[84] The leading case in this area is R. v. Nikolovski 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 where the Supreme Court of Canada held, at paras. 28, 29 that once it is established that a videotape has not been altered or changed and that it depicts the scene of the crime, then it becomes admissible and relevant evidence. The degree of clarity and quality of the tape and to a lesser extent the length of time the accused appears on the video go towards establishing the weight which a trier of fact properly places on the videotape.
[85] Videotape evidence is a derivative of photographic evidence. In R. v. James, [2015] ONSC 3902, Justice Clark provides a useful summary of the law regarding photographs/videotapes at paras. 33, 34:
33 A helpful précis of the law as it relates to the authentication of proffered photographic evidence can be found in R. v. Andalib-Goortani, 2014 ONSC 4690, 13 C.R. (7th) 128, where, at para. 28, Trotter J. stated:
The leading Canadian case on authenticating images is R. v. Creemer and Cormier, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.S.C. App. Div.). McKinnon J.A. noted the following requirements for authentication at p. 22:
All the cases dealing with the admissibility of photographs go to show that such admissibility depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so.
This formulation has been widely accepted in many subsequent decisions and by numerous commentators: see, for example, R. v. Maloney (No. 2) (1976), 1976 CanLII 1372 (ON CJ), 29 C.C.C. (2d) 431 (Ont. Co. Ct.), R. v. Penney, 2002 NFCA 15 (CanLII), [2002] N.J. No. 70 supra, R. v. Schaffner (1988), 1988 CanLII 7108 (NS CA), 44 C.C.C. (3d) 507 (N.S.C.A.), at pp. 509-511, R. v. J.S.C., 2013 ABCA 157 (CanLII), [2013] A.J. No. 455 (C.A.), R. v. Adams (2011), 2011 NSCA 54 (CanLII), 274 C.C.C. (3d) 502 (N.S.C.A.), Sydney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th edition (Toronto: LexisNexis, 2014), at pp. 44-45 and pp. 1294-1296, David Watt, Watt's Manual of Criminal Evidence, 2013 (Toronto: Thomson Reuters, 2014), at p. 88 and David Paciocco, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 462.
34 Earlier, at para. 25, Trotter J. observed that photographic evidence is neither presumptively inadmissible nor presumptively admissible; rather, it is "conditionally admissible", i.e.: "[c]ertain pre-conditions must be 'established' on the basis of 'some evidence' before a photograph is admissible..." In the next paragraph, he went on to say:
This proposition is demonstrated in R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.), in which the Court considered the admissibility of videotape evidence. Writing many years ago, Cory J. said the following at p. 416:
Once it is established that a videotape has not been altered or changed, and 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 is to a certain extent, testimonial evidence as well.
[86] In R. v. Zoraik, [2012] BCCA 283, the British Columbia Court of Appeal dealt with the admissibility of a composite video drawn from a variety of other videos. The court held at paras. 17, 18, 19, 22:
17 As earlier described, the video footage of Mr. Zoraik in the Victoria courthouse on May 6, 2009, was gathered into a composite video and introduced into evidence. Mr. Zoraik contends that the composite video is misleading because it is made of footage from several cameras and because several cycles of the camera trained on Room 218 during the critical time are missing. With respect to the compilation of footage into one sequence, he contends the criteria for admission established by R. v. Nikolovski are not met.
18 In Nikolovski the Supreme Court of Canada addressed the admissibility of videotape evidence. Justice Cory for the majority held that videotape is admissible provided it is of good quality, gives a clear picture of the events in issue, and has not been changed or altered.
19 Mr. Zoraik does not dispute the admissibility of the raw footage from the cameras, but argues that the composite videotape was not admissible and should not have been relied upon by the judge. He complains that the reasons for judgment do not refer to the fact that in order to see what happened in Room 218 one must view two full cycles of the camera, the whole length of which was not included on the composite video. This, he says, demonstrates impermissible altering of the videotape contrary to the requirements for its admission as described in Nikolovski. He says the failure to comment on this need for two full cycles of the camera in the reasons for judgment renders them inadequate and the decision reversible.
…
22 At the hearing of this appeal we viewed the compiled video footage. The judge's description of it in the above paragraph accurately summarizes its contents at the time Mr. Zoraik was in Room 218. I do not consider that the fact of compilation into a single exhibit, accompanied by the limiting description given by the judge, takes the exhibit outside the criteria for admissibility: there is no suggestion the video portions assembled were altered in any fashion; there is no error demonstrated in the judge's description of the evidence; and there is no demonstrated misunderstanding of the nature of the composite exhibit.
[87] In R. v. Maloney (No. 2) 1976 CanLII 1372 (ON CJ), [1976] O.J. No. 2446 (Ont. Co. Ct.) slow motion video was held not to be admissible as the timing of reactions was a material issue and a video showing the events in slow motion would not accurately or truly portray the sequence of events.
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