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Phillion asks court for chance to clear his name

Romeo Phillion sits for his portrait at Kingston Penitentiary. Phillion could have gotten out of jail in the eighties but refused parole and is now free after his murder conviction was struck down.

Fred Lum

After spending almost 32 years behind bars for a murder he says he did not commit, Romeo Phillion returned to court Monday a free man.

And he brought an unusual request — to be formally charged for the murder once again so he could plead not guilty and finally clear his name.

"I might not be an angel; I'm no killer," Mr. Phillion, 70, said outside the Ottawa courthouse Monday as a new chapter opened in one of Canada's longest-running wrongful conviction cases.

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The Ontario Court of Appeal last year overturned Mr. Phillion's murder conviction for the 1967 stabbing death of Ottawa firefighter Leopold Roy. It ordered a new trial, but the court made it clear it had not concluded Mr. Phillion was innocent.

Mr. Phillion has been free on bail pending appeal since 2003. His lawyer James Lockyer argued before an Ontario Superior Court justice that his client should ultimately be put back in the prisoner's box and arraigned for the crime one more time.

But the Crown has said it will not proceed with a new trial, which would deprive Mr. Phillion of the chance to plead not guilty, and any chance of having the final word on his case.

Moments before Justice Lynn Ratushny entered the courtroom, Mr. Lockyer asked his diminutive silver-haired client if he wanted to take a seat in the glassed-in prisoner's box once more, presumably to make a symbolic point.

"No prisoner's box for me," Mr. Phillion said from the front row. "I'm fine here where I can stretch my legs."

Before Mr. Lockyer opened two days of legal arguments Monday, Justice Ratushny looked down from the bench to an occupied chair to the right of the empty prisoner's box and said: "I would like to acknowledge the presence of Romeo Phillion."

Mr. Lockyer said Mr. Phillion's Charter rights were first violated when he was wrongfully convicted at his 1972 trial. The appeal court later concluded police detectives and a Crown prosecutor withheld key alibi evidence that would have placed him in another part of Ontario at the time of Roy's murder.

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A further Charter violation, Mr. Lockyer argued, occurred with the recent decision by the Crown to deny Phillion a fair trial, which now left a "cloud of suspicion" over his head.

"How a case comes to an end is of national importance," Mr. Lockyer told the judge, paraphrasing from the volumes of Canadian wrongful-conviction case law that he placed before her.

Mr. Lockyer criticized the written arguments filed with the court by the Ottawa Crown attorney's office that disputed Mr. Phillion's claim that he faced "stigma and trauma" for being wrongly convicted and not properly exonerated.

The Crown argued that Mr. Phillion had introduced no evidence to show that his public standing had been diminished by his conviction.

"This isn't a public relations exercise," said Mr. Lockyer, adding the outcome of the case held "devastating importance" to his client.

Dressed in a crisp, charcoal suit, Mr. Phillion listened impassively as Mr. Lockyer recited evidence that police and prosecutors deliberately withheld from his lawyer at his 1972 trial — a decade before the adoption of the Charter of Rights and Freedoms and the development of the subsequent case law that now forbids prosecutors from hiding exculpatory evidence.

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A series of memos from the late 1960s penned by a detective who would years later become the chief superintendent Ottawa's major crimes squad stated that Mr. Phillion was not responsible for the murder.

In the 1990s, Mr. Phillion received copies of his case records after using municipal freedom-of-information law but the contents of those memos had been completely blacked out, court was told.

It was only through "pure happenstance" that one of those memos inadvertently found its way into his Mr. Phillion's parole file, his lawyer said.

Mr. Lockyer recited from trial transcripts that showed Mr. Phillion's lawyer flailing and fishing for reports and evidence that might clear his client — mandatory disclosure to which defence lawyers are now legally entitled.

Mr. Lockyer assailed the "gall" of prosecutors who sought to deny Mr. Phillion his day in court one last time, as he reminded the judge that his client repeatedly turned down parole attempts that prolonged his imprisonment for many more years, once saying: "Parole is for the guilty."

Outside the courthouse, as a February gust whipped across his face, Mr. Phillion remained determined.

"I want that cloud off me — period," he said.

He reflected on what his lawyer called "the stuff of which reasonable doubt was made" — the litany of favourable evidence that never saw the light of day at his trial.

"I know the truth's right there and nobody can deny that," Mr. Phillion said.

He said the officers who put him behind bars saw him as "a notch on their careers. Their big fat promotions — that's what they were thinking about. They didn't care about me."

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