R. v. Nikolovski, [1996] 3 S.C.R. 1197
Her Majesty The Queen Appellant
v.
Alexander Nikolovski Respondent
Indexed as: R. v. Nikolovski
File No.: 24360.
1996: October 3; 1996: December 12.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Evidence ‑‑ Identification ‑‑ Videotape recorded by security camera during robbery ‑‑ Trial judge identifying accused in court as perpetrator of crime on basis of videotape ‑‑ No corroborating testimony that accused was person depicted in tape ‑‑ Whether videotape alone provides necessary evidence to enable trier of fact to identify accused as perpetrator of crime ‑‑ If so, whether trial judge erred in circumstances of case in identifying and convicting accused solely on basis of videotape evidence.
The accused was charged with robbing a convenience store. The store clerk described the robber to the police and, a few days later, was shown 12 photographs. At trial, the clerk stated that he suspected three of the men shown, one of whom was the accused, but that he could be no more than 25 to 30 percent sure that any of them was the robber. He also stated that, when he was first shown the photographs, the one he suspected the most was not the accused. The Crown introduced as evidence the videotape of the robbery, recorded by the store security camera, and the clerk testified that it showed all of the robbery. At the conclusion of the review of the videotape, the clerk was asked if the man who robbed him was in court, to which he replied that he did not think so. A police officer who knew the accused testified that when he arrested him his facial appearance was different from that in court. The Crown closed its case and the defence elected to call no evidence. The trial judge directed herself as to the frailties of eyewitness identification but indicated that the videotape was very clear and that the robber was in the camera long enough for her to make a careful observation. She concluded that the person who committed the robbery on the tape was the accused and she convicted him. The Court of Appeal quashed the accused’s conviction as unreasonable and entered an acquittal. The court found that the trial judge should not have relied solely on her own comparison between the appearance of the person on the videotape and the appearance of the accused in court to reach a conclusion that had no other foundation in the evidence.
Held (Sopinka and Major JJ. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, L’Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.: Courts have recognized the importance and usefulness of videotapes in the search for truth in criminal trials as this type of evidence can serve to establish innocence just as surely and effectively as it may establish guilt. A video camera records accurately all that it perceives and it is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime.
Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, it becomes admissible and relevant evidence. Not only is the tape real evidence, but it is also, to a certain extent, testimonial evidence as well. It should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all contribute to establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused.
Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. When a jury is asked to identify an accused in this manner, clear directions must be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told, once again, of the important requirement that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused. A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification.
Here, the trial judge did not err in finding the accused guilty of robbery. The videotape is of excellent quality and depicts the accused for a significant period of time. The evidence of the tape is of such clarity and strength that it provided convincing evidence upon which the trial judge could properly base her finding of fact that the accused was the person shown in the tape. There was no need for corroboration of this tape. The fact that the store clerk could not identify the accused is not of great significance. The violent and menacing jab made by the robber with a large knife directed towards the clerk suggests that self‑preservation, not identification, may very reasonably have been the clerk’s prime concern at the time of the robbery.
Per Sopinka and Major JJ. (dissenting): While the sensory observations of a trial judge, based on a review of a videotape and the appearance of the accused, are admissible evidence of "identity" to support a guilty verdict, the evidence in this case makes it clear that the verdict rendered at trial was "unreasonable" within the meaning of s. 686(1)(a)(I) of the Criminal Code. The accused was convicted on the basis of very weak identification evidence, which was undermined by the evidence of the Crown's only eyewitness.
The trial judge relied on her own observations of the videotape to convict the accused. She made these observations after having viewed the 30‑second video only once. She made no reference to specific characteristics of the man on the videotape that conformed to the appearance of the accused and there was no confirmatory evidence supporting her observations of the video and the accused. Not only did the trial judge’s observations not have any support in the evidence but, more importantly, her observations were contradicted by the evidence of the store clerk ‑‑ the only person who actually witnessed the crime ‑‑ who, despite his opportunity to view the accused and the tape in the courtroom, was unable to conclude that the accused was the man on the video. There was also evidence that, a few days after the robbery, the store clerk identified a person other than the accused as the more likely perpetrator of the crime. Further, it is significant that the trial judge’s observations are entirely untested by cross‑examination and they cannot be tested on appeal. In order to evaluate the reasonableness of the evidence upon which a trier of fact relies, a court of appeal must be able to examine all the evidence. All the assurances about the clarity of the video are of no avail if the court cannot see the person with whom the comparison is being made. The accused’s conviction was thus based on evidence that amounted to no more than the untested opinion of the trial judge which was contradicted by other evidence that the trial judge did not reject. In the circumstances of this case, it was unreasonable for the trial judge to convict based on her opinion alone. In light of the inherent frailties of identification evidence, the accused’s conviction rests on a shaky foundation and is unsafe and unsatisfactory. The verdict cannot be supported by the evidence.
Cases Cited
By Cory J.
Applied: R. v. Leaney, [1989] 2 S.C.R. 393; referred to: R. v. Pleich (1980), 55 C.C.C. (2d) 13; R. v. Rowbotham (1988), 41 C.C.C. (3d) 1; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Dodson, [1984] 1 W.L.R. 971; R. v. Downey, [1995] 1 Cr. App. R. 547.
By Sopinka J. (dissenting)
R. v. S. (P.L.), [1991] 1 S.C.R. 909; R. v. Quercia (1990), 60 C.C.C. (3d) 380; R. v. Leaney, [1989] 2 S.C.R. 393; R. v. Spatola, [1970] 4 C.C.C. 241.
Statutes and Regulations Cited
Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(I) [am. 1991, c. 43, s. 9 (Sch., item 8)].
Authors Cited
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1970.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 676, 73 O.A.C. 258, 92 C.C.C. (3d) 37, 34 C.R. (4th) 98, allowing the accused’s appeal and setting aside his conviction for robbery. Appeal allowed, Sopinka and Major JJ. dissenting.
David Butt, for the appellant.
John Collins, for the respondent.
The judgment of Lamer C.J. and La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by
1 Cory J. -- Can a videotape alone provide the necessary evidence to enable the trier of fact to identify the accused as the perpetrator of the crime? That is the question that must be resolved on this appeal.
I. Factual Background
2 In 1991, during the early morning hours of May 13, Mahmood Wahabzada was the sole employee in a Mac’s Milk store. At about 2:00 a.m., a man armed with a knife entered the store and ordered him to open the cash register. Mr. Wahabzada complied. The robber took some $230 from the register and fled. The store clerk described the robber to the police as hefty with a strong build, blond hair, a mustache and taller than his own height of 175 centimetres. He could not recall the clothes worn by the robber. As he explained at the trial “You know that time is a very panic time. One cannot remember everything”. Two days after the robbery, the store clerk was shown photos of 12 men. He suspected three of the men shown, one of whom was the respondent (accused). At the trial, he testified that he thought that the man shown in photograph number 8, who was not the respondent, could be the robber but he was only 25 to 30 percent sure. He said that when he was first shown the photos he could be no more definite than to say that he “mostly” suspected photograph number 8.
3 The police officers gave evidence that when he was shown the photos the store clerk exclaimed “that’s him” when looking at photo number 6 (which was of the respondent) or “He looks just like him” referring to the same photo, but added “He looks a bit like him also” when referring to photo number 8.
4 The Crown introduced as evidence the videotape of the robbery, recorded by the store security camera. The store clerk testified that it showed all of the robbery. At the conclusion of the review of the videotape, the clerk was asked if the man who robbed him was in court, to which he replied that he did not think so.
5 A detective who had known the respondent for some years was present at the time of his arrest. He testified that the respondent then had a sparse mustache covering the upper part of his lip, which was not present on the day of the trial. In cross‑examination, the officer acknowledged that the respondent had denied committing the robbery and said that he’d been home with his mother and brother. The defence did not present any evidence.
II. The Courts Below
A. Judgment at Trial
6 It is necessary in this appeal to set out some of the discussions which took place between counsel for the defence during his submissions and the trial judge as well as portions of the reasons. Counsel for the respondent cautioned the trial judge of the frailties of eyewitness identification. In response and as part of her reasons, the trial judge stated:
I have directed my mind, but what about that video tape? I mean the video tape does away with a lot of the frailty of identification by a witness who said to me he was frightened, he was nervous, he couldn’t recall some of it. And look at the tape. The tape doesn’t lie.
. . .
. . . a movie showing the robbery being committed is surely one of the best forms of evidence you’ve got. And not only was the movie ‑‑ the man’s face was practically in front of the screen.
. . .
I looked at that video, and I looked at it very carefully, and I can honestly tell you there is no doubt in my mind that the man who committed that robbery on that video was your client.
. . .
As I said earlier, I’ve directed myself to all the frailties of the I.D. cases. And over my years as counsel, I know I was involved in a number where it was a serious issue, and I’m well aware of all of it, and the reason behind the case law.
And a lot of the reasons for those frailties are the very things that exist in this case. An act of violence, which happens quickly and unexpectedly to a victim who is terrified.
At best he could say that Photograph 6 looked like, and he also pointed to 8 and to 11. He said quite bluntly: I was afraid. I can’t remember all. He also doesn’t have English as a first language.
Now, I’ve seen video tapes in the past that have been grainy, where the lighting hasn’t been good, where there’s no clear view over a period of time of the robbery and of the perpetrator.
This particular video tape is very clear. The lighting is very good. The man is in the camera for long enough to make a careful observation. And the issue of beyond a reasonable doubt is when I’m obliged to make a decision, and I cannot ignore what my eyes tell me, and my eyes tell me, and there’s no dispute this isn’t a video tape of the robbery, that the person who committed that robbery is Mr. Nikolovski, and I can’t ignore that. . . .
It would be mere speculation for me to say, there’s one chance in a million he’s got an absolute twin running around, who happened to rob that store, that’s getting into the realm of speculation at that point.
The trial judge concluded, without calling upon the Crown:
. . . I think we’ve beaten this to death. . . . I’m satisfied that the robbery was committed by your client. I’m satisfied on looking at that tape that that’s him and he’s convicted.
B. The Court of Appeal
7 The Court of Appeal allowed the appeal, quashed the conviction and entered the acquittal of the respondent: (1994), 19 O.R. (3d) 676, 73 O.A.C. 258, 92 C.C.C. (3d) 37, 34 C.R. (4th) 98.
8 Arbour J.A., on behalf of a unanimous court, agreed with the trial judge that the videotape was of very good quality and that the image was sharp and clear. She observed as well that there was no doubt that the videotape would permit a comparison to be made between the robber and the accused appearing before the trial judge.
9 However, she was doubtful whether a prosecution could be successful where identification evidence was made solely on the basis of a photograph or videotape without confirmatory evidence from a witness linking the accused to the crime. She observed that no one identified the respondent as the man in the videotape, except the trial judge. She expressed the view that the Crown ought to have called the detective who had known the respondent for some years to testify as to whether the person on the videotape and the respondent were one and the same.
10 Thus, the court determined that, although the trial judge was not in error in reaching her conclusion on the basis of the videotape evidence, it still remained to be decided whether the conviction was unreasonable. On this issue, Arbour J.A. stated (at pp. 690‑91 O.R.):
In a case such as this one where the identification is made exclusively by the trier of fact and has no other support in the evidence, and operating within the constraints of appellate review that such a record creates, I can only conclude that the conviction is unreasonable. . . .
The videotape was properly entered as an exhibit at trial after the witness identified it as depicting accurately the scene of the robbery, and the trial judge would have been entitled to examine the videotape to assess the credibility of the identification evidence based on the videotape, had there been any. However, in my view the trial judge should not have relied solely on her own comparison between the appearance of the person on the videotape and the appearance of the accused in court to reach a conclusion that had no other foundation in the evidence. In all the circumstances, I consider that this amounts to an unsafe verdict. [Emphasis added.]
11 Therefore, it appears to be the opinion of the Court of Appeal that corroboration by a witness that the person shown in the videotape is the accused is essential and its absence is fatal to the case.
III. Issues to Be Resolved
12 1. Can a trier of fact identify the accused before the court as the perpetrator of the crime on the basis of a viewing of the videotape alone without any corroborating testimony that the accused is the person depicted in the tape?
2. On the facts presented in this case, did the trial judge err in identifying and convicting the accused solely on the basis of the videotape evidence?
IV. The Purpose of Evidence Adduced at Criminal Trials
13 The ultimate aim of any trial, criminal or civil, must be to seek and to ascertain the truth. In a criminal trial the search for truth is undertaken to determine whether the accused before the court is, beyond a reasonable doubt, guilty of the crime with which he is charged. The evidence adduced must be relevant and admissible. That is to say, it must be logically probative and legally receivable. The evidence may be that of eyewitnesses, or it may be circumstantial, including the production of physical evidence which is often termed “real evidence”. In every criminal case, if there is to be conviction, the evidence must be sufficiently convincing that the trier of fact is satisfied beyond a reasonable doubt of the guilt of the accused.
14 With the progress of scientific studies and advances in technology, evidence put forward particularly as to identification has changed over the years. The admission of new types of evidence is often resisted at first and yet, later accepted as commonplace and essential to the task of truth finding. Fingerprint evidence may be the first example of scientific evidence leading to identification. Similarly, blood typing with its ever increasing refinements can be extremely helpful in identification. DNA testing is yet another example. It must never be forgotten that evidence of this type can serve to establish innocence just as surely and effectively as it may establish guilt. The case of Guy‑Paul Morin serves as a constant reminder of this.
V. The Evolution of the Use of Audio Tapes, Photographs and Videotapes as Evidence in Canada
15 It may be helpful to consider the evolution of the use of audio and video tape evidence in Canada. In R. v. Pleich (1980), 55 C.C.C. (2d) 13, at p. 32, the Court of Appeal for Ontario recognized that tape recordings are real evidence that had, as well, many of the characteristics of testimonial evidence. In R. v. Rowbotham (1988), 41 C.C.C. (3d) 1, the use of audio tapes was considered by the same court. It found that it was the tapes themselves that constituted the evidence which should be considered by the jury. It emphasized that the tapes could provide cogent and convincing evidence of culpability or equally powerful and convincing evidence of innocence. It stressed that the members of the jury must have equipment available to them so that they could themselves listen to the tapes and reach their decision as to the weight that should be given to them. It was expressed in this way (at pp. 47‑48 and 49):
It is true that the tapes themselves constitute the evidence which should be and must be considered by the jury. It is the tapes which will demonstrate not simply the words spoken by an accused or co‑conspirator, but also the emphasis given to particular words and phrases and the tone of voice employed by the participants during the intercepted conversations. Upon hearing the tape, the jocular exclamation will be readily distinguishable from the menacing threat of violence. The tapes may provide cogent and convincing evidence of culpability or equally powerful and convincing evidence of innocence.
. . .
As well the necessary equipment must be made available so that the jury may listen to the tapes themselves. [Emphasis added.]
16 I agree with the reasoning and conclusion on this issue set out in Pleich and Rowbotham. A tape, particularly if it is not challenged as to its accuracy or continuity, can provide the most cogent evidence not only of the actual words used but in the manner in which they were spoken. A tape will very often have a better and more accurate recollection of the words used and the manner in which they were spoken than a witness who was a party to the conversation or overheard the words. As a result of Rowbotham, the trier of fact in Ontario was very properly authorized to use his or her own senses in determining the weight that should be accorded to the evidence of an audio tape. There is no reason why this same reasoning should not be applied to videotapes.
17 The admission of videotapes as evidence seems to be a natural progression from audio tapes. In R. v. B. (K.G.), [1993] 1 S.C.R. 740, at pp. 768 and 774, this Court praised the evidence obtained from videotapes as a “milestone” contributing to the “triumph of a principled analysis over a set of ossified judicially created categories”. In R. v. Leaney, [1989] 2 S.C.R. 393, the main identification evidence against the accused was a videotape of the crime in progress and the testimony of five police officers. Although this Court held that the evidence of four of the police officers ought to have been excluded, it upheld the conviction of Leaney on the basis of the trial judge’s own observations of the videotape and his comparison of the tape to the accused in the box. At page 415, McLachlin J., for the majority, stated:
Given the trial judge’s clear statement that he arrived at his conclusion as to identity independently of the evidence of the police officers, their evidence assumes the character of mere surplusage, which does not vitiate the judge’s conclusion that Leaney was one of the persons shown on the video screen. To put it another way, the judge, properly instructing himself, concluded beyond a reasonable doubt that Leaney participated in the break‑in.
18 Similarly in R. v. L. (D.O.), [1993] 4 S.C.R. 419, L’Heureux‑Dubé J., in concurring reasons, noted that the modern trend has been to admit all relevant and probative evidence and allow the trier of fact to determine the weight which should be given to that evidence, in order to arrive at a just result. She observed that this is most likely to be achieved when the decision makers have all the relevant probative information before them. She wrote at p. 455, that “[i]t would seem contrary to the judgments of our Court (Seaboyer and B. (K.G.) . . .) to disallow evidence available through technological advances, such as videotaping, that may benefit the truth seeking process”.
VI. Some Comparisons Between Videotape Evidence and that of Eyewitnesses
19 Thus the importance and usefulness of videotapes have been recognized. This is as it should be. The courts have long recognized the frailties of identification evidence given by independent, honest and well-meaning eyewitnesses. This recognized frailty served to emphasize the essential need to cross‑examine eyewitnesses. So many factors come into play with the human identification witness. As a minimum it must be determined whether the witness was physically in a position to see the accused and, if so, whether that witness had sound vision, good hearing, intelligence and the ability to communicate what was seen and heard. Did the witness have the ability to understand and recount what had been perceived? Did the witness have a sound memory? What was the effect of fear or excitement on the ability of the witness to perceive clearly and to later recount the events accurately? Did the witness have a bias or at least a biased perception of the event or the parties involved? This foreshortened list of the frailties of eyewitness identification may serve as a basis for considering the comparative strengths of videotape evidence.
20 It cannot be forgotten that a robbery can be a terrifyingly traumatic event for the victim and witnesses. Not every witness can have the fictional James Bond’s cool and unflinching ability to act and observe in the face of flying bullets and flashing knives. Even Bond might have difficulty accurately describing his would be assassin. He certainly might earnestly desire his attacker’s conviction and be biased in that direction.
21 The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture.
22 So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue of identity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet the video camera will steadfastly continue to impassively record the robbery and the actions of the robbers. Should a trier of fact be denied the use of the videotape because there is no intermediary in the form of a human witness to make some identification of the accused? Such a conclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the use of clear, accurate and convincing evidence readily available by modern technology. The powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. In the course of their deliberations, triers of fact will make their assessment of the weight that should be accorded the evidence of the videotape just as they assess the weight of the evidence given by viva voce testimony.
23 It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It follows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a jury had only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the person shown in the videotape at the scene of the crime committing the offence. If an appellate court, upon a review of the tape, is satisfied that it is of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyond any reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the person depicted in the videotape.
VII. Use of Photographic Evidence in Other Jurisdictions
A. United Kingdom
24 The question as to whether a jury could, without other evidence, use a photo taken by a security camera to identify the accused arose in R. v. Dodson, [1984] 1 W.L.R. 971 (C.C.A.). In that case it was unanimously held that the photographs were relevant and admissible evidence that could be used by the jury to identify the accused. The position was put in this way at pp. 978‑79:
We entertain no doubt that photographs taken by the process installed and operated in the branch office of the building society are admissible in evidence. They are relevant to the issues as to (a) whether an offence was committed and (b) who committed it. What is relevant is, subject to any rule of exclusion ‑‑ we know of none which is applicable to this situation, prima facie admissible. . . .
Moreover, we reject the attempt here made to persuade this court to prevent a jury from looking at photographs taken by means of this technique, looking at a defendant in the dock and then to conclude if it be safe to do so that the man in the dock is the man shown in the photographs.
. . .
It is, however, imperative that a jury is warned by a judge in summing up of the perils of deciding whether by this means alone or with some form of supporting evidence a defendant has committed the crime alleged. According to the quality of photographs, change of appearance in a defendant and other considerations which may arise in a trial, the jury’s task may be rendered difficult or simple in bringing about a decision either in favour of or against a defendant. So long as the jury having been brought face to face with these perils are firmly directed that to convict they must be sure that the man in the dock is the man in the photograph, we envisage no injustice arising from this manner of evaluating evidence with the aid of what the jurors’ eyes tell them is a fact which they are sure exists. [Emphasis added.]
25 These conclusions were repeated and affirmed by the same court in R. v. Downey, [1995] 1 Cr. App. R. 547. Thus the English courts have come to the conclusion that photographic evidence may, without more, be considered by a trier of fact in determining whether the accused before them is the person appearing in the photograph. In my view, there cannot be any distinction between a still photograph and a videotape. Indeed, a videotape may well provide stronger evidence than a still photograph.
B. United States of America
26 The current edition of Wigmore (Wigmore on Evidence, vol. 3 (Chadbourn rev. 1970), § 790) indicates a change in the position of the writers of the text. Earlier editions took the position that the photograph may be admissible only as the testimony of a qualified eyewitness who, instead of giving a verbal description of what the picture portrays, adopts it as a substitute for his or her description. This was known as the “pictorial testimony” theory of photographs. However, with the advances in the art of photography and an increasing awareness of the evidentiary uses of photographs, the Wigmore text now recognizes that once there is an adequate assurance of the accuracy of the process producing the picture, the photograph should be received as a so‑called silent witness or as a witness which “speaks for itself”. The text puts the position in this way at pp. 219‑21:
These consequences remain to be more fully considered. It is sufficient to note at this point that, by universal judicial concession, a map, model, or diagram, takes an evidential place simply as a non‑verbal mode of expressing a witness’ testimony....
Upon like principles a photograph may be admissible as the testimony of a qualified witness who instead of verbalizing his knowledge of what the picture portrays, adopts it as a substitute for description with words.
. . .
This theory which has been aptly dubbed the “pictorial testimony theory of photographs”, was advanced in prior editions of this work as the only theoretical basis which could justify the receipt of photographs in evidence. With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the “pictorial testimony” rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so‑called silent witness or as a witness which “speaks for itself.”
The demands of this theory for recognition and the inadequacies of the older view to meet the modern needs of forensic proof are tellingly put in the following forceful opinion:
Peters J., in People v. Bowley, 59 Cal. 2d 855, 859, 382 P.2d 591, 594, 31 Cal. Rptr. 471, 474‑475 (1963): According to Professor Wigmore, a photograph is no more than the nonverbal expression of the witness upon whose foundation testimony its authenticity rests. (3 Wigmore, Evidence (3d ed. 1940) §790, pp. 174‑175; ibid. §792, p. 178; ibid. §793, p. 186. See International Union etc. v. Russell, 264 Ala. 456, 88 So. 2d 175, 186, 62 A.L.R.2d 669.) It is merely that witness’ testimony in illustrated form; a “pictorial communication of a qualified witness who uses this method of communication instead of or in addition to some other method.” (3 Wigmore, Evidence (3d ed. 1940) §793, p. 186.) . . .
Other authorities disagree. They urge that once a proper foundation has been established as to the accuracy and authenticity of a photograph, “it speaks with a certain probative force in itself.” (Scott, Photographic Evidence (1942) §601, p. 476.) “(P)hotographs may, under proper safeguards, not only be used to illustrate testimony, but also as photographic or silent witnesses who speak for themselves. . . . (A) picture taken with adequate equipment under proper conditions by a skilled photographer is itself substantive evidence to be weighed by the jury.” (Gardner, The Camera Goes to Court (1946) 24 N.C.L. Rev. 233, 245. See State v. Goyet, 120 Vt. 12, 132 A.2d 623, 631; A. & N. Dept. Stores v. Retail etc. [1950] 2 D.L.R. 850; McKelvey, Evidence (5th ed. 1944) 663‑664.)
Until now, this court has not been called upon to state the theory upon which photographs are admitted into evidence. (See Comment, 8 Hastings L.J. (1957) 310.) In doing so we recognize that photographs are useful for different purposes. When admitted merely to aid a witness in explaining his testimony they are, as Wigmore states, nothing more than the illustrated testimony of that witness. But they may also be used as probative evidence of what they depict. Used in this manner they take on the status of independent “silent” witnesses. (See McKelvey, Evidence (5th ed. 1944) §379, p. 668).
. . .
There is no reason why a photograph or film, like an X‑ray, may not, in a proper case, be probative in itself. To hold otherwise would illogically limit the use of a device whose memory is without question more accurate and reliable than that of a human witness. It would exclude from evidence the chance picture of a crowd which on close examination shows the commission of a crime that was not seen by the photographer at the time. It would exclude from evidence pictures taken with a telescopic lens. It would exclude from evidence pictures taken by a camera set to go off when a building’s door is opened at night. (See Scott, Photographic Evidence (1942) §197, pp. 211‑213; Crim.L.Rev. [1957] p. 708.) We hold, therefore, that a photograph may, in a proper case, be admissible into evidence not merely as illustrated testimony of a human witness but as probative evidence in itself of what it shows. [Underlining added.]
27 Thus, it is apparent that there is in the United Kingdom and in the United States strong support for the position advanced in these reasons.
VIII. Summary of the Positions as to the First Issue (the Use That Can Be Made of Photographs or Videotape)
28 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. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It can and should be used by a trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events. It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.
29 The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. The time of depiction may not be significant for even if there are but a few frames which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of fact has reviewed the tape on several occasions and stopped it to study the pertinent frames.
30 Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. For example, when a jury is asked to identify an accused in this manner, it is essential that clear directions be given to them as to how they are to approach this task. They should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. Further, they should be told once again of the importance that, in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.
31 The jury or trial judge sitting alone must be able to review the videotape during their deliberations. However, the viewing equipment used at that time should be the same or similar to that used during the trial. I would think that very often triers of fact will want to review the tape on more than one occasion.
32 A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification. It would be helpful if, after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it. This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape or evidence as to any changes in appearance of the accused between the taking of the videotape and the trial and to prepare submissions pertaining to identification based on the tape.
IX. Application of the Criteria Pertinent to Videotape in the Case at Bar
33 The Court of Appeal correctly recognized that the trial judge could properly consider the videotape, which they conceded was clear and of high quality. Despite this, they appear to have concluded that there had to be some corroboration of the tape itself before the trial judge could rely upon it to identify the accused. On this point, I must respectfully disagree.
34 I viewed the tape and it is indeed of excellent quality and great clarity. The accused is depicted for a significant period of time. At one point, it is almost as though there was a close‑up of the accused taken specifically for identification purposes. There is certainly more than adequate evidence on the tape itself from which the trial judge could determine whether or not the person before her was the one who committed the robbery. The fact that the store clerk could not identify the accused is not of great significance. When the tape is viewed, it is easy to appreciate that the clerk might not have been able to properly focus upon the identity of the robber. The violent and savagely menacing jab made by the robber with a large knife directed towards the clerk suggests that self‑preservation, not identification, may very reasonably have been the clerk’s prime concern at the time of the robbery. Yet, the tape remained cool, collected, unbiased and accurate. It provides as clear a picture of the robbery today as it did when the traumatic events took place.
35 The evidence of the tape is of such clarity and strength that it was certainly open to the trial judge to conclude that the accused before her was the person depicted on the tape. The trial judge was aware of the difficulties and frailties of identification evidence and acknowledged them in her reasons. Nonetheless, she was entitled on the evidence before her to conclude beyond a reasonable doubt that the accused was guilty. There was no need for corroboration of this tape.
36 There was no suggestion that the tape had been tampered with or that it did not represent the commission of the crime. Indeed there was quite properly no objection to its admission. The videotape can and should speak for itself. It provided the convincing evidence upon which the trial judge could properly base her finding of fact that the accused was the person shown in the tape. The trial judge did not err in finding beyond a reasonable doubt that the accused was guilty of the robbery. It follows that I can find no basis upon which the Court of Appeal was justified in concluding that the decision of the trier of fact was unreasonable or unsafe.
37 I would therefore allow the appeal, set aside the order of the Court of Appeal and restore the conviction of the respondent.
The reasons of Sopinka and Major JJ. were delivered by
38 Sopinka J. (dissenting) -- I have read the reasons of Cory J. and while I agree that the observation of the videotape by the trial judge who compared the videotape of the crime with the accused was evidence of identification, I agree with the unanimous decision of the Court of Appeal that, in the circumstances of this case, it was unreasonable for the trial judge to convict based on her opinion alone. In order to arrive at this conclusion, it is necessary to review the evidence.
I. Facts
39 On May 13, 1991, at approximately 2:00 a.m., Mr. Mahmood Wahabzada was working alone at a Mac’s Milk store when an individual entered the store and told him to open the cash register. The robber took about $230 and left the store. The robber’s face was not covered, but he was wearing something on his head. Mr. Wahabzada described the robber to police as hefty with a strong build, blond hair and a mustache. He said that his own height was 175 centimetres and that the robber was taller than that.
40 A few days after the robbery, Mr. Wahabzada was shown a series of photographs by police in an album containing 12 colour photographs. Two police officers testified about Mr. Wahabzada’s comments in response to the photographs. They attributed varying degrees of certainty to his choice of photograph number 6, which was conceded to have been a photograph of the respondent, as a photograph of the man who robbed him. According to the officers, Mr. Wahabzada said, “that’s him”, or “He looks just like him”, when pointing to number 6, but also said, “He looks a bit like him also”, referring to number 8. This evidence was at variance with the evidence of Mr. Wahabzada who stated that he suspected photographs number 6, 8 and 11, but that he could be no more than 25 or 30 percent sure that any of them was the robber. He was more sure that it was number 8 than the other two. Number 6 was conceded to be a photograph of the respondent. The evidence at trial was, in part, as follows:
Q. I’m showing you an album, as you called it, having twelve pictures in it. Is this what you were shown by the officers?
A. Yeah.
Q. All right. And were you able to recognize anyone, sir?
A. Yeah. I suspect this man -- and either this one or this one -- I think this one.
Q. All right. Do you remember what you said?
A. Yeah, I say that I suspect only twenty-five percent or thirty percent, no more than that.
Q. On which one?
A. On these both guys. Mostly this guy.
THE COURT: Middle row, Photos 6 and 8 -- twenty-five percent mostly this guy, being Photo 8.
MR. COLLINS: Thank you.
THE COURT: And I’m doing 8 counting four across the top, and then 5 through 8 as the second line.
MR. COLLINS: Does the Crown confirm the judge’s?
MR. VESA: Yes. He’s also pointing at Number 11.
THE COURT: And he also in his first comment said this looks like, and he pointed to Number 11 as well.
MR. VESA: Q. Were you able to come to a more definite conclusion than that, sir, as to which picture?
A. I can’t.
Q. Do you remember if you did on that day?
A. Mostly on this guy.
THE COURT: Mostly 8. [Emphasis added.]
41 During his testimony at trial, Mr. Wahabzada was shown a videotape which he identified as an accurate depiction of the robbery in the store on May 13, 1991. After having reviewed the videotape, and while the respondent was seated alone in the prisoner’s box, Mr. Wahabzada was asked in examination-in-chief by the Crown:
Q: Do you see the man here today who robbed you that night, sir?
A: No, I don’t think he is.
Q: You don’t think he?
A: No.
42 An officer testified that when he arrested the respondent on May 22, 1991, his facial appearance was different from that in court, in that at the time of the arrest the respondent had a sparse mustache. The officer also testified that, upon being arrested, the appellant denied his involvement in the robbery and offered an alibi, stating that he had been at home with his mother and brother at the time of the robbery.
43 When the Crown closed its case, there was no evidence on the record of identification except the trial judge’s subjective conclusion with respect to her observation of the video which, at that point, was unannounced and unknown. In these circumstances, counsel for the respondent elected to call no evidence. It was only during argument that the trial judge expressed her opinion based on her observation of the video and the respondent. Since her opinion was the only evidence of identification, these remarks concerning what she had observed became the reasons for judgment.
II. Analysis
1. Section 686(1)(a)(I) of the Criminal Code
44 In undertaking a review under s. 686(1)(a)(i) of the Criminal Code, R.S.C., 1985, c. C-46, the appellate court must carefully consider all of the evidence that was before the trier of fact. As stated by a majority of this Court in R. v. S. (P.L.), [1991] 1 S.C.R. 909, at p. 915:
In an appeal founded on s. 686(1)(a)(i) the court is engaged in a review of the facts. The role of the Court of Appeal is to determine whether on the facts that were before the trier of fact a jury properly instructed and acting reasonably could convict. The court reviews the evidence that was before the trier of fact and after re-examining and, to some extent, reweighing the evidence, determines whether it meets the test.
As a result, it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot reasonably be supported by that evidence that the Court can invoke s. 686(1)(a)(i) and overturn the trial court’s verdict.
45 This power of review by an appellate court takes on special significance in a case in which the sole issue is identification. In R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. C.A.), at p. 383, Doherty J.A., speaking for himself and Osborne J.A., stated:
This is a case in which the conviction of the appellant depends entirely on the identification of him by the victim. Where the Crown’s case rests on eyewitness identification, one is always very concerned about the reliability of a finding of guilt. Legal history and data compiled by behavioural scientists demonstrate the validity of that concern: see “Pretrial Eyewitness Identification Procedures”, Law Reform Commission of Canada Study Paper (1983), at p. 7-15. The spectre of erroneous convictions based on honest and convincing, but mistaken, eyewitness identification haunts the criminal law. That ghost hovers over this case.
Section 686(1)(a)(i) of the Criminal Code mandates limited appellate review of the sufficiency of the evidence on appeals from convictions. An appellate court must set aside a conviction if that verdict “is unreasonable or cannot be supported by the evidence”. The review countenanced by s. 686(1)(a)(i) is not limited to a determination of whether there was any evidence to support the conviction....
46 In my view, a review of the evidence in this case makes it clear that the verdict rendered at trial was "unreasonable" within the meaning of s. 686(1)(a)(i) of the Code. Indeed, it would appear that the respondent was convicted on the basis of very weak identification evidence, which was undermined by the evidence of the Crown's only eyewitness. In assessing the "reasonableness" of the evidentiary foundation upon which the conviction was entered, it is necessary to consider two fundamental questions. First, are the sensory observations of a trial judge, based on a review of a videotape and the appearance of the accused, admissible evidence of "identity" to support a guilty verdict? If this first question is answered in the affirmative, the Court must go on to consider whether or not the evidence of identity in this particular case was sufficient to justify the respondent's conviction.
2. Videotape Identification
47 The appellant relies heavily on this Court's decision in R. v. Leaney, [1989] 2 S.C.R. 393. The appellant submits that Leaney clearly establishes that the sensory observations of a trial judge, based on a review of a videotape and observations of the accused, are admissible to prove the identity of the accused as the person who was displayed on the video screen. While I agree that the principles in Leaney support the appellant's position on the first question, they fail to support the "reasonableness" of the verdict rendered at trial on the facts of this case.
48 In Leaney, the accused (Leaney) was videotaped with his co-accused (Rawlinson) breaking into the Owl Drug Mart in Edmonton, Alberta. At trial, the following evidence was admitted to establish Leaney's "identity" as the man on the videotape:
(a) Five police officers who had viewed the videotape affirmed that the accused were the men depicted on the tape;
(b) Leaney's fingerprints and palm prints were found on "Owl Drug Mart boxes" that had been found in Rawlinson's apartment after the robbery;
(c) Leaney had been seen in Rawlinson's apartment the day before the robbery;
(d) Leaney and Rawlinson matched a "general description" of the culprits given by an eyewitness; and
(e) Rawlinson admitted his participation in the crime, although this admission was not evidence against Leaney.
The trial judge considered this evidence, and compared Leaney's appearance with that of the man on the videotape. In light of all of the evidence, Leaney was convicted.
49 On appeal, the Court of Appeal determined that the evidence of four of the five police officers was inadmissible as non-expert opinion concerning identity. The fifth officer (Sergeant Cessford), however, was familiar with Leaney and was able to note specific physical characteristics and idiosyncrasies of the accused that were also exhibited by the man on the videotape. The majority of the Court of Appeal held that even if the trial judge erred in admitting Cessford’s evidence without first holding a voir dire, such an error made no difference to the outcome of the trial. The majority therefore dismissed the appeal.
50 A majority of this Court agreed with the Court of Appeal that the identification evidence given by the four policemen (other than Cessford) was inadmissible. With respect to Sergeant Cessford, the Court was of the view that his evidence was admissible notwithstanding the trial court's failure to hold a preliminary voir dire. The Court was of the view that the evidence of the police was unnecessary, however, given the judge's opportunity to view the video and the accused. According to the majority, at p. 414:
The trial judge viewed the videotape several times and had ample opportunity during the course of the sixteen-day trial to form an opinion as to whether the persons shown on the tape were the accused. The tape contained several face shots of each accused. At the end of the trial, the trial judge stated that he had formed the firm conclusion that the persons shown on the videotape were the accused. His pronouncements make it clear that this opinion was formed independently of the evidence of any of the police officers on the question.
The Court went on to state, at p. 415, that:
Given the trial judge's clear statement that he arrived at his conclusion as to identity independently of the evidence of the police officers, their evidence assumes the character of mere surplusage, which does not vitiate the judge's conclusion that Leaney was one of the persons shown on the video screen.
51 The Court concluded that since the observations of the trial judge were not tainted by the inadmissible identification evidence of the police officers, these observations together with the other admissible evidence justified the application of s. 686(1)(b)(iii) (formerly s. 613(1)(b)(iii)). At page 416, McLachlin J., for the majority, states:
The test set out in Colpitts v. The Queen, [1965] S.C.R. 739 is met: there is no possibility that a reasonable jury, properly instructed and acting judicially, could fail to convict on the admissible evidence presented on the break-in incident. [Emphasis added.]
52 Accordingly, Leaney does not support the proposition that reliance by a trial judge on his or her own observations unaided by other evidence is reasonable.
53 Leaney does support the proposition that the judge’s observations are evidence, and were in that case cogent evidence, that might have survived an attack under s. 686(1)(a)(I). It is useful to contrast the quality of the video identification evidence in Leaney with the evidence in this case.
54 In Leaney, the trial judge had reviewed the tape repeatedly and spent 16 days at trial observing Mr. Leaney's appearance. In rendering his decision, the trial judge in Leaney made the following observations in support of his conclusion that the accused was the man on the videotape:
The two persons responsible for the commission of the offence came into the range of the camera. Again, the lighting was good, focus was good but I could see no distortion of the picture whatsoever....
The taller of the two, second person; on the video, he appears dark, long hair, Metis or Native appearance, very tall, much taller than Rawlinson and there's a perfect example when they are standing back to back when the hips of the taller man are almost to the height of the shoulders of Rawlinson, much taller man. Wearing a peaked cap of a baseball type which subsequently shows in the video a tree on the right-hand side of the indicator on the front of the cap which is similar to a cap seized by the police and was an exhibit. He's wearing a down-filled type ski jacket, jeans with jacket, appearing above the waist, a comb, round shaped tail, in the right rear pocket. These are not as good__there is not as good a view of this face of this person, but again having had the opportunity to view the video and the accused, Frank Leaney in the court over 16 days, I have no difficulty in saying without hesitation that they are one and the same; the man in the video is Frank Leaney.
The thoroughness of the comparison made between the accused and the tape in Leaney was stressed in this Court's comments on the quality of the evidence. As McLachlin J. stated at p. 414:
The trial judge viewed the videotape several times and had ample opportunity during the course of the sixteen-day trial to form an opinion as to whether the persons shown on the tape were the accused. The tape contained several face shots of each accused.
55 Clearly, the detailed observations made in Leaney stand in contrast to the remarks made by the judge in the instant case. After a trial that was completed in one day, and after having viewed the 30-second video only once, the trial judge made the following "observations":
I looked at that video, and I looked at it very carefully, and I can honestly tell you there is no doubt in my mind that the man who committed that robbery on that video was your client.
...
How can I disregard that? I don't need glasses.
...
This particular video tape is very clear. The lighting is very good. The man is in the camera for long enough to make a careful observation. And the issue of beyond a reasonable doubt is when I'm obliged to make a decision, and I cannot ignore what my eyes tell me, and my eyes tell me, and there's no dispute this isn't a video tape of the robbery, that the person who committed that robbery is Mr. Nikolovski, and I can't ignore that and I can't say well -- I don't see how I can ignore that properly.
Unlike the trial judge's decision in Leaney, the trial judge in this case made no reference to specific characteristics of the man on the videotape that conformed to the appearance of the accused. Generally, testimony by a person not acquainted with the accused that the accused is the culprit without any description of identifying features of appearance such as colouring of the skin or hair, complexion, facial features, height, weight, age and clothing is little more than an expression of opinion and is generally accorded little weight. See R. v. Spatola, [1970] 4 C.C.C. 241 (Ont. C.A.), at p. 249. Moreover, the trial judge in this case lacked the assurance of confirmatory evidence (such as the cap and fingerprints in Leaney) that would have supported her observations of the video and the accused.
56 Not only did the trial judge’s observations not have any support in the evidence but, more importantly, the judge’s observations were actually contradicted by the evidence of the only person who actually witnessed the crime. Mr. Wahabzada, the victim of the robbery, had viewed his assailant "in the flesh" and effectively testified that Mr. Nikolovski was not the villain. Like the trial judge, Mr. Wahabzada viewed the 30-second tape of the crime in question, and was present in the courtroom and able to make careful observation of the accused. Despite this opportunity to view the accused and the tape, Mr. Wahabzada was unable to conclude that the accused was the man on the video. Indeed, Mr. Wahabzada went so far as to say that the villain was not present in the courtroom, while the accused was seated alone in the prisoner's box.
57 In addition to the other frailties to which I have referred, it is significant that the judge’s observations are entirely untested by cross-examination. Cross-examination in identification is of special importance. Here, not only was there no opportunity to cross-examine, but the substance of the judge’s observations was unknown until the case for both the Crown and defence was closed. Not only are the judge’s subjective observations not tested by cross-examination but they cannot be tested on appeal. In order to evaluate the reasonableness of the evidence upon which a trier of fact relies, the Court of Appeal must be able to examine all the evidence. All we can do is see one side of a coin that has two sides. All the assurances about the clarity of the video are of no avail if we cannot see the person with whom the comparison is being made.
58 In summary, this conviction was based on evidence that amounted to no more than the untested opinion of the trial judge which was contradicted by other evidence that the trial judge did not reject. This included evidence that the victim, a few days after the robbery, identified a person other than the accused as the more likely perpetrator of the crime. The trial judge simply relied on her own observations, the accuracy of which we are not in a position to assess. Having regard for the inherent frailties in identification evidence, I conclude that the conviction rests on a shaky foundation and is unsafe and unsatisfactory. I am satisfied that the verdict is unreasonable and cannot be supported by the evidence.
59 I would dismiss the appeal.
Appeal allowed, Sopinka and Major JJ. dissenting.
Solicitor for the appellant: The Ministry of the Attorney General, Toronto.
Solicitor for the respondent: John Collins, Toronto.