Weak evidence meant accused’s decision not to testify cannot be used against him: SCC majority

DNA evidence and a victim’s testimony that he heard the accused’s name spoken during the robbery were not enough to oblige the accused to testify at trial, said a Supreme Court of Canada majority in reasons released Friday.

In Shawn Metzger v. His Majesty the King, two pieces of circumstantial evidence connected Metzger to a home-invasion robbery. Police pulled his DNA off a cigarette butt found in a victim’s stolen truck, and that same victim testified that he may have heard Metzger’s name spoken during the robbery.

After he was convicted at trial, a majority of the Alberta Court of Appeal dismissed Metzger’s appeal. He was successful at the SCC, with a three- judge majority finding the verdicts unreasonable, setting them aside and substituting acquittals. Justices Suzanne Côté and Michelle O’Bonsawin would have dismissed the appeal and upheld the convictions.

The case was heard Feb. 14. The court rendered its judgment from the bench and delivered its reasons Friday.

With reasons written by Justice Malcolm Rowe, he and Justices Sheilah Martin and Nicholas Kasirer found that the DNA evidence only showed that Metzger was in the truck at some time prior to its recovery by police, 11 hours after the robbery. The DNA evidence alone could not establish that Metzger participated in the robbery, the majority found.

The other piece of circumstantial evidence was “fraught with frailties,” said Rowe. While one of the victims testified that he heard the name “Metzger” during the robbery, he was in and out of consciousness at the time, having been hit in the head with a baseball bat. The victim also said that it could have been a “false memory” due to childhood trauma, because “Metzger” is German for “butcher,” which is the victim’s lifelong vocation.

The case is “one of the rare instances” where a reasonable view of the evidence cannot support the trial judge’s acceptance of the reliability of the victim’s evidence, said Rowe.

“What’s being communicated by the majority is that the ground for unreasonable verdict, although maybe used sparingly, is still an essential tool on appellate review to safeguard against convictions that are based on inherently problematic evidence, especially to the issue of identification,” says Jennifer Ruttan, who represented Metzger with co-counsel Danielle Gregoire.

“It reinforces that appellate courts have an obligation to take seriously a ground of appeal of unreasonable verdict and engage in the appropriate analysis of the evidence in order to determine whether this is a decision that a properly instructed trier of fact, acting judiciously, could reasonably render.”

Though these grounds of appeal are rarely successful, the need for a critical appellate review when such a ground is asserted is important, she says.

The majority reinforced comments from the 2018 Ontario Court of Appeal case, R. v. Phillips, which emphasized that a decision by an accused not to testify at trial cannot be used against them in every circumstance, says Ruttan. That type of inference should only discredit an appeal for unreasonable verdict when “the Crown’s case is so strong that it cries out for an explanation,” she says.

The majority rejected the view that Metzger’s decision not to testify could be used against him, “in light of the evidentiary weaknesses of both the DNA evidence and [the victim’s] recollection,” said Rowe.

“That is helpful instruction by the court moving forward because it can be that, sometimes, appellate courts too readily rely on the accused person not testifying at trial as a basis to undermine an unreasonable verdict where there's not a prima facie Crown case,” says Ruttan.

For Justices Côté and O’Bonsawin, there was no reasonable explanation for why police would find a cigarette butt with Metzger’s DNA on it in the stolen truck other than because the accused was involvement in the robbery. Other evidence discounted a possible alternative, including that the victim did not know Metzger and the police found the truck locked with no signs of forced entry. Altogether, this evidence “cried out for an explanation that only the appellant’s testimony could have provided, such that he must accept the consequences of having remained silent,” said Côté, quoting R. v. Phillips.

The dissenters also found that the trial judge’s finding that the victim’s testimony was credible was entitled to deference.