



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

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 inmates 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
    Crowns 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 officers 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 Crowns failure to call Sarbu.

[5]

The appellant makes three assertions of incompetence: (a) counsels
    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) counsels failure to seek an adjournment of the trial, when
    the appellant requested that Sarbu be called as a witness; and (c) counsels
    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] 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 courts
    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 appellants 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 Sarbus 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] 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 counsels
    strong advice amounted to coercion.

[13]

Third,
    in reviewing the transcripts of the appellants 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 counsels evidence that the appellants 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 counsels 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 appellants 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 appellants 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 appellants age, potential and other
    circumstances.

[22]

In
    our view, the 18 month sentence was fit, particularly in view the appellants
    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


