R v Bulldog, 2015 ABCA 251
(2) Can video evidence only be authenticated by an eyewitness or a member of one of the other classes which the appellant posits?
[34] It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.
[35] In particular, circumstantial evidence may be used to authenticate real evidence: David M Paciocco & Lee Stuesser, The Law of Evidence, 6th ed (Irwin Law, 2011) at 466; Graham Underwood & Jonathan Penner, Electronic Evidence in Canada (Carswell, 2010) at 11-34; David M Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age”, 11:2 CJLT 181 at 197-98; EG Ewaschuk, Criminal Pleadings & Practice in Canada, 2d ed (Carwright, 2010) at 16:104-105; R v Evans, 1993 CanLII 86 (SCC), [1993] 3 SCR 653 at 663, 108 DLR (4th) 32; R v Lempen, 2008 NBCA 86 at para 24, 338 NBR (2d) 377; Liang; R v Schertzer, 2011 ONSC 579 at para 12, [2011] OJ No 6524 (QL).
[36] For example, in Evans, the Supreme Court quoted with approval this passage from a US textbook on evidence law: “authentication may be accomplished by circumstantial evidence pointing to X’s identity as the caller, such as if the communication reveals that the speaker had knowledge of facts that only X would be likely to know”. In Liang, this Court upheld a trial judge’s decision to admit into evidence an audio recording of a 911 call because its contents were consistent with the trial evidence of other witnesses, and because the trial judge found as a fact that the voice on the tape belonged to the complainant. In Lempen (at para 26), the New Brunswick Court of Appeal overturned a trial judge’s decision not to admit a letter when a witness stated the signature looked like his but that he did not recall writing it because it was possible to “authenticate the letter by other means, including but not limited to, inviting comparisons with the signature on the previously admitted letter …, evidence of the letter to which the author was allegedly responding, and other circumstantial evidence surrounding the alleged execution of the letter”. And, in Schertzer, the trial judge found that a variety of evidence including handwriting comparisons and drug squad document-keeping practices were sufficient to authenticate the contents of certain drug squad case files.
[37] While none of these authorities are specifically about video recorded evidence, we see no principled reason why it should be treated differently. A trial judge is entitled to authenticate a video recording by using circumstantial evidence of one or more witnesses, provided such evidence establishes to the requisite standard of proof that the video in question is a substantially accurate and fair depiction of what it purports to depict. We now turn to consider whether the trial judge in this matter had sufficient evidence upon which to admit the video recording.
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