Several times a year I conduct a comprehensive search of recent reported case law on topics related to video evidence, forensic video analysis, and pertinent expert witness testimony issues. This provides me with new case law that illustrates how courts are assessing and deciding relevant litigated issues on these topics. This article focuses on the issue of image interpretation and rulings made by courts in Canada during the latter half of 2021. For each case, I will describe the facts, the issue, the ruling, and the takeaway.
R. v. Lee, 2021 ONSC 4064, 2021 CarswellOnt 8905 (Ontario Superior Court of Justice)
In this murder prosecution, the Crown relied in part upon a video recording which featured the view of a skate park. The video showed a male wearing an untucked white shirt and a hat carrying a bag over his shoulder. The Crown argued that this was the co-defendant running away from the location of the stabbing. No expert evidence was called to assist the Court in understanding the video evidence and to provide interpretive assistance, but a LEVA Certified Forensic Video Technician did testify regarding certain technical aspects of the video. During the testimony of the co-defendant, he viewed the video and agreed that there was a “possibility” that he could be the runner.
The Court noted several problems with the video evidence. From an authentication perspective, there was no date and time stamp on the video, and it was unclear what specific location was shown in the images. The video was “not continuous” and was “choppy”, resulting in images that the Court viewed as “distorted”. The Court also noted that compression artifacts could cause a viewer to misrepresent the image content. Finally, it was noted that tonal colours may have been inverted by the camera because the video was recorded at nighttime.
The Court concluded that the video evidence was of poor quality but that it did show a person moving towards the skate park. The Court found that the clothing worn by the person depicted was consistent with the clothing worn by the co-defendant that night, specifically noting the white t-shirt and the bag worn across the shoulder. The Court compared the skate park video with other video images showing the co-defendant at a different location and noted similarities. No expert assistance was provided in this comparison task. The Court agreed with the co-defendant that there was a possibility that he was the person shown in the skate park video. In finding the co-defendant guilty of manslaughter, the video evidence was not dispositive but was helpful in conjunction with other evidence in placing the co-defendant at key locations in relation to the homicide.
Analysis
The skate park video was not pivotal to the determination of liability, but it was not trivial either. When counsel seek to rely upon video evidence, it is important that they provide the court with the appropriate technical and expert assistance to maximize the value of the evidence. In this case a LEVA CFVT testified regarding technical aspects of the video recording. However, he was not tendered as an expert witness and would therefore not have been permitted to offer an interpretive opinion about what the video showed, nor would he have been permitted to express an opinion on the comparison of the questioned video images with other video images of the co-defendant. For these two important tasks, the Court was left to figure that out on its own, without available expert assistance.
The takeaway from this case is that counsel should undertake a thorough exploration of all relevant video evidence with a qualified expert. Once the expert has reviewed the evidence and has provided information about what analysis could be undertaken, if any, an informed decision should then be made as to how to best proceed in a way that maximizes the value of the video evidence and best assists the court. The Crown only gets one opportunity to take a case to trial and it should strive to present the best possible case, relying upon appropriate expert resources when necessary.
R. v. Mukhi, 2021 ONCJ 570, 2021 CarswellOnt 16331 (Ontario Court of Justice)
Two police officers were charged with assault and assault with a weapon (a Taser). The Crown alleged that they used excessive force in arresting a person they had pursued first by vehicle and then on foot. The confrontation and arrest occurred at nighttime in the backyard of a residence that had several cameras with infrared recording capability. Most of the events that gave rise to the charges were recorded by those cameras. At trial, the person who was arrested did not testify and therefore the Crown’s allegations of excessive force were wholly dependent upon the video recordings.
The Crown did not call any expert evidence regarding the video recordings. The Court specifically noted that it had been given no assistance in assessing the impact of infrared recordings on image interpretation and how the amount of light displayed on the video recordings compared to what a person would have been able to see in the backyard at the relevant time. The perception of the officers was an important factor in this case. Further, the Court was provided with no assistance regarding the impact of frame rate, image resolution, and other technical details of the recordings. The Court stated: “So, I am left to view and interpret what it purports to represent without any expert assistance.”
Counsel provided the Court with extensive submissions on how the video evidence should be interpreted and what findings of fact should be made, but counsel were in no better position than the Court because of the lack of expert assistance on video interpretation. The Court was therefore required to make findings of fact without expert assistance. The Court found both officers guilty of assault and not guilty of assault with a weapon. The findings were made based on the Court’s assessment of what was shown in the video recordings.
Analysis
Expert evidence can only be presented in court when the trier of fact needs expert assistance. When a prosecution is wholly based upon video evidence that is less than standalone clear, as was the case here, it is incumbent upon the Crown to provide the court with the necessary expert assistance from a qualified forensic video analyst. The goal of all criminal prosecutions must be to seek out and ascertain the truth so that informed decisions can be made on liability. In this case, the Crown fell short in its obligation to provide the court with the requisite assistance. Counsel for the prosecution and defence properly made extensive submissions on how the video should be interpreted but their submissions would have had more cogency if they had expert evidence upon which to base them. When the Court specifically commented on the lack of expert assistance in video interpretation and how to assess the impact of infrared light, frame rate, resolution, and other technical details, it is clear that counsel have not properly presented their case. These are self-inflicted injuries. The Court may well have reached the correct conclusion in finding the officers guilty of assault but without expert assistance, the Court is left to discern critical evidence without the necessary foundational knowledge to do so. This can lead to erroneous findings of fact and in some cases unsupported conclusions on liability.
The takeaway from this case is to acknowledge the lack of visual literacy that is frequently found among counsel and the court. It is not the role of counsel or the court to know everything about imagery and forensic video analysis. That is the express reason why the law permits the use of expert witnesses to provide this necessary assistance. It is up to counsel to recognize the need for expert assistance and to then obtain it from a qualified expert. Courts should not be left to their own devices to analyze video evidence when help is readily available.
R. v. Phillips, 2021 NLCA 51, 2021 CarswellNfld 349 (Newfoundland and Labrador Court of Appeal)
The appellant appealed his conviction for murder arguing in part that the trial judge erred in her interpretation of video evidence tendered by the prosecution. The robbery that led to murder in a bar was captured on an interior CCTV recording. The audio recording of the event was continuous and complete whereas the video recording captured the entire event but only at a frame rate of one frame per second rather than the preferred frame rate of thirty frames per second. The appellant argued that the video evidence did not accurately depict the shooting because of the reduced frame rate. Interestingly, the Court of Appeal relied upon an article I wrote entitled Frame Rate: Understanding the Impact of Frame Rate on Video Interpretation (found on my website) when it assessed the impact of the reduced frame rate on the facts of this case. The Court of Appeal found that the video recording was reliable despite the reduced frame rate for the specific factual issues raised. The Court further reiterated that the impact of video frame rate is a question for the jury to assess in their role as trier of fact.
Analysis
The takeaway from this case is that it is further appellate authority for the proposition that frame rate is a question of weight to be decided by the trier of rather, not a question of admissibility. There is very limited case law on this topic in Canada and adding appellate confirmation serves as a useful precedent. This case also shows that my website is consulted from time to time, not just by experts and counsel, but also judges. I am grateful to have even a small readership.