Admissibility of Surveillance Evidence
Imagine the impact of video surveillance evidence being presented by one party at a trial or documentary discovery. The Supreme Court of Canada stated “The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed.”
The purpose of covert surveillance is to observe persons, places or things without being detected, and to observe the subject in their natural and true state. Usually, surveillance results in documenting the subject’s activities by capturing them on video or photographs, which are considered to be illustrative evidence. As licensed private investigators, we are authorized under the Private Security and Investigative Services Act, 2005 to conduct investigations and are often asked to gather video surveillance. The manner in which the video surveillance is conducted by the investigator can impact the admissibility of video evidence. The Ontario Court of Appeal held that the investigator must provide the technical details of the recording as well as information on editing so that the Court can assess the accuracy and fairness of the video evidence. Particulars which must be disclosed upon request include date, time and location of surveillance, the nature and duration of the activities depicted, and the names and addresses of the investigator. An investigator’s report is evaluated on fairness and subjective descriptions that are inaccurate or exaggerated would not be admissible.
When admitted as evidence, video surveillance may be used to impeach a witness’s credibility or to show a subject’s functionality and as substantive evidence, subject to the Rules of Civil Procedure and claims of privilege. Even if video surveillance evidence is not permissible evidence in Court, such evidence can still assist a party in evaluating the strength of the case and arriving at a potential settlement position or to gain knowledge of the subject which may be used by a party to its benefit.
By Sean Gladney, CEO, The Investigators Group Inc.
Sean Gladney is a licensed private investigator. He conducts investigations including corporate, insurance, personal injury, and investigations into workplace harassment, bullying, discrimination and other forms of misconduct. Sean is also a designated human rights investigator.
For more information regarding private investigations, you can contact Sean via email at firstname.lastname@example.org
The Investigators Group Inc. (IGI) was established in 1995 as a full service private investigation and security firm serving individuals across North America. We serve the legal, insurance and corporate communities as well as individuals through our civil and executive services. IGI provides professional surveillance services, fraud investigators, workplace investigations, undercover operations, loss prevention and security services.
Contact us today so we can provide the appropriate investigative solution for all your needs.
 R v. Nikolowski,  S.C.J. No. 122, 111 C.C.C. (3d) 403 at para 21.
A licensed private investigator is trained in investigative techniques and must understand the procedural steps required to be followed in order for video surveillance to be admissible.
Employers can conduct surveillance using tools such as a swipe-card system, which data can be used for time-management and disciplinary purposes, or cameras.
I have seen first-hand how fraud can be harmful to a company’s reputation and brand. Engaging in a fraud investigation is difficult and can erode the trust and morale of employees and raise questions and concerns to your outside relationships, customers, suppliers and even prospective employees. That is why before engaging in any investigation, I will ensure that I explain to the client the investigation process, the potential scope and risks, and care is taken in planning the execution and timing of any investigation.