COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Nwagwu, 2015 ONCA 526

DATE: 20150713

DOCKET: C57022

Strathy C.J.O., MacPherson and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chibuike Alen Nwagwu

Appellant

Counsel: Heather Pringle, for the appellant, on the conviction appeal Louis P. Strezos and Melissa Austen, duty counsel on behalf of the appellant, on the sentence appeal The appellant, Chibuike Alen Nwagwu, appearing in person by video conference Christine L. Tier, for the respondent

Heard: July 8, 2015

On appeal from the conviction entered on May 1, 2013 and the sentence imposed on May 2, 2013 by Justice Phil Downes of the Ontario Court of Justice.

By the Court:

[1] The appellant was convicted of carrying a concealed weapon and possession of a weapon for a dangerous purpose. He allegedly deposited a “shank” in a fellow inmate’s pocket at a detention centre. He appeals his conviction and his sentence of 18 months’ concurrent on each offence, consecutive to the sentence he was serving.

[2] The sole ground of the conviction appeal is the alleged incompetence of counsel. The court made an order pursuant to s. 684 of the Code to assist the appellant in advancing this ground of appeal. The appellant brings a fresh evidence application in support of his appeal.

[3] The appellant pleaded not guilty at trial. As the trial judge noted, the Crown’s case rested entirely on the evidence of one witness, a correctional officer, who swore she saw the appellant place the shank in the pocket of the other inmate, Sarbu.

[4] The trial judge found the officer’s evidence credible and reliable. He rejected the assertion that the absence of video evidence went against the Crown, noting that there was no evidence that the closed-circuit cameras would have captured the transfer of the shank. Nor was he prepared to draw an adverse inference from the Crown’s failure to call Sarbu.

[5] The appellant makes three assertions of incompetence: (a) counsel’s failure to pursue disclosure of video recordings of the events at the detention centre or to bring a lost evidence application on learning that the video had been destroyed; (b) counsel’s failure to seek an adjournment of the trial, when the appellant requested that Sarbu be called as a witness; and (c) counsel’s failure to call the appellant to testify.

[6] A claim for ineffective assistance of counsel has a performance component and a prejudice component: R. v. B (L), 2014 ONCA 748. Before considering the performance component, the court must consider prejudice – whether there has been a miscarriage of justice as a result of an unreliable verdict or procedural unfairness. The appellant says the verdict is unreliable.

[7] Unreliability of the verdict is made out where the appellant can establish that there is a reasonable probability that the verdict would have been different had he received effective legal representation: R. v. Joanisse, 1995 CanLII 3507 (ON CA), [1995] O.J. No. 2883 at para. 80 (O.C.A.). In R. v. Dunbar, 2007 ONCA 840 at para. 23, Doherty J.A. said that “[a] reasonable probability is a probability that is sufficiently strong to undermine the appellate court’s confidence in the validity of the verdict.”

[8] The appellant has not established a reasonable probability that the verdict would have been different had the evidence been adduced. As the trial judge noted, there was no evidence that a video recording device would have captured the transaction. Nor is there any such evidence before us. In the absence of that evidence, and in view of the appellant’s delay in requesting production of the video, it is unlikely that a lost evidence application would have been successful.

[9] It would be a matter of pure speculation to conclude that Sarbu’s evidence would have probably affected the outcome of the proceeding. There is no evidence that it would have.

[10] The appellant asserts that he did not testify because he was coerced by his counsel. Trial counsel said that the decision not to call him was a tactical one, based on his experience with the appellant as a witness in a previous case, and that the appellant accepted his advice.

[11] We make several observations, some of which are reflected in the observations of Doherty J.A. in R. v. Archer, 2005 CanLII 36444 (ON CA), [2005] O.J. No. 4348 (C.A.) at paras. 139 to 142. First, the appellant bears the burden of establishing that his own lawyer denied him his constitutional right to testify in his own defence. In determining whether the appellant has met this burden, the court is entitled to consider the presumption of competence of counsel.

[12] Second, the appellant has a strong motive to fabricate this claim. Put more generously, time and reflection may have caused him to persuade himself that counsel’s strong advice amounted to coercion.

[13] Third, in reviewing the transcripts of the appellant’s appearances when he was self-represented, and the transcript of his cross-examination on his affidavit in support of his fresh evidence application, it is obvious that the appellant knows his way around a courtroom and is well-informed of his legal rights. The record establishes that he was an active participant in the proceedings. This, together with his long-standing relationship with counsel, which continued even after his conviction in this matter, causes us to be highly sceptical of his version of events.

[14] The circumstances support trial counsel’s evidence that the appellant’s initial instructions were that he wished to plead guilty. The instructions changed shortly before trial, when counsel was instructed to put the Crown to the proof of its case and to cross-examine the correctional officer about the institutional protocols. The idea of Sarbu testifying was raised in the course of the trial and the appellant accepted counsel’s advice that it would not assist him to pursue the issue. Finally, the evidence supports the conclusion that, in view of his previous performance in the witness box, counsel recommended against testifying and the appellant accepted his recommendation.

[15] Counsel performed as instructed and conducted what the trial judge described as a “skillful and vigorous” cross-examination of the correctional officer. We are not persuaded that counsel coerced the appellant not to testify or otherwise ignored his instructions.

[16] Accordingly, the appellant has not established that there is a reasonable probability that the verdict would have been different had he received effective legal representation.

[17] As there is no prejudice, it is unnecessary to consider the performance component.

[18] For these reasons, while we admit the appellant’s fresh evidence in spite of its lack of ultimate credibility, the evidence does not undermine the reliability of the verdict and we are not satisfied there was a miscarriage of justice. The conviction appeal is dismissed.

[19] The sentence appeal was pursued as an inmate appeal, with the assistance of duty counsel.

[20] The trial judge noted that the appellant’s criminal record, much of which involved violent crime, was “horrendous”. He had spent a good part of his adult life in custody. At the time of this offence he was serving a nine and a half year sentence for firearms offences. He had a previous record of the same offence, committed in similar circumstances.

[21] The appellant submits the trial judge failed to consider the totality principle. The sentence he imposed, together with the sentence being served at the time of the offence, resulted in an eleven year sentence, which the appellant describes as “crushing.” The totality principle applies where part of the total term of incarceration includes a pre-existing sentence: R. v. Parry, 2012 ONCA 171 at para. 18. He submits that a sentence of eight to twelve months concurrent would be appropriate, having regard to the appellant’s age, potential and other circumstances.

[22] In our view, the 18 month sentence was fit, particularly in view the appellant’s record, even when the totality principle is taken into account.

[23] We therefore dismiss the sentence appeal.

“G.R. Strathy C.J.O.”

“J.C. MacPherson J.A.”

“M.L. Benotto J.A.”

Released: July 13, 2015