Indexed as:

R. v. Terry

Robert Scott Terry, appellant;
v.
Her Majesty The Queen, respondent, and
The Attorney General of Canada, intervener.

[1993] O.J. No. 3289
Action No. 1258/88

Ontario Court of Justice - General Division
Chatham, Ontario
Abbey J.

November 18, 1993.
(9 pp.)

Personal injury - Motor vehicle accident - Damages - Quantum - Evidence - Admissibility - Videotapes of defendant.

Motor vehicle personal injury claim. At issue was the extent of the injury and incapacitation. Videotapes had been taken by the defendant and were the subject of a voir dire. The plaintiff objected there was no medical evidence called to support the argument the tapes were relevant essentially in order to test the medical opinions of the plaintiff's experts and to form the basis of the medical opinions to be given by the defendant's experts; that they did not show the plaintiff at work and thus were not relevant to his capacity to work; that admission would be unfair or the tapes were inaccurate as there were occasions left unfilmed by the defendant's observers; and that portions were taken at such a distance it was difficult to see the plaintiff's movements.

HELD: The tapes were admissible.

Donald Leschied, for the Plaintiff. Brian McCall, for the Defendant.

1. ABBEY J. (orally):- The central issue in this trial relates to the extent of injuries suffered by the plaintiff in the subject motorvehicle accident August 1986 and the degree to which the plaintiff and in what manner the plaintiff may be incapacitated as a result of those injuries, including his capacity to work.



2. During cross-examination of the plaintiff, counsel for the defendant wished to put to the plaintiff videotapes taken by private investigators on behalf of the defendant. Those videotapes are tapes of the plaintiff taken on a number of occasions from June of 1990 to September of 1993. Generally speaking the tapes show the plaintiff in activities such as walking, entering and exiting a vehicle, carrying bags of garbage, driving a car and cutting his lawn on a riding mower.



3. Counsel for the plaintiff objected during the proposed cross-examination of the plaintiff to the admissibility of the tapes for reasons, I am satisfied, that were not, before the commencement of the voir dire, disclosed to counsel for the defendant. There then followed a voir dire lasting approximately two days in which the investigators who took the film of the plaintiff were called and the tapes were viewed.



4. It now appears having heard the argument by counsel for the plaintiff at the end of the voir dire that his objection to the admissibility of these tapes rests on these grounds. Firstly, that there is no medical evidence called in the voir dire to support the argument on behalf of the defendant that the tapes are relevant essentially in order to test the medical opinions of the plaintiff's experts and to form the basis of the medical opinions to be given by the defendant's experts. Secondly, that as the tapes do not show the plaintiff at work they are not relevant to the determination of the capacity of the plaintiff to work. Thirdly, that it would be unfair to admit the tapes or alternatively that the tapes are lacking in accuracy because there were occasions when the plaintiff was viewed by the investigators during surveillance, but when the plaintiff was not filmed. Related to that objection, there is an additional objection to the effect that the fact that there were occasions when the plaintiff was viewed by the investigators and yet not filmed suggests that the filming was manipulated so as to avoid showing the plaintiff in positions unfavourable to the defence. Lastly, it is argued that certain portions of the film were taken at such a distance that it is difficult to see on the film the movements of the plaintiff. It is argued based on that fact, as I understand it, that the film or more particularly those particular portions of the film are not, therefore, probative to the issue of the capacity of the plaintiff to perform activities.



5. The criteria and which are accepted to be applicable to an issue concerning the admissibility of videotapes are those identified in the decision R. Vs. Creemer and Cormier (1968), I C.C.C. p. 14. The criteria are firstly, accuracy in representing the facts; secondly, fairness and absence of any intention to mislead and thirdly, verification on oath by a person capable of doing so. In addition, of course, the videos to be admissible must have real probative value in relation to an issue at this trial.



6. The third criteria, that is verification on oath by a person capable of doing so is clearly met in this case. The two private investigators who took the videos are available to give oral evidence verifying what is depicted on the tapes. There is also no suggestion in this case that the tapes were edited or altered, whether as to speed or otherwise in any way after the films were taken. It is clear from the evidence of the private investigator who testified in the voir dire that the tapes do accurately display the events which they depict.



7. I return now to deal specifically with the objections raised by counsel for the plaintiff as to admissibility of the tapes. The first objection I identified was that there was no medical evidence introduced during the course of the voir dire that the tapes can be said to be relevant to. As to that objection, the position taken by counsel for the defence is that he intends to cross-examine the plaintiff in respect to the behaviour of the plaintiff as shown on the tapes as against the evidence given by the plaintiff with respect to the movements which he claims to be unable to perform. In addition, the defendant proposes to call medical evidence from doctors who have reviewed the videotapes and who formed opinions regarding the limitations of the plaintiff based at least in part on what they saw in the tapes. Thirdly, counsel for the defendant intends to cross-examine the plaintiff's medical experts with the use of the tapes. I pause to note at this point that counsel for the plaintiff requested and received the tapes before commencement of this trial in order to show the tapes to his medical experts. In addition to all of that anticipated evidence there is in fact evidence already in this record in the form of medical reports of the plaintiff filed on consent and that evidence in part relates to the capacity of the plaintiff to make certain movements. The tapes are relevant to that evidence. There is, therefore, in my view ample medical evidence, both now as a matter of record and which can be anticipated in relation to which the movements of the plaintiff as shown on these videotapes will be relevant.



8. The second objection to which I made reference is essentially that the tapes do not show the plaintiff at work and therefore they are not relevant to determine his capacity to work. One need not see the plaintiff in a work activity in order to draw conclusions with respect to the ability of the plaintiff to carry out movements necessary at work. I can see no merit in that particular objection raised by counsel for the plaintiff.



9. As I said, counsel for the plaintiff also objects to the admissibility of the tapes because there were occasions when the plaintiff was under surveillance and when, however, he was not taped. Counsel argues that the admissibility of the tapes in those circumstances would be unfair or alternatively that the tapes as a result of those circumstances are in some way inaccurate. Certainly there were occasions when the plaintiff was under surveillance, but was not filmed. In respect to each of such occasions the private investigators who gave evidence during the course of the voir dire explained the reason. Essentially the reason in each case was that for one reason or another the investigators lacked the opportunity to operate the camera. Some of these occasions were occasions when the private investigator himself was driving a vehicle following the plaintiff and therefore was unable to film. There were other times when the plaintiff came into view unexpectedly and there was therefore no opportunity to make the camera operative before the plaintiff then disappeared from view. There was even one occasion in which the private investigator pushed the wrong button on the camera and before he realized what he had done the plaintiff had disappeared from view. Essentially on each occasion when the plaintiff was not filmed, although was viewed during surveillance, it was for the reason that it was not possible to film the plaintiff. The investigators, however, are able to describe what it was that the plaintiff was doing on each of those occasions. There can be no suggestion on the evidence that I have heard in this voir dire that there is an unfairness or an inaccuracy in the tapes in the sense that there was an effort on the part of the investigators to screen out activities of the plaintiff which were not favourable, in their view, to the defendant. I did not have the impression on the evidence heard during the voir dire that the filmed activities of the plaintiff represented in any way a distortion as compared to the surveillance observations. I certainly did not have the impression that there was any effort on the part of the private investigators to distort what they saw by the manner in which they took the film. In fact, any suggestion of manipulation or editing that was made to the private investigators during cross-examination on the voir dire was denied.



10. This case, I believe, is quite different from the circumstances which are described in the Nova Scotia Supreme Court Decision to which I was referred, Smith V. Avis Transport of Canada Limited and Harvie, (1980) 35, N.S.R. (2d) p. 652. In that case as is discussed on page 674 of the decision, there were obvious skips in the recorded sequence. The fact, therefore, that there were occasions when the plaintiff was in view during surveillance and yet for the reasons described by the investigators was not filmed do not, in my view, taint the tapes with inaccuracy or unfairness.



11. The next objection with which I must deal is essentially that it is difficult to see in certain portions of the films the movements of the plaintiff because of the distance between the plaintiff and the camera. Nevertheless the videotapes do accurately depict, although at a distance, the activities of the plaintiff. The private investigators who had the plaintiff under surveillance and who operated the camera can testify as to what they saw in many cases through binoculars as the camera ran. In that way the film can be supplemented by their oral evidence. I can see no basis for the suggestion that the film ought to be excluded from evidence on the theory that in portions of the film the movements of the plaintiff are hard to clearly see.



12. As I said I would I have of course also considered, apart from the three specific criteria to which I referred, the discretion which I have to nevertheless refuse to admit these videotapes into evidence if they do not have sufficient probative value in respect to an issue in this case. In my view these videotapes do have sufficient probative value to support their admission into evidence. They are probative to the core issue in this case, that is the injuries of the plaintiff resulting from the motorvehicle accident in question and in particular to the degree and nature of the incapacity of the plaintiff as a result of those injuries. They are of particular relevance to the medical evidence, both received and anticipated and both from the plaintiff and from the defendant related to the physical incapacities of the plaintiff at various points in time. The videotapes will be admitted into evidence.

ABBEY J.
DRS/DRS/DRS