R v Hoque, 2023 MBPC 40

CITATION : R v Hoque , 2023 MBPC 40 THE PROVINCIAL COURT OF MANITOBA Winnipeg, Manitoba BETWEEN His Majesty the King ) B. Roziere and A. Heslop ) for the Crown – and – ) ) Mohammad Hoque ) S. Simmonds and C. Suderman ) for the Accused ) ) ) Delivered: ) July 20, 2023 ALLEN, P.J. [ 1 ] Mohammad Hoque is charged with the Criminal Code offence,

section 320.16(2) , failing to stop after an accident resulting in bodily harm. In addition, he faces charges under the Highway Traffic Act, sections 188(2), 139(1) and 173(1)(a). [ 2 ] Mr. Hoque (“Applicant”) has filed a Notice of Application (“Application”) seeking relief under section 24(2) of the Canadian Charter of Rights and Freedoms (the Charter ). Mr. Hoque seeks the exclusion of evidence obtained by police in this matter. The grounds for the relief sought as stated in the Application: 1. THAT the Applicant’s

Section 7 rights were infringed upon when witnesses were shown images in a photo pack where the (Accused) Applicant’s photo was differentiated clearly from the remainder of the photos in the pack, [2]. THAT the photo pack is highly prejudicial and should be excluded pursuant to Section 24(2) . [ 3 ] The issue raised by the Application is whether the Applicant’s Charter -protected rights under

section 7 of the Charter have been infringed by the police conduct in this case. [ 4 ] The facts underlying the charges before the court set out that on July 16, 2021, a woman was struck by a vehicle in downtown Winnipeg. The incident was witnessed by several bystanders. The vehicle failed to stop following the collision. As a result of evidence obtained, police prepared photo lineups and placed them before three witnesses. [ 5 ] The Applicant maintains that the lineups were presented in a manner which caused his photo to stand out. [ 6 ] The Crown called two witnesses on the voir dire .

The first was the investigating officer, Constable Christopher Janz (now Detective Sergeant). He testified that one of the witnesses to the incident provided a license number of the vehicle that struck the pedestrian. Constable Janz then conducted a check on the registration of that license number and determined the name of the registered owner. The program employed also provided the name of the Applicant, Mohammad Hoque as someone associated to that vehicle.

As a result of receiving this information, the officer requested photos used on the driver’s licenses of the two indicated men. [ 7 ] The officer further testified that he used a computer program available to police to procure nine other photos. To obtain these other photos, the officer inputted certain identifying features, such as hair colour, hair style, age, skin tone, etc.

The result was intended to be identification photos of men, all relatively similar in age, hair colour and style, and skin tone. [ 8 ] On July 25, 2021 – or nine days after the mishap – Constable Janz’s partner showed the photo lineups to two of the witnesses. He prepared one photo lineup that contained the photo of the registered owner and another packet of photos which contained the Applicant’s photo.

A third witness was shown the photo lineups on August 12, 2021. [ 9 ] Constable Janz conceded that in some ways the photos provided by Manitoba Public Insurance (MPI) were different than the nine other photos taken from the police computer system. [ 10 ] The second Crown witness was Constable Amber Hawkins, who was described as a Winnipeg Police identification technician specialist. This witness testified that it was her task to try to match the colour and shade tone on the photos received from MPI to those that issued from the police.

She testified that the photos received from MPI have a different colour in their background than those from the police equipment. She acknowledged in her testimony that even after her attempts to match the background colouring, it remained noticeably different than some of the other photos. She also acknowledged that the individuals’ eyes in the MPI photos are more noticeable and that those photos do not shine as if lit up, as the police photos do. [ 11 ] The witness acknowledged that if she had been given more time she could have been more successful in matching the photos.

[12] The Applicant argued that he was prejudiced by the fact that his photo stood out as different than the others in the presentedway. In addition to the differences already mentioned, the Applicant argued that the accused’s photo was noticeably different than theother photos in the lineup because his shoulders were cropped or taken out of the photo unlike the other pictures. [13]

Section 7 of the Charter reads as follows: “Everyone has the right to life, liberty and security of the person and the right not tobe deprived thereof except in accordance with the principles of fundamental justice.” [14] In this case, the Defence argues that the fairness of a trial procedure is a requirement of natural justice. [15] In the case of Canada (Attorney General) v Federation of Law Societies Canada, 2015 SCC 7, the Supreme Court set out that: A principle of fundamental justice has three characteristics: i. a legal principle; ii. significant societal consensus that the principle is fundamental to the operation [of a] fair legal system; and is iii. sufficiently precise that it provides a manageable standard against which to measure deprivations of life, liberty or security of theperson. [16] As well, the Court in R v Anderson, 2014 SCC 41, said that: A principle of fundamental justice must be a legal principle, enjoy consensus that the rule or principle is fundamental to the way inwhich the legal system ought fairly to operate and be identified with sufficient precision to yield a manageable standard against which tomeasure deprivations of life, liberty or security of the person. [17] The Defence argues that “when a photo in a photo pack is so different it creates a bias by singling out a single photo” (MotionBrief of the Applicant at page 6). [18] The Manitoba Court of Appeal in R v Kovich; R v Bittern, 2016 MBCA 19, at paragraph 43 says: In order to establish a breach of

section 7 of the Charter, the accused bears the onus of establishing, on a balance of probabilities, that: 1.the impugned exemption results in a deprivation of life, liberty or security of the person; and 2.the deprivation does not accord with the principles of fundamental justice. [19] Finally, as to judicial guidance as to

section 7 of the Charter, the Supreme Court said the following in R v White, (SCC), [1999] 2 SCR 417 at paragraph 38: Where a court is called upon to determine whether s. 7 has been infringed, the analysis consists of three main stages, in accordance withthe structure of the provision. The first question to be resolved is whether there exists a real or imminent deprivation of life, liberty,security of the person, or a combination of these interests. The second stage involves identifying and defining the relevant principle orprinciples of fundamental justice.

Finally, it must be determined whether the deprivation has occurred in accordance with the relevantprinciple or principles: see R. v. S. (R.J.), (SCC), [1995] 1 S.C.R. 451, at p. 479, per Iacobucci J.

Where a deprivationof life, liberty, or security of the person has occurred or will imminently occur in a manner which does not accord with the principles offundamental justice, a s. 7 infringement is made out. [20] As to the first question put forward in White, I am satisfied that the accused in the case at bar does face a real possibility of lossof liberty and that any trial procedure that is part of the prosecution of the charge has the potential to deprive him of his liberty. [21] The second stage which involves identifying the relevant principle or principles of fundamental justice is more difficult.

Asargued by the Crown, the Supreme Court in R v Malmo-Levine; R v Caine, 2003 SCC 74 said that identification of a principle offundamental justice must be precise. [22] Some useful assistance as to determining just what are the fundamental principles of justice is provided from the followingcases: [23] In Re BC Motor Vehicle Act, (SCC), [1985] 2 SCR 486, Lamer, J said that the principles of fundamentaljustice lie in “the basic tenets of our legal system.

They do not lie in the realm of general public policy but in the inherent domain of thejudiciary as guardian of the justice system” (at para 30). [24] Further, in Rodriquez v British Columbia (Attorney General), (SCC), [1993] 3 SCR 519 at paragraphs 141 and173: A mere common law rule does not suffice to constitute a principle of fundamental justice, rather, as the term implies, principles uponwhich there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental

justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical ormoral. They must be capable of being identified with some precision and applied to situations in a manner which yields anunderstandable result. They must also, in my view, be legal principles. . . .

While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are"fundamental" in the sense that they would have general acceptance among reasonable people. [25] And Malmo-Levine at paragraph 113: The requirement of "general acceptance among reasonable people" enhances the legitimacy of judicial review of state action, and ensuresthat the values against which state action is measured are not just fundamental "in the eye of the beholder only": Rodriguez, at pp. 607and 590 (emphasis in original).

In short, for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, itmust be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal systemought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measuredeprivations of life, liberty or security of the person. [26] In the case at bar, the identification as to the alleged breach of a principle of fundamental justice is, in my opinion, not precise.The Defence position is that fairness is a trial procedure and is a principle of natural justice. [27] In my opinion, the evidence does not indicate the police deliberately skewed the photo lineup nor does the evidence indicatethat police procedures were negligent.

The end result of the preparation of the photo line-up may have been not ideal but in my opinionany failing is not a result of malfeasance by police. [28] Defence did not refer to any case law which set out that “fairness” is a recognized rule of fundamental justice or any case whereflawed identification evidence in a photo lineup resulted in a finding of a

section 7 Charter breach. While all accused are obviouslyentitled to prosecutorial fairness and to an unbiased approach to the prosecution, the concept of fairness is not easily determined ordefined. It is a concept that does not lend itself to hard and fast parameters. Case law also tells us that, to find a breach of this

section ofthe Charter, the principle breached must be a legal principle.

In this case, I am not satisfied that the concept of fairness is a legalprinciple as contained within the principles of fundamental justice nor protected by the Charter. [29] Additionally, as to the use of section 24(1) of the Charter in R v Bjelland, 2009 SCC 38, the Supreme Court said that where an“admission of the evidence does not otherwise compromise the integrity of the justice system”, evidence should not be excluded undersection 24(1) (at para 24). [30] In my opinion, the integrity of the trial process in this case is not compromised by the admission of the photo pack evidence, asat the end of the trial the issue of the weight to be given the evidence will ultimately decide whether the prosecution was conductedfairly and if the photo lineup was or was not biased against the accused.

Obviously even if police procedures were conducted fairly thenet result may still have produced an unfair result.

In my opinion that determination can best be done in weighing the evidence at the endof the case. [31] The Ontario Court of Appeal in R v Gagnon, (ON CA), [2000] OJ No 3410 (QL) at paragraph 91 said thefollowing: The trial judge was correct that the generally accepted state of the law is that, where evidence is tainted, either because identification wassuggested by the accused’s presence in the prisoner’s box or as a result of inappropriate police procedures, the evidence is not therebyrendered inadmissible.

Rather, the evidence of tainting is a factor going to the weight of the evidence which is exclusively the provinceof the jury. See Mezzo v. The Queen (1986), (SCC), 27 C.C.C. (3d) 97 (S.C.C.); R. v. Miaponoose (1996), (ON CA), 110 C.C.C. (3d) 445 at 458 (Ont. C.A.); R. v. Buric (1996), (ON CA), 106 C.C.C. (3d) 97 at 112(Ont. C.A.) per Labrosse J.A., whose reasons were affirmed at (1997), (SCC), 114 C.C.C. (3d) 95 (S.C.C.) . . . Anaccused could, of course, apply to have the evidence excluded on the basis that it has been improperly obtained under s.24 (2) of theCharter: Miaponoose, supra. . .

In Harrer, however, Lamer C.J.C., for the majority, at 82, held that, in order to invoke the court’sdiscretion respecting an issue of trial fairness under s.11(d), it is not necessary to resort to s.24(2) or, for that matter, s.24(1) of theCharter. [32] I accept that an assessment as to the fairness of the photo lineup can be done within the ultimate determination as to guilt orinnocence. At that time counsel can argue as to the weight that this evidence should be given.

Arguably, the weight given this evidenceshould be assessed within the framework of the other evidence heard at trial. [33] Accordingly, I am not satisfied that the Applicant has established that it has met the criteria set out above from the SupremeCourt in Rodriquez. [34] I am not satisfied that the Applicant has established that the principle alleged to have been breached has been identified withsome precision and that the alleged breach is a legal principle.

Nor do I think that the evidence before the court meets the Malmo-Levinecriteria that (at para 113): it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system

ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. [ 35 ] Accordingly, I have concluded that the Applicant has not established on a balance of probabilities that his Charter rights under

section 7 have been breached and I am dismissing the Application. Original signed by Judge Allen H. L. ALLEN, P.J.