R v Zheleznikov, 2023 SKCA 15

Court of Appeal for Saskatchewan Docket: CACR3570 Citation: R v Zheleznikov , 2023 SKCA 15 Date: 2023-01-25 Between: Dmytro Zheleznikov Appellant And His Majesty the King Respondent Before: Leurer, Kalmakoff and McCreary JJ.A. Disposition: Leave to appeal denied Written reasons by: The Court On appeal from: CRM 3 of 2022, Swift Current Appeal heard: December 6, 2022 and January 16, 2023 Counsel: Dmytro Zheleznikov appearing on his own behalf Pouria Tabrizi-Reardigan for the Respondent The Court [ 1 ] After a trial, a Provincial Court judge [trial judge] found Dmytro Zheleznikov guilty of sexual assault [ Trial Decision ]. The Crown prosecuted the charge by way

summary conviction. [ 2 ] The complainant in the case alleged that Mr. Zheleznikov had touched her in a sexual way, without her consent, at an employment-related social gathering. Mr. Zheleznikov denied that anything of the sort occurred. Evidence from other witnesses supported aspects of the complainant’s testimony, and some supported aspects of Mr. Zheleznikov’s version of events. The trial judge considered the evidence, accepted the complainant’s testimony regarding how the relevant event unfolded, rejected Mr.

Zheleznikov’s account, and determined that the Crown had proven the case against him beyond a reasonable doubt. [ 3 ] Mr. Zheleznikov appealed his conviction, pursuant to s. 813 of the Criminal Code , to what is now the Court of King’s Bench. A judge of that court [summary conviction appeal judge] dismissed his appeal ( R v Zheleznikov (13 May 2022) Swift Current, CRM 3/2022 (Sask QB) [

Summary Conviction Appeal Decision ]). [ 4 ] Mr. Zheleznikov now seeks to appeal the

Summary Conviction Appeal Decision to this Court. For the reasons that follow, we have concluded that leave to appeal must be denied. [ 5 ] By virtue of s. 839 of the Criminal Code , the right to appeal against the result of a

summary conviction appeal is limited to questions of law alone and is exercisable only with leave of this Court or a judge of this Court. As has been stated in numerous prior decisions, including R v Bray , 2017 SKCA 17 at para 2 ; R v Potoreyko , 2022 SKCA 71 at para 5 ; and R v Ochapowace Ski Resort , 2022 SKCA 58 at para 40 [ Ochapowace ], leave to appeal in cases of this sort is granted sparingly, and the test that an applicant must meet in order to be granted leave is demanding. In short, leave to appeal under s. 839 will not be granted unless the applicant establishes that the proposed appeal raises a question of law that is either: (

a) significant to the administration of justice generally— i.e. , has legal implications that go beyond the four corners of the case, or (

b) compellingly meritorious in the particulars of the case in question. In the application of the latter standard, the Court will consider the seriousness of the offence, whether the applicant is facing a significant deprivation of liberty and whether denial of leave would result in an injustice going unaddressed. [ 6 ] The decision regarding a request for leave to appeal must also bear in mind the nature of this Court’s role in proceedings under s. 839 of the Criminal Code . An appeal to this Court under s. 839 is an appeal from the decision of a

summary conviction appeal judge. It is not a “convenient backdoor for this Court to sit in review of the Trial Decision” ( Ochapowace at para 22 ). In other words, Mr. Zheleznikov’s appeal is against the

Summary Conviction Appeal Decision ; he is not entitled to a second appeal of the Trial Decision. And, because of the limited nature of the right of appeal created by s. 839, this Court does not have jurisdiction to interfere with the

Summary Conviction Appeal Decision unless Mr. Zheleznikov can identify an error of law in it. [ 7 ] Applying these principles, we are not persuaded that it is appropriate to grant leave in this case. [ 8 ] This is because Mr. Zheleznikov’s arguments before us amount to nothing more than attacks on the trial judge’s findings of fact. He points to what he says are internal inconsistencies in the testimony of the complainant, inconsistencies between the testimony of the complainant and her husband, and discrepancies between the testimony of the complainant and another Crown witness.

He also points to evidence given by the witnesses who testified for the defence, including himself, that he says contradicted the evidence of the Crown witnesses. But that evidence was before the trial judge, who considered and weighed it in reaching the conclusions that he reached. It is evident that the trial judge made factual findings with which Mr. Zheleznikov disagrees but, as an appellate court, we are not entitled to simply re-examine the evidence and make different findings of fact. As set out above, our role in an appeal of this nature is limited to reviewing the decision of the

summary conviction appeal judge for legal error. Moreover, and putting all of that into the framework of an appeal under s. 839, the mere assertion that the trial judge should have made different factual assessments concerning the credibility or reliability of witnesses does not raise a question of law.

[ 9 ] Furthermore, to the extent that Mr. Zheleznikov’s submissions can be characterized as raising a question of law about whether the trial judge rendered an unreasonable verdict, that same argument was fully considered, and rejected, by the appeal judge in the

Summary Conviction Appeal Decision and we see no error of law in his reasoning. In that respect, we are not persuaded that that Mr. Zheleznikov has raised a question of law that is compellingly meritorious in the circumstances of this case, or one that has significance to the administration of justice generally. [ 10 ] The result is the same even if we take a more generous view and characterize Mr. Zheleznikov’s arguments as raising a question of law about whether the trial judge misapprehended the evidence. On this point, we note that Mr. Zheleznikov did not raise such an argument before the

summary conviction appeal judge, so it is difficult to understand how this argument is capable of identifying a legal error in the

Summary Conviction Appeal Decision . Moreover, in order to succeed in overturning a verdict on the basis of misapprehension of evidence, the appellant must demonstrate that the misapprehension goes to the “substance rather than to the detail” of the evidence, that it is “material rather than peripheral to the reasoning of the trial judge”, and that the error played an essential

part in the reasoning process that led to a conviction ( R v Lohrer , 2004 SCC 80 at para 2 , [2004] 3 SCR 732). In our respectful view, even taking Mr. Zheleznikov’s argument in its best light, the evidence that he accuses the trial judge of having overlooked or misapprehended does not meet this standard, as it is all evidence that relates to peripheral details that were not central to the verdict. [ 11 ] In short, Mr. Zheleznikov has not succeeded in identifying an error of law in the

Summary Conviction Appeal Decision that meets the standard for obtaining a grant of leave. Nor is any such error apparent from the record. [ 12 ] Accordingly, leave to appeal must be denied. “Leurer J.A.” Leurer J.A. “Kalmakoff J.A.” Kalmakoff J.A. “McCreary J.A.” McCreary J.A.