Aug 17, 2015

When is a video recording admissible evidence in a criminal trial?

R v Bulldog, 2015 ABCA 251 (CanLII)

When does a video recording constitute admissible evidence in a criminal trial?

Canadian courts have struggled with defining an appropriate test for the authentication of electronic evidence, including video recordings. In an earlier commentary I addressed these arguments in context of the Ontario Superior Court of Justice case of R v Andalib-Goortani which addressed the admissibility of an image found on the internet on an anonymous website.

R v Bulldog is a very recent decision from the Alberta Court of Appeal which steps into this debate and provides some needed clarify of the applicable principles. The Court addressed how trial courts should address the authenticity a different from of electronic evidence – a video recording of an assault.

R v Bulldog

Bulldog and his two co-appellants were found guilty at trial of assaulting another inmate in an Edomonton correctional institution. A surveillance video which purportedly captured the fight formed part of the Crown’s case on the key issue of the identity of the assailants. The DVD’s “provenance was less than clear”, and the defence challenged its admissibility into evidence, arguing the Crown had not sufficiently authenticated it.[1]

The Appellants relied heavily on R v Nikolovski[2], arguing that the Supreme Court of Canada had set two preconditions for admitting into evidence a video recording: (1) that the video accurately depicts the scene of the crime; and (2) that it has not been altered or changed.[3] The Alberta Court of Appeal held that the key passage relied upon in Nikolovski to establish these two requirements does not state a necessary condition for admission, but rather a sufficient condition. In fact, the Supreme Court did not mean to preclude admission of video recordings under other circumstances. For example, alteration of videos might in some cases enhance a video’s recording, and its accuracy might “well be served by such an alteration.”[4]

A trial court should not concern itself with whether a video recording was altered, but rather with the degree of accuracy of its representation. If the party seeking to tender the recording into evidence has produce 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.”[5]

The Court of Appeal also held that a trial judge may rely upon circumstantial evidence to authenticate a video recording.[6] That evidence may be derived from one or more witnesses, as long as the evidence establishes “to the requisite standard of proof that the video in question is a substantially accurate and fair depiction of what [the video] purports to depict.”[7]

The video was held to be admissible, as the evidence of the correctional officers was consistent with its contents, and they testified that he had witnessed a video recording of the altercation itself before the DVD copy was created. One officer testified regarding the presence of a video camera in the mini-yard where the incident occurred, and two testified that the video recording they viewed originally was the same as the video recording played in court.[8]


R v Bulldog provides some helpful appellate authority in this rapidly developing yet still hotly contested area of the law. There was no evidence in Bulldog that the video recording had been altered. Furthermore the Court was clear that any class of witness – not merely an expert or eye-witness to the events – could provide evidence capable of meeting the standard for admissibility.[9] This stands in contrast to the stricter approach adopted by the court in R v Andalib-Goortani where the Crown failed to establish the authenticity of the image in question because the court held it could not prove the image had not been altered, even with expert testimony.[10]

Future cases will undoubtedly continue to tackle with this issue, which has now become entirely commonplace given the sheer volume of digital evidence in existence in most criminal trials. It seems likely to be only a matter of time before the Supreme Court of Canada will be called upon to clarify any lingering confusion surrounding its comments in Nikolovski surrounding the admissibilty of electronic evidence.

[1] R v Bulldog, 2015 ABCA 251 at paras 8 and 9

[2] R v Nikolovski, [1996] 3 S.C.R. 1197

[3] R v Nikolovski, [1996] 3 S.C.R. 1197 at para 28

[4] R v Bulldog, 2015 ABCA 251 at para 28

[5] R v Bulldog, 2015 ABCA 251 at paras 32

[6] R v Bulldog, 2015 ABCA 251 at paras 35-37

[7] R v Bulldog, 2015 ABCA 251 at para 37

[8] R v Bulldog, 2015 ABCA 251 at para 40

[9] See R v Bulldog, 2015 ABCA 251at paras 21 and 34