R. v. Chaudhry, 2021 ONSC 6589

COURT FILE NO.: CR-19 -50000522-0000

DATE: 20211006

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

Sean Horgan and Jim Cruess, for the Crown

Magda Wyszomierska and Charles Lamy, for Zayd Chaudhry

HEARD: September 17, 2021

By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.

M. Dambrot J.:

1This ruling concerns the admissibility of a compilation of surveillance video recordings proffered by the Crown. The compilation includes excerpts from the original video recordings placed in chronological order and a few minor enhancements that have been added to it by the Crown.

BACKGROUND

2Zayd Chaudhry is being tried by me, with a jury, on an indictment alleging that he committed the first degree murder of Abdulkadir Bihi. Mr. Bihi was shot and killed while sitting alone in a Volkswagen Jetta parked in a parking lot outside 263 Dixon Road in Toronto on October 5, 2017.

3The Crown alleges that on that date, shortly after 2:40 p.m., a lone gunman emerged from a forested area near the parking lot, approached Mr. Bihi, and shot him. After he was shot, Mr. Bihi attempted to flee. He reversed his vehicle and drove into a parked Honda, and then drove through the parking lot toward Dixon Road. He did not make it to the street. Instead, he drove his vehicle into the rear of a Brick delivery truck and came to rest directly in front of the entrance to 263 Dixon Road, where he died.

4The shooting was captured by video surveillance, but that footage is not of a quality suitable to permit the shooter to be identified. However, two witnesses observed two men running along a path that leads from the parking lot to Dixon Road from their apartment balconies after gun shots were fired. The Crown alleges that this evidence together with other circumstantial evidence will establish that Mr. Chaudhry was the shooter.

5Following the shooting, two men entered a taxi waiting on Dixon Road near the spot where the path meets the road. A third man was already in the taxi. The driver of the taxi drove the three men to the area of 55 Speers Road, a multistory apartment building in Oakville, and dropped them off at about 3:25 p.m. Surveillance video recorded by several different cameras from the buildings in the area shows three males entering 55 Speers a few minutes later. The Crown alleges that these are the three men who had just arrived in the taxi. At approximately 3:30 p.m. the three men were captured on video recorded by a surveillance camera inside 55 Speers at the elevator bay of the apartment building waiting for and then entering an elevator. At approximately 6:30 p.m. the same day, the same three men were captured by video emerging from an elevator. Unit 1108 at 55 Speers is leased to Mr. Chaudhry. The accused admits that the three men seen entering and leaving the elevator were Mr. Chaudhry, Zakariye Ali, and Faysal Omar.

6The video of the events in the parking lot and the video recorded outside and inside 55 Speers have been admitted in evidence without objection. In this application, the Crown also seeks to adduce in evidence the compilation video I mentioned.

THE COMPILATION VIDEO

7The compilation video joins in a single recording the video of the relevant events in the parking lot on Dixon Road and the portions of the video at 55 Speers that record the taxi and the three men that the Crown alleges emerged from the taxi, walked around the area for a few minutes, entered 55 Speers, went up the elevator and later came back down the elevator, placed in chronological order. The defence does not object to the pertinent events at 55 Speers being compiled in a single video in chronological order. Indeed, the defence agrees that the admission in evidence of such a compilation will assist the jury, saving them from having to review all the video to find the relevant extracts, and having to struggle to place the extracts in order. However, the defence objects to the events on Dixon Road and the events at 55 Speers being placed in a single recording. Counsel argues that this may unduly influence the jury into accepting the Crown’s theory about the connection between these events.

8In addition, the Crown has altered the video in the compilation in two ways. First, the Crown has placed circles, or spotlights, around certain of the vehicles moving around in the parking lot that are lighter in appearance than the remainder of the video image. And second, the Crown has placed magnifiers around the top of the taxi outside 55 Speers, and around the person alleged to be Mr. Chaudhry at certain points in time outside and inside 55 Speers. The purpose of these alterations is straightforward.

9First, the parking lot video is taken from a distance, is in black and white and is generally not of high quality. Lightening the area in a spotlight around certain vehicles makes it easier for the jury to have their attention drawn to the movement of those vehicles. However, the defence argues that it may influence the jury to accept the Crown’s position that a circled vehicle seen at one point in time in the video is the same vehicle as is circled at another point in time.

10Second, in one instance, the magnifier makes it easier to identify a vehicle seen outside 55 Speers as a taxi, and in the other instances, makes it easier to assess whether Mr. Chaudhry has changed his clothes after emerging from the taxi and before entering 55 Speers. The defence takes no issue with the use of the magnifier on the taxi but argues that the magnifier placed on Mr. Chaudhry may somehow alter what is seen in the magnification, may obscure certain details in the video, and may influence the jury to ignore any suggestion that either of the other men may have also changed their clothes.

11At the conclusion of argument, I disclosed to counsel that I was inclined to admit the compilation, but in light of concern raised by the defence about the possibility that the magnifier might somehow alter what is seen in the magnification or obscure other details in the video, I required the Crown to produce information addressing this concern before I decide about the use of the magnifier. The Crown advised me that they had a witness who could address this issue, but he was not immediately available as a result of a health issue. As a result of the disclosure I made to counsel, and without conceding the issues raised, counsel for the accused agreed that the Crown could adduce the compilation video provided that the use of the magnifier would be limited to its use on the taxi. The Crown agreed, with the understanding that it could raise the issue of the magnifier again if it finds itself in the position to do so.

12In view of the fact that the defence concession preserved the defence objections for appellate purposes, I indicated that I would provide reasons for my decision. These are those reasons.

ANALYSIS

The Principles

13I begin by saying that it is not in dispute that authenticated photographs and video recordings of relevant events or images are admissible in evidence. Authentication simply requires that it be established that the photo or video in question accurately represents the relevant event or image depicted and has not been altered or changed: see R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. For a helpful review of the law on this point, see the decision of Clark J. in R. v. James, 2015 ONSC 3902, at paras. 33-34.

14Authentication of an exhibit need not be accomplished by direct evidence. A sufficient foundation for proffered photographic evidence can be established circumstantially: R. v. Andalib-Goortani, 2014 ONSC 4690, 13 C.R. (7th) 128, at para. 25. In addition, complete accuracy of a photograph or video is not a prerequisite to admissibility. So long as, despite a change or alteration, the image is substantially accurate, is a fair representation of what it purports to show and is not misleading, the image may be admitted in the discretion of the judge, upon the application of a probative value/prejudicial effect analysis: R. v. Bulldog, 2015 ABCA 251, 326 C.C.C. (3d) 385, at paras. 26-33, and the cases cited therein.

15Once a video recording has been admitted in evidence, it is commonplace, and unobjectionable, to slow the speed or zoom in on an image to assist the trier of fact to observe and understand the events displayed. These, of course, are not actual alterations of the video, merely enhancements to the manner in which it is displayed. But where an actual alteration enhances a video recording, its accuracy might well be served by such an alteration, and the altered video may be admitted into evidence: R. v. Jamieson, [2004] O.J. No. 1780 (S.C.), at paras. 36-37; Bulldog, at paras. 28-30. Accordingly, alterations such as the addition of spotlights, magnifiers, time clocks and the like to a video compilation are permissible, provided that they are not misleading and do not unduly emphasize the position of the party adducing the evidence. When the evidence is proffered by the Crown, it may be necessary for the trial judge to undertake a probative value/prejudicial effect analysis. The admission of the unaltered recording along with the altered image goes far to allay any concerns about misleading the trier of fact.

16It is also commonplace to provide the trier of fact with a compilation of pertinent extracts from a series of videos, often placing different images taken with different cameras in chronological order. Again, if not done in a misleading manner, this assists the trier of fact to understand the events being displayed. Doing this is no different than adducing schedules or summaries to effectively synthesize cumbersome and confusing evidence. This has long been an accepted practice in cases where a large body of documents have been led in evidence: R. v. Scheel (1978), 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.). This principle has been applied to composite videos in cases such as R. v. Zoraik, 2012 BCCA 283, at para. 22, and R. v. Barreira, 2017 ONSC 1665.

17Finally, a word about procedure. Counsel for the accused argued that the Crown must establish the authenticity of a photograph or video recording on a balance of probabilities, presumably on a voir dire. She found support for this position in R. v. Brown, [1999] O.J. No. 4865 (Gen. Div.), where Trafford J. stated, at para. 3, that “the Crown must prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them”. I do not accept this as an accurate statement of the law. The caselaw is clear that the threshold for authentication is a more modest one.

18Authentication is accomplished by the introduction of some evidence capable of supporting a finding that a document or thing is what it purports to be. This burden is discharged by direct or circumstantial evidence. A voir dire is not ordinarily required. Whether a document is what it purports to be is a question for the trier of fact to decide on all the evidence adduced at trial, not by the trial judge as a preliminary issue of admissibility: R. v. C.B., 2019 ONCA 380, 376 C.C.C. (3d) 393, at paras. 63-72. In C.B., both text messages and a photograph were under consideration.

19The application of this approach to the admissibility of audio recordings finds its origin in Ontario in R. v. Parsons (1977), 1977 CanLII 55 (ON CA), 37 C.C.C. (2d) 497 (Ont. C.A.), aff’d sub. nom. R. v. Charette, 1980 CanLII 31 (SCC), [1980] 1 S.C.R. 785. In Parsons, the Court explained the procedure that should be followed by trial judges when determining the admissibility of private communications intercepted pursuant to what is now Part XX of the Criminal Code. Dubin J.A., as he then was, speaking for a five-member panel of the Court, stated, at pp. 501-502:

A voir dire is not held to pass on the sufficiency of the evidence, but only to determine questions of admissibility. In cases such as these, initial issues as to the admissibility of the tendered evidence immediately arise. In order to render evidence of intercepted private communications admissible when Crown counsel relies upon an authorization, Crown counsel must first satisfy the trial Judge that the statutory conditions precedent have been fulfilled … The determination of whether the statutory conditions precedent have been fulfilled rests exclusively with the trial Judge and are properly determined in a voir dire.

Once the statutory conditions have been met, what the Crown must show is that the intercepted private communications are those of the person against whom it is tendered and accurately reproduce his words. The Crown's proof as to the integrity of the tape, its accuracy, its continuity, and voice identification, and that there has been no tampering nor alterations in any way all relate to the proof that the evidence tendered is an accurate reproduction of what it is alleged the person against whom it is tendered said. The weight to be given to that evidence is for the jury, and the admissibility of such evidence is not subject to any statutory conditions precedent and should be dealt with in the same manner as any other issues of fact, which arise in every jury trial.

20He continued, at p. 503:

Evidence that the recording tape upon which the conversations were recorded was magnetically clean, that the recording apparatus was in working order, that the tapes upon which the recordings were made had not been tampered with nor altered in any way would appear to be initially admissible, and thus would not normally be the subject of a voir dire. Similarly, the evidence tendered to establish “voice identification”, unless subject to some specific exclusionary rule, would appear to be initially admissible.

At the commencement of the trial, in order to avoid the danger of a mistrial, it may be appropriate for the trial Judge to make some inquiries, in the absence of the jury, as to what issues are foreseen which may arise with respect to the Crown's proof. He may determine, as a result of such inquiries, that it is appropriate to hear some evidence on an issue such as voice identification, but the procedure adopted should be the same as it is with respect to any other evidence tendered. At that stage of the trial, once it is shown that the evidence is relevant to the issue, and not inadmissible by any other exclusionary rule, the trial should proceed in the presence of the jury.

21Dubin J.A. went on to endorse the following procedure for dealing with issues of authentication, at p. 504:

[S]ave in rare circumstances, the relevancy or propriety of specific evidence need not be determined by testimony given in advance and in the absence of the jury. By adopting such a procedure, the trial is unduly prolonged, the jury is absent from the Courtroom too long, and the continuity of the trial which is so desirable is unduly disturbed, to say nothing of an unfair preview of the evidence that may be afforded to the opposite party. It should not become fashionable to have evidence disclosed by a voir dire without very good reason. On the contrary, it is desirable that whenever possible evidence that is to be challenged be considered in the absence of the jury upon an outline by counsel of the nature of the prospective evidence. In the vast majority of cases the Judge will then be in a position to rule upon its admissibility.

22On appeal, the Supreme Court unanimously adopted the reasons of Dubin J.A. I see no reason that they would not apply equally to video recorded evidence.

Application of the Principles

23Here, the accused does not argue that the original videos presented by the Crown are inadmissible. Rather, to summarize, he says the compilation, as it stands, is inadmissible for three reasons:

1. Placing the events on Dixon Road and the events at 55 Speers in a single recording may unduly influence the jury into accepting the Crown’s theory about the connection of these events.

2. The circle placed around the movement of certain vehicles at different times in the video may influence the jury to accept the Crown’s position that these are all the same vehicle.

3. The use of the magnifier placed on Mr. Chaudhry may somehow alter what is seen in the magnification, may obscure certain details in the video, and may influence the jury to ignore any suggestion that either of the other men may have also changed their clothes.

24I will deal with each of these arguments in turn.

25First, the joining of the excerpts of the video from Dixon Road and the video at 55 Speers Road. As I have observed, it is well-established that a composite video drawn from a variety of other videos is admissible in evidence provided that it otherwise meets the test of admissibility, and that it is accompanied by an appropriate limiting instruction where necessary. The accused does not dispute this. His concern is prejudice. I may, of course, refuse to admit the evidence if its prejudicial effect outweighs its probative value. In this instance, each of the video excerpts is highly probative. The real question is whether there is any value to combining the two sequences in a single video, and whether it creates any prejudice to the accused.

26Here, the value is apparent. It eases the task of the jury to be able to view highlights of all the video adduced by the Crown of both the crime itself and the subsequent actions of the alleged perpetrator on the day of the crime in a single recording. Most particularly, it will allow the jury to more easily compare the appearance and clothing of two men seen running from the scene of the crime in Toronto to the appearance and clothing of the accused and two associates when they arrive at an address in Oakville later in the day. On the other side of the scale, I can see absolutely no prejudice to the accused flowing from the jury having the two categories of evidence in a single exhibit. I cannot imagine that any juror would jump to the conclusion that the occupants of the taxi are linked to the events in the parking lot simply because the videos are found in the same compilation. If I am wrong, any slight possibility of such an erroneous assumption can be readily dispelled by an appropriate instruction. Indeed, I have already given such an instruction about the caution with which the jury should approach their consideration of the compilation, having regard to this and other concerns that have been raised. I will set this instruction out below.

27Second, the spotlights. Again, by lightening the area around certain vehicles, the spotlights will make it easier for the jurors to have their attention directed to the movements of those vehicles, and to be reminded of this when they deliberate. Lightening an image in a video has been permitted in other cases. For example, in Jamieson, the accused provided nighttime in-home nursing services for children with medical challenges. She was charged with aggravated assault on a child based on video recorded by a hidden video camera. The Crown was permitted to adduce in evidence both the original videotape and an enhanced version of the videotape that added brightness and a time scale to it. The trial judge stated, at para. 36:

Having viewed both tapes, I am satisfied the enhanced copy adds only brightness and a reference time scale. The brightness provides more detail than in the original videotape when viewing some events. I am further satisfied both videotapes are an accurate presentation of events as they occurred. I did not observe any indication of distortion, editing, tampering or any other factor which might impair the accuracy of either videotape.

28Similarly, here, I am satisfied that the spotlights add only brightness to a small area of the video and do not interfere with the accuracy of the recording. In addition, I see no prejudice flowing from the admission of the spotlights. Again, I see no possibility that any jurors will be persuaded of the Crown’s position because of the spotlights. But also, once again, if I am wrong and there is a slight possibility of this, I am confident that I dispelled that slight possibility by the instruction I have already made reference to, which addresses this concern. Moreover, the defence is free to counter this compilation with one of its own that focuses on different elements of the video.

29Third, the magnifiers. As I have noted, it is commonplace for counsel to slow the speed of a video, to freeze frames of a video, or to zoom into a frozen frame, all to better permit the trier of fact to evaluate what is depicted. Doing so will often permit the attention of the trier of fact to be drawn to certain details or permit those details to be more clearly seen. It is open to the trier of fact to do the same when deliberating.

30A good example of the admissibility of video evidence “altered” in this fashion is found in the decision of Molloy J. in R. v. Mohamed, [2009] O.J. No. 398 (S.C.). In that case, the Crown tendered videotapes of an altercation, which resulted in a charge of manslaughter, that were retrieved from a surveillance system, and a Power Point format DVD consisting of 597 still photos downloaded from the video. These stills could be viewed by the jury frame by frame at whatever speed the viewer chose, or run as a Power Point slideshow, which had the effect of permitting the viewing of the video in slow motion. The accused objected to the evidence being tendered in this “altered” format on the basis that it was a distortion of reality and would be misleading for the jury. Molloy J. disagreed and admitted the evidence. She stated, at para. 8:

The assistance of video footage of an event is an invaluable source of reliable information for a jury, considered to be more reliable than eyewitness testimony: R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.) at paras. 21-23 and 28-29. It is also recognized that the video can be frozen at spots to study specific frames more closely and that still photos extracted from the video are admissible in evidence: Nikolovski at para. 29; R. v. Lloyd [1994] B.C.J. No. 3169, (1994), 27 W.C.B. (2d) 237 (B.C.S.C.); R. v. Brown (1999), 45 W.C.B. (2d) 425 (Ont. Gen. Div.).

31With respect to prejudice, she stated, at para. 16:

However, modern juries are well used to slow-motion film footage and technologies such as Power Point slide presentations. With proper instructions alerting the jury as to the importance of the perspective of real time for some of the issues they have to determine, I had no concerns that the jury would be confused by the Power Point format. In my charge to the jury, I provided a limiting instruction early in the charge as to the dangers inherent in the slow-motion format and reminded them at various specific parts of the charge when it was important to consider an issue based on the real-time video as opposed to slow-motion. I am confident in the ability of the jury to make those distinctions.

32I am in complete agreement with these views. I see no obstacle to the Crown presenting to the jury, in addition to the unaltered version of the video recording, a second version that magnifies the video, zooms in on portions of it or slows it down. I see no difference between magnifying the entirety of frames of a video and magnifying only a portion of a frame that directs the jury’s attention to specific parts of the image.

33I acknowledge, of course, that a litigant cannot tender a video that has been altered in the sense that it has been subject to some process that deprives the video of its substantial accuracy. But altering the speed of a video or magnifying a portion of it is not such an alteration. If the Crown can produce evidence that the magnifier being placed on Mr. Chaudhry’s clothing does not alter what is seen in the video, this part of the video may be led in evidence before the jury.

34I see no prejudice to the accused flowing from the admission of the compilation video with the addition of the magnifier. The jury will be able to compare a copy of the video with the magnifier to a copy of the video without the magnifier, and they will be able to assess any evidence led by the parties about the effect of the magnifier. Moreover, the defence is free to counter this compilation with one of its own that focuses on different elements of the video. And finally, the jury will have the benefit of the instruction I gave them that addresses this concern.

The Instruction

35I have mentioned that I gave the jury an instruction about the caution with which they should approach their consideration of the compilation, having regard to the concerns that have been raised. The following is, in essence, the instruction I gave:

Members of the jury, I have a brief instruction for you before we continue with the evidence.

I told you in my opening comments at the start of this trial that you are the judges of the facts, and you will return the verdict at the conclusion of the trial. The presentation and examination of the witnesses is substantially in the control of the counsel for the Crown and counsel for the defence, and I decide all questions of law and give you instructions at the end of the case. But you and you alone will decide what the facts are in this case. You will be the sole judges of the credibility of the witnesses, the reliability of their evidence, and the weight to be given to the evidence in this case. Your interpretation of the evidence, not mine or counsels', will determine the result in this case.

I am reminding you of this because it is important for you to keep it in mind when you consider the latest video exhibit that the Crown has placed in evidence – which I will refer to as compilation video. This video is different than the other videos you have seen. Playing it is different than simply playing a video, for example, of what was recorded by the camera in the parking lot on Dixon Road. This video does several things that are different.

First, it puts together in a single video, in chronological order, selected excerpts from the videos that you have already seen that were recorded by the camera in the parking lot at Dixon Road, and the various cameras recordings at Speers Road. In addition, it places a spotlight around certain vehicles in the Dixon Road parking lot. The compilation video slows down and repeats certain parts of the original videos. Certain features of what is displayed in the video were isolated by the use of spotlights. And the video magnifies a few features in some of the videos.

Everyone agrees that seeing the activities at Speers Road in chronological order assists all of us in understanding what took place there. But the other features – joining the Dixon and Speers footage, using spotlights and magnification, slowing things down and repeating certain things – are meant to help you focus on some of the things that the Crown says are important in deciding this case.

But remember, these are things that the Crown says are important to focus on. You may agree. You may not. It is up to you. Just because the Dixon Road events and the Speers Road events are in one video doesn’t means they are connected unless you decide they are. Just because there is a spotlight on cars at different times in the Dixon video doesn’t mean they are all the same vehicle, unless you decide they are. Just because something is magnified doesn’t mean it is significant unless you decide that it is. Do not lose sight of the fact that you and you alone are the sole triers of fact.

One other thing. The word enhancement has been used in describing some of the features on the video. They are enhancements only in the sense that they are additions to the video. They are not part of any process that alters the video to allow you to know things other than what can otherwise be seen in the video. They are intended to help you by focusing your attention on certain things, and nothing more.

36Should the Crown pursue the use of the magnifiers focussed on Mr. Chaudhry’s clothing, depending on the evidence that is led in support of their use and evidence led by the defence to the contrary, I will add an instruction that addresses the possibility that the magnifiers alter what is seen in the video, and the possibility that the magnification of other details may have significance as well.

DISPOSITION

37The Crown’s application for leave to adduce the compilation video is granted, with the exception of the use of the magnifier focussed on Mr. Chaudhry’s clothing. The Crown is at liberty to reopen its request to use the magnifier in this manner should the evidence of the witness who could address the question of whether that the magnifier alters what is seen in the video become available.