A long-awaited review of Romeo Phillion's murder conviction got off to a rocky start yesterday when three Ontario Court of Appeal judges began questioning his lawyer's claim that evidence exonerating his client was suppressed for more than 25 years.
Justice Michael Moldaver suggested that every theory put forward by James Lockyer, Phillion's lawyer, about what happened to the explosive evidence involves "nefarious" conduct on the part of the Crown and police. "That's not fair," said Lockyer. "That's really demonizing our position."
Phillion, 69, spent 31 years in prison for the 1967 murder of off-duty Ottawa firefighter Leopold Roy. While Phillion confessed to the killing in 1972, he recanted within hours to six police officers and his own mother.
If exonerated, he would hold the distinction of having served more prison time than any other wrongfully convicted Canadian.
Ten years ago, while still in prison, Phillion had a legal breakthrough when his parole officer handed him a brown envelope, which contained an April 12, 1968, Ottawa police report. The report said investigators had confirmed Phillion was at a Trenton gas station getting his car repaired two hours before the murder and couldn't have been in Ottawa at the time of the crime.
There were hints yesterday that Phillion's success in overturning his conviction could depend on whether the court is prepared to conclude a revered Ottawa Crown attorney, Mac Lindsay, prosecutor at the 1972 trial, lied about disclosing the 1968 report to Phillion's defence lawyer, Arthur Cogan.
Testifying before the appeal court earlier this year, Lindsay put his honour squarely at issue. He told the three-judge appeal panel that while he couldn't remember much about Phillion's trial, he could say, on the basis of his own "integrity," that he would have provided the defence with any evidence the Crown had confirming that Phillion was elsewhere at the time of the murder.
Since Lindsay's handwriting "is all over" the report, Lockyer must be saying that any failure to disclose the document would have been a conscious decision by Lindsay, Justice John Laskin suggested.
"You would have to go so far as to say his testimony before us was not honest?" Laskin asked. "No, I wouldn't go that far," Lockyer said.
Even if Lindsay would ordinarily hand over such evidence, it's very likely that once Phillion confessed, the police and Crown concluded the report confirming his whereabouts in Trenton was wrong, Lockyer suggested.
In those circumstances, it would be reasonable to conclude they held the report back, he said.
"That's contrary to what Mr. Lindsay's evidence was before us," Moldaver said. "We have Mr. Lindsay under oath, saying he would have disclosed a verified alibi. No 'ifs,' 'ands' or 'buts.' "
Lockyer argued that Lindsay can simply be wrong about what he did in 1972 "without being a liar."
And Cogan testified earlier this year that he did not receive the report. But Moldaver said there's no room for Lockyer being "loose" with language. "Your allegation is that Mr. Lindsay and three or four police officers not only knew that there was an alibi out there, but they refused to disclose it," he said. "That sure sounds to me like an attempt to obstruct justice."
Lockyer argued the case shouldn't hinge on the integrity of any individuals. In recent years, there's been "a legion" of wrongful conviction cases across the country in which prosecutors described as persons of integrity were found to have made mistakes, including not disclosing evidence, he said.
The hearing continues.
