At the trial of this motor vehicle accident case, the defence was not permitted to show the jury as substantive evidence: (1) video surveillance evidence; and (2) 20 of the plaintiff’s Facebook posts. The defendant appealed on the basis that the exclusion of this evidence was wrong in law and led to a miscarriage of justice requiring a new trial. The Court of Appeal held that the trial judge erred in not admitting the video surveillance evidence but did not err in not admitting the Facebook evidence. The error in not admitting the video evidence was not sufficiently grave as to warrant a new trial. The court confirmed that video surveillance can be used at trial to impeach witness credibility on cross examination, or as substantive evidence. In order to use video evidence substantively, it must be disclosed in a timely manner in accordance with the Rules; and the trial judge must find that it depicts the evidence fairly and accurately, and that it would not negatively impact trial fairness. The trial judge erred by considering the video evidence as a whole rather than each piece individually; by holding that the evidence could not properly be contextualized without expert testimony; by holding that all of the video was inadmissible for not being disclosed in a timely manner where only some parts of it were disclosed late; and by holding that the video evidence was not certifiable as true and accurate because it was edited.
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