CCTV surveillance video is often relied upon by the prosecution to establish essential facts in a case. To achieve admissibility, counsel for the prosecution must lead sufficient authentication foundation evidence. If the defence takes issue with the evidence led, they can argue that the prosecution has not met its burden. This case summary is an example of such a challenge. While this case does not establish new law, it is a helpful summary of Canadian authentication law and a good example of its application to a factual matrix.
Overview
R. v. Anane et al., 2023 ONSC 6681 (Ontario Superior Court of Justice), is a drug trafficking case. Surveillance video from a CCTV system at an apartment building was relied upon by the Crown to show the movement of certain people in and out of the building over a period of several days. Counsel for one of the defendants challenged the authenticity of the surveillance video and accordingly a voir dire was conducted to address this issue.
Video Recovery and Authentication Evidence
The building in question had a CCTV system with several cameras, one of which captured the threshold to a side door and showed people entering and leaving the building as well as a partial view of the driveway that led to a parking lot. Pursuant to a judicial authorization, a forensic video technician attended the building and was given access to the DVR that controlled the CCTV system. The technician noted that the DVR was generic and had no model name or serial number. The DVR time stamp was 43 minutes behind the actual time, as confirmed with and photographed with the technician’s cell phone. The relevant video was exported directly from the DVR by means of a portable storage device (two thumb drives). The technician reviewed the video recording on each thumb drive and verified that the correct time frame had been downloaded from the correct camera. Thereafter the drives were securely stored.
A police officer was tasked with watching the entire video collection in its original proprietary format for the purpose of preparing a summary of the multi-day recordings. The officer did not alter the video in any way and noted nothing unusual with the video recordings other than there were times where there were time lapses or breaks in scene continuity. Both the technician and a forensic video analyst testified that they believed these scene continuity breaks were likely caused by the camera being motion activated. The analyst later converted the recordings to a more user-friendly format that could be viewed more easily by counsel and the court, resulting in 108 clips of varying lengths. From that collection, 48 were tendered by the Crown in the voir dire. One officer viewed the video clips and confirmed that the new format showed the same images as the proprietary viewer images. Other officers confirmed their presence in video clips showing them entering the building and later leaving with two of the defendants in custody. They also confirmed that the time of the events was 43 minutes later than the DVR time, thereby confirming the evidence of the technician.
The forensic video analyst testified that when the video was converted from the proprietary format to the more user-friendly format, only the video data was transferred, not the time stamp. A third-party vendor, Cellebrite, was retained to restore the time stamp and merge it into the new format. One segment of both versions was played side-by-side to show that the images were identical in both content and time stamp. The Crown entered as exhibits a copy of the original video in its proprietary format, the proprietary video player, and the user-friendly version clips.
Arguments About Authentication
The defence argued that the Crown had not led sufficient evidence of authentication. Specifically, counsel argued that the owner or manufacturer of the CCTV system should have been called to testify about whether the system operated based on motion activation. The defence also noted that one video clip had a time differential other than 43 minutes. The Crown argued that it had laid a sufficient foundation for authentication to admit the video evidence as full exhibits at trial.
Applicable Law
In Canada, the starting point for considering threshold authentication is s. 31.1 of the Canada Evidence Act which provides that, “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.” This is a very low bar. The tendering party is not required to prove authenticity at the admissibility stage, rather they only need to lead sufficient evidence that is “capable of supporting” such a finding. The trial judge must be satisfied that there is some rational basis in the evidence presented for leaving the evidence to the trier of fact to assess in the trial proper.
The defence relied upon a passage in R. v. Nikolovski (1996), 111 C.C.C. (3d) 403 (SCC) which states, “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.” In isolation, this suggests that the tendering party must prove the absence of alteration or change, a proposition the defence relied upon herein. This argument lacks cogency for two reasons. First, s. 31.1 of the CEA was enacted four years after the Supreme Court of Canada decided Nikolovski. The legislative amendment would therefore override the SCC’s pronouncement on this point. Second, the Alberta Court of Appeal, in R. v. Bulldog, 2015 ABCA 251, cogently addressed this issue by noting that Nikolovski was not a case that dealt with the admissibility of video evidence but instead addressed what use may be made of it by the trier of fact. Thus, proof of the absence of alteration or change is not a prerequisite to admissibility.
As to whether the Crown was required to call the owner or manufacturer of the DVR to testify regarding motion activation, the trial judge relied upon Bulldog, wherein the Court ruled that there was no closed set of witnesses who must be called to prove authenticity and that authentication can be proved via circumstantial evidence. In short, the tendering party must prove that the video is relevant and that it is authentic, though there is no prescribed method by which that must be done. At most, the burden on the tendering party is proof on the balance of probabilities, though the Alberta Court of Appeal noted that a lower standard may apply.
Application of Law to Facts
The trial judge found that there was ample circumstantial evidence led by the Crown to meet the authentication threshold. First, the time stamp contained the word “MOTION” in block capitals. Second, it was obvious upon viewing the video that when the video recording resumed after a stoppage, there was motion in the frame. Third, the judge used common sense to conclude that the DVR would not have been continuously recording due to the significant size of the digital files that such a process would create. Fourth, the downloads obtained by the technician were far smaller than would be expected with continuous recording. The fact that the DVR may not have captured all of a motion activated event did not detract from the recording’s admissibility.
The defence argued that the Crown erred in relying on a digital copy of the original video recording rather than the original itself. This argument was rejected on the basis that provided the digital version was established to be faithful copy of the original, its digital format did not impact admissibility. As for the inaccuracy of the time stamp, per Bulldog, the trial judge ruled that this was only a relevant consideration if the specific time of an event was a critical element in the evidence, which was not the case herein. “Substantial accuracy” sufficed for the time stamp. Given the time offset evidence of the technician, this was readily addressed as the inaccuracy was proven to a specificity, allowing sound judgments to be made about the actual time of recorded events. Lastly, given that the DVR was in a locked room and there was no evidence of alteration, the video evidence tendered by the Crown was proven to be authentic for admissibility purposes.
Commentary
It is a truism that even if the Crown does everything correctly, they will still be criticized for not doing more or for not meeting a higher standard than is required by law. Such is the nature of the adversarial process wherein the Crown bears the burden of proof. In this case, the Crown led a solid foundation to establish the authenticity of the surveillance video. It was exported in a forensically sound manner by a trained technician and was further processed by a forensic video analyst, both of whom testified. Further, five police officers testified as to their appearance on the video recording at different times and were also able to identify one of the defendant’s vehicles observed in the recording. They also confirmed that the offset times in the recorded media aligned with when they are at the location. The Crown competently addressed the authentication issue with the evidence led on the voir dire and alerted the Court to the relevant case law.
Though it is difficult to predict what might be argued at trial months or years after evidence is collected, one additional piece of evidence would have been helpful and that would be to record some test video using the same DVR and camera to confirm motion activation. That would amount to bonus evidence, not required evidence. Lastly, achieving threshold admissibility means that the video evidence can be presented to the trier of fact, whose role it is to ultimately determine if the tendering party has in fact proven authenticity to a sufficient degree for fact-finding purposes. That is a different step and both counsel can argue the issue at the end of the case. In practice, achieving threshold admissibility usually paves the way for the trier of fact to accord substantive weight to the evidence at trial.