The Use of Surveillance Evidence During the Trial - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

January 07, 2019, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

The Use of Surveillance During the Trial - Ismail v. Fleming, 2018 ONSC 6311 (CanLII)

Date of Decision: October 22, 2018
Heard Before: Justice I.F. Leach

SURVEILLANCE: plaintiff objects to admissibility of defence surveillance as substantive evidence; possible violation of Brown v. Dunn rule; does video have prima facie relevance to issues that lie at the heart of this trial;

This personal injury action is a result of a 2009 car accident in which liability has been admitted. This the first of several pre-trial motions in the case to be ruled on.

Result:

1. The objection is dismissed, subject to the following qualifications:
   1. This ruling is not intended to address the extent or manner in which the defendants’ video surveillance evidence may be used or not used for impeachment purposes.
   2. This ruling is intended to address the plaintiffs’ broad objection to the defendants tendering of any surveillance video evidence for a substantive purpose.
   3. This ruling is also intended to provide general confirmation that the defendants will be permitted to tender, (if only through their own witnesses), a measure of surveillance video evidence relating to the plaintiff on various occasions between the date of the accident and the date of trial; i.e., the general and non-specific confirmation sought by defence counsel prior to the making of an opening defence address to the jury.
2. This ruling is subject to the possibility of more specific rulings that:
   1. may exclude particular portions of the defendants’ available surveillance, (including that relating to the plaintiff’s funeral attendance and cemetery visitation), based on more specific considerations of prejudicial impact outweighing probative value;
   2. may exclude particular portions of the defendants’ available surveillance as irrelevant, (including that showing a female running or jogging), insofar as it is agreed or established by other evidence that the person or persons depicted therein do not include the plaintiff;
   3.  may exclude particular portions of the defendants’ available surveillance where lighting or other visibility conditions prevent any discernible observations of the plaintiff;
   4.  may restrict the sustained or “real time” presentation of static or unchanging situations; and
   5.  may impose specific directions on the manner in which the defendants’ surveillance video is presented to the jury, (including appropriate pauses to identify interruptions in date and/or time, and clarification through agreement or other evidence as to the significance, or lack thereof, of time and date indications included in the video recordings).   

During the course of this extended personal injury litigation, the defendants retained investigators to carry out 10 periods (262 hours) of covert surveillance in relation to the plaintiff’s public movements and activities. All the video was disclosed to the plaintiff before trial. Defence counsel seeks to play the video as substantive evidence at trial presenting the jury with evidence demonstrating that the plaintiff did not suffer from a level of impairment or disability that merited the various damages sought by the plaintiff.  The video recordings would be used by defence counsel for what might best be described as “general” and “specific” impeachment purposes. 

It was submitted that, as the defendants effectively would be relying on such evidence to challenge the credibility of the plaintiff’s assertions of impairment and disability, merely tendering such evidence as part of presentation of the defendants’ case, without giving the plaintiff an opportunity to dispute or explain the significance of what was depicted in the video recordings while the plaintiff was in the witness box, would give rise to legitimate concern about possible violation of “the Rule in Browne v. Dunn”. Defence counsel therefore contemplated playing the surveillance video recordings for the plaintiff, (and therefore the jury as well), during cross-examination of the plaintiff.

It was submitted that, at the very least, defence counsel should be permitted to use the video recordings to highlight, if and as appropriate during cross-examination, suggested instances of more specific inconsistency between testimony of the plaintiff and what was depicted in video recordings.

Plaintiff counsel opposed any use of the video recordings as substantive evidence, and any use of the video recordings for impeachment purposes that did not focus on specific testimony of the plaintiff said to be inconsistent with something depicted on equally specific segments of the video recordings.  While plaintiff counsel did not dispute the ability of defence counsel to use the video recordings in the latter manner, it was said that the appropriateness of permitting such use, (or the more “general” impeachment use contemplated by defence counsel), inherently should and would have to be addressed after the plaintiff had testified.  In the result, plaintiff counsel opposed any “advance” confirmation, from the court, that defence counsel definitely would be able to use such surveillance video during the course of the trial.

It became equally clear that regarding video evidence, the only preliminary ruling sought by defence counsel on an urgent basis, prior to counsel embarking on their respective opening addresses to the jury, was advance confirmation that the defendants would be permitted to use surveillance video in some manner, to some degree, at some point during the trial. 

In the result, it was agreed that, as far as the surveillance video was concerned, party submissions and any corresponding preliminary ruling would focus on the more narrow issue of the defendants’ ability to present at least some portion of the recordings as substantive evidence, (if not already presented to the jury during cross-examination of the plaintiff), and plaintiff counsel’s objection in that regard.

In broad terms, however, the position of the plaintiff was as follows:

1. It was suggested that not all of the surveillance video had been disclosed sufficiently in advance of trial to permit its introduction, (except for impeachment purposes), without the court granting leave pursuant to Rule 30.09 of the Rules of Civil Procedure.
2. It was said that the surveillance video should be excluded, pursuant to the court’s residual discretion to exclude evidence in situations where its probative value would be outweighed by its potential prejudicial impact.  In that regard:
   1. It was said that the surveillance video had little probative value, insofar as it would do little more than confirm matters that the plaintiff would readily admit and acknowledge in her testimony; e.g., her occasional ability to drive, shop and make visits to health care professionals, hair appointments, church services, relatives, coffee shops, etc., on “good days” when reduced levels of chronic pain permitted such activity.   In the circumstances, it was said that playing of the video recordings would add nothing of probative value, and that exclusion of the recordings, lasting several hours if played in their entirety, would be consistent with promoting and maintaining trial efficiency.
   2. It was said that the probative value of the surveillance video also was compromised and negligible, in many instances, insofar as the recordings were unsteady and/or otherwise failed to clearly depict the plaintiff, owing to jostling of the camera, lighting conditions and/or obstructions.
   3. It was said that the potential prejudicial impact of the surveillance video was significant, insofar as use of the recordings might very well create a confusing, distorted and/or misleading impression of the plaintiff’s true situation and abilities.  For example, it was argued:
   4. that certain portions of the video surveillance, (e.g., of a woman jogging), had mistaken another female for the plaintiff;
   5. that playing each disk of video recordings non-stop would fail to note intermittent interruptions and time lapses, many of which were extended and significant;
   6.  that playing many hours of video back to back, and showing the plaintiff engaged in activities and outings, would focus selectively on atypical conduct of the plaintiff, while ignoring the reality, (to be presented and emphasized in the plaintiff’s testimony), that the plaintiff has spent the vast majority of her time since the accident suffering and unable to engage in her previously active lifestyle;
   7. that such distortions would be reinforced by ignoring a reality that the recordings also represented only a very small fraction of the total time spent by defence investigators in their efforts to obtain surveillance video helpful to the defendants’ case; and
   8. that presenting the jurors with such video recordings might incline the jurors to decide the case based on simple emotional reactions to what they saw, without proper record to the plaintiff’s testimony and the evidence of the plaintiff’s health care practitioners and litigation experts.

In similarly broad terms, the position of the defendants was as follows:

1. It was emphasized that, with the exception of surveillance video recordings made in 2018, all edited and unedited footage most certainly had been disclosed to plaintiff counsel in its entirety well before trial, and in most if not all cases more than 90 days before trial as required by Rule 30.09.   The same could not be said of the 2018 recordings, which self-evidently were created less than 90 days before trial.  However, defence counsel submitted that, if there was any dispute or uncertainty about any recordings being produced more than 90 days before trial, and in relation to the 2018 video recordings, the court in any event should grant formal leave, pursuant to Rule 30.09, so as to put the ability of the defendants to rely on such evidence beyond doubt.   In that regard, it was emphasized that plaintiff counsel were fully cognizant of what was contained within all of the relevant video recordings many weeks if not months before commencement of this trial.
2. It was said that video recordings of the plaintiff’s activities and outings had relevance and probative value, independent from its possible use to impeach the plaintiff.  In particular, defence counsel argued that the video recordings would assist the jurors by providing them with real and objective presentations of things the plaintiff had been able to do since the accident, and the manner in which she did them, without such information effectively being transformed and limited by the inherently subjective accounts of witnesses, including the plaintiff herself.  In short, it was emphasized that video evidence provides an objectivity and detail that oral evidence simply cannot provide.
3. It was said that, with rare exception, the clarity or accuracy of what was depicted in the video surveillance generally could not be the subject of any reasonable dispute, and that any specific concerns in that regard could be addressed and resolved sufficiently by testimony from the plaintiff, (including testimony during cross-examination), and/or by the relevant investigators if necessary.
4. More generally, it was said that possible concerns about the clarity, accuracy or comprehensive nature of such video recordings, and the precise significance of what was depicted in the video recordings, were considerations that went to matters of weight rather than admissibility, and that the weight to be given to relevant evidence properly was something for the jury to decide.
5. Defence counsel disputed the suggestion that any of the surveillance evidence was “prejudicial” in the sense required to warrant exclusion; i.e., in the sense the evidence might cause the jurors to engage in prohibited reasoning, as opposed to evidence that might simply be detrimental to the plaintiff’s case.
6. To the extent any portions of the surveillance evidence might raise concerns of true “prejudicial impact”, (e.g., by encouraging jurors to be influenced by emotion rather than reason), it was submitted that the court could and should address such concerns by directing the specific exclusion of certain portions of the recordings, while allowing the remainder to be presented.   In that regard, defence counsel readily conceded, for example, that the female seen jogging in the video was not the plaintiff, and that video showing a grave visitation and prayers by the plaintiff and her mother voluntarily would be omitted from presentation to the jury, insofar as it was overly intrusive and likely to arouse juror emotions.

With the above background and positions in mind, I turned to my assessment of the plaintiff’s particular objection concerning the ability of the defendants to play at least some portion of the surveillance video recordings for the jury as substantive evidence, to the extent they had not already been played during cross-examination of the plaintiff.

Analysis

I made a general ruling dismissing the plaintiff’s objection to the defendants’ tendering of surveillance as substantive evidence during the course of the trial.  My reasons for doing so included the following:

1. I found it unnecessary to decide between the competing and contradictory counsel assertions as to the precise dates on which the 2018 and earlier surveillance video had been disclosed to plaintiff counsel, as I was persuaded that the situation merited the granting of leave pursuant to Rule 30.09 in any event.  As for recordings made prior to 2018, I was mindful of the reality that this matter had been called for trial many times before September of this year, and I find it difficult to believe that the defence counsel did not disclose earlier video recordings in the manner described by defence counsel.  As for the video recordings from July of 2018:
   • The total length of the surveillance video from 2018 was quite modest in length; i.e., just 16 minutes and 35 seconds.
   • Plaintiff counsel admittedly had been in the possession of that video for many weeks, (if not longer), prior to the commencement of this trial.
   • In my view, plaintiff counsel accordingly had ample and sufficient opportunity to review and digest the significance, (if any), of that additional surveillance video prior to trial, alone and with the plaintiff.
   • The substantive content of the video surveillance also was not dissimilar to earlier surveillance video that already had been produced.  For example, there were further scenes of the plaintiff driving and shopping at a number of grocery and/or department stores, occasionally pushing carts, briefly carrying or loading what seemed to be relatively light items, (with the possible exception of a watermelon), and returning to her residence.
   • In the circumstances, I did not think admission of the 2018 video surveillance presented any realistic or meaningful concerns about the plaintiff and her counsel being unfairly taken by surprise by the admission of such evidence at trial – which in my view should be the guiding consideration when determining whether or not to grant leave pursuant to Rule 30.09.

While I was provided with a good deal of authority by plaintiff counsel and defence counsel regarding the permissible uses of surveillance video at trial, much of it was expressly focused on the manner in which it might be used for impeachment purposes, and/or presented during cross-examination of a plaintiff.[2]   For the reasons noted above, however, that was not the focus of the more specific ruling regarding surveillance video that I was asked to make at the outset of trial.  Again, I was asked to focus simply on whether the defendants would be permitted, at the very least, to play at least some of their surveillance video as substantive evidence during presentation of their case if necessary; e.g., to the extent it had not already been played during cross-examination of the plaintiff.  Much of the authority presented accordingly was of little relevance or assistance to addressing that separate and different question.

General principles applicable to the ruling I was asked to make can be found in Landolfi v. Fargione, 2006 CanLII 9692 (ON CA), [2006] O.J. No. 1226 (C.A.), at paragraphs 48, 52 and 66,  and include the following:

• The established test for the admissibility of evidence at trial rests on relevancy.  In both the criminal and civil context, prima facie relevant evidence is admissible, subject to a discretion to exclude where probative value is outweighed by its prejudicial effect.
• There is no principled basis for video evidence to attract a different and more stringent test for admissibility at trial than that which applies to any other form of evidence.
• The impact of video evidence admittedly can be powerful, but that is true of many forms of demonstrative evidence.  The test for admission of such evidence remains the same.
• Even when the probative value of video evidence is not high, but simply “not trifling”, it should be admitted unless its potential prejudicial effect somehow outweighs that more than “trifling” probative value.

In my view, the surveillance video evidence the defendants wish to tender at trial, (if only as substantive evidence during presentation of the defendants’ case), has prima facie relevance to issues that lie at the heart of this trial; i.e., the condition and abilities or disabilities of the plaintiff, and the degree of impairment suffered by the plaintiff in her activities of daily living, in the wake of the underlying motor vehicle accident.

The surveillance video in this case shows the plaintiff engaged in such activities as driving, walking, standing and sitting for extended periods of time, (including extended sitting during visits to restaurants, waiting on her husband and/or sons on various occasions, and during long highway drives to other communities), rotating her neck, bending and looking down in a sustained fashion, pushing carts, and lifting, carrying and loading objects of various weights, and attending social visits and functions.  All of this may be relevant to the defendants’ argument that the plaintiff’s level of impairment may not be as severe as she claims, and/or that the plaintiff can maintain some form of employment that accommodates her limitations.

The probative value of such video evidence can be very significant, insofar as it provides an objectivity and detail that oral evidence cannot provide.  If one cannot see something in person, the next best thing is usually a video.  A picture is indeed worth a thousand words.

The fact that [a] plaintiff has given some evidence about [his or] her ability to do [such] activities on a good day does not mean that no other evidence may be introduced.  It may be quite true that the surveillance video represents only a small fraction of the total time defence investigators spent trying to capture evidence of the plaintiff engaging in activity, and that the total time spent on surveillance efforts is itself dwarfed by the overall period of sustained suffering and impairment alleged by the plaintiff, in the wake of the underlying accident.  However, those are points which may fairly be emphasized in testimony, cross-examination and/or argument, and in my view do not give rise to “prejudice”, in the sense required, to warrant exclusion of the surveillance video evidence.   In that regard, I also share the views expressed by Justice McKelvey in Taylor v. Durkee, supra, at paragraph 18, which in my opinion generally have equal application to the case before me:

I do not accept the plaintiff’s assertion that there is significant prejudice attached to the surveillance evidence.  None of this is to say that the defendants in this case should have “carte blanche” to introduce all of the surveillance video as substantive evidence, in whatever manner they chose. 

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