Judges not required to make observations from video evidence: appeal court

Nowadays, eyewitnesses want more than words to convey what they saw. Whenever unusual incidents unfold before them, many people are quick to take out their smartphones and let the camera roll.

If the incident involves a crime, folks believe their video recording could be just what a judge needs to make a decision. But in a ruling this week, the Ontario Court of Appeal said a judge may, but is not required to, make observations from video evidence.

In R. v. Rae, an armed robbery case, Ontario Superior Court Justice Alan Bryant was presented with evidence from two witnesses and a convenience store surveillance video, and found the accused, Daryl Rae, guilty.

Rae appealed his conviction on the basis of identification error. Although the two witnesses said he was the person seen in the video, Rae said the judge himself did not make that observation despite having watched the video and seen him in court.

But according to the appeal court, the judge did not err by not expressing his own opinion about the reliability of the video. Although he could have, Bryant wasn’t required to do so, the court said.

“The leading case in this area, R. v. Nikolovski, . . . permits, but does not require, a trial judge to make observations along these lines,” the court said.

In the present case, the trial judge was entitled to rely on the strong identification evidence of the two witnesses, without supplementing it with his own opinion based on his viewing of the video and comparison with the appellant’s appearance in the courtroom.

Rae also claimed the witnesses’ evidence was tainted because they were told about the possibility that he was the robber before they identified him as the person in the convenience store video.

But the appeal court disagreed, noting the trial judge was “clearly aware of the pre-suggestion factor” and was not wrong to rely on their testimony as recognition evidence.