En matière de leurre, même si le poursuivant établit hors de tout doute raisonnable que l’accusé n’a pas pris de mesures raisonnables, il lui « incombe toujours » de démontrer « (1) que l’accusé croyait que l’autre personne n’avait pas atteint l’âge fixé ou (2) qu’il a fait preuve d’aveuglement volontaire quant à savoir si l’autre personne avait ou non atteint l’âge fixé »

R. c. Perreault, 2024 QCCA 1407

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[2]         Le poursuivant porte en appel l’acquittement de l’intimé et il invoque une question de droit qui concerne « l’interprétation de ce qui constitue une mesure raisonnable au sens du par. 172.1(4) du Code criminel ».

[3]         Selon l’arrêt Morrison, même si le poursuivant établit hors de tout doute raisonnable que l’accusé n’a pas pris de mesures raisonnables[1], il lui « incombe toujours »[2] de démontrer « (1) que l’accusé croyait que l’autre personne n’avait pas atteint l’âge fixé ou (2) qu’il a fait preuve d’aveuglement volontaire quant à savoir si l’autre personne avait ou non atteint l’âge fixé »[3].

[4]         Le poursuivant dispose d’un droit d’appel extrêmement limité qui ne porte que sur une question de droit[4]. Ainsi, il ne peut en appeler d’un verdict d’acquittement qu’il considère déraisonnable[5]. De plus, « un acquittement est non pas une conclusion de fait, mais une conclusion qu’il n’a pas été satisfait à la norme de persuasion hors de tout doute raisonnable »[6].

Comment apprécier la défense de minimis non curat lex face à de la violence contre une partenaire intime & le seul cas où cette défense fût retenue en cette matière

R. v. Grizzle, 2024 ONCJ 300

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[69]      Patience and resort to lawful means to resolve a dispute must always be chosen over an act of intimate partner violence. While I agree with Mr. Cotton-O’Brien that the context of the offences must be considered, in my view, the societal values associated with intimate partner violence will almost always preclude the successful application of the defence of de minimis or “consent fight”: see R. v. Carson, 2004 CanLII 21365 (ONCA), at para. 25; Gosselin c. R, 2012 QCCA 1874, at para. 40; R. v. Downey, 2002 NSSC 226, at para. 37.

[70]      That is not to say the defence could never succeed in a case of intimate partner violence. In R. v. R.M., 2024 ONCJ 272, the accused was charged with assault. He removed his wife’s wedding ring from her finger without her consent. He caused her no pain and only had to resort to minimal force: see para. 20. Justice Campitelli viewed this as “trivial in nature” and dismissed the charge: see para. 22.

La séquestration peut découler d'une contrainte psychologique (peur, menace ou intimidation)

R. v. Kematch (S.D.) et al., 2010 MBCA 18

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55.            While I will discuss and explain later the full implications of the concept of “unlawful confinement” in the context of this case, it will be useful now to explain that concept as it applies here, albeit in a summary form.  Unlawful confinement involves the confinement of one person by another person, without lawful authority.  It requires the victim to be physically restrained in the sense that the person’s freedom to move from the place of confinement is restricted.  That physical restraint may be effected by actual, physical means, such as by locking a door or tying the person with a rope to a fixed object.  However, as in a case like this, physical restraint may also be effected by non-physical or psychological means, such as by threats, intimidation or the imposition of fear.  Preventing a person from leaving a place by threatening him with a gun if he moves, is an example of a person being physically restrained by non-physical, psychological means.  I emphasize that there are additional nuances inherent in the concept, which will be dealt with later.

60.            Before leaving this issue for now, I however refer to what Watt J. (as he then was) said in R. v. Bottineau, [2007] O.J. No. 1495 (S.C.J.) (QL), when he was also dealing with a motion for directed verdict in a case dealing with unlawful confinement following a death (at paras. 32-33):

 

Unlawful confinement is an offence under s. 279(2) of the Criminal Code. It involves the confinement of one by another without lawful authority. It does not require proof of any specific or ulterior mental element beyond the intent to deprive another of freedom of movement. See, R. v. B. (S.J.) (2002), 2002 ABCA 143 (CanLII), 166 C.C.C. (3d) 537, 552 (Alta. C.A.) per Berger J.A.

 

The unlawful confinement offence of s. 279(2) of the Criminal Code does not require the total physical restraint of the victim. What is required is a physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move about from one place to another. See, R. v. Gratton (1985), 18 C.C.C. (3d) 462, 473 (Ont. C.A.) per Cory J.A. The confinement may, but does not have to include the application of bindings or restraints. See, R. v. Gratton, above, at p. 473 per Cory J.A.

La défense de minimis non curat lex ne trouve pas application face à un voies de fait contre une partenaire intime

R. v. Downey, 2002 NSSC 226

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[26]   I conclude that the Criminal Code does not specify a minimum level of force that must be applied before an act constitutes an assault. However, I believe that the maxim de minimis non curat lex - “the law does not concern itself with trifles” - may limit the application of the assault provisions. I now turn to the de minimis issue.

 

de minimis non curat lex

[27]   The Respondent suggests that “based on the entire transcript” the learned trial judge found that the force Mr. Downey applied to Ms. Downey was too trifling to constitute an assault. I am unable to agree with this interpretation of his reasons. Had the “trifling”nature of the contact been the basis for his decision, there would have been no reason to go on to consider implied consent. I cannot conclude that the learned trial judge addressed the possible application of de minimis non curat lex. Rather, he decided there was an intentional application of force, but used implied consent to excuse it. As I have stated, the learned trial judge was in error on this point.

 

[28]   The de minimis argument was discussed on appeal. The Respondent alludes to the maxim in its brief while discussing the decision in Stewart, supra. The issue was further canvassed in the appeal hearing. Before deciding whether this is an appropriate situation in which to apply the maxim, I must decide whether it is appropriate for me to consider the application of de minimis to these circumstances.

 

[29]   In R. v. Robart (1997), 1997 NSCA 96 (CanLII), 159 N.S.R. (2d) 243 (C.A.) the Appellant was convicted of assault at trial. During a struggle over a car key, the Appellant pushed and shoved the complainant and wedged himself between her and the steering wheel. The co-accused, Johnson, pulled her from the car and fought with her, leaving her with cuts and bruises. On appeal the Appellant submitted, among other arguments, that his touching of the complainant was trifling and that de minimis non curat lex applied.

 

[30]   Justice Roscoe questioned the practice of raising new defenses on appeal, citing R. v.  Marshall (1997), 1997 NSCA 89 (CanLII), 159 N.S.R. (2d) 186 (C.A.) at paragraph 88. In that decision the Court  endorsed the reasoning of the British Columbia Court of Appeal in R. v. Vidulich (1989), 1989 CanLII 231 (BC CA), 37 B.C.L.R. (2d) 391 at 398:

An accused must put forward his defenses at trial. If he decides at that time, as a matter of tactics or for some other reason, not to put forward a defense that is available, he must abide by that decision. He cannot expect that if he loses on the defense that he has put forward, he can then raise another defense on appeal and seek a new trial to lead the evidence on that defense.

 

[31]   I note that the Court in Vidulich, supra preceded that statement with the observation that

It is perfectly proper to raise a supplementary argument on appeal that was not raised at trial, if the supplementary argument goes to an issue or ground that was itself raised at trial. But it requires leave of the court before an altogether new and independent issue or ground can be raised on appeal that was not raised at trial.

 

[32]   In Robart, supra Justice Roscoe disposed of the de minimis argument, commenting:

One of the difficulties presented with this argument is that it was not raised at the trial. We therefore do not have the benefit of the trial judge’s assessment of the evidence of the nature of and extent of the force exerted by the appellant on the complainant. At trial the issues were whether the injuries suffered by the complainant were caused by Johnson or the appellant and whether the struggle was consensual. In this Court, the appellant emphasizes the evidence that the appellant wedged himself into the seat and that the two struggled for the key but disregards the evidence of the shoving and pushing. The trial judge was not convinced that the appellant caused bodily harm to the complainant, and apparently did not consider whether the appellant was a party to the assault causing bodily harm. It was conceded at the hearing of the appeal that the evidence would support a finding that the actions of the appellant obstructed the complainant with the result that Johnson was able to commit the more serious assault. The totality of the surrounding circumstances of this case clearly distinguish it from those exceptional cases of innocuous behaviour where the de minimis maxim was found to be applicable.

 

 

 

[33]   Justice Roscoe thus decided the de minimis question on the totality of the circumstances, from an unsatisfactory trial record. The failure to raise the defense at trial meant that there was no evidence on the record of the nature and extent of the force exerted by the appellant. In the present matter, however, the nature and extent of the force used was discussed in detail at trial, though, as was the case in Robart, supra, de minimis was not mentioned. 

[34]   On that basis, while repeating Justice Roscoe’s statement that “[t]he practice of raising new defenses on appeal should be discouraged”, I conclude that there is sufficient evidence on the record for me to reach a conclusion on the issue of de minimis. The Respondent’s chief defense at trial was that there was insufficient force for an assault to have taken place. As such, the de minimis argument is not a wholly new one, but is supplementary to the Respondent’s trial defense. It is proper to consider it on appeal.

 

[35]   The leading case on de minimis non curat lex is The “Reward” (1818), 165 E.R. 1482 at 1484, a decision of the High Court of Admiralty, where Lord Stowell said:

The Court is not bound to a strictness at once harsh and pedantic in the application of statutes. The law permits the qualification implied in the ancient maxim De minimis non curat lex. - Where there are irregularities of very slight consequences, it does not intend that the infliction of penalties should be inflexibly severe. If the deviation were a mere trifle, which, if continued in practice, would weigh little or nothing on the public interest, it might properly be overlooked.

 

[36]   Though there is conflicting case law, the common law defense of de minimis appears to be available in Canadian criminal law, including to a charge of assault. Don Stuart points out in his treatise Canadian Criminal Law (4^th Edn., 2001) that the Supreme Court of Canada has left open the availability of the defense (without deciding) on at least two occasions: see R. v. Hinchey, 1996 CanLII 157 (SCC), [1996] 3 S.C.R. 1128 at 1165, per L’Heureux-Dube J., writing for the majority, and R. v. Cuerrrier, 1998 CanLII 796 (SCC), [1998] 2 S.C.R. 371 at 391, per L’Heureux-Dube J., concurring in result.

 

[37]   While there may be good reasons to make the de minimis defense more accessible, I am persuaded by the reasoning of Renaud Prov. J. in Stewart, supra that policy reasons demand a restricted application of the maxim in the context of assaults arising from domestic disputes. I believe this is also consistent with the reasoning in Shand, supra. I cite in particular the following words from Stewart, supra at paragraphs 19-21:

More to the point, Prof. Stuart’s reference to “The Reward”, supra, includes one quite relevant passage: “If the deviation were a mere trifle, which if continued in practice would weigh little or nothing on the public interest, it might properly be overlooked.”... One questions how to reconcile the easy acceptance of any form of domestic violence with a philosophy of criminal law that should be devoted to ensuring to all the opportunity to thrive in a community free of all forms of exploitation....

 

[I]t is difficult to reconcile the obvious desire of many commentators, such as Prof. Stuart, to temper the potential harshness of the criminal law by means of a more embracing de minimis doctrine, among other developments, with the day-to-day reality that domestic violence accounts for such a large percentage of trial dockets and appears to exact an overwhelming cost from those who are victimized by it, both individually and collectively.

 

As well, one questions whether the doctrine of de minimis should be available in instances of domestic violence in light of the decision in The Queen v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.) with respect to the availability of the remedy of abuse of process to supervise and regulate the administration of criminal justice. If a prosecution involving an event that is so trivial as to result in the Crown conducting itself “... in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into questions the integrity of the system ...” then it may well be that the Courts must intervene to sanction such an affront of constitutional magnitude to the rights of the individual accused.

 

[38]   I think these comments apply equally to the matter before me. I conclude that de minimis non curat lex is not a defense to a charge of assault involving domestic violence.

Il n'existe aucun consentement implicite entre époux au contact physique durant une algarade

R. v. Downey, 2002 NSSC 226 

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[9]     The Appellant argues that the learned trial judge misdirected himself on the issue of “implied consent” as defined by s. 265(4) of the Criminal Code, which states:

 

(4) Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defense, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused's belief, to consider the presence or absence of reasonable grounds for that belief.           

[10]   In R. v. Stewart, [1996] O.J. No. 2704 (Ont. C.J. (Prov. Div.), Renaud Prov. J. discussed “implied consent” in the spousal context at paragraph 26:

 

Little authority is required to sustain the proposition that in modern life, one may subject to all kinds of unwanted physical contact, be it the jostling for position on the subway, the unwanted “glad-handing” of politicians on the “hustings”, et cetera. However, no persuasive argument has been advanced to sustain the submissions that a spouse consents to any form of violence in a domestic argument. Nothing in the decision in R. v. Jobidon ... or subsequent decisions interpreting it appear to countenance such an extension of the law.

 

[11]   In R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714, the Supreme Court of Canada held that mutual consent in a fist-fight between adults was vitiated where there is intent to apply force causing serious or non-trivial bodily harm.

[13]   In R. v. Shand (1997), 1997 CanLII 3459 (NS SC), 164 N.S.R. (2d) 252 (S.C.), application for leave to appeal refused, (1998), 1998 NSCA 65 (CanLII), 166 N.S.R. (2d) 74 (C.A.), after pleading guilty to assault, the accused’s husband encouraged her to assault him in turn. As he was getting out of his vehicle she threw rocks at him. Charged with assault, she relied upon the defense of consent. MacDonald J. (as he then was) held that the reasoning in Jobidon was not restricted to barroom brawls. On the contrary, the Court had left open the possibility that the defense of consent could be vitiated on a case-by-case basis. Justice MacDonald wrote, at paragraphs 14 and 20:

 

It is clear to me that the Jobidon ... principle should apply to assaults flowing from domestic violence. If there was ever a need for Canadians to treat each other humanely and with respect it is in the area of domestic disputes....

 

Domestic violence is just too serious a problem to allow consent to be a defense in circumstances such as these. This was a volatile situation which could easily have escalated into something much more serious than one might expect from a barroom brawl.

 

 

[14]   Justice MacDonald concluded that the wife’s actions had the potential to cause severe bodily harm, and consent was vitiated. He commented at paragraph 15:

 

Furthermore I feel the need to deter family violence is so great that the Jobidon principle should be extended so as to vitiate consent where domestic assaults have only the potential of creating non-trivial harm.

 

 

[15]   With respect, I find that the learned trial judge erred in holding that there is an implied consent to physical contact during an argument between spouses. I agree with the reasoning in Stewart, supra to the effect that nothing in Jobidon, supra or subsequent case law supports the proposition that marriage automatically creates such implied consent.

 

[16]   As to actual consent, the Criminal Code, in subsection 265(4), requires that a belief by the accused that the complainant consented can only serve as a defense if the belief is both honest and reasonable. Shand, supra suggests that consent will be vitiated between spouses where the conduct has even the “potential of creating non-trivial harm”.

 

[17]   At trial, the evidence of the complainant was that she did not consent to the Respondent pulling on her coat, and her behaviour, as recounted in her own evidence and that of the Respondent, supports this conclusion. She stated that she repeatedly pulled away and told him she did not want to go with him, in an angry tone of voice. The learned trial judge’s findings of fact bear out this version of events, and the Respondent, on cross-examination, stated that he knew his wife was upset, that she pulled away from him and that he wanted to “calm her down”. Mr. Downey knew his wife was upset and that she did not want to go home with him. With respect, there is little or nothing in the evidence to support an honest and reasonable belief in consent. It was clear that Ms. Downey did not consent.

Comment apprécier l'emploi de la force lors de la pratique d'un sport ''sans contact'' relativement à une accusation de voies de fait

R. v. Adamiec, 2013 MBQB 246

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[42]      Soccer is accepted to be a contact team sport.  While not as violent a sport as rugby, American football, lacrosse, or ice hockey, physical contact is an essential element of soccer and its rules permit contact.  See Brown at pp. 592‑93.  The referee explained in his evidence that extreme forms of physical contact between players are not necessarily contrary to the rules of soccer, let alone beyond its playing culture particularly in a competitive league such as the MMSL.

[44]      According to the evidence of the complainant (an experienced goalkeeper), it is foreseeable that a goalkeeper in a competitive amateur soccer game faces the risk of being stepped on or kicked in a struggle for control of the ball.  It had happened to the complainant many times before the game with Polonia resulting in broken bones and medical attention.

[45]      Such physical contact would be less tolerated in a recreational or developmental league or a league with “no contact” rules.  See R. v. Krzysztofik (G.) (1992), 1992 CanLII 13029 (MB KB), 79 Man. R. (2d) 234 at para. 10 (Q.B.).  However, the evidence before the trial judge was that injuries that would constitute “bodily harm” as defined in section 2 of the Criminal Code occur frequently during play in the MMSL.

[50]      According to the evidence of the referee and Messrs. Sheridan and Heral, which the trial judge accepted, part of Adamiec’s kicking was due to the fact the complainant had grabbed his right leg as part of attempting to grab the ball.

[51]      Struggle for control of the ball is part of the essence of soccer, particularly close to a goal.  In such a competitive setting as was the match here, it cannot be said that players do not consent to the high risk of injury and the potential of receiving reckless force from an opponent in such a struggle for a loose ball in the penalty area proximate to one side’s goal.  Adamiec was quite within his rights under the playing culture of soccer to pursue his scoring chance, particularly as he was being grabbed at the same time by the complainant.

[52]      It is undisputed that the degree of force employed by Adamiec during his kicking was significant.  The injuries of the complainant amounted to “bodily harm” within the meaning of section 2 of the Criminal Code.

[54]      There was no intent to injure the complainant or to use force for anything but a legitimate sporting purpose, albeit done in a manner contrary to the rules of soccer.  Adamiec’s use of force was not motivated by a non-sporting purpose such as an intentional retaliatory attack designed to injure an opponent, as opposed to advance play.  See R. v. Owen, [2004] O.J. No. 1410 (Sup. Ct. J.) (QL).  Again, context is important in consideration of the risk of collision and resulting injury in a 50/50 ball in the course of a potential scoring play.  The evidence before the trial judge was that the risk of serious injury is high in such situations.  This does not excuse Adamiec’s conduct but does place it in the correct frame of reference.  See Owen at para. 70.

[55]      The trial judge erred in law in concluding the Crown negated consent for the purpose of section 265(1)(a) of the Criminal Code.  A proper cumulative consideration of all of the objective criteria applied to the facts as found by the trial judge leads to the conclusion that although the conduct of Adamiec was contrary to the rules of soccer, it was not beyond soccer’s playing culture, let alone gravely so, which is required for sporting misconduct to be a crime.

Une modification qui rehausse la qualité d’une preuve audiovisuelle, tout en préservant son exactitude et sa fidélité, est permise, car la Couronne n’a pas à faire la preuve que la vidéo n’a pas été altérée, les règles d’admissibilité n’exigeant pas que la vidéo soit exempte d’altérations

R v Bulldog, 2015 ABCA 251

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  (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.