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Evidence - Video. 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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