R v Metzger : The Supreme Court overrules the Trial Judge on Findings of Fact

In R v Metzger, 2023 SCC 5 [Metzger], the Supreme Court of Canada (“SCC”) upheld the acquittal of Shawn Metzger, who had been convicted of a number of offences arising from a home invasion robbery, on the grounds that the evidence in the case was circumstantial (Metzger, para 1). In the process, the SCC overruled the evidentiary findings of the trial judge.  In a strong dissent, Justices Cote and O’Bonsawin argued that the evidence was sufficient despite being circumstantial on the grounds that no other conclusion could reasonably be drawn from it. 


The Facts

The accused, Mr. Metzger, was convicted at trial of a slew of offences associated with home invasion robbery. The primary issue at trial was identity; the victims had been unable to clearly see the perpetrators as they had been masked (Metzger, para 1). Mr. Metzger was convicted after the trial judge ruled that his identity was sufficiently established on the basis of the following two pieces of evidence: firstly, that his DNA had been found on a cigarette butt in a vehicle that had been stolen during the robbery and subsequently abandoned; and secondly, because one of the victims had testified that he may have heard Mr. Metzger’s name in the process of being robbed (Metzger, para 1). 

On appeal, Mr. Metzger raised substantial issues with this evidence. In particular, he noted that the trial judge had acknowledged that the DNA evidence was in and of itself insufficient to establish identity, and in fact that the finding of identity had only been made subsequent to the victim, Mr. Iten, testifying that as to overhearing the name “Metzger”. However, Mr. Metzger noted that there were substantial concerns with Mr. Iten’s testimony. Mr. Iten had been struck in the head with a baseball bat at the beginning of the altercation, and testified to “fading in and out of consciousness” (Metzger, para 4). In his original statement to the police, Mr. Iten did not mention the name “Metzger”, and indeed only referred to it after a police officer mentioned the name to him many months later. Further, Mr. Iten also acknowledged that his recollection of hearing the name could be the cause of a false memory associated with the German word “metzger”, which translates to butcher: the victim’s “lifelong vocation” (Metzger, para 4). 


The Majority

At the SCC, the majority agreed with the decision of the Alberta Court of Appeal (“ABCA”), and acquitted Mr. Metzger of the charges against him. Writing for the majority, Justice Rowe noted that even accounting for the privileged position of the trial judge, “this is one of the rare instances where the trial judge’s acceptance of the reliability of Mr. Iten’s evidence cannot be supported on any reasonable view of the evidence” (Metzger, para 5). 

In the process, Justice Rowe placed great emphasis on the fact that the evidence had to be considered in its totality, and that the trial judge had themselves acknowledged that the DNA evidence had to be supported by the purported identification by the victims. Justice Rowe found the identification unreliable on the grounds that it had been made much later, that the victim had been fading in and out of consciousness, and because Mr. Iten had himself questioned it on the stand. Under the circumstances, the majority found that Mr. Metzger’s guilt was not the only reasonable conclusion, and therefore upheld his acquittal (Metzger, para 6). 


The Dissent

Justices Cote and O’Bonsawin dissented. Justice Cote noted that Mr. Metzger had chosen not to testify at trial, and as such, had no reasonable explanation for why his DNA had been found in a cigarette butt in the stolen car. Placing emphasis on this, Justice Cote stated that she could be reasonably satisfied that Mr. Metzger’s guilt was the “only reasonable conclusion available on the totality of the evidence” (Metzger, para 11). In her view:

“… There was no reasonable explanation for why the appellant’s DNA was found on a cigarette butt under the driver’s seat of the stolen truck, if not for his involvement in the robbery less than 12 hours earlier. The trial judge did not consider the DNA evidence in a vacuum. Rather, he relied on additional evidence to eliminate the possibility that the cigarette butt could have gotten into the stolen truck before or outside the robbery. It is undisputed that Mr. Iten did not know the appellant.” (Metzger, para 12).

Given this fact, Justice Cote relied on R v Philips (2018 ONCA 651), to state that this was the only reasonable conclusion that could be drawn from the facts and that as the accused had chosen not to testify, he “must accept the consequences of having remained silent” (Metzger, para 12). The trial judge was thus allowed to consider the fact that there was no other reasonable explanation for Mr. Metzger’s DNA to be present inside the stolen truck. 

Justice Cote also noted that the trial judge was in a privileged position to assess the evidence, and deferred to their finding of Mr. Iten’s credibility and reliability as a witness (Metzger, para 13). Relying on this, Justice Cote stated that it was both the testimony of the witness as well as the lack of other explanation for the DNA on the cigarette butt that ultimately led to Mr. Metzger being identified as the perpetrator of the robbery, and subsequently being convicted (Metzger, para 13). Given this, the dissenting judges would have dismissed Mr. Metzger’s appeal and upheld the convictions. 



Trial judges are usually accorded deference when it comes to findings of fact, owing to their privileged position as compared to appellate judges. However, this case is a rare instance where the SCC ultimately overruled the trial judge’s findings, and held that those were not the only reasonable conclusions that could be drawn from the factual matrix at hand. 

The dissenting judges stated that there was no other reasonable explanation for Mr. Metzger’s DNA being present inside the stolen truck. In the process of doing so, they also effectively stated that Mr. Metzger had been given the opportunity to dispel this conclusion at trial, and had chosen not to take it by not testifying. However, the question of whether Mr. Metzger’s silence can be used against him is contentious, although it is not an issue that the majority delved into in any great detail. Silence is not automatically an implication of guilt. 

In overruling the trial judge’s finding of fact, the majority specifically noted that the trial judge himself had noted that the DNA evidence was in and of itself not sufficient to meet the requirements of conviction. As an accused person, Mr. Metzger is entitled, first and foremost, to a presumption of innocence. In order to be convicted, the high threshold of guilt beyond reasonable doubt must be met, as conviction necessarily implies the loss of Mr. Metzger’s freedom. The SCC held that the trial judge’s reliance on Mr. Iten’s testimony was flawed, given the various imperfections in the evidence itself. Given this, the presence of the DNA evidence on the cigarette butt alone was purely circumstantial in nature, and could not be considered evidence sufficient to convict. 

Although the trial judge’s conclusions on findings of fact are ordinarily given deference, it appears that this case might have been the prime example of one where such findings can be overruled by an appellate court. The conviction of Mr. Metzger was necessarily premised on Mr. Iten’s testimony, and yet Mr. Iten himself acknowledged the weaknesses in his testimony at the time of giving evidence. Even the simple exclusion of the testimony itself leaves the conviction hanging by the barest thread; Justice Cote and O’Bonsawin’s approach, which would state that there was no other reasonable explanation, in effect requires the accused to provide evidence to extricate themselves and places the burden on the accused, which is directly contrary to the principles of criminal law. Mr. Metzger’s silence at trial cannot be taken as evidence of their guilt. The majority has thus rightly upheld the fundamental principles of criminal law. 

Kai Tanveer

Kai Tanveer is a third year law student at Osgoode Hall Law School and a new contributor to TheCourt.ca. Having originally studied law in India, she is fascinated by the ability of the law to both transcend boundaries and structures while remaining unique to its own culture. Kai is involved both on and off campus through initiatives such as PBSC, the Innocence Project, and CARL Osgoode She plans on specializing in family law, but also remains deeply interested in criminal law.

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