It’s a rare occurrence that anything happens on a Vancouver street without someone catching it on camera. In an age where many people have a cell-phone camera at the ready, we are seeing a surge in criminal acts being caught on camera by civilian passersby. Whether it be a fight taking place on the street or a hit-and-run, more and more civilians are catching footage that police are then using to support criminal charges.

It may seem that an incident caught on camera would lead to a clear conviction of the person filmed in the act, but that is rarely the case. The steps between a civilian filming an incident allegedly showing a crime being committed and a criminal conviction are many.

When someone alerts an officer to the existence of cell-phone footage showcasing an alleged crime, the officer will often ask for the footage to be emailed to them. Once the police are in possession of the footage, it must be encoded for distribution to Crown counsel (the prosecutor) and eventually to counsel for the accused (the defence lawyer). The footage is formatted to play on various operational systems—but, more importantly, it is often “enhanced” by the police.

In the context of the Vancouver Police Department, the video is often given to the forensic video unit, where the footage will be enhanced by such things as brightening, enhancing for clarity/pixilation, etcetera.

Although this may seem inconsequential, these steps are precisely what criminal-defence lawyers will examine for the purposes of cross-examination at trial; and the criticism of such may be used by defence counsel arguing that the video cannot and should not be relied upon.

The role that civilian-created cell-phone footage can play in criminal cases should not be understated. When Toronto police officer James Forcillo was convicted of attempted murder in the 2013 shooting death of teenager Sammy Yatim on a streetcar, cell-phone footage played a key role. Footage captured by two different cell phones was used; ultimately, four different camera angles and the audio from the two cell phones was synchronized and presented to the jury. This evidence made it possible for the jury to better understand what happened that night.

In cases like Forcillo’s, cell-phone footage plays a key role in determining exactly what happened during an alleged criminal event. In such cases, the minute details of timing of events can make all the difference.

In other cases, it may be that the identity of the perpetrator is the issue at trial, and cell-phone footage may be crucial in that regard. In such cases, there can be argument surrounding whether the footage is reliable enough to prove the person on-screen is the same person who is seated in the courtroom charged with the offence.

The case of R. v. Nikolovski is a 1996 Supreme Court of Canada case that provides that a trier of fact may look at video footage (this could be surveillance or civilian captured cell-phone footage) and determine whether the person depicted on video is the same person sitting in court. This remains the leading case in the country on this issue.

Nikolovski states that where a video is of sufficient quality, the trier of fact can make this determination on identity even without any other corroborating evidence. In other words, they can look at the video and then look at the accused and decide for themselves whether it is the same person. The key though, is that the video must be “of sufficient quality”.

Given the steps between filming and the video being presented in court, such as those illustrated above, there is often ample room for argument by counsel that certain videos are not of sufficient quality.

The enhancement process can lead to slight changes in colouring, for example, which could make a difference if a witness describes a shirt as blue and the shirt on-screen is green.

Cell-phone footage, although used more and more frequently in criminal cases, is not the easy answer many people think it is. Overall? The long arm of the law does not always hold a cell-phone camera.

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer.