COURT FILE NO.: 173/21
DATE: 2023-11-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOSHUA ANANE, BORIS RUTI KALEKE, and GAEL KABANGA KALEKE
Accused
M. Hilliard, for the Crown
A. Prevost, counsel for Joshua Anane; N. Andrade, counsel for Boris Ruti Kaleke; and, D. Rechtshaffen, counsel for Gael Kabanga Kaleke
HEARD: November 23, 2023
HEENEY J.:
[1] This is a ruling on a voir dire that arose unexpectedly during the course of this trial, which is ongoing. At issue is the admissibility of various clips from surveillance video taken by a security camera at the entry door to an apartment building. That door leads to the unit where the accused are alleged to have been in possession of a variety of controlled substances for the purpose of trafficking, as well as two restricted firearms. Counsel for the accused Joshua Anane and Boris Ruti Kaleke admit both authenticity and continuity of the surveillance video. Counsel for the accused Gael Kabanga Kaleke, Mr. Rechtshaffen, admits continuity but challenges authenticity, hence the need for this voir dire.
Factual Background:
[2] The central issue in this trial is possession. All counsel concede that if possession is proven, there is no issue that such possession was for the purpose of trafficking.
[3] A quantity of controlled substances, as well as two handguns and ammunition, were found in Unit 1, 64 Grand Ave., London, when a forced entry was made into that unit on April 16, 2020 by the police, pursuant to a valid search warrant. The Crown’s case may depend in large measure upon proving a connection to, and some degree of control over, those premises on the part of each accused.
[4] Unit 1 is located on the lower level of a low-rise apartment building, which runs in a north/south direction fronting on the north side of Grand Ave. Access to the unit can be made through the front door of the building, but also through a side door near the south-east corner of the building. The entry door to Unit 1 is down a few steps from that side door.
[5] The building is equipped with a video security system with a number of cameras, one of which is aimed at the threshold to that side door, and shows a view of persons entering and exiting, as well as a partial view of the driveway to the east of the building, leading to a parking lot to the north.
[6] Following execution of the search warrant, the police obtained, on April 22, 2020, a production order that directed the owners of 64 Grand Ave. to provide a copy of the video recording from the camera that viewed the side door, from March 1 to April 16, 2020. Pursuant to that order, Carla West, a forensic video technician who was working in the forensic video unit at London Police Services, attended at the building on April 28, 2020. The building manager granted her access to the video system, which was in a locked utility room, and gave her a key to the room and the password to the system.
[7] She described the system as a generic DVR 4 channel system, with no model name or serial number. She noticed immediately that the time stamp on the video was 43 minutes behind actual time. She noted the time, and took a photo of it with her cell phone, which creates a detailed metadata time stamp showing the actual time. By comparing the actual time on her phone to the time on the screen, she calculated a 43 minute time differential.
[8] She then inserted a removable storage drive, commonly known as a thumb drive, into the system and began a direct system export, through which a copy of the digital data relating to that camera was copied to her storage drive. She was advised that channel 3 covered the side door, but to be sure she did a test and went outside and waved at the camera, and then verified that she could be seen doing so on channel 3 of the system.
[9] It became clear that the download was going to take a long time, and when the download for March was about 16% complete she locked the room, left the download to finish on its own, and returned to her office for other duties. She returned the next morning, observed that the first download had completed, inserted a fresh storage key and initiated the download for April 1 to 16. She waited for that to be completed, and “hashed” each with her digital signature to signify that she had worked with them.
[10] To ensure integrity, she reviewed both thumb drives and verified that the first and last clips were within the required time frames and that the data was from the right camera. She returned to the office and made a copy of both thumb drives onto a larger USB drive, and lodged it in a secure locker. The drives were later turned over to Det. Const. Frank Figliomeni. It was he who had been the affiant in support of the production order.
[11] DC Figliomeni’s task was to watch the entire video and produce a video clip summary. He spent about 10 days doing so. He did not do anything to the video, but only watched. No alterations or deletions were made. He saw nothing unusual in the way of “glitches” as he watched. He did say that missing or lapsing time, where there was no continuity, would be a concern, but he was not asked about whether the camera was motion activated. Both Carla West and Victor Poc, a forensic video analyst with LPS, assumed that the time jumps on the video were attributable to the camera being motion activated.
[12] A copy of the video was later converted into a more user-friendly format which could be viewed with most commonly used software, since the proprietary software that the equipment originally came with was difficult to use. This was done by Victor Poc. Mr. Poc produced a series of 108 segments of varying lengths.
[13] Of these, approximately 48 are proposed by the Crown to be entered into evidence, covering the period from April 12 to the execution of the search warrant and arrest of some of the accused on April 16. These were marked as voir dire Ex. 3. We watched each of those segments, or “clips”, during the voir dire testimony of Frank Figliomeni. He had been part of the entry team that executed the search warrant, and identified himself on the video as he entered through the side door. He also confirmed that the clips we were watching in the new format were the same images that he had previously watched when viewing the video in its original format.
[14] That same clip of the police entry was also shown to Officers Erin Quinn and Joel Pavoni, and they identified themselves on the video as it was played. Officers Kyle Beech and Kevin Kriebich did so as well, and in addition identified themselves on a different clip where they exited the building, escorting the accused Gael Keleke and Joshua Anane, respectively, en route to prisoner transport.
[15] Furthermore, each of these officers testified that their time of entry into the unit was 9:30 p.m., as recorded in their duty books, which is precisely 43 minutes later than the time stamp shown on the entry video. This accords with the observations and calculations made by Carla West on April 28 as to the time differential on the time stamp.
[16] Mr. Poc testified that when the data was transferred into a format that could easily be played on a video player, only the video layer goes, and the time stamp does not. However, he retained a third party vendor named Cellbrite, who are specialists in this field, to restore the time stamp. He said that the time stamp is a type of “hex data”, which is a series of ones and zeros, that are imbedded on each frame of the original video. The vendor was able to identify and extract that data, and merge it with the video file in the new format.
[17] To confirm that the time stamp on the video in the new format was the same as the one on the video in the original format, clip 96 was put on the screen, in a side-by-side view, with the new format on one side and the original format on the other. The original format video and the new format video were each cued up to the same date, hour, minute and second, which was precisely April 15, 2020 at 14:25:26. The images were identical.
[18] I should note that Mr. Rechtshaffen claimed that there were slight differences in the two images. I saw no such differences in the images on the screen. However, assuming that there are the slight differences in shading and tone from one image to the other, it is indisputable that the images in the new format are a substantially accurate representation of the original.
[19] An original copy of the entire video, in the original proprietary software, was filed by the Crown as voir dire Ex. 5, not for the purpose of entering it into evidence at the trial proper, but so that it would be available in the event that anyone wished to view any parts of the video in their original format. A proprietary video player was to be provided as well.
[20] The Crown submits that the evidence tendered is sufficient to establish the authenticity of the surveillance video, such that it is admissible evidence on this trial. Mr. Rechtshaffen disagrees, and argues that the evidence fails to prove that the video has not been altered or changed, which is, he asserts, the test set out in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. He points to the jumps in the time stamp, and argues that someone should have been called from the owners or manufacturers of the equipment to testify that it was motion-activated. He argues that there are gaps in time that should have been recorded, because we are left not knowing what transpired during the time that elapsed during those jumps. He points to a single clip where the time differential, as measured by a comparison of the time stamp with the notes of surveillance officers, appeared to be different that the 43 minute differential otherwise calculated, and suggests this means that we should be concerned that the time stamp is therefore jumping all over the place from clip to clip.
[21] While he was only able to point to one clip where the time differential was apparently different than the others, he argued that the defence does not have the onus of proof, and is not required to find and direct the court’s attention to portions of the video that are problematic.
The Law and Analysis:
[22] The starting point in a consideration of the threshold for authentication of electronic documents such as this is s. 31.1 of the Canada Evidence Act, R.S.C., 1985, c. C-5:
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
[23] This establishes a very low bar, in that the Crown is only required to lead evidence that the electronic document is what it is purported to be. Furthermore, it is not necessary that such evidence prove this fact beyond a reasonable doubt or on any other standard, but merely that it be “capable of supporting” such a finding.
[24] This section was discussed by David M. Paciocco in his article “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013), 11 Can. J. L. & Tech. 181. He said the following, at p. 13, under the subtitle “The test for authenticity”:
As indicated one of the functions of the electronic document provisions is to deal with the “authenticity” of electronic documents. This is the role of subsection 31.1, in particular. This provision does nothing more than repeat the “low” common law authenticity standard. At common law authenticity is established for the purposes of admissibility if the trial judge is satisfied that there is some evidence to support the conclusion that the thing is what the party presenting it claims it to be. In R. v. Donald, for example, the New Brunswick Supreme Court (Appeal Division) described the common law standard by calling for “some apparently sound reason” in the evidence for believing the item to be authentic:
Positive identification is not required. The fact an article has been admitted in evidence does not, of course, establish that it is the article involved. After its reception it is a question of fact to be determined by the judge or jury as to whether or not it is, in fact, such article. (footnote citation: R. v. Donald, 1958 CanLII 470 (NB CA), 1958 CarswellNB 4, 121 C.C.C. 304 (N.B.C.A.) at para. 7)
[25] At p. 14 under the subtitle “Authentication and genuineness”, he makes the point that s. 31.1 is nothing more than a threshold test for admissibility, such that there need only be “some basis for leaving the evidence to the factfinder”:
Evidence can be “authenticated” even where there is a contest over whether it is what it purports to be. This is so even though there have been situations where individuals have created false Facebook pages in the name of others, or where information has been added by others to someone’s website or social medium home page, and there have been cases where email messages have been forged. These false documents may easily gain admission under the rules. If the party offering the electronic document offers evidence capable of supporting a finding that it is genuine, section 31.1 will be met regardless of the strength of the case to the contrary. This is not because the law is disinterested in false documentation. It is simply that the law prefers to see disputes about authenticity resolved at the end of a case, not at the admissibility stage. Disputes over authenticity tend to turn on credibility, and credibility is best judged at the end of the case in the context of all of the evidence. “Authentication” for the purposes of admissibility is therefore nothing more than a threshold test requiring that there be some basis for leaving the evidence to the factfinder for ultimate evaluation. In R. v. Butler, 2009 CarswellAlta 1825, [2009] A.J. No. 1242 (Alta. Q.B.) for example, the Court recognized where there was a live issue about whether the accused generated the Facebook entries in question that would be for the jury to decide. (footnotes omitted)
[26] Some authorities, including those relied upon by Mr. Rechtshaffen discussed below, have held that there is a more stringent test, emerging from Nikolovski. At para. 28 of that case, Cory J. says the following:
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. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.
[27] Mr. Rechtshaffen argues that the Crown has failed to prove that the videotape has not been altered or changed, and is therefore inadmissible.
[28] In considering whether Nikolovski imposes a threshold for admissibility that is, on its face, more onerous than s. 31.1, it is worth noting that s. 31.1 was added as an amendment to the Canada Evidence Act in the year 2000 (S.C. 2000 c. 5 s. 56), four years after Nikolovski was decided. One could infer that if Nikolovski did, indeed, establish a standard for admissibility, it has been superseded by statute.
[29] However, the Alberta Court of Appeal, in R. v. Bulldog, 2015 ABCA 251, has convincingly concluded that Nikolovski did no such thing. Nikolovski was not about the admissibility of video evidence, which had been conceded by the defence in that case, but rather about the use that may be made of such evidence, i.e. whether a trial judge may use it to draw his or her own conclusions on identification. The Alberta Court of Appeal concluded that the statement quoted above did not state a “necessary” condition for admission, but rather a “sufficient” condition. The court discussed this issue at length at paras. 26 – 33:
As already noted, the appellants say that R. v. Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
It must first be borne in mind that R. v. Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from R. v. Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing “Use That Can Be Made of Photographs or Videotapes”, which clearly presupposes admissibility.
Further, the passage itself fails to support the appellants’ contention. It reads as follows:
“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.”
This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R. v. Jamieson, [2004] O.T.C. 369 (Ont. S.C.J.) at paras 36-37, [2004] O.J. No. 1780 (Ont. S.C.J.).
We do agree with the appellants, however, that in some cases R. v. Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: R. v. Penney; R. v. MacNeil, 2008 QCCS 915 (C.S. Que.) at para 11, [2008] Q.J. No. 1784 (C.S. Que.); R. v. Chevannes, 2011 ONCJ 754 (Ont. C.J.) at para 16, [2011] O.J. No. 5937 (Ont. C.J.); R. v. Ellard, 2004 BCSC 780 (B.C. S.C.) at para 11, [2004] B.C.J. No. 2914 (B.C. S.C.). In R. v. Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited R. v. Nikolovski as authority for the statement that “[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.” With respect, we do not read R. v. Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible. And, in any event, R. v. Penney is distinguishable, since exclusion of the video in that case was grounded in its lack of probative value and in its potential inaccuracy (the video was selectively shot and did not include a time stamp, which was vital since the charge was that the accused did not kill a seal “quickly”).
Other courts have taken a different view of R. v. Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R. v. Brown, [1999] O.J. No. 4865, [1999] O.T.C. 213 (Ont. Gen. Div.), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is:
”one of substantial accuracy. ... [T[he 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 in accordance with [Nikolovski] ....”
(Emphasis added.)
Similarly, in R. v. Crawford, 2013 BCSC 2402 (B.C. S.C.) at para 48, [2013] B.C.J. No. 2879 (B.C. S.C.) (emphasis added), the court said that R. v. Nikolovski should be interpreted in a “purposive” manner, such that a video recording’s admissibility is not precluded, even if “complete accuracy” no longer subsists, so long as “the alteration of the recorded event is not so substantial as to be misleading” or “if the image is distorted or otherwise changed in a material way.” What matters, said the court in Crawford, is that the video recording “accurately and fairly presents the information that it is to convey”. Other courts, including this Court, said much the same thing prior to R. v. Nikolovski: R. v. Leaney, 1987 ABCA 206 (Alta. C.A.) at para 45, 81 A.R. 247 (Alta. C.A.) (per Harradence JA, dissenting on other grounds; R. v. Maloney (No. 2)(1976), 1976 CanLII 1372 (ON SC), 29 C.C.C. (2d) 431, [1976] O.J. No. 2446 (Ont. G.S.P.); R. v. Taylor, [1983] O.J. No. 3354 (Ont. Prov. Ct.) at paras 17-18; and R. v. Creemer(1967), 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14, [1967] N.S.J. No. 3 (N.S. C.A.) (dealing with photographs).
There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of “substantial” accuracy over the appellants’ preferred test of “not altered”. It will be recalled that “authentication” simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something — the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (R. v. Penney), where its prejudicial effect exceeds its probative value (R. v. Veinot, 2011 NSCA 120 (N.S. C.A.) at paras 24-27, (2011), 311 N.S.R. (2d) 267 (N.S. C.A.)), or where there is reasonable doubt that the video identifying the accused is a fabrication.
[30] I should add that it is self-evident from the quote from Nikolovski that it is not stating a necessary condition for admission, but rather a sufficient condition. Two conditions are specified in that quote, the second of which is that it “depicts the scene of a crime”. If this were a necessary condition, it would exclude all kinds of video evidence that is relevant and probative of issues in the case, but records something other than the scene of a crime. Surely that cannot be the law.
[31] As to the submission that it was necessary for the Crown to have called the owner or manufacturer of the equipment to testify that it was motion-activated, the Alberta Court of Appeal in Bulldog considered a similar question. It had been argued by the appellant that there was an exclusive class of witnesses who could authenticate a video: (1) the camera operator; (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; (3) a person qualified to state that the representation is accurate; or (4) an expert witness. The Court rejected this submission, and held that there was no closed set of witnesses who could authenticate a video. In particular, at para. 35, the court held that circumstantial evidence could be used to do so.
[32] In my view, the circumstantial evidence here amply demonstrates that the time jumps seen on the video are attributable to the fact that the camera is motion-activated. First, the time stamp clearly contains the word “MOTION”, in block capitals. Second, upon viewing the video, it is obvious that when the video resumes after a time jump, there is some motion evident on the screen. For example, we watched a video of a car, where it was sitting in a stationary position in the driveway for a period of time. Then there was a time jump of several minutes, and when the video resumed the driver suddenly appeared beside the car. The obvious inference is that the motion he made by exiting the vehicle and standing up triggered the camera to resume recording.
[33] Furthermore, it accords with common sense that a surveillance camera would be motion-activated instead of running continuously. Running continuously would use up enormous amounts of memory to record images where nothing is happening, such as during the middle of the night, and would render the task of scanning to find any given event much more difficult. It is clear that this camera was not running continuously, since only 28 days worth of footage was generated, even though data covering the period from March 1 to April 16 was downloaded. I infer that the difference is due to the fact that the camera was not recording when there was no motion to record.
[34] Mr. Rechtshaffen also suggested that the existence of time jumps, whereby we are unable to see what was happening during the time gap, somehow adversely affected the admissibility of the video. There is no logic to this proposition. A videotape does not become inadmissible simply because, for whatever reason, it only records part of an event. Suppose someone was videotaping the commission of a crime, but the camera ran out of power part way through. There is no principled reason to deny the court the benefit of seeing what the camera was able to record before it ran out of power. So long as the footage that was captured is relevant, and is an accurate representation of the events it records, the trier of fact should be able to see it. If something relevant happened while the camera was inoperative, the parties are free to prove that with other evidence.
[35] Bulldog was cited with approval and applied in Ontario in R. v. He, 2017 ONCJ 790. At para. 2, Kenkel J. summarized the admissibility test that emerges from Bulldog:
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 (Alta. C.A.) at paras 39-40.
[36] In a footnote to this passage, Kenkel J. noted that the Alberta Court of Appeal left open the possibility that a lower standard of proof may apply.
[37] Kenkel J. also dealt with a concern that was raised in the case at bar, which is that the Crown is relying on a digital copy of the data recorded on the surveillance system, rather than the original recording itself. He said the following, at para. 6:
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.
[38] I am in complete agreement with the views of Kenkel J., and with the Alberta Court of Appeal. There is nothing in the record here that casts doubt on the integrity of the digital copy. As pointed out by Mr. Rechtshaffen himself in argument, a digital data file is simply a collection of ones and zeros. A copy of a digital file is expected to be an exact replica of the original. Gone are the days of analogue recordings on polyester magnetic tape, when the expectation was that the quality and accuracy of the recording would degrade each time it was copied.
[39] As it happens, the Alberta Court of Appeal weighed in on another issue that is relevant to the case at bar: the inaccuracy of the date stamp. In R. v. Tessier, 2020 ABCA 289, the issue was the authenticity of a Mac’s convenience store video, showing the accused and the murder victim together approximately 8 hours before the victim’s body was found. Tessier was seen completing a transaction in the store using his bank card. However, bank records established that the transaction occurred at 12:27 a.m., six minutes earlier than the time stamp on the video which recorded that transaction. The appellant argued that the time stamp required separate authentication, which the Crown had not done.
[40] At para. 76, the court noted that the need for authentication depends upon the claims the proponent makes about the evidence, and the purposes for admitting it. The court said this:
The aspects of real evidence that require authentication depend on the claims the proponent makes about the evidence: Bulldog at para 32. In the case of surveillance video footage, the claim normally made is that the footage accurately depicts events that occurred at a particular time or over a particular time period.
[41] The court continued, at paras. 79-80:
In this case, the video time stamp which indicated that Mr Tessier completed a card transaction in the Mac’s at 12:33 am was authenticated by circumstantial evidence: namely, the bank records which indicated that the transaction occurred at 12.27 am and the testimony of the store manager that he would check the time and date of the video recorder at the start of each work week. Obviously, this evidence does not establish that the time stamp on the video footage was perfectly accurate but it does establish that it was substantially accurate — i.e. that Mr Tessier used his bank card to make a purchase at around 12:30 am on March 16, 2007. The discrepancy between the video’s time stamp and the bank records might affect the weight of the surveillance video evidence but not its admissibility.
The standard of “substantial accuracy” from Bulldog is relative because it depends on the claims the proponent is making about the real evidence and the purposes for admitting it. In this case, the Crown introduced the video evidence to establish that Mr Tessier and the victim were together in the early morning of the day on which the victim was found dead. The relevance of the video footage did not turn on whether Mr Tessier and the victim were together at 12:30 am or slightly before or after; in the voir dire, Crown counsel claimed that the video showed them in the Mac’s “around midnight”. In a different case, where the relevance of the video footage depends on the events depicted having occurred at a precise time on a specific date, the proponent of the video may need to authenticate the time/date stamp on the video more exactly to show that it is “substantially accurate”.
[42] In the case at bar, the Crown is not relying on this evidence to prove that the events depicted in it happened at a particular time, but instead that they occurred over a particular period of time. Specifically, it is tendered to establish that the accused were seen frequently coming and going through the side door that led to Unit 1 during the period from April 12 to 16, 2020, in close proximity to the time of their arrest on April 16. The precise time of each coming and going is immaterial. It does not matter, for example, whether clip 97, which shows two males entering the building via that side door, happened at the date stamped time of April 15, 2020 at 2:41:11, or 43 minutes later, or even several hours earlier or later. The importance of the video as evidence is that it shows those two males entering the building on the day before the date of the arrest, April 16, 2020.
[43] The time stamp on the video is clearly inaccurate, but it is inaccurate to a provable degree. The technician Carla West established it to be 43 minutes prior to downloading any data, by comparing the time shown on the video screen with the actual time displayed by her cell phone. This time differential was confirmed by the five officers who testified and who were part of the team that effected entry pursuant to the search warrant. In every case, their notes indicated that entry was effected at 9:30 p.m., which was exactly 43 minutes later than the time stamp indicated on the video which recorded their entry.
[44] There was one clip where the time stamp differential, as compared to the notes of the surveillance team who were following and observing the accused, was 26 minutes instead of 43 minutes. There is no apparent explanation for the change. Once again, though, nothing turns on precisely when that event occurred, only that it occurred during the time frame of April 12 to 16, 2020.
[45] No attack has been made on the date portion of the time stamp, and there is nothing in the evidence to raise any concern that the dates are incorrect. To the contrary, the evidence of the police officers verify that the date shown on the videos in which they are featured is correct. Even with respect to the one clip where the time differential was different, the date was confirmed. In the context of the purpose for which the video evidence is tendered, I am satisfied that the time stamps are substantially accurate.
[46] It is noteworthy that Mr. Rechtshaffen’s concerns are focussed on the time stamp. Nowhere is he able to point to portions of the video where the image is distorted, or appears to have been altered or changed, except for the one instance discussed at para. 18 above that I have already discounted. Obviously, it is the accuracy of the image that is of critical importance. As Cory J. stated in Nikolovski, at para. 22:
So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity.
[47] The video in the case at bar is of good quality. It gives a clear picture of the events it records, including facial features of the people coming and going (when the face is visible), as well as clothing worn and items being carried, all of which provide excellent evidence on the issue of identity. None of this is affected in any way by any inability to specify the precise moment that such events occurred. An objective viewing of the video shows it to apparently be what it purports to be: a surveillance video from a fixed camera of the threshold of the side door to 64 Grand Ave., showing people coming and going through that door, as well as activity in the immediate vicinity, between April 12 and 16, 2020. The video was recorded from equipment stored in a locked room, and was password protected, thereby foreclosing any concern that it had been altered subsequent to being recorded.
[48] Mr. Rechtshaffen referred me to R. v. Andalib-Goortani, 2014 ONSC 4690, a decision of Trotter J., as he then was. It is so distinguishable on the facts that it offers virtually no assistance. It involved the admissibility of a photograph taken during the G20 protests in Toronto in June, 2010, purporting to show the accused assaulting a police officer with a weapon. The photograph was taken by an unknown person, and was uploaded anonymously to the internet. Expert evidence from both the Crown and defence concluded that the photograph had been changed from when it had been taken in the process of being uploaded, although the extent of those changes was unknown. The trial judge had a “lingering concern that it has been manipulated in other ways, ways that are intended to distort the true state of affairs that the image purports to capture” (para. 32). Unsurprisingly, it was ruled inadmissible.
[49] Mr. Rechtshaffen also relies on R. v. Chevannes, 2011 ONCJ 754, [2011] O.J. No. 5937 (O.C.J.), per Harris J. That case involved an accused who was accused of dangerous driving after he allegedly drove his vehicle into the front lobby of an apartment building. The Crown sought to rely on a surveillance video that was obtained by the investigating officer from the superintendent of the apartment building. The officer testified that the DVD video he received was the same as what he observed on the television monitor of the event at the time the copy was received. However, it appears that the Crown did not call any evidence to confirm that the video accurately depicted the scene being recorded.
[50] At para. 16, the trial judge said the following, in part:
On the question of admissibility of the D.V.D. copy of the security camera videotapes from the apartment building, I have concluded that the test for admissibility of this type of evidence is not met by simply asking the manager of a video monitoring system for a copy to be filed with the Court as evidence of what is depicted thereon even if a police witness can testify that the D.V.D. copied from the security videotape is an accurate reproduction. The weight of case authorities would suggest there is an evidentiary precondition to admissibility — that is — proof that the original videotape accurately depicts the scene being recorded and that the recorded images have not been altered or changed during the production of the videotape. …
[51] He added the following, at para. 17:
I can well understand the challenges faced by the Crown in authenticating the footage recorded by an unstaffed security camera. However, the recording device in Nikolovski was an automatic security camera that recorded a robbery of a convenience store. The uncontradicted evidence of the store clerk who testified that the videotape “showed all of the robbery” was sufficient relevant, probative evidence to properly authenticate the videotape. In the instant case there is no evidence proffered by the Crown to meet the burden of proof required for the admissibility of the D.V.D. recording and accordingly it is ruled inadmissible in this case.
[52] With respect, the approach of the trial judge in this case is not reflective of s. 31.1 of the Canada Evidence Act nor the authorities cited above, which I agree with and adopt. In my view, what the Crown must do is lead evidence to demonstrate that the video is a substantially accurate and fair representation of what it purports to show. It is not necessary to call a witness who was at the scene to testify to that effect, but may instead prove it by circumstantial evidence.
[53] In any event, the Crown in the case at bar has tendered sworn evidence from five police officers who are featured in parts of the video, who were able to identify themselves and confirm what they were doing at the time, and thereby authenticate the accuracy of the video. In addition, there is a blue Mazda motor vehicle which had been rented by the former co-accused Sebastiao Vieira which featured in the police investigation, and it can be seen several times in the video as expected, adding further evidence of authentication. Thus, I would have arrived at the same conclusion even had I agreed with the approach taken in Chevannes.
[54] Mr. Rechtshaffen submits that more witnesses should have been called who are seen in the video to confirm that it is substantially accurate. However, the clips primarily capture images of individuals whom the Crown advises are the accused, coming and going through the door. I am not making any finding at this point as to identity, but if that is the case it is clear that the accused are not compellable witnesses by the Crown and could not be called upon to authenticate the video.
[55] Finally, Mr. Rechtshaffen relies upon R. v. Weekes, [2013] O.J. No. 6725 (O.C.J.), a decision of Clements J. That case involved the admissibility of a photo taken by an ATM at the time the accused allegedly deposited a forged cheque. Once again, the decision turned on the failure of the Crown to call evidence, on oath, that the photograph is a fair and accurate reproduction of the scene as it looked at the time of the incident: see para. 20.
[56] The same comments apply to this authority as I made with respect to Chevannes, above. While there are authorities that justify the test applied by the trial judge, I am not persuaded that it is currently good law, in light of s. 31.1 of the Canada Evidence Act, and the analysis of the Alberta Court of Appeal, which I adopt. Furthermore, even if I had agreed with the approach of the trial judge, there was evidence on oath to authenticate the video as described above.
[57] I am satisfied that the surveillance video in question is relevant evidence, and its probative value is not outweighed by any prejudice to the accused. To use the words of s. 31.1, I am also satisfied on a balance of probabilities that the video is what it is purported to be, which is a surveillance video of the side door depicting individuals coming and going at that entrance between April 12 and 16, 2020. I am similarly satisfied that it accurately represents the events depicted. It is, therefore, admissible evidence on this trial. Any issues with respect to the time stamp, or other alleged deficiencies in the video, will go to the weight of the evidence, not its admissibility.
“Justice T.A. Heeney”
T. A. Heeney J.
Released: November 28, 2023
COURT FILE NO.: 173/21
DATE: 2023-11-28
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSHUA ANANE, BORIS RUTI KALEKE, and GAEL KABANGA KALEKE
REASONS FOR JUDGMENT ON A VOIR DIRE
Heeney J.
Released: November 28, 2023