Video Surveillance

A tool that may be utilized to discount the Plaintiff’s credibility is video surveillance.  The following cases will give you a greater understanding of how to approach this evidence.

Chong v. Lee, 2014 BCSC 734 (CanLii) reiterates the three-part test outlined in R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.C.A.) in relation to the admissibility of this type of evidence which will depend on the following factors:

  1. Its accuracy in truly representing the facts;
  2. Fairness and the absence of any intention to mislead; and
  3. Verification of the video evidence on oath by a person capable of doing so.

In Adamson v. Charity, 2007 BCSC 671 (CanLii) – There are 3 arguments against the admissibility of video surveillance evidence:

  1. The failure to meet the three-part test;
  2. Late disclosure of its existence in its Supplemental List of Documents; and
  3. Failure to comply with Rule 12-5 (10) Opportunity to Inspect Exhibit of the BC Supreme Court Civil Rules – that states:

“Unless the court otherwise orders or the parties of record otherwise agree, no plan, photograph or object may be received in evidence at the trial of an action unless, at least 7 days before the start of the trial, the parties of record have been given an opportunity to inspect it.”

The following case disallowed the video evidence at trial Houston v. Kine 2010 BCSC 1289 (CanLii). The Defendant appealed the trial decision and was successful on the grounds that the “trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial”. A new trial was ordered. Houston v. Kine 2011 BCCA 358 (CanLii).  The following comments were made as it pertains to video evidence:

The Video Evidence

The defendants were in possession of the video evidence in early November, 2009. They did not provide a copy of the Mexicovideo to the plaintiff until March 4, 2010, and did not disclose that surveillance had been conducted or videotaping undertaken on the weekend of October 31, 2009, until March 23, 2010. A copy of the weekend video was not provided to the plaintiff until March 26, 2010. The trial judge reasoned firstly that, because the defendants had not disclosed “forthwith” the existence of the videos on a supplementary list of documents as required under Rule 26(13) of the Supreme Court Rules, B.C. Reg. 221/90, the videos were inadmissible, subject to her discretion to admit them under Rule 26(14).

As counsel for the defendants conceded, both Rules 26(13) and 40(13) apply to videotaped evidence. Rule 26(13) requires that, where it comes to the attention of a party who has delivered a list of documents that the list was inaccurate or incomplete, or a document relating to a matter in question in the action comes into the party’s possession or control that should be included in the list of documents, that party shall deliver forthwith a supplementary list specifying the inaccuracy or document.

Rule 40(13) states that if a party wishes to enter an exhibit into evidence, the other party must have been given opportunity to inspect it at least seven days prior to the commencement of trial. This does not negate the party’s responsibility to disclose the video on a list of documents in accordance with Rule 26. Therefore, even though the Mexico video was produced to the plaintiff seven days prior to the recommencement of the trial in accordance with Rule 40(13), the trial judge did not err in finding that the defendants were in breach of Rule 26(13), and then in proceeding to consider the exercise of her discretion under Rule 26(14).

In considering whether to exercise her discretion under Rule 26(14) to allow the video to be admitted into evidence, the trial judge referred at para. 15 of her evidentiary ruling to Stone v. Ellerman, 2009 BCCA 294 (CanLII), where the Court, at paras. 30-31, noted the four factors applicable to the exercise of discretion. When applied to this case, these factors can be described as:

a)         whether the plaintiff would suffer prejudice if the use of the document was permitted;

b)         whether there was a reasonable explanation for the failure to disclose the document;

c)         whether excluding the use of the document would prevent the determination of the relevant issue on its merits; and

d)         whether, in the circumstances of the case, the ends of justice require that the use of the document be permitted.

The trial judge considered each of these factors and declined to exercise her discretion to admit the Mexico video. Based on the brief summary of the Mexico video provided to her by the defendants, the trial judge concluded that its probative value was outweighed by the prejudice to the plaintiff and that refusing to admit the video would not prevent determination of the issues on the merits. She concluded that the plaintiff would be prejudiced by the admission of the video as the late disclosure had impaired her ability to prepare for trial and that admission of the evidence would necessarily extend the trial. She also found that the defendants had provided no reasonable explanation for the failure to comply with Rule 26(13). As a result she concluded that the ends of justice did not require that the video be admitted.

A decision on the admissibility or inadmissibility of evidence by a trial judge is entitled to considerable deference from this Court, provided that the decision is not premised on a wrong legal principle or the result of a palpable or overriding error.

The defendants contend that the trial judge erred in her consideration of the factors in Rule 24(14) as she determined, without viewing the Mexico video, that the prejudicial effect of allowing the video into evidence outweighed its probative value, and caused prejudice to the plaintiff. The defendants’ position is that as the plaintiff had virtually completed her evidence before the video came into existence, no prejudice could result to her ability to prepare for trial and therefore the trial judge erred in her conclusion that its admission would prejudice the plaintiff on that basis.

While assessing the prejudice and the probative value of the Mexico video may have been more difficult without viewing the video, a finding of prejudice is not necessary in order to justify the exclusion of evidence where no satisfactory reason has been offered for the late disclosure. In this regard the trial judge set out at para. 11 of her evidentiary ruling the following passage from Carol v. Gabriel(1997), 14 C.P.C. (4th) 376, which was cited with approval by this Court in Stone at para. 32:

A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

At trial, counsel for the defendants (not counsel on the appeal) advised the Court that failure to disclose the video as soon as it came into his possession was solely a tactical decision. As both of the videotapes were obtained after the plaintiff and her medical and functional capacity experts had completed their evidence, it is difficult to understand the reluctance on the part of counsel for the defendants to disclose the videotapes once he was in possession of them. The trial judge properly concluded at para. 13 of her evidentiary ruling that:

The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.

It was open to the trial judge to conclude, as she did, that there was no reasonable explanation for the failure to disclose the Mexico video at an earlier time. The trial judge was also correct in observing that the trial length would be extended by the introduction of the Mexico video, but I do not see that that was a significant factor in her refusal to admit the videotape evidence. I am unable to find any error on the part of the trial judge in refusing to admit the videotape evidence, regardless of whether she erred in her conclusions on the issue of prejudice to the plaintiff.

The third and fourth factors in Stone would also have been difficult to assess without actually viewing the video; however, given the option of calling a witness who could comment on what might otherwise have appeared on the video, I am not persuaded that the trial judge’s assessment of either of these factors was in error. I am therefore unable to conclude that the trial judge erred in her refusal to admit the Mexico video, and I would not accede to the defendants’ arguments on this point.”

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