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The Importance of Unedited Video and Investigator Testimony at Trial

October 2018

Michael Kennedy
Michael Kennedy

By Michael Kennedy, Partner

Presented at a Client Seminar on Surveillance

Introduction

If a picture is worth a thousand words, then a video is worth more than a million. This is why surveillance evidence in bodily injury actions is such a powerful and persuasive tool – a fact that has been recognized by judges, who are very careful when admitting surveillance into the record as substantive evidence.

Imagine this nightmare scenario – following a relatively minor motor vehicle accident, a plaintiff alleges serious psychological trauma that allegedly causes him to become reclusive and isolated. The plaintiff obtains one-sided expert opinions supporting his impairment and limitations. You, as the claims professional or lawyer, are suspicious and order the plaintiff be put under surveillance. Your investigator makes the following observations:

  • On the first day of surveillance, the plaintiff leaves his home in the evening with friends and enters a nightclub. He does not exit for a few hours.

  • On the next day of surveillance, the plaintiff attends a neighbour's house where he enters a backyard for what appears to be a garden party.

  • On the final day of surveillance, the plaintiff takes the bus to his former place of employment, enters, and is not observed leaving for many hours.

After receiving the report, you determine the plaintiff's claims for general damages and income loss are destroyed. You decide to take the matter to trial, only to discover the trial judge is very critical of the surveillance. The judge finds the surveillance evidence to be more prejudicial than probative and consequently excludes it from being presented to the jury. Some of the most crucial evidence you intended to levy against the plaintiff's claims is all of a sudden gone.

What went wrong?

Test for Surveillance to be used as substantive evidence

For surveillance to be admissible as substantive evidence, it must satisfy the following three-part test:1

  1. It must accurately and truly represent the facts;
  2. It must not be misleading;
  3. It must be verified under oath by a person capable of doing so (which is usually the investigator that observed the plaintiff).

For surveillance to be considered accurate and not misleading, it must fairly represent the activities it purports to represent. Issues such as distortion, time gaps, and speed are often used by plaintiffs (and their counsel) as evidence that surveillance videos are not reliable depictions of activities.

a judge would correctly question why the video has been pared down and edited (rather than simply being a continuous footage).

For example, if a surveillance video depicts a plaintiff being fairly active, but only in five minute intervals, a judge would correctly question why the video has been pared down and edited (rather than simply being a continuous footage). Similarly, if the video is not consistently time-stamped so as to clearly show exactly when (and for how long) a plaintiff is being observed, then the judge may question whether the activities are appearing in sequential order or on the dates those observations were purportedly made.

To guard against allegations of surveillance being improperly edited so as to be misleading, the party seeking to rely upon the surveillance must ensure the investigator is available at trial to explain the investigation and editing process. For example, if an investigator explains that five-minute interval breaks in a video are simply because the investigator was changing position so as to maintain a discreet viewpoint, it is likely the judge will accept this is a reasonable explanation for the edits.2 Similarly, if a video is edited to make it easier for the viewer to follow the plaintiff (i.e. by adding arrows onto the image), then it is unlikely the video will be considered misleading.3

Where only an excerpt of the surveillance is tendered (i.e. the recording has time gaps), the trial judge must be satisfied that it is fair, accurate and representative of the events that it purports to depict.4 In the example cited in the introduction above, the surveillance was problematic in that it was intended to be used to show the plaintiff socializing and working, despite no actual activities being depicted. Instead, the recording would leave the jury (or anyone viewing the recording) to merely assume that the plaintiff was working and engaging in social activities. In other words, the surveillance did not prove anything other than the plaintiff attended two locations; the surveillance did not prove the facts it was intended to support (being that the plaintiff was able to work and go out and have fun). As such, the surveillance was far more prejudicial than probative.

...ensure the investigator is available to attend the trial...

The key is to ensure the investigator is available to attend the trial and explain that he or she carried out the surveillance, how observations were made, and the process of transferring film to the videos. The investigator must also be able to speak to some of the technological issues involved in the production of the videos. This is not a standard of perfection. For example, if an investigator is not able to explain the loss of the time stamp on five frames from one of the two cameras used during lengthy observations, the video will nevertheless be considered verified and reliable.5 However, if an investigator has not viewed the edited video, or is unable to answer questions about how the video was edited or how the summary report was generated (such as how still photographs were selected), it is very likely the surveillance will be excluded.6

Conclusion

To properly prepare your case for trial and to avoid the pitfall of not being able to rely upon good surveillance as substantive evidence, it is imperative to not only look at the results when reviewing surveillance, but to also look at the footage and reports with a critical eye – does the video actually depict what the investigator says it depicts. It is therefore important to ask yourself the following questions (as these are questions the judge will certainly be asking when determining whether to admitĀ  the surveillance as evidence):

  1. Will you be relying upon the video to show the plaintiff is capable of activities the video does not actually capture?
  2. Does the surveillance report note only objective observations, or is there subjective commentary?
  3. Is the footage timestamped (If not, is there an explanation why)?
  4. Is any piece of the footage missing timestamps (If so, is there an explanation why)?
  5. Are there time gaps (If so, is there an explanation why)?
  6. Is there any after-the-fact editing (If so, to what degree and is there an explanation why)?

Obtaining good surveillance results may win the battle, but you will not be able to win the war at trial without keeping the above issues in mind.


1 Iannarella v. Corbett, 2015 ONCA 110 (CanLII), 331 O.A.C. 21, at para. 94; see also Nemchin v. Green, 2017 ONSC 1321 (CanLII), at para. 16; see also Rolley v. MacDonell, 2018 ONSC 164 (CanLII).
2 Rolley v. MacDonell, 2018 ONSC 164 (CanLII) at para 24.
3 Zaccardo c. Chartis Insurance Co. of Canada (2016), 2016 CarswellQue 528 (C.S. Que.); affirmed (2016),2016 CarswellQue 4107 (C.A. Que.)
4 Iannarella v. Corbett, 2015 ONCA 110 (CanLII), 331 O.A.C. 21, at para. 94

5 Rolley v. MacDonell, 2018 ONSC 164 (CanLII).
6 Nemchin v. Green, 2017 CarswellOnt 4132, 2017 ONSC 1321.


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