R. v. Nikolovski (A.) (1996), 96 O.A.C. 1 (SCC)
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[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
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Her Majesty The Queen (appellant) v. Alexander Nikolovski (respondent)
(24360)
Indexed As: R. v. Nikolovski (A.)
Supreme Court of Canada
Lamer, C.J.C., La Forest, L’Heureux- Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
December 12, 1996.
Summary:
The accused was convicted of robbery by a trial judge sitting alone. He appealed, submitting that the trial judge erred in identifying the accused solely on the basis of a videotaped recording of the robbery.
The Ontario Court of Appeal, in a judgment reported 73 O.A.C. 258, allowed the appeal, set aside the conviction and entered an acquittal. The court stated that the trial judge should not have relied solely on her own comparison of the appearance of the robber on the videotape and the appearance of the accused in court absent corroborating evidence identifying the accused. The Crown appealed.
The Supreme Court of Canada allowed the appeal and restored the conviction. It was not unreasonable for the trial judge to convict based solely on her own identification of the accused as the robber shown on the videotape of the robbery. Sopinka and Major, JJ., dissenting, stated that the conviction was based on evidence amounting to no more than the untested opinion of the trial judge which was contradicted by other evidence which the trial judge did not reject.
Criminal Law – Topic 5020
Appeals – Indictable offences – Setting aside verdicts – Verdict unreasonable or unsupported by evidence – [See first
Criminal Law – Topic 5252.1
].
Criminal Law – Topic 5252.1
Evidence and witnesses – Identification – From videotape – The accused was charged with robbing a convenience store clerk – The clerk could not positively identify the accused from police photographs or in court – The trial judge, during a one day trial and based on one viewing of the videotape, identified the accused as the robber depicted on the videotape, notwithstanding the clerk’s inability to do so – The Ontario Court of Appeal held that the trial judge erred in relying solely on her own comparison between the appearance of the person on the videotape and the appearance of the accused in court to reach a conclusion that had no other foundation in the evidence – The Supreme Court of Canada restored the conviction – A good quality videotape that gave a clear picture of the events and the perpetrator could, by itself, prove the identity of the perpetrator beyond a reasonable doubt – The absence of corroborating evidence was not fatal and it was not unreasonable for the trial judge to convict based solely on her own identification of the accused as the robber shown on the videotape – See paragraphs 12 to 35.
Criminal Law – Topic 5252.1
Evidence and witnesses – Identification – From videotape – The Supreme Court of Canada stated that “once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence. … The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weight which a trier of fact may properly place upon the evidence. … Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence, they must exercise care in doing so. … [The jury] should be instructed to consider carefully whether the video is of sufficient clarity and quality and shows the accused for a sufficient time to enable them to conclude that identification has been proven beyond a reasonable doubt. If it is the only evidence adduced as to identity, the jury should be reminded of this. … A trial judge sitting alone must be subject to the same cautions and directions as a jury in considering videotape evidence of identification.” – See paragraphs 27 to 31.
Cases Noticed:
R. v. Pleich (1980), 55 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 14].
R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 14].
R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 16].
R. v. Leaney and Rawlinson, [1989] 2 S.C.R. 393; 99 N.R. 345; 99 A.R. 291; 50 C.C.C.(3d) 289, refd to. [para. 16].
R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 17].
R. v. Dodson, [1984] 1 W.L.R. 971 (C.C.A.), refd to. [para. 23].
R. v. Downey, [1995] 1 Cr. App. R. 547 (C.C.A.), refd to. [para. 24].
R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234; 5 C.R.(4th) 351; 64 C.C.C.(3d) 193, refd to. [para. 43].
R. v. Quercia (1990), 41 O.A.C. 305; 60 C.C.C.(3d) 380 (C.A.), refd to. [para. 44].
R. v. Spatola, [1970] 4 C.C.C. 241 (Ont. C.A.), refd to. [para. 54].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(i) [para. 43].
Authors and Works Noticed:
Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1970), vol. 3, §790, pp. 219 to 221 [para. 25].
Counsel:
David Butt, for the appellant;
John Collins, for the respondent.
Solicitors of Record:
Ministry of the Attorney General, Toronto, Ontario, for the appellant;
John Collins, Toronto, Ontario, for the respondent.
This appeal was heard on October 3, 1996, before Lamer, C.J.C., La Forest, L’Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
The judgment of the Supreme Court of Canada was delivered in both official languages on December 12, 1996, and the following opinions were filed:
Cory, J. (Lamer, C.J.C., La Forest, L’Heureux-Dubé, Gonthier, McLachlin and Iacobucci, JJ., concurring) – see paragraphs 1 to 36;
Sopinka, J. (Major, J., concurring), dissenting – see paragraphs 37 to 58.
