JUSTICE REPORTER
Romeo Phillion wept in relief yesterday after he gained entry into an exclusive club - convicted killers whose convictions have been overturned - but his legal team vowed to fight on until the 69-year-old man wins complete exoneration.
While the Crown conceded that it is too late to retry the case, his defence team urged Ontario Attorney-General Chris Bentley to formally acquit Mr. Phillion in the 1972 murder of Ottawa firefighter Leopold Roy.
"It is now in the power of the Attorney-General how this case comes to an end," defence counsel James Lockyer told a news conference shortly after the Ontario Court of Appeal ruled 2-1 in favour of holding a new trial.
"The way the system can redeem itself is [for the Crown]to go into court in Ottawa to have the indictment read again to Romeo and to listen to him plead not guilty," Mr. Lockyer said. "Then the Crown can acknowledge that he should be acquitted of a crime he didn't commit. That is what we are going to be urging - if not demanding - that the Attorney-General should do now."
On Aug. 9, 1967, Mr. Roy was stabbed to death in the stairwell of a seedy Ottawa apartment building where he acted as a caretaker. Four years later, Mr. Phillion shocked police by confessing to the crime; he quickly recanted but was convicted nonetheless. With 31 years of a life sentence behind him, the court's decision yesterday made Mr. Phillion the longest-serving person ever to have a murder conviction overturned.
But it stops short of an acquittal, which would open up the possibility of Mr. Phillion reaping millions of dollars in compensation. Still, he was true to his simple, straightforward nature, telling reporters that he didn't really care what Mr. Bentley chooses to do.
"To me, it's clear," he said, wiping away tears. "I don't care what anybody says. It has come to an end. I make my own decisions. If I want to go to Montreal, I can. If I want to go to B.C., I can. I don't need any court or judges to say okay. It's a dream come true."
Mr. Lockyer recalled yesterday that when Mr. Phillion was first released on bail in 2003, he stared fixedly at the CN Tower: "He had never seen it before because it hadn't been built when he first went to jail in January, 1972. It really brought across just how long he had been in prison."
The court majority - Mr. Justice Michael Moldaver and Mr. Justice John Laskin - concluded that a "perfect storm" of events deprived Mr. Phillion of evidence that could have led his jury to acquit him.
It included lost evidence; an alibi that had been first verified by police, only to be mysteriously discounted four years later; and a prosecutor who seemed unaware of the full sequence of events surrounding Mr. Phillion's alibi.
Judge Moldaver noted that the trial transcript indicated that defence counsel Arthur Cogan was in the dark about the alibi. "The record is silent," Judge Moldaver said. "And it is silent because, in my view, no such disclosure occurred."
But in a significant victory for Crown counsel Lucy Cecchetto and Howard Leibovich, Mr. Justice James MacPherson stated in a forceful dissent that the flaws in the case paled next to the significance of Mr. Phillion's 1972 confession, which he retracted several hours later.
The confession was nothing less than "a tidal wave on the horizon; a factor that is mentioned only briefly in my colleagues' cogency analysis," Judge MacPherson said.
The key document in the case - the 1968 alibi report - lay buried in police files for 30 years. Prepared by Detective John McCombie, it stated unequivocally that Mr. Phillion was no longer a suspect because a gas station attendant in Trenton, Ont., 320 kilometres from Ottawa, had confirmed that he was there around the time of the killing getting his jalopy repaired.
Four years later - after Mr. Phillion confessed - the police claimed to have reinvestigated the alibi and discovered that it did not, in fact, bear out.
Judge Moldaver said that despite its overwhelming importance to the defence, the word "Trenton" was only uttered once at Mr. Phillion's trial. He refused to assign malevolent motives to Det. McCombie, but remarked that the holes in his account of events were "disconcerting."
"The April 12, 1968, report would have been gold in Mr. Cogan's hands," Judge Moldaver said. "Had he known of its contents and the fact there was not one shred of documentary evidence to confirm Det. McCombie's alleged discounting of the alibi, he would have tracked it down to its last detail."
Until he blurted out the confession, Mr. Phillion was a childlike, happy-go-lucky drifter with a taste for petty crime. In prison, he refused to seek parole since it would constitute an admission of guilt.
"If he lost the appeal, he was never going to seek parole," Mr. Lockyer said yesterday. "He was going to stay in prison for the rest of his life."
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WRONGFUL CONVICTIONS
Nearly a dozen people convicted of murder in Canada have been exonerated in the past 25 years. They include:
DONALD MARSHALL
Convicted of murder in 1971,
he spent 19 years in prison before being exonerated by a royal commission in 1990. He received $1.5-million in compensation.
GUY PAUL MORIN
Tried twice in the 1984 killing of a nine-year-old neighbour. The Crown agreed to his acquittal of first-degree murder in 1995, and he was given $1.2-million.
STEVEN TRUSCOTT
Convicted in 1959 of murder in the slaying of a 12-year-old classmate. His death sentence was commuted and he served 10 years in prison. The Ontario Court of Appeal declared his conviction a miscarriage of justice and acquitted him in 2007. He received $6.5-million.
THOMAS SOPHONOW
He spent four years in prison in connection with the 1981 killing of a 16-year-old doughnut-shop clerk in Winnipeg. Cleared in 2000 after three trials, he was awarded $2.3-million in compensation.
DAVID MILGAARD
Convicted in 1969 of murdering a Saskatoon nurse, he spent 23 years in prison before his conviction was overturned. His compensation was $10-million.
RANDY DRUKEN
Convicted of murder in the 1993 slaying of his girlfriend in Newfoundland, he spent six years in prison before being granted a new trial. The Crown stayed his charges and awarded him $2-million.
GREG PARSONS
Convicted in 1994 of killing his mother, he served six weeks in prison before being granted bail pending an appeal. He was formally acquitted in 1998 and awarded $1.3-million.
RONALD DALTON
Convicted in 1989 of strangling his wife Brenda, he spent eight years in prison before being acquitted. He received $750,000.