Identification is often an issue in criminal cases. Eyewitness identification can be unreliable, so identification based on a video recording is often preferred and may be the sole basis for identifying the accused.
However, what are the requirements when identifying an accused using videotape evidence, and what happens if the video is not high quality? This article explores these questions with reference to the recent decision of the Ontario Court of Justice in R. v M.W. In this case, the key issue was identifying a person seen in a cell phone video taken from a balcony in a high-rise building across the street from where an attack occurred.
Problems with eyewitness identification
Eyewitness identification has been described by courts as being inherently unreliable given that it is difficult to assess, often comes from otherwise credible witnesses, and juries tend to place undue reliance upon it.
A Law Reform Commission of Canada study paper stated that:
“Contrary to the belief of most laymen, and indeed some judges, the signals received by the sense organs and transmitted to the brain do not constitute photographic representations of reality. … Since perception and memory are selective processes, viewers are inclined to fill in perceived events with other details, a process which enables them to create a logical sequence. The details people add to their actual perception of an event are largely governed by past experience and personal expectations. Thus the final recreation of the event in the observer’s mind may be quite different from reality.”
Requirements for relying on video identification evidence
The human brain can often supplement reality; therefore, identifying an accused based on a video recording is often more reliable.
In criminal law, videotape evidence can be used as the sole basis for identifying an accused. However, the video evidence needs to be of sufficient clarity and quality so that the jury or judge can decide whether the accused is the person they saw on the videotape that committed the offence.
When the video quality is poor, the judge or jury must use greater caution. The video must be sufficiently clear and show the accused for a sufficient amount of time to allow the judge or jury to conclude that identification has been proven beyond a reasonable doubt to make a conviction.
Crown argued that the accused was seen in cell phone and surveillance videos
Turning to the recent decision in R. v M.W., a group of young men from Hamilton waited in a parking lot for another group of men from the Peel Region. The group from Peel Region was attacked on arrival, resulting in one man’s death and two others being stabbed.
The Crown argued that the accused appeared in a cell phone video of the attack taken from a balcony in a high-rise building across the street from the parking lot and in a surveillance video of the building. The accused happened to also live in that building. He was charged with offences including manslaughter, aggravated assault and assault with a weapon.
Crown case depended on the accused being shown in poor quality cell phone video
The Crown argued that the accused appeared in a high-quality building surveillance video in a red shirt with three lines of black lettering, ripped stonewashed jeans and an orange hat. He left the building at 12:13 a.m. and re-entered after the attack at 1:27 a.m.
The key piece of evidence was the cell phone footage of the attack. The Crown argued that a person wearing the same clothing is seen in the footage chasing the deceased after he was fatally stabbed twice. The Crown claimed that there was a strong improbability of coincidence that another person was chasing the deceased in the exact same clothing.
Court decided that cell phone video could not support an identification of the accused
The trial judge had no doubt that the accused was the person that appeared in the building surveillance video. However, he was unsure whether the accused appeared in the poor-quality cell phone video. His Honour said:
“I have watched the video in court, with contrast and without. I have reviewed it many times in chambers, changing the video settings to improve the ability to make out the clothing worn by the person the Crown submits is the defendant.”
The trial judge said that the clothing of the person in the video resembled the outfit worn by the accused, but he could not say that it was the same clothing. He could not see the black lettering or be certain that the person was wearing ripped jeans. The judge was not satisfied that the video was of sufficient quality to identify the accused.
As a result, the judge turned to circumstantial evidence on the identification issue.
Court not satisfied beyond a reasonable doubt that the evidence identified the accused
The Crown relied on circumstantial evidence from the building surveillance video, including that the accused was seen shadowboxing and pointing to a mark on his neck. In addition, the accused had no cell phone activity during the attack, but the phone was used both before and after, and it connected to a nearby cell phone tower.
The trial judge decided that this circumstantial evidence was insufficient to support the accused’s participation in the attack. The judge determined that he was not guilty, finding that there was a reasonable doubt as to whether he participated.
Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Advice on Defending Criminal Charges
If you are facing criminal charges, obtaining advice as quickly as possible is important. The criminal defence lawyers at Barrison Law work with clients in the Durham Region to understand their circumstances and prepare strategic defences. We help clients facing Youth Court charges and also those charged with serious offences, including murder and manslaughter. To schedule a free confidential consultation, please call us at 905-404-1947 or contact us online.