Fridays with Rogers Partners

At our weekly meeting, Heera Sen discussed a pre-trial evidentiary ruling in Wasylyk v. The Corporation of Simcoe County, 2022 ONSC 4458. Justice Casullo ruled that photographs of the accident scene, enhanced by a forensic photographer, were admissible at trial.

Background of the Case

Ms. Wasylyk, the plaintiff, lost control of her vehicle on Simcoe County Road and was struck by another car. Simcoe County was responsible for the winter maintenance of the roadway. She sued the County, alleging negligence in maintaining the roadway, which she claimed caused icy conditions leading to the accident.

While damages had been agreed upon before trial, liability remained the central issue. Specifically, determining the condition of the road—whether compressed snow and ice were present and to what extent—was crucial to resolving fault.

Enhanced Photographs and Expert Testimony

Police photographs of the accident scene, agreed to be admissible by both parties, were dark and lacked clarity. To better illustrate the road conditions, the plaintiff engaged Ret. First Lieutenant D. Eric Johnson, a certified forensic photographer, to enhance the images within the guidelines of the Scientific Workgroup on Imaging Technologies (“SWGIT”).

Mr. Johnson clarified the dark areas of the photos without altering their content, as confirmed in his sworn affidavit and testimony. The defendants opposed this, arguing the enhancements exaggerated the road’s icy appearance, making the photographs prejudicial. They retained their own forensic video analyst, Mr. Plaxton, to support their position.

Analysis

Justice Casullo reviewed the case law on the admissibility of evidence involving new technologies, including the Supreme Court of Canada’s decision in R v. Nikolovski, 1996 CanLII 158 (SCC). In Nikolovski, the Court upheld the admissibility of video footage as evidence, emphasizing its probative value, provided it was clear and accurate:

“So long as the videotape is of good quality and gives a clear picture of the events, it may provide the best evidence of the identity of the perpetrator … [t]he powerful and probative record provided by the videotape should not be excluded when it can provide such valuable assistance in the search for truth. Triers of fact will assess its weight just as they do viva voce testimony.”¹

Justice Casullo also relied on R v. Andalib-Goortani, 2014 ONSC 4690, where Justice Trotter outlined three principles for admitting visual evidence:

1. The evidence must be accurate and truly represent the facts.
2. It must be fair and not intended to mislead.
3. It must be verified under oath by a competent witness.²

In Andalib-Goortani, a photograph from the internet was deemed inadmissible because its authenticity could not be verified. By contrast, in Wasylyk, the identity of the photographer was known, and the enhancement process was fully documented. Mr. Johnson demonstrated the steps he took to clarify the photographs, confirming that no new elements were added, only that the dark areas were made visible.

The defence’s expert, Mr. Plaxton, even conceded that Mr. Johnson had achieved his stated purpose of clarifying the images without obscuring other details. Although the defence could have called Mr. Plaxton to testify on whether the enhanced photographs were prejudicial, they chose not to.

Conclusion

Justice Casullo found the enhanced photographs to be accurate, fair, not misleading, and properly verified under oath. Balancing the evidence’s probative value against the alleged prejudice, she admitted the photographs, noting that the defendants’ objections were unsubstantiated.

This decision underscores the courts’ willingness to embrace technological advancements like forensic photography, provided they meet established standards of accuracy and fairness.

Concerns about prejudice must be supported by evidence. Here, the court found no basis for the defence’s argument that the enhanced photographs were misleading. The defence’s decision not to call their expert likely influenced the court’s conclusion. This highlights the importance of expert testimony when challenging evidence.

Justice Casullo’s ruling reaffirms the courts’ responsibility to adapt to evolving technologies while maintaining evidentiary integrity. For legal practitioners, this case emphasizes the value of thoroughly vetting evidence, engaging capable experts, and understanding how courts navigate complex technological disputes.

1. R v. Nikolovski, 1996 CanLII 158 (SCC) at para. 22.
2. R v. Andalib-Goortani, 2014 ONSC 4690 at para. 28.