COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Onyeachonam, 2023 ONCA 485
DATE: 20230713
DOCKET: C69982
Fairburn A.C.J.O., Simmons and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Joseph Emeka Onyeachonam
Appellant
Joseph Emeka Onyeachonam, acting in person
Breana Vandebeek, appearing as Duty Counsel
Nicholas Hay, for the Crown
Heard: July 4, 2023
On appeal from the conviction entered on June 18, 2021 by Justice Wailan Low of the Superior Court of Justice with reasons reported at 2021 ONSC 3675, and from the sentence imposed on October 15, 2021.
REASONS FOR DECISION
[1] The appellant was convicted of aggravated assault on his intimate partner. He was sentenced to imprisonment for seven years, less credit for pre-sentence custody, and ancillary orders. He appeals both conviction and sentence. At the conclusion of the hearing, we dismissed his appeals with reasons to follow. These are our reasons.
[2] The offence, which occurred mostly in the stairwell of an apartment building, was captured on video and shows extreme and callous violence being perpetrated on the unconscious and naked victim. At trial, the appellant relied on the defence of necessity, claiming that he was attempting to assist his intoxicated partner by removing her from the building. The trial judge rejected this defence.
[3] On the appeal from conviction, Duty Counsel, on behalf of the appellant, submitted that the trial judge erred in admitting, and then in how she considered, the appellant’s utterances to the arresting police officers while being transported in a police car. Duty Counsel submitted that: the utterances were improperly admitted without a voluntariness voir dire; the trial judge used the utterances for a purpose not contemplated by the parties when they were adduced; and the trial judge erred in considering the appellant’s failure to tell the police that the victim was unconscious, his failure to advise them where he had left her, and his failure to ask about her well-being.
[4] It is not necessary to resolve these issues on appeal as the utterances played no significant role in the trial judge’s path to conviction. The case against the appellant – captured on video – was overwhelming. There was simply no air of reality to the defence of necessity.
[5] The appeal from conviction is dismissed.
[6] The appellant also appeals his 7-year sentence, contending that the trial judge failed to give sufficient weight to several mitigating factors evident in this case, including the harsh conditions of pre-sentence custody during COVID-19 and the collateral immigration consequences faced by the appellant. Moreover, the appellant contends that, although he has a prior criminal record, he had never served a penitentiary sentence, something that the trial judge should have given more weight.
[7] We cannot say that the sentence imposed was unfit in the circumstances. The aggravated assault on this victim – who is deaf and does not speak – was horrendous. She was unconscious, naked, and pregnant. She suffered a serious brain injury that required surgery, along with a lacerated liver, both resulting in a lengthy hospitalization. In our view, the trial judge recognized the relevant mitigating factors; that she did not give more weight to some of them is not a basis for us to intervene.
[8] The Crown requests that we address an error in the imposition of the weapons prohibition orders that were imposed. In her reasons, the sentencing judge purported to impose a single lifetime weapons prohibition under s. 109(2)(a) and (b) of the Criminal Code. On the Indictment, she endorsed both a 10-year firearms prohibition and a prohibition for life. The actual orders that were issued included a 10-year prohibition, purportedly under s. 110 of the Criminal Code, and a lifetime prohibition under s. 109(3). Both were in error. We substitute a 10-year prohibition under s.109(2)(a) and a lifetime prohibition under s. 109(2)(b).
[9] The appeal from conviction is dismissed. The application for leave to appeal sentence is granted. Apart from substituting the appropriate orders under s. 109 of the Criminal Code, the sentence appeal is otherwise dismissed. All other terms and conditions imposed by the trial judge remain in full force and effect.
“Fairburn A.C.J.O.”
“Janet Simmons J.A.”
“Gary Trotter J.A.”