R v Haroon, 2023 MBCA 60

Citation: R v Haroon, 2023 MBCA 60 Date: 20230616 Docket: AR21-30-09709 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : ) S. B. Simmonds, K.C. and ) J. S. Brar HIS MAJESTY THE KING ) for the Appellant ) ) C. R. Savage Respondent ) for the Respondent ) ) C. L. Mahoney - and - ) on a watching brief for ) J. Wahabi ) MANUCHEHR HAROON ) G. F. Wiebe ) on a watching brief for ) A. A.

Mohamed (Accused) Appellant ) ) Motion heard and ) Decision pronounced: ) June 16, 2023 mainella JA (for the Court) : Introduction [ 1 ] This is a disclosure motion by the accused in relation to his conviction appeal for first degree murder. After hearing the motion, we announced our decision that it was in the interests of justice to grant the order sought, subject to certain conditions, with reasons to follow. These are those reasons.

Background [ 2 ] The allegation giving rise to this proceeding is that, on November 4, 2019, the accused and two co-accused, Javaid Wahabi and Abdullahi Abdulrehman Mohamed, participated in the shooting and killing of Rig Moulebou in revenge for him shooting and killing Jamshaid Wahabi at a Winnipeg nightclub on November 2, 2019. [ 3 ] As part of their investigation, the police obtained a search warrant for the accused’s Samsung Galaxy mobile phone (the device) which was seized from him on his arrest. The search warrant prescribed limitations on the parameters of the search of the device.

To preserve the integrity of the device, police created a mirror image of its contents in conformity with the restrictions set by the search warrant. Data was extracted and decrypted from the mirror image using a computer software. A report of the extraction and decryption of the data generated by the computer software was prepared and disclosed to the accused’s trial counsel prior to the trial. [ 4 ] During the trial process, no objection was taken as to the sufficiency of the disclosure provided by the Crown to the accused in relation to the device or the data it contained.

No request was made for further or better disclosure as to the device or the data it contained. [ 5 ] The accused also received other disclosure during the trial process of other evidence police obtained, via production orders, such as telephone records containing subscriber data and call logs and cell tower data regarding which cellular towers were communicating with the device at relevant times. No complaint was taken as to the sufficiency of this disclosure.

[6] During the murder trial, the Crown called a crime analyst with the Winnipeg Police Service, David Bowman, as anexpert witness in the area of the analysis of telephone records and the analysis and mapping of cell tower data in relation to telephonerecords. Bowman testified that, through his analysis, he could identify the geographical area of where a particular mobile phone wouldlikely be located when a call was connected or a message sent.

No objection was taken as to Bowman’s qualifications or theadmissibility of his evidence. [7] During the course of his evidence, Bowman provided his opinion as to the approximate location of various mobilephones in Winnipeg at times relevant to the murder of Moulebou, including the device. In his evidence, Bowman conceded that there arelimitations to locating a mobile phone because of several variables—urban geography, site outage, topography, technical adjustments andsurrounding cell sites—which can affect location accuracy. [8] Arnold Nduta was the key eyewitness to the murder of Moulebou.

Nduta was given immunity from prosecution inexchange for his evidence against the accused and the co-accused.

Bowman’s evidence, including his evidence about the approximatelocation of the device at various times, was part of the confirmatory evidence presented by the Crown as to Nduta’s narrative of events. [9] In her charge to the jury, the trial judge identified Bowman’s evidence as potentially being one of several pieces ofconfirmatory evidence to support Nduta’s testimony (see Vetrovec v The Queen, (SCC), [1982] 1 SCR 811). [10] In his disclosure motion, the accused relies on two affidavits from Jason Conley, a digital forensics examiner inMississauga, Ontario.

Conley opines that the process followed in this case was flawed. He says that the accused, at a minimum, shouldhave been provided with a copy of the raw data on the device to allow for independent testing and not simply the report generated by thecomputer software. He also critiques Bowman’s expert report and cell site analysis presentation (which was an exhibit before the jury). For example, he says Bowman made “[c]ardinal mistakes” in his technological assumptions. Conley goes so far as to describeBowman’s understanding of the technology as “limited” and his cell site analysis as being “misleading”.

He also claims that Bowman’sanalysis deviated from accepted practices and displayed bias. [11] The accused’s trial counsel also filed an affidavit on the disclosure motion. No allegation of ineffective assistance ismade against him. Trial counsel deposed that he was unaware that examination of the raw data on the device by a third party couldprovide additional insight.

Trial counsel said that he was satisfied that limitations in the materials disclosed to him by the Crownallowed for challenge to the location evidence adduced in relation to the device. [12] The accused’s amended notice of appeal particularizes six grounds of appeal, four of which deal with the adequacy ofthe trial judge’s Vetrovec instruction. The other grounds of appeal deal with a challenge pursuant to

section 8 of the Canadian Charterof Rights and Freedoms to the search warrant for the device. [13] In his motion, the accused seeks disclosure of not just the raw data on the device covered by the parameters set out inthe search warrant, but a full image of all the data on the device. The accused concedes that, if the disclosure order is made, the policeand the Crown should have access to and use of the same full image of all data on the device. [14] This motion originally was to be heard by a judge of this Court in chambers. The Crown objected to her jurisdiction.

The chambers judge referred the matter to a panel of the Court (see r 44 of the MB, Court of Appeal Rules, MR 555/88R (the Rules)). Discussion [15] Section 683(1)(

a) of the Criminal Code (the Code) is the relevant provision regarding disclosure orders for the purposesof an appeal. The

section provides: Powers of court of appeal 683(1) For the purposes of an appeal under this Part, the court of appeal may, where it considers it in the interests of justice, (

a) order the production of any writing, exhibit or other thing connected with the proceedings . . . [16] In our view, the chambers judge was correct to refer the accused’s disclosure motion to a panel of this Court to hear anddecide. As was stated by Zuber JA in Regina v Church of Scientology (1986), (ON CA), 25 CCC (3d) 149 (Ont CA),“jurisdiction exercisable by the Court of Appeal is exercised only by the court, i.e., a panel of three or more. A single judge of the Courtof Appeal does not constitute a court” (at p 151). Unlike the powers assigned in section 683(5) of the Code, the authority to make adisclosure order under section 683(1)(

a) is outside the jurisdiction of a single judge of the Court of Appeal and is a matter reserved for apanel of the Court to hear and decide (see R v MacKay, 2019 BCCA 101 at para 4; and R v Trimm, 2022 NLCA 63 at paras 7-12). [17] The Crown’s submission in opposition to the accused’s disclosure motion is grounded in concerns about finality.

Twoarguments are advanced as to why there is no reasonable possibility that production will lead to a successful fresh evidence application. [18] First, the Crown says nothing was hidden from the accused during trial proceedings, he had a robust defence and nowis attempting to undo tactical decisions made by trial counsel as to the sufficiency of disclosure. [19] Second, the Crown says the disclosure motion is misguided because, according to Bowman’s testimony, his opinion asto the location of the device at times relevant to the murder of Moulebou was not derived from the contents of the device, but from data

supplied by telecommunications companies as to the device communicating with cell towers. [20] We would emphasize that the issue before us at this point is whether it is in the interests of justice to order disclosure ofthe data sought to allow the accused to prosecute his appeal, not whether it is in the interests of justice to admit further evidence on theappeal itself (see R v Hay, 2010 SCC 54 at para 9). The relevant inquiry at this stage are the principles set out in R v Trotta, 2004CarswellOnt 4043 (CA), as opposed to those articulated in Palmer v The Queen, (SCC), [1980] 1 SCR 759.

It isimportant at this stage of the appeal process not to conflate the issue of disclosure with the issue of admissibility of further evidence,particularly when the Crown concedes that it cannot be said that a motion for further evidence from the accused, in the circumstances,would be manifestly frivolous. [21] In terms of the first Trotta criterion—a connection between data on the device and the fresh evidence proposed to beadduced (i.e., the expert opinion of Conley)—despite the Crown pointing out that there are shortcomings to Conley’s affidavits, in hissecond affidavit, he states that “location-based artifacts that are associated with specific dates and times – which will be a more accurateindicator of where the [device] was located during the times in question” may exist in the data on the device.

Conley is not in a positionto say one way or the other if such evidence exists until the raw data on the device is produced. Conley says, if such evidence exists, itcould be “far more accurate” location evidence of the device than

interpretation of the cell tower data evidence that Bowman providedthe jury. Conley goes on to state that, if the device contains “[u]ser-generated artifacts” that someone other than the accused had thedevice at a particular time, such evidence would cast a different light on the importance of the location evidence provided by Bowman asbeing potentially confirmatory of Nduta’s testimony.

We are persuaded that the potential presence and relevance of such artifactevidence on the device is sufficient in the circumstances to satisfy the first Trotta criterion. [22] As for the second Trotta criterion—that there is some reasonable possibility that the evidence to which the productionrequest is linked may be received as fresh evidence on appeal—the Crown has raised concerns on the Palmer criterion of due diligenceand material impact on the result. [23] It strikes us that, like in Hay, it would be premature to delve too deeply into the Palmer analysis at this initial stage (seeR v Tallio, 2018 BCCA 83 at para 42).

A reasonable possibility of success simply means that the issue cannot be dismissed on apreliminary examination; a more thorough examination based on a complete record is required. Given that a disclosure order undersection 683(1)(

a) of the Code is “designed to maximize protection against wrongful convictions” (Trotta at para 24), in light of anaccused’s broad rights of appeal, the power to receive fresh evidence and the Court’s wide remedial powers, we are of the view that, in amurder appeal such as this, the accused should be given a reasonable opportunity to explore and question all data on the device,particularly as this is a case of first-party disclosure and, according to Conley, artifact evidence is commonly found on mobile phones.

The fact that such evidence may ultimately end up hurting, as opposed to helping, the accused’s appeal is understood and is accepted byhis appellate counsel. This is a chance he is prepared to take. [24] In our view, it is in the interests of justice that the accused has access to a copy of an image of all of the data on thedevice. However, the interests of justice mandate that the disclosure be subject to conditions—in particular, to ensure that the appeals ofthe accused and the co-accused proceed expeditiously and fairly for all parties, particularly as this matter has been outstanding foralmost two years.

Disposition [25] In the result, the motion is granted subject to the following conditions: 1. The Crown is to supply an image of all documents and data as defined in

section 487.011 of the Code, in whatever form ormedium, from the device found in Winnipeg Police Service property bag P20010158 as soon as reasonably possible. 2. The Crown is authorized to task any law enforcement agency or technical expert of its choice and to use whatever software orother methods to produce the said disclosure. 3. The accused shall have eight weeks from receipt of the said disclosure to perfect his appeal and any motion for further evidence,subject to the Rules. 4.

The Crown shall notify the registrar and all parties in writing as to the date on which the said disclosure was provided to counselfor the accused. 5. The Crown is to retain a copy of the said disclosure. It may share same with any law enforcement agency or technical expert ofits choice and use of the said disclosure is authorized in any further litigation related to or arising from this matter, or as otherwisepermitted by law. 6. Case management in this matter is concluded.

The parties are encouraged to agree to filing deadlines for the appeals and,failing that, any dispute is to be decided by the registrar in conformity with the Rules or, in the discretion of the registrar, by a writtenmotion to this panel. 7. The hearing date of August 30, 2023 is cancelled and the appeals of the accused and the co-accused will be heard at anotherdate in the fall 2023 term as determined by the registrar.

JA JA JA