The Ontario Court of Appeal has affirmed that a judge may make observations from video evidence, but is not required to do so.
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. He found the accused, Daryl Rae, guilty.
Rae appealed his conviction on the basis of identification error. Although both witnesses said he was the person seen in the video, Rae said the judge did not make that observation himself, despite having watched the video and observed the accused in court.
According to the appeal court, the trial 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.
Rae also claimed the witnesses’ evidence was tainted. They were told about the possibility that he was the robber, before they identified him as the person in the convenience store video. Appeal court found the trial judge was “clearly aware of the pre-suggestion factor” and was not wrong to rely on their testimony as recognition evidence.