Digital Forensic Evidence – Canadian Case Law

Seminal legal decisions in Canada related to the use of forensic video evidence
include R. v. Nikolovski (1996) and HMTQ v. Cooper (2000). The legal tests usually
applied to expert testimony by forensic video analysts are described in R. v. Mohan
(1994).

In R. v. Mohan (1994), the Supreme Court of Canada ruled that opinion evidence
is admissible in criminal proceedings only when it is relevant, necessary to allow the
judge or jury to appreciate all the facts of the case (e.g. probative value outweighs
prejudicial effect), not subject to any exclusionary rule, and presented by a properly
qualified expert.

In R. v. Nikolovski (1996), the Supreme Court of Canada ruled that a video exhibit
depicting the scene of a crime can be admissible as evidence as long as it is not altered
or changed. It also established that video evidence can and should speak for itself, with
no need for independent corroborating evidence or witness testimony (i.e. silent
witness).

In HMTQ v. Cooper (2000), the BC Supreme Court held that video analysis and
enhancement processes such as digitization or contrast adjustment do not amount to
changing, altering or tampering the video. This was later reiterated by the BC Court of
Appeal in R. v. Gill (2004) and a voir dire decision for R. v. Pasqua (2008).

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