COURT FILE NO.: CR-13-90000455-0000

DATE: 20140529

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

David Morlog, for the Crown

• and -

JESSY KABANGA-MUANZA

Jason Rabinovitch, for the Defendant

HEARD: May 26-27 and 29, 2014,
at Toronto, Ontario

Michael G. Quigley J.

Reasons For Judgment

Overview

[1] Jessy Kabanga-Muanza is charged with trafficking in crack cocaine. He re-elected to be tried by me without a jury and entered a plea of not guilty to that charge.

[2] This is principally an identification case based on the evidence of Detective Constable Jeffrey Correia, an undercover police officer with the Toronto Police Service (TPS). D.C. Correia testified that after being led by an unknown white male, named “James”, to an apartment building at 29 Louvain Avenue in the area of Queen Street East and Pape Avenue in Toronto, he made a purchase of crack cocaine on December 2, 2012, in the hallway outside of the elevators on the second floor of that building. He identified this accused, Jessy Kabanga-Muanza, as the person who sold him those drugs on that day, but no arrest was made at that time.

[3] Two weeks later, after obtaining a CDSA search warrant, Officers Morse and Lapensee arrested Mr. Kabanga-Muanza for trafficking in cocaine as he emerged on December 17, 2012, from apartment 312 at 29 Louvain Avenue.

[4] The police had obtained information from a confidential informant (CI) prior to December 2, 2012, that described Mr. Kabanga-Muanza’s appearance and stated that he was one of the main suppliers of crack cocaine to purchasers in that area. He was said to reside at 29 Louvain Avenue, apartment 312. They were provided with his description, a RICI photograph of Mr. Kabanga-Muanza, and with a particular phone number that was claimed to be the number of his cell phone.

[5] There was no evidence that TPS took steps to corroborate any of the information from the CI relative to the accused, nor did they determine whether the accused was the registered owner of the cell phone that was in his possession when he was arrested. On the other hand, the defence did not challenge the information provided by the CI that gave rise to the issuance of the CDSA search warrant, presumably because nothing of evidentiary value was found when that warrant was executed. No drugs or other property associated with drug dealing were found during the search of his apartment. That leaves the eyewitness identification evidence of D.C. Correia that it was Mr. Kabanga-Muanza who sold him the crack cocaine on December 2, 2012, as the principal direct evidence proffered to support the charge of trafficking against the accused.

[6] I have been very mindful in this case of the frailties of eyewitness identification evidence as described extensively in a panoply of decisions.[^1] Further, in a case like this, where the accused was identified by one police officer from a single photograph rather than a photo line-up, it is important to weigh that factor and to consider the reliability of that evidence. The fact that there is only one witness who identifies the alleged perpetrator and that no photo line-up procedure was used does not necessarily cause that evidence to be incapable of supporting a conviction, but in determining that question it is important to weigh that factor, to consider the reliability of that evidence, and to consider whether there is other corroborating or confirmatory evidence available.

[7] As explained in these reasons, I find that I am satisfied beyond a reasonable doubt on the whole of the evidence that Mr. Kabanga-Muanza is the person who sold those drugs to D.C. Correia and that he is guilty of the charge of trafficking in crack cocaine. I do not reach that conclusion based only on the identification evidence of Officer Correia and the partially confirmatory evidence of the other officers of what they saw. Indeed, without making any specific finding, I do at least acknowledge that the direct identification evidence of the officer alone might potentially be regarded as inadequate by a trier of fact in all of the circumstances to found a conviction in this case, just as Corrick J. found the single eyewitness identification of the accused by a police officer to be inadequate in R. v. King, below, to support a conviction in the circumstances of that case.

[8] However, my finding on the whole of the evidence that I am satisfied beyond a reasonable doubt that Mr. Kabanga-Muanza is the person who sold those drugs to Officer Correia is also based on the presence of important confirmatory circumstantial evidence. There was no such evidence present in R. v. King or the other authorities advanced by counsel for the defence. In this case, that circumstantial evidence is that the accused was in possession of the very cell phone that must necessarily have been used to arrange the cocaine purchase transaction that took place on December 2 between the seller and D.C. Corriea, when he was arrested. The officer said that it was the accused, Mr. Kabanga-Muanza, who sold him $40 worth of crack cocaine. That cell phone was in Mr. Kabanga-Muanza’s possession when he was arrested.

[9] I am satisfied that the only reasonable inferences that can reasonably be drawn from that strong circumstantial evidence, given the evidentiary connection between that phone and D.C. Correia’s cell phone, are (i) that the cell phone found in the possession of Mr. Kabanga-Muanza at the time of his arrest was indeed his cell phone, and (ii) that was one of the two phones used to set up the cocaine purchase transaction with D.C. Correia on December 2, 2012.

[10] This confirmatory evidence removes any doubt that might otherwise have been present in my mind relative to the identification of this accused as the person who sold drugs to D.C. Correia. Jessy Kabanga-Muanza is accordingly convicted of trafficking in crack cocaine as charged.

(continued verbatim in structure and wording exactly as in the source…)

Michael G. Quigley J.
Released: May 29, 2014

[^1]: R. v. Smierciak (1946), 1946 331 (ON CA), 87 C.C.C. 175 (O.C.A.); R. v. Izzard, 1990 13295 (ON CA), [1990] O.J. No. 189 (C.A.); R. v. Miaponoose (1996), 1996 1268 (ON CA), 110 C.C.C. (3d) 445 (O.C.A.) at pp. 450-452; R. v. Dunn, 2006 PESCAD 19, [2006] P.E.I.J. No. 46, 211 C.C.C. (3d) 307 (P.E.I.C.A.) at paras. 40‑47.