In R. v. Ermine, 2018 SKQB 77 (Saskatchewan Court of Queen’s Bench), the trial judge was placed in the position of having to conduct his own video analysis because the Crown failed to call the necessary expert evidence.

In this case, three individuals robbed a bar. Two of the robbers pled guilty earlier and this trial was about whether the defendant was the third person involved in the robbery, as shown in the surveillance video.  The sole issue was identification.

In his analysis of the evidence, the trial judge referred to the Supreme Court of Canada decision of R. v. Nikolovski, [1996] 3 SCR 1197, which remains the leading decision in Canada on the trier of fact’s ability to draw conclusions on identification of individuals observed in surveillance video images.  The trial judge quoted extensively from Nikolovski, including the following passages:

21 The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture.

. . .

23 It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.

. . .

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. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.

30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial. I would think that very often triers of fact will want to review the tape on more than one occasion.

32 A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it. This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between the taking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape.

The trial judge found the surveillance video to be of reasonable quality but noted that the suspect in question is wearing dark sunglasses and a dark hat and that the camera captured his face and actions only briefly.

Unfortunately, the Crown did little to assist the trial judge in doing his job as the sole method of analyzing the video was the ‘just push play” method.  This approach denies the judge valuable insight into the video evidence and sells the critical evidence far short of its full impact.  The trial judge commented on this as follows:

27      The evidence of the video footage was played during trial primarily in video fashion, with a small number of frame freeze stops. Based upon that evidence viewed in video format and given the fact that the person carrying the shotgun was wearing dark sunglasses and a hat and the event moved quickly, I found myself, at that stage, challenged to conclude beyond a reasonable doubt, on the basis of the video footage and the surrounding circumstantial evidence, that it was the accused who appeared in the video. However on reviewing the video footage in more detail following the adjournment of the trial I have concluded Mr. Ermine was the third individual involved in this robbery and thus guilty as charged.

The trial judge took it upon himself to analyze the video evidence and in so doing he made helpful observations about a gold colored chain around the suspect’s neck, the hair line on the back of the neck and a tattoo on the back of one of the suspect’s hands.  He found the tattoo to be unique and that it matched the tattoo shown on known photos of defendant’s hands, which had been entered as exhibits.

Combining the trial judge’s own analysis with other evidence in the case, he found the defendant to be the third robber and convicted him accordingly.

Following the conviction, the trial judge sent a clear message to the police and the Crown regarding the lack of proper forensic video analysis in this investigation and prosecution. He stated:

31      I add to this judgment an observation directed at the RCMP and Crown. By spending approximately 20 minutes freeze framing the videos I was able to identify the specific frames of the videos providing details from the video footage which were significant in helping me reach the decision I did. The ability to do this was equally available to the police and the Crown; indeed I expect that they had equipment and programs that would permit them to easily produce sequential freeze frame photographs of the crucial parts of the surveillance video footage. I expect that if the police or the Crown had undertaken the effort to do this analysis and presented the relevant evidence, particularly the images of the back of Mr. Ermine’s hand so captured, that the time and expense of this trial would likely have been avoided, or if not avoided run much more efficiently and focused.

Analysis of Decision

It is not often that the trial judge will advise the police and Crown as to how they could do their jobs more effectively.  While Nikolovski permits trial judges to make their own observations of the video evidence, many judges would not have undertaken the level of analysis that this judge undertook.  In doing so, the trial judge gave the Crown a gift – he did the work that the Crown should have done.  The proper presentation of this evidence would have involved expert forensic video analysis which included the following elements:

• Clarification of video images.
• Presenting the video evidence in a format such that the images could be looked at one frame at a time, rather than forcing counsel and the judge to pause the video at areas of interest.
• Image comparison of questioned images of the robber and known images of the defendant.
• Expert presentation of the foregoing.

When counsel leave it to the judge (or jury) to do their own analysis, they are embarking upon an exercise fraught with difficulty.  Judges and juries have no training in image analysis and comparison. They have no assistance in determining when an image is reliable and whether image compression has created artifacts that are mistaken for real image content.  Further, they do not know that questioned images must be thoroughly analyzed first, before looking at the known images, and that the goal is not simply to see if they match.  This should not come as a surprise as it is not their job to do the work of counsel and their expert witnesses.  Unjustified findings of fact can be the end result – and that is not a just result.

Case law in Canada and the United States supports this level of expert image analysis.  For more details on this, please see earlier articles written on this website on image comparison in both Canada and the United States.

It is the role of the Crown to present its evidence to the best of its ability so that the Court can make a fully informed decision.  Many provinces in Canada have few or no forensic video analysts, including Saskatchewan.  It is incumbent upon police agencies and forensic laboratories to retain and train experts in the field of forensic video analysis.  Justice is not served by the acquittal of defendants due solely to the lack of expert forensic evidence.  It costs money to adequately equip police agencies and forensic laboratories with the people and tools necessary to do a proper analysis of a case. We will only have the justice system we are prepared to fund.