R. v. Covington

R. v. Covington Collection Decisions of the Court of Appeal Date 1999-01-29 Docket numbers C30253 Judges Carthy, James Joseph; Goudge, Stephen Thomas; Feldman, Kathryn N. Subject Criminal Decision Content Date: 19990129 Docket: C30253 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. TIMOTHY ROSS COVINGTON (Appellant) BEFORE: CARTHY, GOUDGE AND FELDMAN JJ.A. COUNSEL: Timothy Ross Covington, the appellant, in person Michael Bernstein for the respondent HEARD: December 14, 1998 ENDORSEMENT [1] This is an inmate appeal. The appellant pleaded guilty on July 15, 1998 to robbery and assault. He was sentenced the same day to twenty months in prison on the robbery conviction and three months concurrent on the assault conviction. [2] He was represented by counsel that day. [3] Acting for the Crown that day was a solicitor who had appeared as duty counsel for the appellant at a previous appearance on these charges, and who the appellant says in the Notice of Appeal, had a legal aid certificate to represent him. [4] The appellant says that this presents a conflict of interest on the part of the Crown that requires a new trial. [5] We have no hesitation in saying that this situation results in a most unfortunate appearance. It ought not to have happened and if it were raised at trial, the solicitor would properly be prevented from continuing to act for the prosecution. In controlling the trial process a trial judge can appropriately use aggressive prophylactic measures: see R. v. Widdifield (1995) 25 O.R. (3d) 161 (C.A.); R. v. Lindskog (1997), 117 C.C.C. (3d) 553 (Sask. Q.B.). [6] However, on appeal, our task must be to determine if there was a miscarriage of justice. Normally, on a motion such as this, counsel for the appellant would seek to file evidence from someone such as trial counsel or the accused who has knowledge of what transpired in the court below which is not disclosed by the transcript. If that evidence discloses a possible miscarriage of justice, there may be cross-examination or responding evidence filed. The procedure is fully outlined in the Widdifield case, supra. [7] In this case, where the appellant is an inmate appearing on his own behalf, he has no ability to obtain or file evidence from another person. He did not file his own affidavit, but advised the court orally that he did meet with duty counsel on the first occasion in connection with the matter before the court. The appellant did not know what if any of the information he disclosed to that counsel was used in any way when that counsel became the Crown Attorney who negotiated the guilty plea with his then counsel. He said he was ill at the time he agreed to the plea arrangement. [8] In this unique circumstance, we are of the view that it is desirable in the interests of justice that counsel be appointed for the appellant pursuant to s. 684(1) of the Criminal Code, in order to assist him to investigate the situation, to advise the appellant, and as advised to bring forward evidence and reargue the appeal. [9] We understand that the appellant may well be in a position to be released before the matter can be reheard. This order does not oblige him to continue with the appeal. If the matter is to be reargued, counsel for the appellant is to file a notice changing the appeal to a solicitor=s appeal within 30 days of release of this endorsement. Otherwise, we will dispose of the appeal thereafter on the record as presently before us.