Excluding that evidence would lead to inconsistentencies at trial and prejudice the defence's case- it would be unfair. So the application was dismissed.
R. v. [REDACTED],  O.J. No. 2457
Ontario Superior Court of Justice
Heard: March 20, 2019.
Judgment: March 21, 2019.
Court File No.: CR-17-92
 O.J. No. 2457|2019 ONSC 1815
Between Her Majesty the Queen, and [REDACTED], [REDACTED], [REDACTED], and [REDACTED], Defendants
[REDACTED] and [REDACTED] for the Crown.
[REDACTED] for Mr. [REDACTED]
[REDACTED] for Ms. [REDACTED]
[REDACTED] for Mr. [REDACTED]
[REDACTED] and [REDACTED] for Mr. [REDACTED]
RULING ON ADMISSIBILITY OF CAPTURED VIDEO
R.C. [REDACTED] J.
1 This application raises the question: how many copies of a really poor quality video are too many?
2 Three males were walking home after a night of drinking in downtown Bradford. It was about 2 a.m. on a September morning. They were on Centre Street, very close to the residence where two of the men lived. A small car passed them on the road. Some words were exchanged between the pedestrians and the occupants of the car. The car turned around. The occupants got out. A physical confrontation ensued. One of the pedestrians suffered a severe head injury during the course of the confrontation and died a number of days later in hospital.
3 The defendants in this case are four of the six occupants of the small car. They are jointly charged with manslaughter, assault with a weapon and assault causing bodily harm.
4 A structure nearby the area of the conflict was equipped with a video-surveillance camera, which captured some images of the events as they transpired.
5 The camera was some distance away from the area where events unfolded. It was raining out at the relevant time and a large drop of water adhered to the lens of the camera, which distorted the images it recorded. I have no evidence about the quality of the surveillance camera, but I have no hesitation in saying that the quality of the images it recorded is very poor. It really has to be seen to be appreciated, but suffice it to say that it is singularly blurry. Figures are often no more than silhouettes or moving patches of light.
6 The existence of the surveillance camera came to the attention of investigating officers. A constable with the South Simcoe Police Service attended at the property where the surveillance equipment was installed and was able to view the recording of the Centre Street confrontation on a monitor. Concerned about the prospect that the video-recording might be recorded over or otherwise lost before it could be seized and retained by the police, the constable made a copy of it by recording it on his cell phone as it played on the monitor in front of him. He then made a second copy through the same process, but this time standing a little farther back from the monitor.
7 Subsequently, the police seized the hard drive from the surveillance equipment and preserved it and the relevant video-recording. In light of its poor quality, it was delivered to the York Region Police Service for possible enhancement by their forensic video analysts. A somewhat enhanced copy of the original was created, with a little bit better contrast.
8 In all, therefore, there are four copies of the video-recording: the original, the police- enhanced copy and the two cell phone copies. I have not been provided with the second cell phone copy to view. Having viewed the other three iterations of the video-recording, I find that the clearest resolution is, perhaps peculiarly, the cell phone copy.
9 The trial of the charges against the defendants commenced in the spring of 2018 and ran for about a month before it was mistried as a result of juror misconduct. Numerous witnesses testified for the Crown during the course of the trial, including the two surviving pedestrians. They were questioned about the video-recording and what can or cannot be seen in it. In cross-examination the defence made extensive references to the content of at least one of the cell phone copies.
10 The retrial is to begin next week. During pre-trial motions, Crown counsel expressed the position that defence counsel ought not to be permitted to utilize the cell phone copy of the video-recording because there are differences between it and the original recording. Defence counsel, in the view of the Crown, are attempting to exploit those differences unfairly.
11 This ruling addresses the sole issue of whether the defence should be permitted to utilize one or both of the cell phone copies of the surveillance videos as they examine and/or cross-examine witnesses during the trial.
THE GOVERNING AUTHORITIES
12 Every admissibility inquiry proceeds from a basic premise. Evidence is admissible in a criminal trial if it is relevant, material and not subject to a specific rule of exclusion: see R. v. Candir, 2009 ONCA 915 at para. 46. This basic premise applies to evidence of all kinds, including both oral and real evidence.
13 Video-recordings are a form of real evidence. The relevance of real evidence is linked to its authenticity: see Pacaccio and Stuesser, The Law of Evidence, 6th Edition (Toronto: Irwin Law Inc., 2011) at page 459. Accordingly, as a first pre-requisite to admissibility, the party tendering a video-recording must establish that it is authentic.
14 Video-recordings must also be accurate recordings of what they purport to depict. As Justice Cory held in R. v. Nikolovski,  3 S.C.R. 1197, at para. 28, "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."
15 This case deals, of course, with the unusual situation where a party seeks to tender a copy of a video-recording where the original recording not only exists, but will be filed in evidence during the trial.
16 Historically, the best evidence rule required that the original of a document be tendered when a party sought to prove its contents. If the original document was available, secondary evidenced would be inadmissible. The rule has been relaxed considerably in more recent years. The Canada Evidence Act, R.S.C. 1985, c. C-5, expressly provides for the admissibility of copies of a variety of different types of documents.
17 In R. v. Betterest Vinyl Manufacturing Ltd. (1989), 52 C.C.C. (3d) 441, the British Columbia Court of Appeal urged flexibility when applying the rule, saying, at para. 30, "Any over-technical and strained application of the best evidence rule serves only to hamper the inquiry without at all advancing the cause of truth." The Court went on to cite, with approval, the following portion of the decision of the U.S. Federal Court in United States v. Knohl, 379 F. 2d 427 (1967):
Where a re-recording of a tape recorded conversation is offered in evidence and the trier finds that a proper foundation has been laid for it, and that the re-recording is authentic and accurate, a technical and rigorous application of the best evidence rule makes no sense and is not required. Johns v. United States, 323 F. 2d. 421 (5 Cir. 1963). The discussion of the rule by Mr. Justice Sutherland, sitting as Circuit Justice in the Second Circuit, in United States v. Manton, 107 F.. 2d. 834, 845 (2 Cir. 1939) is pertinent:
The rule is not based upon the view that the so-called secondary evidence is not competent, since, if the best evidence is shown to be unobtainable, secondary evidence at once becomes admissible. And if it appears, as it does here, that what is called the secondary evidence is clearly equal in probative value to what is called the primary proof, and that fraud or imposition, reasonably, is not to be feared, the reason upon which the best evidence rule rests ceases...
18 The best evidence rule appears to have been originally grounded in the aspiration of avoiding fraud and forgery. Many more recent cases have spoken of the relaxation of the rule being attributable to the advancement of technology and the availability of more accurate and reliable copying equipment. See, for instance, Betterest, as above. I wonder, however, if we are not about to come full circle in terms of the effects of advancing technology. Software readily available to most Canadians now has the ability to seamlessly alter documents and photographs, making fraud and forgery substantially easier.
19 There is also a very obvious evolution in document creation and retention towards digitalization. In a digital world, how does one distinguish between a primary and secondary document?
20 All of this is to say that the best evidence rule, as a broad rule of evidence, has lost much of its vigour.
21 It seems to me that the most helpful reflection on the modern best evidence rule, or what is left of it, was provided by Justice Charron in R. v. Shayesteh,  O.J. No. 3934 (Ont. C.A.). The objective, she observed, ought to be to produce the best that the nature of the case will allow. But this objective, she said, "should be viewed simply as a proposition of common sense rather than any strict application of a rule of evidence." (Para. 94).
THE POSITIONS OF THE PARTIES
22 The Crown's position is that the original video-recording, which is readily available, should be used by all parties in questioning witnesses. The secondary video -- the cell phone video or videos -- should not be admitted in the face of the original. The original is the best evidence. I note, of course, that the Crown does not propose to limit itself to the original video, but rather intends to utilize the version enhanced by forensic video analysts.
23 The Crown asserts that the content of the enhanced video is the same as the content of the original. Any differences in quality between the two versions can be readily explained by the analysts who enhanced it.
24 On the other hand, there are unexplained differences between the original video-recording and the cell phone recording. The Crown concedes that the cell phone copy provides the best resolution, but takes the position that the enhanced quality of the recording ought to point away from admission because the defence is unable to explain why, contrary to what one might ordinarily expect, the copy has better resolution than the original. Unexplained differences, in the Crown's view, make the copy inherently unreliable and it should be excluded on that basis.
25 The defence position, primarily articulated by Mr. [REDACTED], is threefold.
26 First, the same reasons that support the use of the Crown's enhanced version of the video-recording similarly support the admissibility of the cell phone copies.
27 Second, the cell phone copies, for whatever reason, provide the best contrast and resolution. All iterations of the video-recording are terrible, but the jury should be given the best of the bunch to work with and consider.
28 Finally, the cell phone copy was used extensively in the first trial, without objection.
29 There is no question that the cell phone copies of the original video-recording are authentic and contain relevant information. And there is no question that the relevant information they contain relates to live issues in the proceedings. In other words, they satisfy the pre-requisites of relevance and materiality.
30 The last pre-requisite to admissibility requires that the proffered evidence not be subject to a specific rule of exclusion.
31 Though the Crown did not articulate the applicable exclusionary rules in quite this fashion, I take Mr. [REDACTED]'s submissions to have identified two bases for the exclusion of the cell phone copies. First, the cell phone copied videos offend whatever remains of the best evidence rule. Second, there are unexplained differences between the cell phone copied video-recordings and the original. Concerns therefore arise about the reliability of the copies. The court is urged to use its residual discretion to exclude unreliable evidence.
32 I will examine these two assertions in turn.
33 As I noted, I prefer Justice Charron's common sense approach to the best evidence rule. As a common sense proposition, a trier of fact should be presented with the best available evidence.
34 Usually, if an original document (or audio-recording, photograph or video) is available, one would expect -- again as a common sense proposition -- that it would offer the best evidence of what the document purports to contain. But this case demonstrates that that common sense proposition does not always hold true. "Original" does not always mean "better".
35 There may be some debate about what the adjective "best" means when applied to the evidence in issue here. It could mean the most authentic, the most accurate, the best clarity, the brightest contrast or the highest resolution. Or it could be a combination of those things.
36 For unexplained reasons, the cell phone copy of the video in this case offers the clearest images of what is happening in the recording. It is a recording of the video as it was being played on a monitor at the location where the recording was originally taken. It was recorded directly from the hard drive as the video played on a monitor. How the copying of the video resulted in better clarity is a mystery. But it did.
37 In my view, a common sense application of the best evidence rule points in favour of admitting the cell phone copies.
38 That said, the thrust of the Crown's submissions was directed at the court's residual discretion to exclude evidence that is otherwise relevant and material on the basis of a costs/benefits analysis.
39 This residual discretion was described by Watt J.A. in R. v. Spackman 2012 ONCA 905. A trial judge may exclude otherwise relevant and material evidence where:
(a)the probative value of the evidence is overborne by its prejudicial effect;
(b)the introduction of the evidence would involve an inordinate amount of time not commensurate with its value to the determination of the dispute; or
(c)the evidence is misleading because its effect on the trier of fact, especially a jury, is disproportionate to its reliability as proof. (Para. 115).
40 In this instance, the Crown suggests that the unexplained differences between the copies and the original are indicative of an inherent unreliability in the copies. Moreover, the Crown is concerned that defence counsel may attempt to exploit little apparent differences between what is or can be observed in the original or enhanced original video and what is or can be observed in the cell phone copies.
41 I was not directed to any particular differences between the original and cell phone copied videos. They were played in the court room and I was provided with a disk of the recordings to view on my own time. Having reviewed them, my view is that they are all of extremely poor quality. The differences between them are minor, though as I have said, the cell phone copied video provides the clearest (though still terrible) images.
42 It is important to recognize that the court's function at the admissibility stage is to focus on threshold reliability and not the ultimate reliability of evidence. In other words, is the proffered evidence sufficiently reliable to put before a jury for consideration? See R. v. Khelawon, 2006 SCC 57 at para. 50. Ultimate reliability is the domain of the jury.
43 Here there are a number of markers of reliability. I have already mentioned most of them. The cell phone copy is an exact duplicate of what was played from the hard drive. Its authenticity is not in question. It was taken by a police officer in the course of the investigation of the index offences and its continuity is not in issue. It has not been changed, altered or tampered with in any way. Counsel are agreed that it provides the clearest images of any of the available recordings.
44 There is no explanation for why the cell phone copies appear clearer. I accept that. And I recognize that the problem with the absence of an explanation is that people may start to speculate about why there may be differences between the original and the copy of the recording. But the differences are extremely minor in my view. They are not likely at all to mislead the jury. At any rate, the jury will be cautioned about the use of the video-recordings, given how poor the images are, and specifically instructed not to speculate about is going on in them.
45 The threshold reliability of the cell phone copies is made out. They offer the clearest images of the events in question. I can see no basis to exclude them from the evidence. The jury will be in a good position to assess the contents of the video and to determine what weight to apply to it. If differences are apparent in the content of the original video when compared to the cell phone copy, the jury will be in a good position to determine what, if anything, to make of those differences.
46 I add one further observation. The cell phone copies were used extensively to cross-examine Crown witnesses in the original trial, without objection from the Crown. Counsel have transcripts of the evidence given at the original trial. They may want to use those transcripts to challenge any inconsistencies that arise in the evidence of the same witnesses who testify at the retrial. It may well prejudice defence counsel to restrict them at the retrial to using the video-recordings proposed by the Crown. In other words, inconsistent evidence may become a function of the use of different videos, which strikes me as somewhat unfair to the defence.
47 In the result, the application of the Crown to exclude the use of the cell phone copied surveillance video at trial is dismissed.
R.C. [REDACTED] J.