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Evidence - Video. R. v. Ross
In R. v. Ross (Ont CA, 2026) the Ontario Court of Appeal considered the evidentiary treatment of video, here for identification purposes:[9] With respect to the first ground of appeal, the appellant submits that the trial judge failed to instruct herself about how to rely on video surveillance evidence in accordance with the guidance from the Supreme Court of Canada in Nikolovski.
[10] In Nikolovski, the accused was charged with robbing a convenience store. At trial, the Crown introduced a videotape of the robbery recorded by the store security camera as evidence. The store clerk testified that it showed the entire event.
[11] At trial, the store clerk testified, and could not identify the accused with certainty. The trial judge directed herself as to the frailties of eyewitness identification, but concluded that the videotape was very clear and that the accused was in view of the camera sufficiently long enough for her to make a careful observation. Accordingly, she convicted the accused.
[12] The Supreme Court considered the evolution of the use of audio and videotape evidence in Canada and stated that a tape, including a videotape, particularly if it is not challenged as to its accuracy or continuity, can provide the most cogent evidence of the relevant events: Nikolovski, at para. 16. The Supreme Court further stated at paras. 22, 23 and 30: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. Indeed, it may be the only evidence available.
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It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. .... If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused is the person in the tape beyond any reasonable doubt then that decision should not be disturbed.
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Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. . R. v. Hillier [video evidence]
In R. v. Hillier (Ont CA, 2026) the Ontario Court of Appeal allowed a Crown criminal appeal, this brought against "a stay of proceedings entered pursuant to s. 24(1) [SS: 'Remedies'] of the Charter for a violation of the respondent’s s. 11(b) right to be tried within a reasonable time".
Here the court considers the authentification of video recordings:[46] Authenticating a recording involves establishing that it is what it purports to be: R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 65. Whether a recording, such as the video footage at issue here, can be admitted depends on (1) its accuracy in representing the facts; (2) its fairness and the absence of any intention to mislead; and (3) its verification on oath by a person capable of doing so: R. v. Creemer, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S. S.C.(A.D.)), at p. 22. It is true that the person verifying the authenticity of a video need not be its maker and can instead be a person who was “at the scene” when the video was made. However, authentication may prove more stringent where the video purports to depict an event than when it is adduced for a simpler issue, like identity: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at pp. 559-560. In R. v. Andalib-Goortani, 2014 ONSC 4690, 13 C.R. (7th) 128, for instance, the court declined to admit a photograph that purported to show an assault by a police officer on a protester because it had been posted anonymously online and its metadata had been removed. In this light, the court expressed unease that “no one [was] prepared to step forward to say, ‘I took that photo and it has not been altered or changed [at all]’”: at para. 33.
[47] This court has no information about the open source videos disclosed by the Crown in this case, or any suggestion they might have been altered. The point, however, is that the Parliament Hill video would clearly be more straightforward for the Crown to authenticate, i.e., by calling as a witness the individual responsible for Parliament Hill security video footage. Moreover, the Parliament Hill video would pose fewer reliability concerns than the videos obtained from open source searches. It is much harder to conceive of an air of reality to an allegation of tampering in relation to this video as compared with such a claim in respect of the open source videos.
[48] Nor did the application judge’s refusal to view the Parliament Hill video during the hearing of the application (i.e., to assess whether the video was indeed of lower quality than those already disclosed) undermine her finding of its materiality to the respondent’s election. The issue was the reasonableness of the defence conduct in relation to the disclosure based on what was known at the time, and not the actual quality of the video. It is in this light that the application judge responded to the Crown submission that the lower-quality Parliament Hill video would have added nothing to the disclosure already made. As she observed, while Crown counsel had advised defence counsel of his understanding that the video was taken from a significant distance and was of poor quality, there was no evidence that the Crown had disclosed the source of his belief, or whether that source had viewed the video or simply drew an inference of poor quality based on the location of the video cameras. She concluded that “[t]here was little information given to [defence] counsel upon which he could have satisfied himself that the video was unlikely to impact Mr. Hillier’s election.”
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