated the whole of the evidence, as required in the third step of W.(D.), in order todetermine if she was left with a reasonable doubt. [48] The trial judge did not approach the case as a credibility contest. In addition to the testimony of Mr. Paproski and Ms. T.P., shecarefully examined the other evidence, including the testimony of the investigating officer, the Facebook printouts and the recognizances.Given her findings of credibility and reliability, the case against Mr.

Paproski was overwhelming. Mr. Paproski has not raised any issuethat would satisfy me that the trial judge ignored or misapplied elementary principles related to the standard of proof in a criminal trial. D. Uneven scrutiny of the evidence [49] Mr. Paproski argues that the trial judge applied a stricter level of scrutiny to his testimony than she applied to Ms. T.P.’stestimony. He asserts that she spent significant time explaining why his evidence was not reliable and very little time analyzing the sameissue for Ms. T.P. Mr. Paproski submits the trial judge did not critically assess Ms.

T.P.’s testimony and glossed over her inconsistenciesand forgotten details while failing to do the same for his testimony. He points to the trial judge’s analysis of each person’s use of crystalmeth as being further indicative of her one-sided approach. Overall, he suggests the trial judge was not interested in considering evidencethat supported the defence theory or his credibility or reliability. In his view, this created a miscarriage of justice. [50] The Crown asserts that Mr. Paproski is attempting to relitigate the findings of credibility.

It contends that the evidenceregarding identity was compelling and none of the preposterous statements made by Mr. Paproski in his testimony left the trial judge witha reasonable doubt.

The Crown submits her findings of credibility and reliability had nothing to do with an unfair level of scrutiny but,instead, were the product of a measured assessment of the evidence as a whole. [51] This Court has dealt with allegations of uneven scrutiny in four recent cases: R v Mehari, 2020 SKCA 37, 452 DLR (4th) 413,rev’d 2020 SCC 40, 452 DLR (4th) 410; R v M.G.S., 2021 SKCA 1; R v Dirksen, 2021 SKCA 6 [Dirksen]; and R v Hoskins, 2021 SKCA23.

The general principles regarding an appeal on this basis are summarized in Dirksen as follows: [80] … A trial judge’s finding of credibility is a question of fact and is entitled to significant deference upon appeal on the palpable andoverriding standard of review: R v Choli, 2019 SKCA 87 at para 52, and R v R.D.A., 2015 SKCA 100 at para 6, 465 Sask R 313. Inherentin a trial judge’s assessment of credibility is an examination of what a witness says along with an evaluation of how he or she says it.

Atrial judge is not required to comment on, much less resolve, every inconsistency in the evidence: R v R.A., 2017 ONCA 714 at paras 44–46, 421 DLR (4th) 100 (aff’d 2018 SCC 13, [2018] 1 SCR 307); R v Mehari, 2020 SKCA 37 at para 33 [Mehari] (rev’d 2020 SCC 40[Mehari SCC], without disturbing the general principles set out by the majority). [81] When an accused appeals a conviction alleging an unreasonable verdict, an appellate court cannot interfere with findings ofcredibility unless such findings cannot be supported on any reasonable view of the evidence: R v R.P., 2012 SCC 22 at para 10, [2012] 1SCR 746, and R v Burke, (SCC), [1996] 1 SCR 474 at para 7.

However, if a trial judge applies a stricter level of scrutinyto the testimony of defence witnesses than to Crown witnesses, a miscarriage of justice arises even if the verdict would not otherwise havebeen found to be unreasonable: R v M.G.S., 2021 SKCA 1 at para 39 [M.G.S.]; Mehari at paras 28–29 and 87–89 (rev’d in Mehari SCCwithout disturbing the general principles set out by the majority and dissent); and R v Owen (2001), (ON CA), 150OAC 378 (CA) at para 3. An appeal on this ground attacks the methodology employed by a trial judge in assessing credibility and alleges

differences in the treatment of the evidence, thereby attracting review on a standard of correctness: R v Radcliffe, 2017 ONCA 176 atparas 23–26, 347 CCC (3d) 3 (leave to appeal to SCC refused, ), and M.G.S. at para 42. [82] As recognized by Mr. Dirksen in his submissions, an appellant faces a difficult task when alleging a trial judge applied a stricter levelof scrutiny to the testimony of the defence witnesses than the Crown witnesses.

When it analyzes such a claim, an appellate court must becareful to ensure that this ground of appeal does not become a round-about way to circumvent the standard of review that is applied tofindings of credibility. In order to succeed on such a ground of appeal, an appellant must be able to pinpoint to something in the trialrecord that makes it clear that different levels of scrutiny were applied.

Even then, the issue identified must be sufficiently significant toestablish the alleged faulty methodology and not simply devolve into disagreements about credibility: R v Wanihadie, 2019 ABCA 402 atparas 36 and 39–43, 99 Alta LR (6th) 56, and M.G.S. at para 41. [52] An appellant must demonstrate a methodological error in order to succeed on such a ground of appeal. The analysis must notdevolve into a reweighing of the evidence and a reassessment of credibility or reliability. [53] In his factum, Mr. Paproski lists ten separate categories of alleged problems or inconsistencies with Ms.

T.P.’s evidence that hesubmits the trial judge did not address. He further argues that the treatment of drug use and its effect on each witness’s memory was notequally evaluated. Mr. Paproski contends that these failures demonstrate uneven scrutiny. I do not agree. While not framed in this manner,the effect of this submission would require this Court to reweigh the evidence and substitute its opinion on credibility and reliability forthat of the trial judge. [54] As set out in the portion of her reasons excerpted at paragraphs [9] and [21] of this judgment, the trial judge explained herfindings regarding Ms.

T.P.’s evidence and her treatment of the inconsistencies. The trial judge did not devote the same space to heranalysis of Ms. T.P.’s evidence as she did to that of Mr. Paproski’s evidence, but that is not particularly relevant. She recognized theinconsistencies and problems in Ms. T.P.’s evidence, but they did not raise the same concerns for her as did the testimony of Mr. Paproski.At one point in her judgment, the trial judge says, “given her drug use” when evaluating Ms. T.P.’s inconsistencies, so her drug use wasnot ignored. At the same time, the trial judge explained in detail why she found Mr.

Paproski’s evidence preposterous and why sherejected it. Much of the testimony of Mr. Paproski – such as his testimony regarding his improving memory, his association with theaddresses and his connection to the Facebook accounts – commanded a fuller explanation by the trial judge. The fact that she chose toprovide more detailed reasons with regard to her analysis of why she rejected some of Mr.

Paproski’s testimony does not, on its own,demonstrate that she assessed the testimony of the witnesses in an unfair or uneven manner. [55] Assessment of credibility is a difficult task that is often hard to express in a judgment. Here, the trial judge demonstrated whyshe was making the findings that she did and I can see no methodological error in her approach. In reviewing the trial judge’s reasons aswhole, I am unable to conclude she applied a differentiated or otherwise flawed methodology to her assessment of credibility andreliability. This ground of appeal cannot succeed. VI.

Conclusion [56] The appeal is dismissed. “Tholl J.A.” Tholl J.A.I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.I concur. “Leurer J.A.” Leurer J.A.