Supreme Court of Canada Hearings

You can be seated. So good morning. In the case of Sean Metzger, against His Majesty the King, Jennifer Rutan and Daniel Gregoire for the appellant Sean Metzger. Tom Spock for the respondent, His Majesty the King. So you're ready.

Good morning. Although appellate courts often face the problem of appellants attempting to relitigate the facts, this is not that case and that is not what the dissenting justice from the appellate court below did in this circumstance to find correctly that the verdicts in this case are unreasonable and cannot stand. As this court has recognized in Regina and Burke, although intervention for unreasonable verdict may be exercised sparingly, appellate courts must not shrink from exercising the power when the conviction rests on shaky ground that it would be unsafe to maintain it. This is seen by a court case in Regina and Spencer located at tab 3 of the appellants condensed book. It's a decision of the Ontario court of appeal from 2020 wherein the court emphasizes the importance of appellate review for unreasonable verdict and recognizing that this is a power that is vested by the criminal code, an individual ground of appeal for appellate courts to seriously consider. At paragraph 42, the court comments on the issue of it being fundamentally for the trier of fact to decide if any proposed alternative way of looking at the case is reasonable enough to raise a reasonable doubt. However, the court continues and this is important in considering and contextualizing the appellate court function on assessing unreasonable verdict. The court states and I quote, this does not mean that an appellate court must leave it to the trier of fact to determine whether it is reasonable to convict. Reading the admonition in this way would eliminate unreasonable verdict appeals in circumstantial evidence cases.

So Ms. Rutan, what is then, what difference should be given to the trial judge findings, for instance, in matters of credibility? For instance, what difference should be given to the trial judge finding here regarding the testimony of Mr. Ethan?

The deference in this case is undermined by the trial judge's analytical errors. So in this particular circumstance, no deference is owed. But that is because the trial judge failed to critically analyze the weaknesses in Mr. Itin's evidence in determining whether or not his evidence was reliable. In this circumstance, we are dealing with the component of credibility of reliability. And that's significant. This isn't a circumstance where the honesty of the witness is at play. It's a circumstance where this court on ‑‑ an appellate court on review is charged with the obligation of reweighing to a limited extent and assessing the evidence to determine whether or not it was reasonable to put any weight on Mr. Itin's evidence that he heard the name Metzger during the course of the robbery. This is a circumstance where there's significant concerns that raise the red flags that are raised in wrongful conviction cases. This isn't simply coming up to this court on a sexual assault case and saying we don't like the fact that the trial judge believed the complainant. That is not this case. This case is about evidence that was never properly critically examined by the trial judge or by the majority of the court of appeal in analyzing whether or not it has sufficient reliability to add weight to already a single thread of frayed circumstantial evidence which is the cigarette butt evidence.

Ms. Rutten I think it behooves you just to follow up on Justice Cote's question to be very specific about the failings of the trial judge in respect of Mr. Eaton's evidence and to be very specific in characterizing the nature of the error that the trial judge made.

Thank you, sir. And to assist in that, I ask the court to turn to tab 5 of the appellant's materials. This is an excerpt from the trial judge's reasons. And the majority of the court of appeal comments about the history of the case that's provided in the trial judge's reasons leading up to this point in time. By reproducing this excerpt here, I'm not ignoring that. However, a mere recitation of all of the evidence in the case does not satisfy the requirement of grappling with difficult evidence that raises serious reliability concerns. So when we're looking at guidance from this court's decision in Donardo, for example, when you have such a critical piece of evidence, it's required that the trial judge articulate how those issues are resolved. And here the trial judge fails to do that. So where we are commencing.

But when I look at the decision, the trial judge sets out as you would normally see the facts and then afterwards the position of the parties and it's quite specific and it's lengthy. Like when I'm looking for example starting at page 135, 134 goes through all the different arguments and then afterwards goes into all of his reasoning with regard to the DNA and Mr. Metzger and the other evidence. So I can't see in there what difference we wouldn't owe to a trial judge who's gone through the facts of the case, the position of the parties and the evidence that was rendered and taken all globally comes to decision based on all of that because we know decisions don't have to be perfect.

There's two issues with respect to that. One is that you don't give deference to unreasonable findings and this is an unreasonable finding. Second, but what's the difference between

Why specifically? I haven't heard from you specifically why other than you said, well, you know, it's lacking in some reasoning.

So the reasoning explains how the unreasonable conclusion was raised. The unreasonable conclusion itself is inherent in the nature of the evidence. You have an individual who was interviewed by the police shortly after the incident. During that interview, he provides information to the police about who he thinks committed this offence. That's Mr. Gervais who you see testifying in this case. What he doesn't say is anything to do with hearing Mr. Metzger. It is only until after the police and it's described by Mr. Itten himself as months, a year later that the police contact him and suggest the name Metzger to him. Then his evidence is then the memory comes back to him. But the...

The trial judge did not ignore those facts. He knew all those facts and he decided at the end to believe Mr. Hayton.

The job of an appellate court is to review the reasonableness of that finding and not simply to give deference to it. And when we look at the nature of the evidence and what we know as being evidence, the type of evidence that leads to wrongful convictions, it is an unreasonable verdict to place any weight on it. And so when you look at the reasons, we have all of his recitation of the evidence. We have the recitation of the positions of the parties. When it comes down to his job of analyzing whether or not the frailties in the evidence raise a reasonable doubt, that's where it fails. And if we look at page 23 of the appeal record which is reproduced at tab 5 of the appellant's condensed book, we see the extent of his analysis. He analyzes and says that when Mr. Itton initially testified, he recalled one guy calling another, Mr. Metzger, come over here. He added that it would be a childhood trauma memory that it could be, a childhood trauma memory. But then he immediately said he could not see how this was from his childhood and how it was from the night. But when you contrast that to the evidence, which is reproduced at tab 6 of the appellant's condensed book, you have commencing at page 122 of the appeal record, line 41, the question that prefaces it, you have the witness himself commenting on his lack of confidence in his own memory, which is understandable, that he says I'm not 100% sure. And then he goes through and says at line 9 that this one guy calling another guy's Metzger, come over here. That's what I kind of recalling. But I do have to say it could be a childhood trauma memory. I'm pretty sure it's not. It was real. Because I had a as constable Lemke phoned me about a year or something later, there in February, I think he phoned me, he said the name Metzger and the memory was right there. So I could not see how it's from the childhood. And then he continues on at line 28 on the same page. After being asked whether he had a memory from before. And he says yes. And then he explains that the memory was because he and Mr. Rivard had a discussion and in his words, Bruce got the same thing that's at line 29. At line 30, he explains that the source of this conversation was because I quote, I was not sure if this is really what's happening. And then you have at page 142 of the appeal record, which is page 16, still within the same tab of the condensed book. Mr. Itton using the language, what I think I was hurting and so he's talking about what he thinks that he's hearing at the time and he cannot recall exactly what was being said. Then at page 144, which is page 17 of the condensed book, at line 25, Mr. Itton testifies he's talking about the conditions in which this memory is made, which again is another example of a failure of the trial judge to consider important relevant information and determining whether any reliance can be put on this evidence. The case law supports and one example provided in the appellant's materials about the conditions in which somebody is recording the information is relevant to the reliability of their recall. That's what this case is about. It's about the reliability of Mr. Itton's recall. There's no consideration of the circumstances in which the memory was formed in the trial judge's reasons.

I tell you, pardon me for interrupting, but one of the things, I wasn't counsel in criminal matters, I only sat on them. One of the things I do know, that when you're preparing a witness, you say to the witness, now listen carefully to the question. Ensure that you understand the question, answer it directly, and then stop. I think that Mr. Itten didn't get that message, or if he did, he didn't pay any attention to it. It was just like pressing a button. Hmm, and then you get this passage, and then the next question is okay, which isn't really a question. And then he starts again. And every time Mr. Itten gives his version, it gets more convoluted. And I guess, you know, picking up on a point you're making, that the trial judge didn't resolve this. The trial judge seems to have skirted around it, and said, I just believe him.

Indeed, sir. And the uncertainty is not a simple statement of uncertainty as referred to by the trial judge and then an expression of absolute certainty. And then what's also missing from the analysis, which is critical, is understanding that the certainty of a witness cannot bolster the reliability of the witness. And it's the dangers and I've reproduced at field at tab one of this appeal condensed book that speaks to the dangers of honest but mistaken witnesses. And we know that they plague the history of Canadian criminal jurisprudence as being the source of wrongful convictions. So when we look at the sufficiency of the analysis that the trial judge engages and the risk that this type of evidence brings to potential wrongful convictions, it's insufficient.

in Mr. Rivard's recollections as somehow corroborating or confirming, I'm just thinking of the arguments that the Crown is gonna make. I don't take you to be making, for example, you're not resting your argument on police misconduct.

Crap.

in prompting, so it was inadvertent that this came out. But what do you say to the argument that in the reference to letters, dexter, maybe code names, that the 70-year-old man living with Mr. Eaton confirmed or provided evidence that has a corroborating effect to the testimony of Mr. Eaton?

The testimony of Mr. Rivard does not corroborate the testimony of Mr. Eaton. The evidence of Mr. Eaton is that he heard one name only and that was Metzger. His evidence, Eaton's evidence, is that he had a discussion with Mr. Rivard and Mr. Rivard got the same thing. Mr. Rivard does not testify to having a discussion and does not testify to having a similar memory. The existence of other initials or potential names that were used does not corroborate. And in fact, it's in what is described in the appellants factum as an external inconsistency that was ignored by the trial judge in his analysis of the evidence before him. That you have an acceptance of the trial judge and if we turn again to the reasons of the trial judge at tab 5, you have his comment at line 16 of appeal record 20 page 23 saying nothing turns on Mr. Rivard's evidence that he told someone that he heard the robbers using the names that he might have heard some someone using heard the he might have heard someone using the names ray and dexter and that they use the names d and m given that there were a number of robbers and Mr. Eaton and Mr. Rivard were in separate rooms. The analysis there does not say that he's using it as corroborative evidence for one. Number two, he's imposing an explanation that's inconsistent than the evidence that was given by the two witnesses. Both witnesses testified that they had no difficulty hearing the events that were going on in other rooms. So not only is the trial judge completely ignoring that one of the reasons why Mr. Eaton or the only actually reason why Mr. Eaton says that he had a memory before the police suggested the name to him was because of a conversation that he had with Mr. Rivard that's not dealt with here how can you say and it's unreasonable to say that nothing turns on Mr. Rivard's evidence absolutely it's not corroborated

So, Ms. Luton, I don't want to put pressure on you, but time is flying, and I'm interested in listening to you about DNA, the DNA evidence.

Absolutely. And if I can conclude before transitioning just to refer this court to the submissions in the appellant's factum that set out in listed form at paragraph 54, the specific failings and sorry, it's reproduced in the summary in the condensed book as well at paragraph four of the oral submissions. However, if you refer to the appellant's factum paragraph four and then the following paragraphs, it fully fleshes out the issues that the trial judge failed to consider in his analysis of Mr. Metzger's evidence, Mr. Itton's evidence regarding hearing the name Metzger and the appellant relies on that. Transitioning to the evidence of the cigarette butt, it's important to highlight at the outset what this evidence actually was. Corporal Mercer was charged with searching the truck and when he did that, he took some photographs and he seized one piece of evidence. He describes the piece of evidence that he seized as a well consumed cigarette down to the filter. The only thing that's left is the filter. And we have to rely on corporal Mercer's explanation because he didn't take any adequate photographs and the exhibit the seized item was never exhibited in court. The reason that that's significant is when contemplating the strength of this evidence, it is the status of a item that would be discarded on the street. This is something that easily could be brought in to the truck in an innocent and unintended way. Leaping from the nature of the evidence that actually existed in this case to finding that Mr. Metzger had criminal possession of the truck is unreasonable.

It's not. Here we have evidence from Mr. Eaton that he at around the time of the robbery he was the only one to drive the truck. Mr. Metzger, he did not know him. There is no evidence that Mr. Metzger had access to the truck before the robbery.

Then the truck is stolen. The truck is found locked 11 hours after, not very far from the residence of Mr. Eaton. And it is found locked with this cigarette butt, with this DNA evidence. Can you tell me by what magic this could have happened?

The there's no magic in it. The cigarette butt is a transient object that gets discarded on in public spaces at all times. This could very well have been tracked into the truck on somebody's shoe. What's important is what evidence is missing that allows you to legally make the inferences that this court found that the trial court found. And in this circumstance, what is missing is where the reasonable doubt lies. This is not like the circumstance in my friend's case reproduced of Regina and Duhaime. In Duhaime, there was evidence that the apartment building did not have smokers. That the building had been closed to the public for eight months, that the owners had recently cleaned the building and there were no cigarette butts. So contrast that to the evidence that's in this case. And it's reproduced for ease at tab 9 of the appellant's condensed book. I start a step back from where my friend starts his analysis of the evidence. At appeal record page 113, Mr. Itton talks about at the time of the robbery, he had no employees, but two months earlier, he had seven employees. And one would say, well, that's two months. The issue is that the evidence in this case does not delineate or remove the possibility of innocent deposit of this transient object that gets discarded on the streets to any time limit. There is no evidence from Mr. Itton as to when he last cleaned the truck.

Okay, but let's say we're willing to go as far as to...

uh... except the inference that the trial judge clearly made that the presence of the cigarette butt places mister Metzger in the vehicle is that enough to convict?

No, it's not. It's not for two primary reasons. The first reason is it doesn't place him in connection with unlawful possession of the vehicle. And second, it doesn't connect him to the offenses that undermine that are the foundation of the convictions. So you have cases like Regina and Mars and Regina and Grayston that speak to having strong DNA evidence. And my friend emphasizes this in his materials. There's so much DNA of Mr. Metzger on this cigarette butt that it must be him. The analytical flaw there, of course, is that the strength of the DNA evidence has no relevance to whether or not that evidence is capable of connecting logically that evidence to Mr. Metzger committing the offense. That is the analytical flaw in this case. In addition to that, you have the inability to say the timing of anything that occurred. And again, referencing Duhaime is helpful in the sense of this is an imaginary potential evidence. If Mr. Itton could testify that he was in the car two days earlier and there was no cigarette butt, if he could testify that I cleaned the car a week before, then it eliminates some of the reasonable alternatives. But without that evidence, those reasonable alternatives remain reasonable. And it is not the job or not the job properly executed of a trial judge to simply say the defense gave me three examples and I don't believe them. That's not proper review.

that the examples are not reasonable? Is it your position?

The trial judge can do that but that's not where the analysis ends. The analysis must then continue to assess whether or not the evidence in the totality establishes that the only reasonable conclusion on the evidence is guilt. And that is not satisfied by merely rejecting the defence proffered explanations. This is akin to Spencer and again just referring back to tab 3 of the appellant's condensed book. At paragraph 44 the court reiterates the Villa-Roman assessment for review of unreasonable verdict and circumstantial evidence case. And then at the close of that paragraph the court states and I quote, the problem is not simply that there are other reasonable innocent conclusions available. It is that the findings of guilt are themselves unreasonable because the totality of the evidence is incapable of supporting a reasonable finding that the crown proved, in this case Mr. Spencer's identity as the shooter beyond a reasonable doubt. The same can be said about this case. You have a circumstance where the trial judge appears to be filling the gaps improperly by reference to the doctrine of recent possession and by the failure of the accused person to testify to an innocent explanation. Both of those are incorrect. And you have a circumstance as in this one where he is not caught red handed. Far from it. When we say caught red handed we mean has in his possession at the time the police confront him the stolen items. That is not this case. In fact, the first time that Mr. Metzger appears to be confronted with this is when they ask for his DNA which he voluntarily provides and then three years less, one month from the date of this alleged offence, he is charged. And what the trial judge does is say since he didn't come to this court and explain how his DNA on this cigarette filter that was found in this truck, since he didn't get up on that stand and tell me how that could be, there's no reasonable explanation. And what does the majority do? They say that's right and we're going to apply a negative inference to that fact that he did not testify as a grounds for undermining his claim of unreasonable verdict. I see my time is up. Thank you very much.

Justice Cote, would you mind if I ask one last question? Ms. Rutten, you in paragraph 109 of your factum, you and I understand you've made that case before us that a verdict of acquittal should be substituted because the guilty verdict is unreasonable. And then you say in the alternative, even if this court does not find the verdicts to be unreasonable, Mr. Metzger requests his appeal be granted on the issues of error of law and misapprehension of evidence and that a new trial be ordered. I'd like you to just focus on that alternative scenario and describe to us how we might get there if you don't succeed in your primary argument.

The issue primarily focuses on the application of the doctrine of recent possession. So a misapplication of the doctrine of recent possession would be a distinct error of law that even if this court is not satisfied that it meets the no properly instructed jury acting judiciously could reasonably have convicted if this court finds that threshold has not been met but otherwise finds an error of law. And again, primarily dealing with the doctrine of recent possession is the most obvious. However, the analytical errors that are identified and primarily with respect to the filling in the gaps of circumstantial evidence reasoning by speculation rather than by the permissible inferences, that would be another way where there would be a distinct error of law that even if this court is not satisfied that the appellant has met the high threshold of a reasonable verdict would constitute a basis for a retrial. Additionally, the items listed in at paragraph 54 of the appellant's factum and then explained further regarding the failures of the trial judge in analyzing the evidence of Mr. Itton hearing the name Metzger, that that too would be distinct errors of law through material misapprehension of the legal significance of the evidence. And in those circumstances, should this court not be satisfied satisfied of the higher threshold the appellant seeks remedy for those errors by way of order of a new trial. Thank you.

Thank you.

Good morning, justices. The verdict of guilt in this case was reasonable. The appellant's DNA was found on a discarded cigarette in the stolen truck. It was not a mixed DNA profile. Only the appellant's DNA was found on the cigarette. It was not a trace amount of DNA. It was over 1100 nanograms of DNA.

What does it matter as long as there's an identification? Does it matter if it's this much, or if it's this much, if statistically it's like one chance in 15 quadrillion versus one chance in 10 billion?

The reason that it's important, Justice Roe, is that as the expert testified it, it meant that it was likely saliva. And it also, in the respondent submission, suggested that there was a greater degree of contact than any kind of transient contact with the cigarette. And as you point out, Justice Roe, it was not an ambiguous match. The DNA matched the appellant to almost a statistical certainty. The expert said that in a population of 1.5 quintillion individuals, this profile was expected to appear only once. The DNA was not the only evidence before the trial judge. Both complainants heard names uttered by the robbers on the night of the robbery. One of the complainants heard the appellant's last name, Metzger. The other heard something similar, Dexter. The trial judge understood the law of circumstantial evidence and applied it correctly. The majority of the Court of Appeal applied the standard of review correctly. And the respondent now asks that this appeal be dismissed. I have three points to make. First, the dissenting justice effectively retried the case, making the precise error that this court cautioned against in Villa Roman. Second, the trial judge's assessment of the evidence and finding of guilt was reasonable. To do that, I'll show some of the, or highlight some of the jurisprudence involving DNA and circumstantial evidence. My final point is that contrary to the appellant's argument, the trial judge did not misapply the doctrine of recent possession. Rather, the trial judge declined to infer the accused's guilt solely from the DNA on the cigarette. So turning to my first point, that the dissenting justice effectively retried the case and failed to appreciate the standard of review. She failed to understand the disadvantages in her role as a reviewing justice on an appellant court. And similarly, my friend for the appellant argues that the dissent did not find her own facts.

the role of an appellate judge to do some reweighing of the evidence when he or she is faced with an issue of unreasonable verdict.

Yes, Justice Cote, a reviewing court must do a limited reweighing, particularly in a circumstantial case. But in the absence of palpable and overriding error, a reviewing court is not entitled to find different facts than the facts found by the trial judge. And I wanted to draw the court's attention to an example of this.

But did the appellate court make different findings of fact, or did the dissenting judge in the appellate court make different findings of fact, or did the dissenting judge say the chain of inference relied upon by the trial judge was so faulty that the finding of fact that arose in the inference was simply unreliable? That's not the same as saying, I make a finding to the contrary. OK you.

But let me give you an example, Justice Roe. At paragraph 80 of the dissenting justice's memorandum which is found on tab 4, page 45 of the respondents condensed book, the dissenting justice is speaking about the issue of where the keys to the truck were stored. And at paragraph 80, justice Veltus says there was also evidence that other people used had access to the truck. Mr. Iten testified that it was common for him to leave the truck or the keys in the truck and either he or one of his workers could have used the truck and left the keys in it the day before. The issue with this is that this passage comes from Mr. Iten's evidence, an ambiguous passage in Mr. Iten's evidence where he's talking about where the keys to the truck may have been stored. Now, it's important when considering Mr. Iten's evidence that he was not a native English speaker. His first language was not English. His first language was German. And that leads itself to somewhat unusual syntax in the transcript. What the dissenting justice failed to appreciate was that the trial judge heard and saw Mr. Iten testify. And when a non-native English speaker is speaking in what is somewhat broken English, non-verbal cues become that much more important. When the dissenting justice says that there was his workers could have used the truck and left the keys in it the day before, the problem is that that conflicts directly with the trial judge's finding of fact. The trial judge found that, quote, near the time of the robbery, the truck was used only once or twice by Mr. Iten. Nobody else used the truck. The trial judge's finding of fact was well founded in the evidence. Mr. Iten testified that at the time of the robbery he had no employees and he was the only one who used the truck. So to answer your question in a somewhat long-winded way, Justice Rowe, the dissenting justice goes beyond simply performing a limited reweighing of the facts found by the evidence and is in fact drawing conclusions that are contrary to the findings of fact of the trial judge.

Mr. Spark, I'd like to talk to you for a second about the trial judge's findings or conclusions. As I read the trial judge, he's saying that his conclusion that there's sufficient evidence here to find guilt is based on two pillars. Two pillars made out of circumstantial evidence. One is the mentioning of the name Metzger and the other is the DNA and its linkage to the possession. If either of those pillars falls, then on the trial judge's own analysis, there's not enough, right? I mean, he says if there was just one or the other, it wouldn't be enough. So I accept that that's the reasoning process that's done by the trial judge. But what I have particular difficulty with is the absence of any detailed assessment of the reliability of this evidence. There's mention of credibility, but the reliability, if we look at all of the hallmarks of reliable evidence, it seems that Mr. Itton's evidence here has all the frailties. I mean, he has been hit by a baseball bat. He's going in and out of consciousness. His ability to recall the events is problematic. There is, in fact, no corroboration. Close is not enough in this circumstance. The witness himself speaks about a childhood trauma memory associated with this word that can cut in any number of ways in terms here. And we have a long period of time in which this name is not mentioned until it's first brought up by the police. And of course, no misconduct there, but we're talking about the reliability of a memory that's brought forward. How can that not be the hallmarks of unreliable evidence that either it's a palpable and overriding factual error to not see that, or it's a legal error that there's no dealing with reliability as opposed to credibility, which the trial judge, as you say, is in a good position to assess. The trial judge can both believe that this witness is telling the truth, but have grave doubts that this is the kind of evidence that can withstand the burden of a reasonable doubt and that can be reliable. So that's my problem, my first problem with the case. And I have a few more, but this is the first one I have.

My response is that the trial judge did consider this. This was argued at trial by defence council. The trial judge considered the issues with respect to Mr. Itin's reliability. And my friend and the dissenting justice talk about the frailties with this evidence. And to be sure there were some frailties. But that also had to be considered in light of the evidence of Mr. Rivard. You say that it's close is not good enough. But the Metzger and Dexter was not altogether different. Mr. Rivard also testified that at some point the robbers began using initials, one of which was the initial m. That was his evidence.

as in Malcolm, Mike, Michael, you know, and hundreds of other names which are given to children regularly in Canadian society.

The trial judge also had evidence before him that, or pardon me, the trial judge also took into consideration the fact that this evidence to him had somewhat of a ring of truth. He said that this evidence was consistent with what robbers trying to hide their identity might say. And he also had to consider or was entitled to consider that this word was not just a random word for Mr. Aten. This was Mr. Aten was a native German speaker. The word Metzger in German means butcher. Mr. Aten was a butcher. And he also testified that this word had a lot of connotation for him because it was part of a pattern of bullying.

But that same evidence could have suggested that it is a word that was known to him and that wasn't stated, but as he himself said, I don't know if I heard it or if I imagined it. And so that it has a special meaning to him is a distinctive feature of this case, but I don't think that it necessarily just cuts in the way that you're suggesting it. It can cut in exactly the opposite direction.

Well, certainly, but that was for the trial judge to consider, and all of that evidence was before him. He considered all of the evidence, including the evidence of the DNA, which was highly inculpatory, and he was satisfied that the highly inculpatory nature of the DNA was sufficient to overcome the weaknesses, whatever they may be, of the. But he...

That's why I started with that he said he needed both. And so if one of the pillars falls, his reasoning has to fall because he said he needed both. But let's talk about the DNA. I want to go to the trial judgment itself. And I'm looking at the record here, page 21 or 143. And I just want to ask you, at line 33, the trial judge says I find that most likely Mr. Metzger was in the truck after it was stolen that night in question. The most likely. What are we to make of that as the standard? How does that fit in?

Well, Justice Martin, as the majority of the Court of Appeal pointed out, that particular fact finding was done before coming to the conclusion that the Crown had established the appellant's guilt beyond a reasonable doubt. The trial judge was not required and indeed it would have been an error for the trial judge to apply the reasonable doubt standard to each piece of evidence individually.

The problem with that sentence is not confined to most likely. The problem to my ear, maybe I'm wrong, is the finding itself. Because it would suggest that other reasonable alternatives have been properly eliminated. And I need you to explain how on the Villa-Roman criterion, those other reasonable alternatives which need not be founded on proven facts were eliminated and properly so. Specifically, what your colleague has raised, the possibility that that DNA evidence got into the truck without Mr. Metzger's presence in the truck. Second, that it got into the truck with his presence but before the robbery. And thirdly, that it got into the truck after the robbery in the 11-hour period by way of an innocent presence of Mr. Metzger in the truck. Those are not directly founded on the evidence, but Justice Cromwell in Villa-Roman at paragraph 35 says they need not be. So I'd like to hear you on beyond the most likely, which is an unfortunate turn of phrase, it's more important the finding itself because that I think is something that we need to turn our minds to.

Certainly. And with respect to the most likely, the trial judges are entitled to have their reasons reviewed in total, including with the presumption that they understand the law. This trial judge for several pages instructed himself on the crown's burden to ‑‑ I'm not talking ‑‑ To the most possible Arrow audio evidence you can find in the C apl presenting reel homemade mockÊ

about whether he understood proof beyond a reasonable doubt I'm talking about whether he properly eliminated reasonable alternative explanations for the presence of the DNA under the driver's seat in the truck

The trial judge's reasons are responsive to the issues as framed by the parties. He understood the law from Villa Roman. Defence Council at trial proposed a number of possibilities that the defence counsel said were consistent with the evidence but inconsistent with guilt. So the trial judge's reasons have to be read in that light.

But didn't he do that at page 143 where he goes through the different scenarios?

Exactly. He does go through that. He goes through the evidence or the scenarios that were proffered by defence council and he says that those scenarios do not raise a reasonable doubt in his mind. And this court in Villa Roman said that ultimately it's difficult to draw the line between reasonable doubt and speculation but ultimately that is the role of the trier of fact who hears the evidence to draw that line.

He didn't on page 21 or elsewhere, perhaps I'm wrong, and the dissenting judge points this out at paragraph 79, he did not deal with the question of the recency, that's the word of the dissenting judge, of the presence of the cigarette butt. The timing of it is not, he does deal with issues about whether he was picked up while hitchhiking and other scenarios, but the timing is not dealt with. And so if the trial judge did not do that and there's a gap there, what do we do on appeal with that gap?

Again, the trial judge's reasons are responsive to the arguments made by council. With respect to the dissenting justice's suggestion that the cigarette butt could have been there for years or could have been ‑‑ or my friend's suggestion that it could have been tracked in off someone's boot, that it fails to account for all of the evidence in the case, including ‑‑

Was it a scenario that your friend proposed and that you just described, was it a scenario put to the trial judge? Because when I look at page 21, I see different scenarios that he analyzed and he says I do not find any of the scenarios put forward by the defence regarding the cigarette butt to be reasonable. But that specific scenario that it could have been deposited there before the robbery, was it a scenario put forward by the defence to the trial judge?

If I may have a moment, the defence submissions are found at tab 6 of the appeal record.

boundary checks.

Tab 7. The scenarios put forward by defence council are on page 65. The focus is on the suggestion that the cigarette could have been deposited in the hours following the robbery. But just to return, justice, to your question about the cigarette having been placed before the robbery. The evidence before the trial judge was that it was his backup truck, Mr. Etan's backup truck, that it was mainly used by him. That Mr. Gervais had used the truck at some point. The trial judge found that Mr. Etan did not know the appellant. There was no evidence that the appellant had ever worked for Mr. Etan. And what is missing from the dissenting justice's analysis of the cigarette is that there was cigarette ash or what the officer described as cigarette ash on the dashboard. That was...

Primed, but I'm the let you finish her. I saw you.

reaching for the button.

which were found in the truck. YES.

And the officer gave a detailed description. He said that it was appeared to be from a single cigarette. It appeared as if someone had dipped or knocked ash off the cigarette. The suggestion that the cigarette butt might have been under the seat for years had to be considered in light of the fact that there was cigarette ash on the dash which suggested that the cigarette had been consumed recently. So the trial judge was entitled to take all of this evidence into consideration including the evidence of the cigarette, the fact that it was only a single profile, the fact that there was a significant quantity of DNA, the fact that the Mr. A10 reported hearing the appellant's name, the fact that the other complainant reported hearing something similar. All of this evidence had to be considered together.

Right, now I'm going to post my question. I mean, even if I'm with you to the point of saying, yeah, I mean, the trial judge had made a reasonable inference in terms of the presence of the cigarette but placing the accused in the vehicle. It still doesn't place him in the house. It still doesn't indicate that he swung the baseball bat. And that really is dependent, it seems to me, on the evidence of Mr. Eaton about hearing the name Metzger. And so that, to me, picking up on what Justice Martin said, that really is the most difficult point for you because while the trial judge recited the evidence and the trial judge made a finding of fact, there is a process of inference that goes from here is the evidence to here is the finding of fact. And it's that inferential analysis that the frailties in it are manifest and simply saying, what, he heard the evidence. He made the finding. End of question. No. Evidence is not the same as a factual finding. Evidence is something upon which you make a factual finding. But what happens between the two is a weighing of credibility, a weighing of reliability, and a drawing of certain inferences. And it seems to me that that is where the dissenting judge zeroed in and said the judge just was completely deficient in that analytical link between the evidence as recited and the finding of fact, especially in terms of the reliability. I've exhausted your time. To honor you, please bear with the judges and judges, and our judges, and 임 challenger. Thank you. Today as a today to honor the witnesses to the v scissors you may rise. There you have it. This is the history of the NAIA after the NAD happened. And hundreds of photographs of NAD

The ‑‑ a different trial or fact may have acquitted the appellant. But that is not the test for appellate review. A court of appeal reviewing a conviction for a reasonable verdict, number one has to consider it in light of the reasonableness standard but also must consider it in light of all of the evidence in ‑‑ that was before the trial judge. And I provided at tab 6 of my condensed book

the British Columbia court of appeals decision in Stepanavik. I submit that this is the proper approach to appellate review. That the court of appeal, British Columbia court of appeal got it right in Stepanavik. Yes, tab 6, page 58 of the respondents book. There's an excerpt from this case.

Okay.

So just to give a bit of a factual background of this case, it was a case of a bank robbery. There was some issues with respect to the identification of the perpetrator. The one bank teller picked the accused out of a photo lineup. The other bank teller did not. There was discrepancies between the descriptions of the tellers. The court of appeal which reviewed the conviction correctly in my submission considered the deficiencies in the identification evidence in light of all of the evidence which included highly inculpatory DNA evidence that was found in the getaway vehicle. So the problem with what the dissenting justice did in this case is that she failed to consider the case as a whole. That she focused on individual pieces of evidence and failed to consider the way in which the highly inculpatory DNA evidence supported Mr. Iten's hearing the name Metzger.

But I don't follow that logically. How can placing him in the truck place him in the house? How can one, I mean, I'm sorry, but I'll leave it alone. I'll let you make your submission.

Well, as the trial judge noted, there was no evidence that they knew each other. There was no evidence that the appellant had ever been in the vehicle prior. It would be a very different scenario if, for example, Mr. Metzger had been previously employed by Mr. Eten, but these were, on the trial judge's findings, essentially strangers to one another.

The question of Justice Raul is that if we place the accused in the truck, how does this place him in the house? But do I understand that the truck was stolen at the same time than the robbery in the house?

Well, yes, the evidence for Mr. E10 was that the ‑‑ well, I believe it was in the agreed statement of facts actually that the truck was taken in the early morning hours, June 24th, then the vehicle is found locked some 10 or 11 hours later. That is a very narrow window of time and distinguishes this case from some of the other cases provided by my friend where the ‑‑ there's a much larger gap in time. So that the fact that they, Mr. E10 and Mr. Metzger did not know each other, that accounts for how the cigarette could have gotten in the vehicle before. Then there's this very narrow window of time and the cigarette is found shortly thereafter. So ‑‑

They're eaten, the robbers leaving with the trot.

Yes, I can give you the reference to that. The evidence at the appeal record at page 122. He heard the sound of his truck starting. And also

Can I just, accepting what you're saying, that there's just enough circumstantial evidence for the trial judge to say that it's likely that the word Metzger was used and that it's likely that the accused was in the truck. How do those combine to meet the reasonable, beyond a reasonable doubt standard?

The trial judge found as a fact that the name Metzger was uttered.

Which on a factual finding is a likely standard? Right. I mean, that's just what it's the answer you gave me back on the other one, that it's a finding of facts. So he makes that but it's so it's likely that that was done. So he finds it as a fact. But it's a very it's a contested fact and but again how do those how do those combine?

Again, it's about the appeal court's role in reviewing a reasonableness of a verdict. The question is not whether the accused's guilt was the only reasonable explanation but whether the trial judge could reasonably be satisfied that it was. It's the appellant's position or pardon me, the respondent's position that on the evidence before the trial judge that finding of guilt was reasonable. It may not have been what the dissenting justice would have found but it satisfied the standard. And I see that I'm out of time.

Thank you.

Thank you very much.

Do we plan?

Just as Martin posed the question, how do these combine to form proof beyond a reasonable doubt? The appellant says that the trial judge combined them through analytical error. He took one frayed strand of circumstantial evidence, the filter, the DNA on the filter. And despite my friend's description of this being highly inculpatory DNA evidence, that's not what the trial judge found. He found that it's most likely that then he's in possession of the truck after the robbery. He takes that and then insulates it. It makes it this strong rope that the evidence itself does not support. And he makes that a finding of fact. A finding of fact that then the respondent says to this court, that is impermeable, regardless of the unreasonableness of it. And then he has the trial judge, has the other strand even more frayed, like not even holding together. You blow on it and it disintegrates. And then he finds a fact that Mr. Itton heard Metzger during the robbery. And then he insulates that strand and gets rid of all of the frailties, all of the things that raise a reasonable doubt. And then he makes that to be a strong strand. And then he says, individually, even though I've insulated these by findings of fact, independently, they're not good enough. But now that I have gotten rid of all of the frailties, I weave these two findings of fact that I found on the threshold and only two. This is a case unlike Stepanovich, unlike many of the other cases that we see, where there's a whole lot of other strands of circumstantial evidence. It's not in dispute. There's two strands. And then he uses those insulated, perfected strands that purify the imperfections of the evidence and then comes to a conclusion that this is proof beyond a reasonable doubt without ever subjecting the frailties of either pieces of evidence to the standard to determine whether those frailties raise a reasonable doubt. Thank you for your time.

council to remain at our disposal. We'll come back.

Cool, cool.

Please be seated. So I want to thank counsel for your very valuable submissions on both sides. And the court is ready to give the judgment. A majority of the court is of the view to allow the appeal. Justices Cote and Obansawin would dismiss the appeal. There are three reasons to follow shortly. Therefore, the appeal is allowed. The convictions are set aside and the verdicts of acquittal are substituted. Thank you. The court is adjourned to tomorrow morning at 9.30.