John Benson and Brian Timmons were neighbours. At first, they were friendly. It didn’t stay that way. Things deteriorated. One day, Timmons was working on fixing a borrowed truck. Benson set it ablaze. Timmons suffered minor burns, and property damage.
Unfortunately for Benson, he was caught on video. At trial, there was video of Benson approaching the truck with something in his hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back. This evidence was critical. The sole issue was identity. Timmons watched the video, and testified that the man was Benson. Benson was convicted of four arson related charges.
On appeal, Benson raised three issues: 2015 ONCA 827. Two of those arguments concerned the surveillance footage. Benson argued that the trial judge:
- Did not consider the effect of the evidence of the Crown’s expert forensic video analysis on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.
- Failed or refused to engage in any analysis concerning Timmons’ credibility, based on animus, his history of criminal misconduct, and that he lied to the trial judge about that misconduct.
The appeal was dismissed with reasons.
Timmons testified that he and Benson had known each other for at least six years. On the day of fire, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The fire department was called by a passerby. When they arrived, Timmons insisted he had set it on fire accidentally. He testified that he did not want the hassle of involving the authorities. A surveillance system had been installed by Timmons, which he had forgotten about. Timmons was reluctant to turn over the tapes. He believed he had caused the fire himself. Once he reviewed the video with police, Timmons immediately identified Benson as the fire starter [@ paras 8-12].
The Expert Video Evidence
With respect to the first issue, the Crown had adduced the video evidence at trial. The police expert who tendered the video evidence was called as a forensic video analyst. His evidence was relevant as to whether or not the video was in any way compromised or altered. When it is determined the video was not altered or changed and that it accurately depicts the scene, the video may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events [@ para 13-15, see R v Nikolovski,  3 SCR 1197 @ para 28].
In regard to video quality, the pixilation of the video was noted. It could not be further enhanced, which the trial judge took note of. However, whether the video was of sufficient quality to form the basis for identification was a question of fact for the trial judge, and of limited jurisdiction for review [@ para 16-18, see R v Abdi, 2011 ONCA 446 @ para 6]. In this case, the quality of the recording was relevant to the trial judge’s consideration of the content of the video, when determining what weight to give Timmons’ observations and identification of Benson. There was no need to give further consideration to the expert’s opinion, as those who are not acquainted with the accused are in no better position to identify persons in video evidence [see R v Leaney,  2 SCR 393]. The trial judge did not make a positive identification of Benson. He relied on his own observations and those of Timmons’ in making his decision on Benson’s guilt.
The Video Identification Issue
With respect to the second issue, the trial judge found Timmons to be a credible witness. While appellate courts retain power to reverse decisions where credibility assessments made at trial are not supported by the evidence, this is done sparingly. Interference with these rulings happens only in exceptional circumstances [@ paras 19-21; see R v W(R),  2 SCR 122 @ para 131, R v Burke,  1 SCR 474 @ para 5-7).
Specifically on the issue of Timmons identifying Benson, the trial judge noted a number of observations in the video in conjunction with Timmons’ evidence that he was 100% sure that the person in the video was indeed Benson:
- The way he moved his arms;
- The way he walked;
- The way he limped as he was moving;
- His Einstein hairstyle;
- His face;
- His body shape;
- His thinning hair;
- His age;
- His build;
- His enlarged stomach; and
- The plaid shirt he always wore [@ para 23-24].
In cases of recognition evidence, such as this, the caution regarding the frailties of eyewitness identification still applies [@ para 25; see R v Olliffe, 2015 ONCA 242 @ para 39]. However, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. The reliability of the evidence was enhanced by their relationship and familiarity with one another [@ para 25]. Further, the ability of a witness to point to a unique identifiable characteristic or idiosyncrasy is a concern better resolved when determining ultimate reliability, not admissibility [@ para 26; see R v Behre, 2012 ONCA 716 @ para 22].
This case again highlights the powerful nature of video evidence, especially when combined with the observations of witnesses. Although eyewitness identification evidence can be problematic, it remains important and forward-thinking law that witnesses who recognize persons captured by camera ought to be able to testify as to that knowledge – even in cases where the quality of the footage itself is less than ideal. In this case, Timmons clearly pointed out unique, distinctive, and recognizable features that signalled, to him, the person was Benson. These features were noted by the trial judge to be badges of reliability of identification. The trial judge’s own observations, when watching the video, were consistent with that of the witness [see paras 26-27]. Video evidence is an integral part of the truth-finding process. The impartiality it offers as a silent witness cannot be understated.