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Articles and Publications

October 2018

Accuracy of Surveillance Reports

Christopher Macaulay
Jessica L. Kuredjian
Associate

by Jessica L. Kuredjian

Presented at a Client Seminar on Surveillance

In order for surveillance to be admissible as substantive evidence, the first hurdle it must satisfy is being accurate in truly representing the facts.1 The courts have been clear that a surveillance report must include:

  • the dates, times, and locations of the surveillance,
  • the nature and duration of the activities depicted, and
  • the names, addresses and license numbers of the videographers/investigators.

What has been less clear is what “truly representing the facts” means.

In the recent case of Nemchin v. Green, the court shed a bit of light on this topic, raising a number of concerns about a surveillance report in issue. This decision is helpful because it highlights what makes a surveillance report less accurate in the eyes of the court. In a detailed discussion about issues with the accuracy of the surveillance report being proffered, the court raised the following issues (author's commentary added):

  • In the concluding portion of each of the surveillance reports, there is a section titled “Video Review”. The investigator described that portion of the report as being part of a “template”. The court noted that the duration of the video footage and the identification numbers for the unedited versions of the footage changed from report to report but the wording otherwise remained the same.2
    (This suggests that the court does not like templates but prefers specifics.)

  • Support staff, as opposed to the investigator himself, chose which image stills go into the reports.3
    (This suggests that an investigator should be the only person preparing their report to ensure accuracy.)

  • The investigator testified that that support staff look for image stills that “most describe” the inconsistency or inconsistencies thought to be identified as between the subject's alleged limitations and the activities depicted in the footage.4
    (This suggests that an investigator should be the only person preparing their report to ensure accuracy and that a report should be simply accurate – cherry picking still images to bulk up a case will be frowned upon.)

  • The subjective descriptions in the reports are not identified as such. A number of the investigator's personal observations are included in what is said to be a summary of the particular segment of the video footage: The subjective descriptions in the reports are not identified as such. A number of the investigator's personal observations are included in what is said to be a summary of the particular segment of the video footage: “To the extent that any personal observations are made by an investigator conducting surveillance of a plaintiff are included in a surveillance report, those observations must be specifically identified for what they are.5
    (This suggests that a surveillance report should be completely free of narrative or interpretation.)

  • The investigator was “overzealous” in his reporting.6
    (This suggests that a surveillance report should be strictly factual and free of narrative and interpretation.)

1 Iannarella v. Corbett, 2015 ONCA 110; Nemchin v. Green, 2017 ONSC 1321; and, Rolley v. MacDonell, 2018 ONSC 164.
2 Nemchin v. Green 2017 ONSC 1321 at paragraphs 35 and 36.
3 Ibid at paragraph 39.
4 Ibid at paragraph 40.
5 Supra note 2 at paragraphs 53 and 54.
6 Ibid at paragraph 57.


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