Ontario Criminal



Reasonable probability that verdict would have been different had evidence been adduced not established

Accused appealed his conviction for carrying concealed weapon and possession of weapon for dangerous purpose. Accused allegedly deposited “shank” in fellow inmate’s pocket at detention centre. Sole ground of conviction appeal was alleged incompetence of counsel. Crown’s case rested entirely on evidence of one witness, correctional officer, who swore she saw accused place shank in pocket of other inmate. Trial judge found officer’s evidence credible and reliable. Trial judge rejected assertion that absence of video evidence went against Crown, noting there was no evidence closed-circuit cameras would have captured transfer. Nor was trial judge prepared to draw adverse inference from Crown’s failure to call other inmate. Accused took issue with counsel’s failure to pursue disclosure of video recordings of events at detention centre or to bring lost evidence application on learning that video had been destroyed; counsel’s failure to seek adjournment of trial, when accused requested that other inmate be called as witness; and counsel’s failure to call accused to testify. Accused asserted he did not testify because he was coerced by his counsel. Trial counsel said decision not to call accused was tactical one, based on his experience with accused as witness in previous case, and accused accepted his advice. Appeal dismissed. Accused had not established reasonable probability verdict would have been different had evidence been adduced. There was no evidence video recording device would have captured transaction. In absence of that evidence, and in view of accused’s delay in requesting production of video, it was unlikely lost evidence application would have been successful. It would be matter of pure speculation to conclude other inmate’s evidence would have probably affected outcome of proceeding and there was no evidence it would have. Accused had strong motive to fabricate claim of coercion by counsel. Put more generously, time and reflection may have caused accused to persuade himself that counsel’s strong advice amounted to coercion. It was obvious accused knew his way around courtroom and was well-informed of his legal right, further causing court to doubt his claims of coercion. Counsel performed as instructed and conducted what trial judge described as “skillful and vigorous” cross-examination of correctional officer. Court was not persuaded counsel coerced accused not to testify or otherwise ignored his instructions.

R. v. Nwagwu (Jul. 13, 2015, Ont. C.A., G.R. Strathy C.J.O., J.C. MacPherson J.A., and M.L. Benotto J.A., File No. CA C57022) 123 W.C.B. (2d) 308.

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