Covert video recordings taken at the behest of an animal rights organization provide potentially valuable evidence in a prosecution alleging animal cruelty. In R. v. Elite Farm Services Ltd., 2021 BCSC 1583 (British Columbia Supreme Court), the defence challenged the admissibility of video evidence that the Crown sought to tender at trial. The purpose of this pre-trial application was to examine the authenticity and common law admissibility of the video recordings. This case provides a good overview and application of statutory and common law admissibility tests for video evidence.
Facts
The defendant company Elite Farms had a chicken catching services contract with Sofina Foods Inc. whereby employees of Elite Farms caught and loaded broiler chickens onto trucks for transport to Sofina processing plants. Mercy for Animals Canada (MFA Canada) is a non-profit animal advocacy organization. Latawiec was a covert MFA Canada operator who obtained employment at Elite Farms for the express purpose of gathering evidence as to whether Elite Farms humanely treated the chickens during the catching and loading process. During his 19 days of employment, Latawiec covertly recorded 244 video clips ranging in length from 10 seconds to just under 10 minutes using a pin-hole camera concealed under shirt and which he manually operated. He also used his iPhone to record video from time to time.
Latawiec recorded video whenever he deemed it appropriate to do so with the goal of documenting what he perceived to be mistreatment of the chickens. At the end of each workday, Latawiec transferred the video files from the camera’s secured digital card (SD card) to his computer. He reviewed the files, completed a video log, and then uploaded the files to Dropbox for MFA Canada to download. He then deleted all video files from the SD card so that he could use it again the next day. Similarly, video files on his iPhone were uploaded to Dropbox and then deleted from his phone.
Upon review of the video files and Latawiec’s notes, the appropriate authorities were notified and complaints alleging animal cruelty were filed. Following an extensive investigation by regulatory agencies, charges were laid against Elite Farms under the Health of Animals Act and HAA Regulations.
The Crown sought to introduce 222 separate video recordings, totally approximately five hours. Most of the recordings were less than a minutes long, many under 30 seconds. A forensic video analyst testified that he examined the recordings for evidence of image alteration. He noted that title slides had been added to some videos and that some faces had been obscured. Aside from not having access to the original files, the analyst testified that the video files were authentic and that he found no other evidence of alteration. Collectively, the evidence before the court from Latawiec and the analyst was that the recordings were what they purported to be; they were the recordings made by Latawiec and were the same recordings made available to MFA Canada via Dropbox. Despite this evidence, the defence sought to have the recordings ruled inadmissible based on lack of authentication and failure to comply with common law requirements.
The Law
The law regarding the admissibility of video recordings has two branches. First, authentication must be addressed. The tendering party (here, the Crown) must authenticate the recordings pursuant to the requirements of s. 31.1 of the Canada Evidence Act, which provides as follows:
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
The standard of proof under s. 31.1 is low as it only requires evidence capable of supporting a finding of authenticity. It need not be conclusive as that is a matter for the trier of fact to determine. Appellate case law in Canada, though not cited in this case, has confirmed this low bar for admission.
Second, common law admissibility tests of accuracy, fairness in depiction, and verification by a sponsoring witness must be met. These tests may be satisfied by the photographer or another witness with knowledge, including a forensic video analyst, or a combination of witnesses. As noted by appellate case law, alterations to video evidence only affect admissibility if they adversely impact the accuracy or fairness of the images. The standard of proof under the common law test is higher than that for authentication and requires proof on the balance of probabilities. Both tests are threshold admissibility tests, meaning that they determine whether the evidence is permitted to be placed before the trier of fact. It remains the province of the trier of fact to decide how much weight to attach to the images.
The Ruling
Based on the evidence presented, the Court was satisfied that the tendered videos were authentic. There was no evidence to support the allegation that they were anything other than what they purported to be or that they lacked technical integrity. The Court then analyzed whether the recordings were admissible under the common law test. The defence argued that Latawiec was biased in his selection of what events to record, edit, and submit to MFA Canada for consideration. The evidence showed that Latawiec recorded discrete events of alleged mistreatment, not a series of continuous recordings. The defence argued that these selective recordings did not show the proper context for the events portrayed and thus raised trial fairness concerns, especially given that Latawiec could not remember all 222 events.
Citing the Supreme Court of Canada decision in Nikolovski, concerns arise as to whether recordings are made by a “silent, trustworthy, unemotional, unbiased and accurate witness” when the photographer selectively records events. The fact that the photographer cannot remember the context of each recording does not lead to inadmissibility. The Court was satisfied that the recordings were substantially accurate and fair representations of the depicted events and were relevant and probative to trial issues. The alterations noted above are relevant considerations but not such that admissibility is affected. There was no evidence that the recordings were inaccurate or that the alterations materially affected the substance of the recordings. Concerns by the defence that the recordings were selective, lacked adequate context, were not continuous, and that the original recordings were deleted are questions of weight to be argued at trial. The Crown established on the balance of probabilities that the recordings are admissible.
Analysis
It is a rare case when the prosecution and defence are both satisfied with all video recordings tendered as evidence. The Elite Farms case illustrates this tension. Elite Farms would have preferred that Latawiec continuously record the entirety of his 19 days working for Elite Farms, rather than selectively record events. While this may have been helpful to the parties, it is not a realistic scenario as these were covert recordings and recording an entire work shift would have been most challenging. Nonetheless, whenever a photographer decides when and what to record, there may be legitimate concerns regarding photographer bias. The determination of the truth is best served when video recordings have hallmarks of objectivity and impartiality. I dedicate an entire chapter in my PhD thesis on “Selectivity in Atrocity Prosecutions: Creation, Submission, and Presentation of Non-Textual Evidence”. Though my PhD focus is on international criminal prosecutions for atrocity crimes, these issues resonate in the domestic context as well.
It would also have been preferable for the original recordings to have been retained rather than deleted after uploading to Dropbox. The absence of the original video files does not mean that meaningful technical interrogation and interpretation cannot be undertaken. It does however remove the analyst one important step from the best evidence. In this case example, given that the uploaded files bore sufficient markers of authenticity and accuracy, little would likely have been gained from a trial fairness perspective by access to the originals. Elite Farms does not create new law. Rather, it is a case that helpfully summarizes Canadian law on image authentication and common law admissibility. A pre-trial ruling admitting videos for use at trial on the basis that there has been a sufficient showing of authenticity and common law admissibility does not mean that the defence must accept their contents. In the fullness of their challenge of the prosecution’s trial evidence, supplemented by any defence evidence that may be presented, concerns regarding bias, authenticity, lack of adequate context, and other issues can be fully explored and argued. In short, the issues raised by the defence in this case have merit, but not sufficient cogency to cause them to be excluded for trial purposes. They should be evaluated in the context of all the evidence presented in the pursuit of the truth and a just result.