Use of Video and Photo Evidence

From Riverview Legal Group


Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved: 2022-10-07
CLNP Page ID: 1828
Page Categories: [Evidence Law]
Citation: Use of Video and Photo Evidence, CLNP 1828, <59>, retrieved on 2022-10-07
Editor: Sharvey
Last Updated: 2021/12/13


Regina v. Creemer and Cormier, 1967 CanLII 711 (NS CA)[1]

Page 22

...

All the cases dealing with the admissibility of photographs go to show that such admissibility depends on (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; (3) their verification on oath by a person capable to do so. (...)

[1]

Mott v. Green, 2020 ONSC 3761 (CanLII)[2]

[28] The second is that there was no evidence as to when the bruising had occurred, or how the bruising had occurred, only the photographs. All but one of the photographs do not show a face. Most digital photographs have the date and time the photograph was taken contained in their file name. That would have been of assistance. In addition, evidence from the photographer would have been of assistance in determining date and equally important authenticity: see R. v. Creemer, 1967 CanLII 711 (NS CA), [1967] N.S.J. No. 3 (N.S. C.A.), 53 M.P.R. 1.[1] Given the evidence of Ms. Mott that the text messages annexed to the respondent’s affidavit had, from time to time, been altered through cutting and pasting, I do have concerns that the photographs may be from a completely different point in time and may have nothing to do with the applicant.


[2]

R. v. Ellison, 2021 ONSC 4794 (CanLII)[3]

[50] Authentication of a photograph or video recording requires consideration of (1) the accuracy of the photograph/video recording in truly representing the facts; (2) the absence of any intention to mislead; and (3) their verification under oath by someone who is capable of doing so: R. v. Creemer and Cormier, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.C.A.).[1]


[3]

Landolfi v. Fargione, 2006 CanLII 9692 (ON CA)[4]

[50] In this case, in excluding the defence video evidence, the trial judge relied upon requirements for admissibility derived from Ball v. Vincent, [1993] O.J. No. 3289, 24 C.P.C. (3d) 221 (Gen. Div.); and R. v. Creemer, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14, 53 M.P.R. 1 (N.S.S.C. (A.D.))[1]. However, these cases contain no discussion of the purpose or scope of rule 30.09. As well, the video evidence at issue in Ball was tendered by the defence both as substantive evidence and for impeachment purposes. Copies of the videos had been provided before trial to the medical experts for both parties, and the defence intended to introduce at trial medical evidence from physicians retained by the defence who relied on the videos in forming their opinions regarding the plaintiff's injuries. That is not this case.

[51] In addition, the trial judge in Ball was alive to the fact that the admissibility of the videos in that case depended upon a threshold determination of relevancy and an assessment that their probative value exceeded their prejudicial effect. He found that the videos were relevant to the evidence adduced before him concerning the plaintiff's capacity to "make certain movements" and ruled that the videos had sufficient probative value to support their admission. In contrast, in this trial, the trial judge made no ruling regarding the relevance of the video evidence from the perspective of the defence or, more generally, in relation to the matters in issue between the parties. Nor did he consider whether the probative value of the videos exceeded their prejudicial effect.

[52] Moreover, and perhaps more importantly, there is no principled basis for video evidence to attract a different, and more stringent, test for admissibility at trial than that which applies to any other form of evidence. Admittedly, the impact of video evidence can be powerful. But this is true of many forms of demonstrative evidence or any evidence that establishes that a witness is being less than truthful. The test for the admission of the evidence remains the same. [page782]


[4]

R. v. MacDonald, 2000 CanLII 16799 (ON CA)[5]

[42] In our view, the preferable approach recognizes the dangers of video re-enactments but adopts a case-by-case analysis. As with the admissibility of other kinds of evidence, the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. If it does, the video re-enactment should not be admitted. In balancing the prejudicial and probative value of a video re- enactment, trial judges should at least consider the video's relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath: see R. v. Creemer, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 at p. 22 (N.S.C.A.).[1] Other considerations may be material depending on the case. And as with rulings on the admissibility of other kinds of evidence, the trial judge's decision to admit or exclude a video re-enactment is entitled to deference on appeal.


[5]

References

  1. 1.0 1.1 1.2 1.3 1.4 1.5 Regina v. Creemer and Cormier, 1967 CanLII 711 (NS CA), <https://canlii.ca/t/hv151>, retrieved on 2021-12-13
  2. 2.0 2.1 Mott v. Green, 2020 ONSC 3761 (CanLII), <https://canlii.ca/t/j89t2>, retrieved on 2021-12-13
  3. 3.0 3.1 R. v. Ellison, 2021 ONSC 4794 (CanLII), <https://canlii.ca/t/jh232>, retrieved on 2021-12-13
  4. 4.0 4.1 Landolfi v. Fargione, 2006 CanLII 9692 (ON CA), <https://canlii.ca/t/1mxnd>, retrieved on 2021-12-13
  5. 5.0 5.1 R. v. MacDonald, 2000 CanLII 16799 (ON CA), <https://canlii.ca/t/1fbcc>, retrieved on 2021-12-13