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After erasure

Years ago, I wrote about a British case where a video of shop theft was accidentally erased by the investigating (police) officers. However, the prosecutor was still able to obtain a conviction based on the testimony of the officers who viewed the video prior to its erasure.1 A similar thing happened in a recent Alberta case (2) where a Provincial Court Judge admitted the evidence of a police officer about what he saw on a video that was erased prior to trial.


December 9, 2014
By Elliott Goldstein

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The video showed the accused walk to the store’s ATM machine. The Complainant, a store clerk, walked to that location and there appeared to be a conversation. The Complainant tried to escort the Accused out of the store. The Accused struck the Complainant, left the store, returned a short time later and again struck the Complainant. The accused was charged with assault.

The officer viewed a video of the assault in the store, shortly after the assault occurred. At trial, the officer described at  what he saw on the video. The surveillance camera was above the [cash register] till and showed a viewpoint from which the officer could see the store clearly.

Unfortunately, neither the police nor the store staff was able to secure a copy of the video. The video system’s DVD burner was not working so a proper copy could be obtained, and the videotape was recorded over.

The accused objected to the officer’s evidence being admitted on the ground that it is inadmissible hearsay. The trial judge ruled that a video is not a hearsay statement.

In this case, the videotape itself was not available. Had it been, and providing it met the criteria for admissibility, it would have been relevant and admissible evidence capable of conveying a first-hand impression to the Court. The evidence of the Complainant and the officer indicates that the video they observed depicted the scene of the alleged crime. They viewed the video immediately after the alleged event when the Complainant rewound the tape. The evidence led the Court to conclude that the video had not been tampered with prior to the Complainant and the officer watching it. The officer was looking at something which, had it been available to the Court, would have been capable of conveying a first-hand impression to the Court. It conveyed a first-hand impression to the officer and his evidence described that impression. Therefore, in principle, the officer’s testimony about what he saw on a videotape is no different from testimony about anything else he observed.

The officer’s testimony is evidence of what he observed. The officer was cross-examined at length at trial on what he recalled having seen on the video and on what might have influenced his memory and impression of the video.

The officer was interpreting a visual recording and that interpretation is testable. This is different from traditional hearsay where a witness is interpreting another person’s interpretation and verbalization of what was observed, the accuracy of which is not testable. In the end, the accused was convicted of assault based on the officer’s evidence of what he saw on the video, notwithstanding that the video itself was not admitted into evidence.

This case points out the importance of showing the video to as many persons as possible as soon as it is recorded, because their testimony may be necessary if the video is not available at trial.  

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

1. See Taylor v. Chief Constable of Cheshire, [1987] All English Reports 225 (Queens Bench Division, England).
2. R. v. Mesfin, 2012 ABPC 115 (Alta. Prov. Ct.) , 2012 CarswellAlta 821 (per E.A. Johnson Prov. J.:).


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