(1) Must the Crown prove that the video recording has not been altered or changed?
[26] As already noted, the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
[27] It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing “Use That Can Be Made of Photographs or Videotapes”, which clearly presupposes admissibility.
[28] Further, the passage itself fails to support the appellants’ contention. It reads as follows:
“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.”
This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).
[29] We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R c MacNeil, 2008 QCCS 915 at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that “[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.” With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible. And, in any event, Penny is distinguishable, since exclusion of the video in that case was grounded in its lack of probative value and in its potential inaccuracy (the video was selectively shot and did not include a time stamp, which was vital since the charge was that the accused did not kill a seal “quickly”).
[30] Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is:
“one of substantial accuracy. … [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….”
(Emphasis added.)
[31] Similarly, in R v Crawford, 2013 BCSC 2402 at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a “purposive” manner, such that a video recording’s admissibility is not precluded, even if “complete accuracy” no longer subsists, so long as “the alteration of the recorded event is not so substantial as to be misleading” or “if the image is distorted or otherwise changed in a material way.” What matters, said the court in Crawford, is that the video recording “accurately and fairly presents he information that it is to convey”. Other courts, including this Court, said much the same thing prior to Nikolovski: R v Leaney, 1987 ABCA 206 at para 45, 81 AR 247 (per Harradence JA, dissenting on other grounds; R v Maloney (No 2) (1976), 1976 CanLII 1372 (ON CJ), 29 CCC (2d) 431, [1976] OJ No. 2446 (QL) (Co Ct); R v Taylor, [1983] OJ No 3354 at paras 17-18 (QL) (Prov Ct); and R v Creemer and Cormier (1968), 1967 CanLII 711 (NS CA), 1 CCC 14, [1967] NSJ No 3 (QL) (SC) (dealing with photographs).
[32] There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of “substantial” accuracy over the appellants’ preferred test of “not altered”. It will be recalled that “authentication” simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
[33] Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.
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