Court File and Parties

COURT FILE NO.: CV-16-126574 DATE: 20181130 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Joseph Grech, Plaintiff – and – Michael Scherrer, Defendant

COUNSEL: Mr. Joseph Ziemba, for the Plaintiff Mr. Ari A. Lokshin, for the Defendant

HEARD: November 23 and 26, 2018

RULING RE: VIDEO AND SURVEILLANCE EVIDENCE

MCKELVEY J.:

Introduction

[1] This case involves a claim for personal injury by the plaintiff Joseph Grech. It arises out of an alleged assault by the defendant on March 30, 2010. The plaintiff asserts that he was attacked by his next door neighbour in the front yard of his home. There is also a claim for intentional infliction of harm, nervous shock and mental distress. The defendant asserts that it was in fact the plaintiff who was the aggressor in any altercation which occurred. The defendant also raises defences in the action based on provocation, self-defence and consent.

[2] The defendant now wishes to introduce evidence of surveillance he took of the plaintiff prior to the alleged assault. The defence wishes to use this surveillance evidence both as part of its cross-examination of the plaintiff and as substantive evidence. We are currently in the midst of the plaintiff’s cross-examination. The defendant also wishes to make reference to a video statement given by the plaintiff to the police after the altercation for purposes of impeachment during the plaintiff’s cross-examination.

[3] The parties have agreed that the video statement given by the plaintiff to police following the altercation can properly be referred to in the plaintiff’s cross-examination. There is, however, no agreement as to the use which can be made of the videos taken by the defendant prior to the alleged assault.

[4] On November 27, 2018, I orally advised counsel of my Ruling that videos #1, 5 and 8, could be admitted into evidence both for purposes of impeachment and substantive evidence and that written reasons would follow. These are those written reasons.

Content of the Surveillance Videos

[5] There are a total of 8 surveillance videos which the defendant wishes to introduce in evidence in this action. A voir dire was held in which the court received evidence about the circumstances leading to the recording of the videos. In this voir dire, Mr. Scherrer testified that all of the videos were taken by him and give a true and accurate depiction of what occurred. Mr. Scherrer stated that he was prompted to take the videos because of a deteriorating relationship with Mr. Grech, the plaintiff. He felt the actions of Mr. Grech were putting his family in jeopardy and he wanted to have a record of what the plaintiff was doing. He also referred to the fact that the plaintiff had previously tried to force him to sign a peace bond, a request that was subsequently denied by the court. In light of the plaintiff’s allegations of misconduct against Mr. Grech, he felt he needed to take some video recordings of the plaintiff’s actions. He therefore purchased a JVC video camera at some point in 2008. He did not install any surveillance equipment which record on a continuous basis. Instead he used the camcorder to video record some activities of the plaintiff which he anticipated might be needed in defending himself in any subsequent legal proceeding. This resulted in the creation of eight videos which were the subject matter of the defence motion.

[6] Mr. Scherrer was the only witness called during the voir dire. His evidence relating to the circumstances as to how the videos were taken was not seriously challenged on cross-examination. I accept his evidence in this regard.

[7] The following is a summary of the videos taken by Mr. Scherrer and which were introduced during the voir dire.

Video #1

[8] Video #1 was taken on August 4, 2008. Mr. Scherrer set up his video camera just underneath the roof of his back deck. It was pointed towards the back deck of the plaintiff. Mr. Scherrer testified that prior to setting up the video camera, the plaintiff had been staring at him working in his garden. In the video, the plaintiff is seen moving across his deck to a railing. The plaintiff rapidly moves out of the field of vision of the camera. However, the camera clearly records the discussion which then took place between the plaintiff and the defendant. The discussion clearly records a very toxic relationship between the plaintiff and the defendant. Insults and obscenities are exchanged during the conversation.

Video #2

[9] This video was taken by the defendant in April 2009. It was recorded in the late afternoon or early evening. Mr. Scherrer set up the camera on his back deck. At the time he was working on the wood lattice portion of the deck which had earlier been blown away by the wind. On this video, the plaintiff can be seen looking over at Mr. Scherrer and his deck. He is standing immediately behind some patio doors which lead out onto his own deck. The plaintiff can be seen at times smiling and laughing as he looks towards the defendant’s deck. He is also seen talking, but because he is inside his home it is not possible to hear what he is saying.

Video #3

[10] The third video was also taken in April 2009. It again shows the plaintiff standing behind the patio doors leading to his deck. The plaintiff is seen looking over towards the defendant’s deck where Mr. Scherrer is apparently doing some repair work on the deck.

Video #4

[11] Mr. Scherrer testified that video #4 is a compilation of videos #2 and 3. He has just edited out the gaps from those two videos where the plaintiff is not actually observed.

Video #5

[12] This video was taken from Mr. Scherrer’s kitchen. The camera is pointed out the kitchen window towards the plaintiff’s kitchen window. The plaintiff is seen coming over to his kitchen window on a number of occasions and making gestures towards Mr. Scherrer’s kitchen window. For example, on one occasion the plaintiff goes to the window and shakes his head, on another occasion, he turns his back to the defendant’s property, but uses his hand to “give the finger” towards the defendant’s house. Subsequently, he holds up what appears to be a liquor bottle and fills a glass from the bottle. He then holds up the glass towards the defendant’s home as if to toast the people in the defendant’s house. During the course of this video the plaintiff’s wife appears on a couple of occasions and appears to be working at the stove. She does not look out her kitchen window and her attention is exclusively focused on her work in the kitchen.

Video #6

[13] This is an edited version of video #5, which eliminates the gaps when the plaintiff is not seen in the video.

Video #7

[14] Video #7 is a compilation of several occasions when the plaintiff is seen crossing over the end of the defendant’s driveway and walking across the street to where a community mailbox is located.

Video #8

[15] Video #8 shows the property between the plaintiff’s house and the defendant’s house. The camera is aimed at the entrance of the backyards for both the plaintiff’s property and the defendant’s property. There is a gate which allows entry into the defendant’s backyard, and a separate gate which allows entry to the plaintiff’s backyard. The video was taken on March 17 and 18, 2010. In the video taken on March 17, garbage can be seen in front of the plaintiff’s gate. In the video taken on March 18, some of the garbage has disappeared from the front of the plaintiff’s gate. There is now a collection of garbage in front of the defendant’s gate as well as a small amount in front of the plaintiff’s gate.

The Parties Positions

[16] The defence argues that the videos should be admitted because they contain relevant evidence which calls into question the plaintiff’s evidence that there was an unprovoked attack on him. The defence argues that the videos show that the plaintiff was not an innocent victim, but was in fact the aggressor in the development of a toxic relationship between the parties prior to the alleged attack. The defendant also takes the position that the videos are relevant to an assessment of the plaintiff’s credibility as it is asserted that what is shown on the video is inconsistent with portions of the plaintiff’s evidence in chief.

[17] The plaintiff opposes introduction of the video evidence. His position is that the taking of the video surveillance constitutes the tort of intrusion upon seclusion as the video surveillance was taken while he was on his own property and, in the case of at least two videos, they were taken while the plaintiff was inside his own home. The plaintiff also argues that the videos have no relevance and should be excluded on this basis as well.

Analysis

[18] The case law has established that in order to introduce surveillance evidence, the moving party must satisfy the court of the following:

1. That the surveillance is a fair and accurate depiction of the events seen in the video;
2. That there is no intention to mislead through the video;
3. That the video surveillance is relevant; and
4. That the contents of the video have been properly verified under oath by a person capable of doing so.

See Landolfi v. Fargione, 2006 ONCA 9692, [2006] O.J. No. 1226, Iannarella v. Corbett, 2015 ONCA 110; and Taylor v. Durkee, 2017 ONSC 7358.

[19] In addition, the Rules of Civil Procedure have established strict requirements for disclosure of surveillance evidence. In the present case, however, the defence gave notice of its intention to rely on the surveillance evidence under the Rules of Civil Procedure and delivered copies of most of the videos. However, in the case of videos #2 and 3 the raw video was not produced; only the edited video #4 was produced.

[20] I have concluded that the evidence in videos #2, 3, 4, 6 and 7 should be excluded on the basis of relevance.

[21] Evidence is relevant if as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced (See R. v. Collins, 2001 ONCA 24124, [2001] O.J. No. 3894 (C.A.)). With respect to video #2, the plaintiff is observed behind the patio door of his deck looking towards the defendant and his deck. The plaintiff, as noted previously, is seen laughing and smiling in the video. It is impossible to know what he is saying behind the patio door. The actions of the plaintiff in these circumstances cannot be described as intimidating or aggressive. He is seen looking over at his neighbour’s deck which does not appear to be unusual in light of the evidence from Mr. Scherrer that he was doing some repairs on that deck. I fail to see how what is shown on this video has any relevance to any issue in this action. The video does not support a conclusion that the plaintiff was acting in an intimidating or aggressive way as suggested by the defendant, nor is it inconsistent with the plaintiff’s evidence so as to be relevant for assessing his credibility. Similarly, the third video should be excluded for the same reasons. The fourth video should be excluded because it is a compilation of videos #2 and 3.

[22] The sixth video should be excluded because it is simply an edited version of video #5 and has no relevance greater than what is observed in video five.

[23] With respect to video #7, the plaintiff is observed on several different occasions walking across the street to a community mailbox. In doing so, he walks across the end of the defendant’s driveway, which appears to be a logical route to follow, given that the mailbox is located directly across the street from the defendant’s home. The defendant argued this video is relevant because the plaintiff shows no desire to avoid the defendant or his family. The defendant also argued that the plaintiff showed some disregard for the plaintiff’s property by scraping his boots of snow before he crossed the street to the community mailbox.

[24] I have concluded there is no relevance to this video. There was no reason for the plaintiff to avoid this route because the video does not show the presence of the defendant or any members of his family outside the home at the time in question. With respect to the conduct of the plaintiff in scraping his shoes which is seen on the video, this is consistent with similar activity shown on the video while the plaintiff is not on the defendant’s driveway. He is seen on a couple of occasions cleaning the snow off his shoes on the other side of the street well away from the defendant’s home and again when he gets close to the community mailbox.

[25] In summary, the video of the plaintiff attending the community mailbox does not appear to show any conduct which is outside the norm of what one would normally expect of someone retrieving his mail from a community mailbox. I fail to see how this has any relevance to any issues in this lawsuit.

[26] This leaves a consideration of the contents of videos #1, 5 and 8.

[27] I consider videos #1, 5 and 8 to contain relevant evidence. In video #1, the exchange of insults and obscenities is relevant to the development of a toxic relationship between the parties and provides a relevant contextual framework for the altercation which occurred on March 30, 2010. It also is relevant to the credibility of the plaintiff and the issue of who the aggressor was in the emerging conflict between the parties. In video #1, the plaintiff calls the defendant “a fucking idiot” and also calls him “white trash”. This is in contradiction to the plaintiff’s evidence in his examination-in-chief that the defendant made disparaging remarks about his Maltese heritage. In the exchange, the defendant asks the plaintiff where he came from but does not comment further. It is significant in my view that the plaintiff testified at length in his evidence in chief about how the toxic relationship between himself and the defendant evolved. He described in some detail the incidents which lead up to the alleged assault on March 30, 2010. In his evidence, the plaintiff suggested that the defendant aggressively taunted him and called him a coward when he refused to fight. The plaintiff also complained of continuing verbal assaults by the defendant, which caused him to fear for his safety and lead to his application for a peace bond. I have concluded in these circumstances that the contents of video #1 are relevant in providing evidence of the circumstances leading up to the alleged assault as well as going to the credibility of both parties. For these reasons, I consider the contents of video #1 to be relevant to the issues in this action.

[28] Similarly, with respect to video #5, the gestures made by the plaintiff towards the defendant’s kitchen provide relevant evidence about the contextual circumstances leading up to the alleged assault. The plaintiff commented in some detail about this incident in his examination-in-chief. He stated in his evidence that the defendant had cameras in his house and one of them was pointed at his kitchen window which caused him to become very suspicious of the defendant. The contents of video #5 provide an accurate record of what happened during this incident. It could also provide relevant evidence as to who was the aggressor in the toxic relationship which developed between the two neighbours, as well as being a relevant factor to take into account on credibility. The plaintiff can be seen in this video making what appear to be mocking gestures towards the defendant’s home. He is also seen with his hand drawing circles to the side of his head, in a gesture which may suggest that he feels an occupant of the defendant’s home is crazy.

[29] In video #5, however, both parties agree that the recording of the activities of Mrs. Grech in the video are not relevant to any issue in the action. Therefore, this portion of the video is not to be admitted as evidence in this action.

[30] With respect to video #8, the defendant has taken some video of the area between their two properties. The video taken on March 17, 2010 shows a collection of garbage in front of the plaintiff’s gate. On the following day, while there is some garbage left in front of the plaintiff’s gate, there is now a substantial amount of garbage in front of the defendant’s gate and significantly less in front of the plaintiff’s gate. The defendant takes the position that this is evidence that the plaintiff deliberately moved the garbage in front of his gate over to the defendant’s property. It was submitted that this tends to show that the defendant was aggressively trying to engage the defendant in a confrontation. There is no evidence, however, as to what caused the garbage to move from one side of the property to the other, nor is it clear that the garbage seen on March 17 is the same garbage which is seen in the video on March 18. Nevertheless, the defendant’s allegation that the plaintiff deliberately moved garbage onto his property to engage him in a confrontation has developed into a significant issue at trial. The defendant’s position is that the altercation on March 30, 2010 was initially triggered by the plaintiff attempting to dump garbage into his yard. This allegation is denied by the plaintiff. While the video evidence does not clearly indicate whether the garbage is the same in both videos and, if so, who was responsible for moving it, I have concluded that the observations shown in this video are relevant to the issue which has been raised by the defence. The video constitutes some evidence which the defence should be entitled to rely on.

[31] Having satisfied myself that the observations seen in videos #1, 5 and 8 do have some relevance to the issues in this action, I have proceeded to consider whether they should be excluded for reasons other than relevance.

[32] Even accepting that some of the videos may be relevant, the plaintiff further argues that the actions of the defendant in taking the videos constitute the tort of intrusion on seclusion and that on this basis the evidence should be excluded.

[33] The Court of Appeal in Jones v. Tsige, 2012 ONCA 32, has clearly established that Ontario recognizes the tort of intrusion upon seclusion. The test for this cause of action is set out at paras. 70 and 71 of the Court’s decision in Jones as follows:

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would [page262] include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action.

[34] In my view, there is a reasonable basis to question whether the plaintiff has established the tort of inclusion on seclusion in relation to the videos which were taken. It is significant that in taking the videos, the camera was always placed on the defendant’s property. There was no act of trespass onto the plaintiff’s property by the defendant in making the videos. Further with respect to video #1, the video records activities between the two neighbours which were not inside the plaintiff’s home, but which took place on the outside of the parties’ homes where they could be observed by other neighbours. This significantly detracts from the degree of privacy which could reasonably be expected in the circumstances.

[35] With respect to video #5, it is true that the plaintiff was recorded while he was in his own home, but the activity recorded consists of actions which are primarily directed by the plaintiff to the defendant’s home and it may be inferred that the defendant was the target recipient. For these reasons I conclude that there was no reasonable expectation of privacy on the part of the plaintiff. He clearly wanted his actions to be seen by the defendant. In these circumstances, I have considerable doubt that the defendant can be said to have invaded the plaintiff’s private affairs or concerns. Further, I conclude that a reasonable person would not regard this alleged invasion of privacy as highly offensive causing distress, humiliation or anguish.

[36] A further consideration is whether even assuming the videos constitute unlawfully obtained evidence, can they properly be excluded as evidence in this trial. In the context of a civil action, the general rule is that the trier of fact should have the benefit of all relevant evidence, regardless of how it was obtained. The rule at common law is that illegal or improper acts committed in the acquisition of evidence do not affect its probative value or admissibility. Further, the law of evidence should not be used as a means of disciplining police or others. The person aggrieved can resort, at least theoretically, to other proceedings, criminal or civil, to obtain recourse against the wrongdoer. (See for example, The Law of Evidence in Canada, 5th ed., at p. 605).

[37] There may, however, be some limits to the general inclusionary rule, where policy and societal considerations outweigh the probative value of the evidence, even in a civil matter. The case law does not appear well developed in this area. However, some cases suggest that a court may consider exclusion where Charter values are involved. This would not appear to be an issue in the case before me.

[38] There is also a general power to exclude evidence to safeguard the fairness of the proceeding. A judge is entitled to exclude relevant and material evidence where its probative value is outweighed by the prejudice caused by its omission. See R. v. Collins, 2001 ONCA 24124, 150 OAC 220. In this case I have concluded that the probative value of the evidence outweighs any prejudice. The videos provide an accurate portrayal of some of the events which lead up to the alleged assault.

[39] In my view there must be compelling reasons in a civil case to exclude relevant evidence which would otherwise be admissible. There is nothing in the case before me which would suggest that any policy considerations would overrule the general common law principle that all relevant evidence should be admissible in this trial. The videos which I am prepared to admit contain accurate depictions of interactions between the plaintiff and the defendant which are relevant in the context of this case. The evidence will not negatively impact the fairness and integrity of the trial. Although the law appears to be moving in a direction which may allow a trial judge to exclude evidence which has been obtained unlawfully, I have concluded that such exceptions require exceptional circumstances which do not exist in the present case.

Conclusion

[40] For the above reasons, I have determined that the evidence in videos #1, 5 and 8 are properly admissible in this action. The evidence of the remaining videos is excluded.

Justice M. McKelvey Released: November 30, 2018

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Joseph Grech, Plaintiff – and – Michael Scherrer, Defendant RULING RE: VIDEO AND SURVEILLANCE EVIDENCE Justice M. McKelvey Released: November 30, 2018