Not pixel perfect

The neighbour suffered minor burns and damage to his property. The video, admitted in evidence at trial, showed a man approaching the truck with something in his right hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back in the direction he came from.

The neighbour who owned the truck recognized the accused as the arsonist and testified to this at trial.  

On appeal, the accused argued that the trial judge did not consider the effect of the evidence of the Crown’s expert forensic video analyst on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.

At trial the sole issue was the identity of the person who set fire to the truck. The accused did not testify.

At trial, the police expert who testified to tender the video evidence was not called as an identification witness, but as a forensic video analyst. He was not asked to do a lengthy comparative analysis report. The expert prepared the video evidence introduced at trial, including the surveillance recording of the crime scene showing a person of interest reaching inside the victim’s truck when it erupted in flames.

The accused’s lawyer argued that the victim’s identification of the accused should be viewed in light of the expert’s testimony about the low quality of the surveillance video evidence and the expert’s inability to identify the characteristics of the person captured by the video.

The trial Court found that the expert’s evidence was technical in nature, but still relevant as to whether or not the video evidence was in any way compromised or altered.

The trial judge noted the pixilation of the video and that it could not be further enhanced. The appeal Court held that whether the video was of sufficient quality to form the basis for the identification was a question of fact for the trial judge.

The appeal Court also decided that the quality of the recording was relevant to the trial judge’s consideration of the content of the video. It pertained to the question of whether or not it was clear enough for the trial judge to review and place any weight on the video or on the neighbour’s observations and identification of the accused.

The appeal Court held that the expert’s description of the arsonist and evidence on the content of the video would not assist the trial judge on the ultimate identification issue.

The appeal Court concluded that it was clear from the reasons that the trial judge examined the contents of the video. The trial judge did provide a detailed description of what he was able to glean from the video despite its pixilation.

A review of the surveillance video by the appeal court confirms that the trial judge’s assessment of it was reasonable.

This case demonstrates that even if the trial judge cannot make a positive identification from his/her viewing of the video, the video evidence is still important because it allows the trial judge to observe what occurred and supports the judge’s decision on the accused’s guilt.  

Elliott Goldstein, B.A., J.D., is a Thornhill, Ont.-based lawyer (elgold@rogers.com).

1. R. v. Benson 2015 ONCA 827