Video on trial

Recently, I came across a case involving the admission in court of a video recorded by a video camera in a police cruiser car.1

The Defence argued that the police cruiser video does not show the accused’s car was swerving on the road; nor does it show that the accused was swaying once on his feet; nor does it show that the accused was slurring his words. The trial judge reviewed the videotape, but because its quality was so poor, the trial judge was unable to find that it contradicted the observations related in the officer’s testimony.

Because of the poor quality, the trial judge was not able to place any weight on it. The accused was convicted at trial and he appealed to the Manitoba Court of Queen’s Bench, arguing that the trial judge erred by finding that the police officer who stopped him had reasonable and probable grounds to make a demand for a breath test.

The Manitoba Court of Queen’s Bench dismissed the appeal. It held that if the video had presented a clear picture of what transpired and that clear picture contradicted the officer’s evidence, then there may have been a basis for concluding that there was a palpable error in the findings of the trial judge. But, the quality of the video made it difficult to come to any conclusions by relying upon it.

Interestingly, the Manitoba Court of Queen’s Bench also commented that the case law suggests that the trial judge’s findings must be treated the same whether those findings are based on vive voce evidence (i.e., oral testimony under oath) or videotapes. The Manitoba Court referred to an Alberta Court of Appeal case2 in which the defence argued, on appeal, that the trial judge’s verdict was unreasonable because the trial judge found the content of a video to not be of much help on the crucial question of self–defence.

In that Alberta case, the Court of Appeal also watched the video and found no palpable and overriding error by the trial judge in his assessment of the video. According to the Appeal Court of Appeal, the assessment of a video as to its value, deficiencies or shortcomings was clearly within the trial judge’s function.  

So, what we learn from these cases is the importance of the quality of the video. As the Supreme Court of Canada stated in the famous case of R. v. Nikolovski3, “so long as the video is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence …” But we all know that “quality matters.”  

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

1. R. v. Seaman 2010 CarswellMan 465, 2010 MBQB 181.
2. R. v. Melnychuk 2008 ABCA 189 (Alta. C.A.).
3. R. v. Nikolovski [1996] 3 S.C.R. 1197.