Continuity of video evidence

In R. v. Adams (2011 CarswellNS 363, 2011 NSCA 54 (judgment June 9, 2011))., the Nova Scotia Court of Appeal heard an appeal by the Crown from the ruling of a provincial court judge that held inadmissible a surveillance videotape showing the commission of a theft and digital photographs of the stolen property.

The provincial court judge (mistakenly) ruled that the witness, a loss prevention supervisor at a building supplies store, would not be allowed to view the contents of the CD in order to authenticate it. His Honour held, “without markings on the outside of the CD to identify its origin, the witness was not entitled to view the CD contents” and ruled the CD inadmissible.

The provincial court judge also (mistakenly) ruled inadmissible a CD containing the digital photographs of the stolen property. These photographs, made by three different police officers, were stored on a secured hard drive under a particular file heading. They were copied to a compact disk for disclosure and trial purposes by a fourth police officer. That CD was marked as “C91” (shorthand for “Crown exhibit # 91”).

At trial, the Crown called one of the three police photographers to introduce the photographs taken by him. The defence objected and argued that there must be evidence of control over the particular hard drive in order for the exhibits to be sufficiently reliable.

“The trial judge agreed with defence counsel holding that admissibility of C91 involved proving its continuity beyond a reasonable doubt. Consequently, the photographs taken by Cst. Barkhouse contained on C91 could not be entered through him.” (All quotes are taken from R. v. Adams, unless otherwise indicated.)
“The Crown then called Det. Cst. Sandra Johnston. She testified she burned two CDs of photographs which were part of the Operation Takeback investigation. A CD which was marked as C89 contained photographs taken solely by Det. Cst. Johnston. As noted above, the other CD marked as C 91, contained photographs taken by Cst. Barkhouse and two other officers.

“Det. Cst. Johnston detailed the process of taking the photographs, comparing them for accuracy, storing them, and then reorganizing them for the purpose of burning C89 for presentation to the court. She testified that when she burned C89, she reviewed the photographs to ensure that they were accurate depictions of what she viewed through the lens on the day the photographs were taken.

“When the Crown sought to tender C89, defence counsel objected arguing the number of photographs and the dates they were taken would have to be established before the CD could be accessed. The trial judge, again, agreed ruling that the number of photographs and the dates on which they were taken would have to be established to prove continuity before the CD could be accessed. Further, he held that proof of continuity of the photographs beyond a reasonable doubt was a critical pre-condition to admissibility.”

When the Crown asked the provincial court judge to formally rule on the admissibility of the CDs, the following (rather confusing) ruling was made:  “This, in my view, is the issue of whether the continuity of the photograph or the proposed evidence has been established beyond a reasonable doubt. And in my opinion, based on the evidence before me, I conclude that the continuity, and I emphasize the continuity, of the particular exhibit, that is the disk, has not been established beyond a reasonable doubt. So at this stage, that particular exhibit is not admissible.”

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Fortunately, the Nova Scotia Court of Appeal saw the errors in his Honour’s reasons and overruled his Honour’s decision regarding the surveillance video as follows: “Inexplicably, the trial judge required, as a pre-condition to the admissibility of the video, proof of continuity which he equated to authenticity. However, he would not allow the witness to access the contents of the CD in order to authenticate that it actually portrayed the subject-matter to which he had testified. The trial judge found that as a result of there being no identifying markers on the disk to allow the witness to objectively identify it without reviewing its content, the ‘evidential threshold’ for admissibility had not been met and the video was ruled inadmissible.

“It is difficult to understand how the trial judge expected the witness to authenticate the contents of the video without accessing it.

“Further, and of greater concern, is the trial judge’s failure to recognize that videos depicting the theft itself may be self-authenticating.” (See R. v. Nikolovksi [1996] 3 S.C.R. 1197 (SCC).)

The Nova Scotia Court of Appeal concluded: “The trial judge’s error is obvious. …. I am satisfied that the trial judge erred in failing to allow the video to be accessed for the purpose of testifying to its authenticity, integrity and accuracy. The trial judge compounded this error by concluding the issue was one of continuity and equating continuity to admissibility. The distinction between the two is discussed in more detail under the next issue.”

As to the admissibility of the digital photographs, the Nova Scotia Court of Appeal held that the trial judge was in error in ruling that the continuity of the CD containing the photographs had to be proven beyond a reasonable doubt in order to be admissible into evidence.

Furthermore, the provincial court judge’s treatment of the standard of proof for admissibility essentially required the photographs to be proven as if they were an essential element of the offence. … But the trial judge was in error.

The higher Court found that the trial judge compounded his error by confusing the concept of continuity and admissibility of photographs. The relationship between continuity and admissibility is as follows explained the Court of Appeal: “The continuity of an exhibit goes to weight, not to admissibility.”

Therefore, “in requiring the Crown to establish the admissibility of the photographs by proving their continuity beyond a reasonable doubt in order for them to be authenticated, the trial judge erred.”

We all know that admissibility of videotape and photographic evidence depends on a number of criteria, such as: relevance; truth and accuracy; fairness and absence of intent to mislead; and verification on oath by a capable person (i.e., authentication).

This case says that authentication does not require proving “continuity” of possession of the videotape and digital photographs — also known as the “chain of custody requirement” — beyond a reasonable doubt. A trial judge cannot rule on the weight (i.e., emphasis) to be given to videotapes and digital photographs without first admitting them into evidence!

Elliott Goldstein, B.A., J.D. is a Vaughan, Ontario based lawyer, elgold@rogers.com