Split Supreme Court sets aside robbery convictions as ‘unreasonable’ and unsupported by evidence

By Cristin Schmitz

Law360 Canada (March 3, 2023, 4:21 PM EST) -- The Supreme Court of Canada has split 3-2 over whether guilty verdicts in a 2017 home invasion robbery case were “unreasonable” and unsupported by the evidence, with the panel also disagreeing about whether the accused’s decision not to testify at trial could be raised against him in the particular circumstances of the case.

In brief reserved reasons March 3 for the court’s oral decision from the bench Feb. 14, Justice Malcolm Rowe explained why the majority substituted acquittals for the guilty verdicts of the Alberta courts below: R. v. Metzger, 2023 SCC 5.

“I am of the view that the verdicts were unreasonable" and that the defence appeal should be allowed, Justice Rowe wrote on behalf also of Justices Sheilah Martin and Nicholas Kasirer. “Even accounting for the privileged position of the trial judge, I am satisfied that the guilty verdicts cannot be supported by the evidence.”    

Backed by Justice Michelle O’Bonsawin, Justice Suzanne Côté dissented, expressing the minority’s view that the trial judge “could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.”

The majority and minority also disagreed over whether, in the particular circumstances, appellant Shawn Metzger’s decision not to testify at his trial could be raised against him.

Justice Malcolm Rowe

Justice Malcolm Rowe

For the majority, Justice Rowe ruled that it could not, given the Crown’s “very weak” inculpatory circumstantial evidence, including on the key question of identification, which case consequently did not cry out for an “explanation that only the appellant’s testimony could have provided.”

Justice Côté, to the contrary, argued that the evidence did cry out for an explanation that only the appellant’s testimony could have provided, “such that he must accept the consequences of having remained silent.”

Given the majority’s ruling that the guilty verdicts below were unreasonable and could not be supported by the evidence, Justice Rowe said it was not necessary for the court to address the appellant’s additional arguments concerning the doctrine of recent possession.

Metzger was convicted in 2020, after a trial, of break and enter to steal a firearm, two counts of robbery and robbery to steal a firearm. Other charges including unlawful confinement and theft, were conditionally stayed. A majority of the Alberta Court of Appeal dismissed the accused’s conviction appeal, while the dissenting judge would have allowed Metzger’s appeal and substituted acquittals on the basis that the verdicts of guilt were unreasonable.

The case arose in 2017 following a home invasion robbery by three or four assailants in Morningside, Alta., on the night of June 23.

The home’s two sleeping occupants were bound and assaulted, as the place was ransacked and the assailants stole guns, ammunition and other items, including one of the victim's trucks. Neither victim could clearly see the masked attackers.

Identity was the sole issue at trial and the Crown's case was entirely circumstantial. The stolen truck was found outside a bar in Red Deer, Alta., about 11 hours after the robbery. Police analyzed a cigarette butt found underneath the driver's seat which, on DNA analysis, returned a single profile matching Metzger.

Metzger did not testify. Defence counsel argued various exculpatory scenarios as to why the appellant’s DNA would be found in the stolen truck of the victim, who did not know Metzger. However, the trial judge rejected all those explanations.

The Crown’s case to identify the accused as a participant in the robbery relied entirely on two pieces of circumstantial evidence: (1) the accused’s DNA found on the cigarette butt and (2) the testimony of one of the victims that he may have heard the accused’s last name spoken by one of the perpetrators during the robbery.

In allowing Metzger’s appeal, Justice Rowe said the DNA evidence alone was not sufficient to establish guilt beyond a reasonable doubt. “At best, it permitted an inference that the accused was in the vehicle at some point in time prior to its recovery, but there was no evidence indicating when and why he may have been in the vehicle,” he explained.

As well, the victim’s testimony that he thought he heard the accused’s last name during the robbery “was fraught with frailties.”

“The trial judge’s acceptance of the reliability of the victim’s evidence cannot be supported on any reasonable view of the evidence,” Justice Rowe said. “The trial judge misapprehended an aspect of the victim’s testimony and failed to meaningfully address many of the concerns surrounding the victim’s physical or mental state. Considering the totality of the evidence, no trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available.”

Justice Suzanne Côté

Justice Suzanne Côté

For the dissenters, Justice Côté argued it was open to the trial judge to consider the total absence of any reasonable explanation for the presence of the accused’s DNA in the stolen vehicle. “The trial judge did not consider the DNA evidence in a vacuum but relied on additional evidence to eliminate the possibility that the cigarette butt could have gotten into the stolen vehicle before or outside of the robbery,” she reasoned.

Justice Côté said the trial judge was in a privileged position to assess the identification evidence. “His finding that the victim was a credible and reliable witness is entitled to deference,” she wrote. “Whether a different trier of fact may have reached a different conclusion does not justify appellate interference. The combined effect of the identification evidence and strong DNA evidence, viewed logically and in light of human experience, allowed the judge to infer guilt on the underlying robbery.”

Metzger’s counsel, Jennifer Ruttan of Calgary’s Ruttan Bates, told Law360 Canada the Supreme Court’s decision shows that appellate intervention on the basis of an unreasonable verdict “remains a viable safeguard against convictions resting on insufficient evidence where a trier of fact, acting judicially, could not reasonably be satisfied guilt was the only reasonable conclusion.”

Ruttan said Justice Rowe’s judgment re-enforces that where a trial judge’s acceptance of the reliability of a witness’ evidence cannot be supported on any reasonable review of the evidence, appellate intervention is required. “Appellate scrutiny of these types of decisions is necessary to preserve the confidence in the reliability of verdicts and in the administration of justice,” she said.

She highlighted three aspects of the majority’s decision. “It emphasizes proper legal analysis of DNA evidence requires a link not only to the accused but to link the accused to the offending conduct,” Ruttan said. “In this case the majority identified the evidentiary failing as [there being] no evidence to indicate when and why the appellant may have been in the vehicle.”

The majority’s decision also “reinforces to appeal courts that a trial judge’s credibility findings are not impermeable to proper appellate review.”

“There will be rare cases, like this one,” she explained, “where the trial judge’s acceptance of the reliability of the evidence cannot be supported on any reasonable review of the evidence.”

The court also quoted the reasoning in R v. Phillips, 2018 ONCA 651, that an accused’s decision not to testify at trial cannot be used against his appeal of conviction where the Crown’s case was not strong and did not cry out for an explanation.

Commenting on practice implications for the defence bar, Ruttan advised that “this case emphasizes that, although it might be rare for appellate courts to intervene on unreasonable verdict [grounds], where the verdict includes a trial judge’s assessment of the reliability of a witness, there will remain cases where appellate intervention is necessary and appeals will succeed on this ground.”

Ruttan noted that the admission at trial of DNA evidence as scientific evidence can have a “lab coat” effect (i.e. might be seen as authoritative per se). “Triers of fact can be distracted by the strength of the DNA match and ignore the essential requirement that the DNA be capable of connecting the individual to the offending conduct,” she advised. “The majority judgment emphasized in this case that connection was absent and therefore a strong DNA match does not result in strong evidence to identify the offender. The majority judgment emphasizes that unreasonable verdicts arise from failings to critically analyze DNA evidence as it relates to proof of essential elements of the offence.”

Tom Spark, appellate counsel with Alberta’s Crown Prosecution Service, declined to comment on the decision.

Lisa Silver, University of Calgary

Lisa Silver, University of Calgary

University of Calgary law professor Lisa Silver told Law360 Canada that “unreasonable verdict” grounds for appeal are generally difficult to advance, and to pursue successfully. “Defence counsel must have made a very cogent and compelling argument,” she observed.

Silver explained that one reason unreasonable verdict arguments can be difficult to pursue is because the argument is factual and therefore open to differing interpretations.

She pointed, by way of example, to the “huge gap between the majority and dissent here on the interpretation of the evidence.”

Silver said the dissenters basically perceived an overwhelming case, while the majority did not, leading the dissenters to turn to the accused to “explain.”

“The decision, albeit brief, obliquely reraises the issue of when and to what extent silence of an accused can be taken into account,” she remarked. “I feel this may be the outstanding issue in this case.”

Photo of Justice Malcolm Rowe by Andrew Balfour Photography

Photo of Justice Suzanne Côté by Philippe Landreville Photography

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at Cristin.schmitz@lexisnexis.ca or call 613-820-2794.

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