Canada: Crooked prosecutor withheld exculpatory evidence in wrongful conviction case

The integrity of a prosecutor became a thorny issue Monday for lawyers seeking to have a conviction quashed in the case of a man who spent 31 years in jail for murder based on a confession he immediately recanted. Lawyers for Romeo Phillion denied accusing the Crown and police of conspiring to convict him even though they knew he was innocent. At the same time, they maintained that Mac Lindsay, a well regarded prosecutor, withheld information he knew could have exonerated Phillion at trial in 1972. "Crowns of integrity do things in individual cases that they should not do," lawyer James Lockyer told the Appeal Court.

Much of the contention that a miscarriage of justice occurred turns on whether Lindsay knew police had corroborated Phillion's story that he was elsewhere when Ottawa firefighter Leopold Roy was fatally stabbed in August 1967. A police report from 1968 appears to confirm Phillion was attempting to pawn a radio for gas at a service station in Trenton, Ont., more than 200 kilometres from Ottawa, at the time of the murder. The report, which only surfaced in 1998 via a parole officer, recorded the alibi "verified" and stated, "We do not believe that Romeo Phillion is responsible for this murder."

Phillion, now 69, whose story of his whereabouts changed several times, said he only confessed to help a friend of his. A jury convicted him of second-degree murder. No one believed back then that anyone would falsely confess to a crime - a view that is far more nuanced today, Lockyer asserted. "In 1972, it was the confession that was seen to trump everything else."

The justices were clearly troubled by the contention that the prosecution withheld information crucial to the defence. "They failed to disclose (Phillion's alibi) knowing full well it had been verified?" Justice Michael Moldaver said. That would amount to accusing them of obstruction of justice, Moldaver added. "I've never seen a case in which the Crown had verified an alibi the accused did not know he had."

The constant probing forced Phillion's lawyer to try to denounce Lindsay's behaviour without denouncing him. Instead, Lockyer argued, the legal mindset that prevailed at the time was far different from today's views. "In those days, disclosure was very much a different kettle of fish," Lockyer, who acts for the Association in the Defence of the Wrongly Convicted, told the court. "(Lindsay) did not disclose because he did not feel, under the rules of the day, that he had to."

Phillion was a petty hoodlum in 1972 when he confessed to killing Roy - a confession he recanted within hours. He has steadfastly maintained his innocence, and has described the admission as a "bad joke" that cost him his life. "It's a beginning of an end," Phillion said during a break in Monday's hearing. "It's another mountain I'm climbing. I just can't wait until the end."

Arthur Cogan, Phillion's lawyer at trial, has previously told the Appeal Court he "felt a little bit shocked" to learn of the police report, while Lindsay has denied deliberately withholding crucial evidence.

Phillion always refused to apply for parole, which he could have done after 10 years. He said it would be tantamount to an admission of guilt. He was released in July 2003 on $50,000 bail while the federal justice minister decided if he had been possibly wrongfully convicted and sent the case back to the Appeal Court. If he is exonerated, Phillion would have served the longest prison term as an innocent man. The appeal hearing, which continues Tuesday, is expected to last into next week.

Original report here



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