Court File and Parties

Ontario Court of Justice

Date: 2017-09-14

Court File No.: Newmarket 16-06149

Between:

Her Majesty the Queen

— and —

Jaiyhi He

Ruling on the Admissibility of Surveillance Video Evidence

Heard with Oral Ruling: September 14, 2017

Written Reasons Delivered: September 15, 2017

Counsel:

Mr. Thompson Hamilton ....................................................................... counsel for the Crown

Mr. Peter Lindsay ............................................................................... counsel for the Defence

KENKEL J.:

Introduction

[1] Constable Sebastian found a white Mercedes stopped in the roadway and a man lying unconscious on the grass nearby. Mr. He was subsequently charged with having care or control of a vehicle while his ability to operate that vehicle was impaired by consumption of alcohol. The next day, another officer went to a business near the scene of the incident and saw two surveillance cameras that could have captured the events on video. He spoke with a manager who had access to the surveillance video system, watched the videos from those cameras and found that one captured this incident. The manager copied the video from their system to a DVD the officer had brought for that purpose. At issue is whether the Crown has proved the surveillance video admissible where no person from the business was called to authenticate the copy.

Surveillance Video Authentication

[2] The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:

• They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
• They must prove the video is authentic – that it accurately represents the events depicted.

The test is satisfied on a balance of probabilities – R v Bulldog 2015 ABCA 251 at paras 39-40.[1]

[3] The defence refers to a statement in R v Nikolovski, [1996] SCJ No 122 at para 28 as setting the test for authentication, "Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence." The defence submits that while there is eye witness evidence that can authenticate a portion of this video, there is no witness who can identify the initial events so there's no evidence that portion of the video is an accurate representation. Second, the Crown has failed to prove that the video has not been altered or changed. The Crown has not called anyone from the company that kept the surveillance system so the video has not been authenticated and should not be admitted.

[4] The argument that Nikolovski sets out a two-step test for video authentication was rejected by the Alberta Court of Appeal in R v Bulldog supra. The court noted that Nikolovski was not a case about video admissibility as that had been conceded at trial.[2] They found that the passage cited above does not state a test or necessary condition for authentication, but rather a sufficient condition – Bulldog at para 28. What matters with video evidence is the degree of accuracy of its representation. So long as there is other evidence which shows the video is accurate, no evidence regarding the absence of any change or alteration is necessary – Bulldog at para 32.

[5] Constable Lewis went back to the scene during business hours the day after the accused's arrest. He spoke to the people at the company and was referred to a manager who had access to the surveillance video equipment. Constable Lewis saw the video recording system, he viewed the surveillance video at the relevant time and found that it showed this incident. He watched the manager make a digital copy directly onto a DVD that the officer had brought for that purpose.

[6] Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate[3] and a fair depiction – Bulldog at para 37. The surveillance system described by the officer operates automatically. The copying of a digital record as described by the officer is a simple and now familiar procedure. A side by side comparison of the two videos is not necessary to prove the reliability of the copy in that context. There's nothing in the evidence that casts doubt on the integrity of this record. I find the circumstances described by the officer and his direct observations establish the integrity and accuracy of the video on the balance of probabilities. The testimony of a company representative to confirm the officer's observations about the video system and the fact that a direct digital copy was made would add little to the officer's evidence. The absence of a company witness does not render the video inadmissible.

[7] While the circumstantial evidence is sufficient, in this case there's further direct evidence that independently shows the video is accurate. The surveillance video is in sync with all of the other evidence at trial. The officers' testimony as to the scene when they arrived, the times the various officers arrived, their actions, the position of the accused, the departure of other parties, the arrival of the ambulance is all consistent with this video. The two police in-car videos are also consistent with this surveillance video.

[8] On this point, the defence submits that the evidence of the officers and the police in-car videos may confirm the accuracy of the surveillance video after they arrived, but it cannot confirm the accuracy of the video prior to that time. I disagree. The fact that every part of the video that could be confirmed by independent evidence is consistent with that evidence is a circumstance which strongly supports the accuracy of the entire video including those minutes before the police arrived. I find the surveillance video is also admissible on that basis.

Conclusion

[9] I find the Crown has proved that the video is an accurate representation of the events recorded by the surveillance camera. The evidence is relevant and admissible.

Written Reasons Delivered: September 15, 2017

Justice Joseph F. Kenkel

Footnotes

[1] Although in Bulldog the ABCA left open the possibility that a lower standard may apply. See para 40.

[2] The issue in Nikolovski was proof of identity and whether the trier of fact could directly identify a person from a video.

[3] Bulldog uses the phrase "substantially accurate". The court held at paragraph 33 that even where there is evidence the video has been altered, that is not fatal as long as the proponent proves it is "a substantially accurate and fair representation of what it purports to show."