"PHILLION SPENT NEARLY 32 YEARS IN PRISON FOR THE 1967 MURDER OF AN OTTAWA FIREFIGHTER. HE MAINTAINED HIS INNOCENCE BUT, FOR NEARLY THE WHOLE TIME, HAD NO IDEA A CRUCIAL PIECE OF EVIDENCE THAT MIGHT LEAD TO HIS EXONERATION LAY BURIED IN POLICE FILES.
THE EVIDENCE IN QUESTION WAS A REPORT WRITTEN ON APRIL 12, 1968 BY AN INVESTIGATING OFFICER IN THE CASE. DET. JOHN MCCOMBIE SAID HE CONFIRMED PHILLION HAD BEEN AT A TRENTON SERVICE STATION WITH A BROKEN-DOWN CAR LESS THAN TWO HOURS BEFORE OFF-DUTY FIREFIGHTER LEOPOLD ROY WAS STABBED IN A STAIRWELL AND COULD NOT HAVE DRIVEN BACK TO OTTAWA IN TIME TO COMMIT THE MURDER."...............
"IN ONE WAY, THE ADVENT OF DNA TESTING HAS PRESENTED AN UNEXPECTED SETBACK FOR MANY OF THE WRONGLY CONVICTED BECAUSE IT HAS RESULTED IN A DEMAND FOR CONCLUSIVE PROOF OF INNOCENCE BEFORE A WRONGFUL CONVICTION WILL BE ACKNOWLEDGED BY GOVERNMENT, PROSECUTORS, POLICE AND, SOMETIMES, THE COURTS," THE ASSOCIATION IN DEFENCE OF THE WRONGLY CONVICTED SAYS IN COURT DOCUMENTS."
LEGAL AFFAIRS REPORTER TRACEY TYLER: THE TORONTO STAR;
PHOTO BY VINCE TALOTTA: CUTLINE: ROMEO PHILLION FIGHTS MURDER RAP: CROWN HOPING TO SIMPLY CLOSE 1967 CASE, BUT ACCUSED MAN SEEKS FULL ACQUITTAL;
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"Attorney General Chris Bentley came under fire last month when he announced two wrongly convicted men were unworthy of compensation," Legal Affairs Reporter Tracey Tyler's Toronto Star story on Romeo Phillion's up-coming Supreme Court of Canada begins under the heading "Romeo Phillion fights murder rap: Crown hoping to simply close 1967 case, but accused man seeks full acquittal."
But even before going public with his decision on no redress for Robert Baltovich and Anthony Hanemaayer, Bentley was laying the groundwork for an unprecedented legal battle with another victim of a miscarriage of justice – 70-year-old Romeo Phillion. It culminates in an Ottawa courtroom Monday," the story, published earlier today, continues.
"Phillion spent nearly 32 years in prison for the 1967 murder of an Ottawa firefighter. He maintained his innocence but, for nearly the whole time, had no idea a crucial piece of evidence that might lead to his exoneration lay buried in police files.
The evidence in question was a report written on April 12, 1968 by an investigating officer in the case. Det. John McCombie said he confirmed Phillion had been at a Trenton service station with a broken-down car less than two hours before off-duty firefighter Leopold Roy was stabbed in a stairwell and could not have driven back to Ottawa in time to commit the murder.
Last year, in a 2-1 decision, the Ontario Court of Appeal set aside Phillion's conviction, saying the report could have led jurors to arrive at a different verdict back in 1972. The court ordered a new trial.
If Bentley had followed through, Phillion would be walking into the Ottawa courtroom on Monday and entering a plea of not guilty before a Superior Court judge.
Given the passage of time, with key witnesses now deceased and memories faded, and the potential impact of the 1972 McCombie report, prosecutors would have to admit they had no case to present. In fact, the Crown has already conceded a retrial is an impossibility.
Under that scenario, Justice Lynn Ratushny would have no option but to enter an acquittal.
However, Bentley, exercising his discretion, chose another option – he will attempt to withdraw the charge against Phillion Monday.
It's the option Phillion says he has dreaded, since it will leave him in perpetual legal limbo, with a cloud of suspicion over his head.
Instead, he wants to be found not guilty after a fair trial, even if it lasts only a minute or two.
"I'm not a happy camper with the decision they made," he told the Star. "Exoneration. That's what I want. I've still got a cloud over my head and I don't want that. No way."
In documents filed in Superior Court, lawyers for the Association in Defence of the Wrongly Convicted have gone so far as to say Bentley's decision to withdraw the charge may well have been "calculated to convey the impression that the applicant (Phillion) likely killed Mr. Roy."
Phillion's lawyers are arguing that's how the public is likely to interpret the withdrawal of a murder charge.
"How else could it be viewed by anyone who knows that the applicant spent more than three decades in prison for the homicide and close to four decades convicted of the crime?" lawyers James Lockyer, Joanne McLean and Philip Campbell ask in their material.
The lawyers have launched a constitutional challenge to Bentley's decision, arguing that failing to disclose the existence of the McCombie report was a breach of Phillion's right to make full answer and defence to the murder charge.
As a "modest" remedy, they say their client is now simply asking for the right to what he had been denied all along – a fair trial. Denying him that opportunity by withdrawing the charge violates his right to be presumed innocent until convicted after a fair trial, they argue.
But lawyers for the Crown say Phillion's lawyers are attempting to "gut" the discretion historically enjoyed by prosecutors to determine which cases proceed to trial and that, in most cases, no court has the authority to review this power.
For their part, Crown counsel Hilary McCormack and Carl Lem argue that Phillion's push for an acquittal "boils down to an appeal for sympathy" and a purely "symbolic" ending to sweeten in his mind what is already a good result.
Given all the circumstances, it is "inconceivable" that withdrawing the charge could somehow leave him tainted, the lawyers for the Crown contend.
But the Association in Defence of the Wrongly Convicted says that's not what recent history has shown and skeptics need only consider what happened to David Milgaard.
In 1992, the Supreme Court of Canada recommended Saskatchewan's justice minister quash Milgaard's conviction for the 1969 murder of nursing aide Gail Miller and order a new trial.
Instead, the minister "stayed" or suspended the proceedings, and for a long time Milgaard was "mercilessly labelled by many" as the likely murderer.
Saskatchewan Attorney General Bob Mitchell even told a newspaper, "I think he did it."
Five years later, a DNA test led to Milgaard's instant exoneration. With no DNA samples available for testing in his case, however, Phillion can't prove his innocence the same way.
"In one way, the advent of DNA testing has presented an unexpected setback for many of the wrongly convicted because it has resulted in a demand for conclusive proof of innocence before a wrongful conviction will be acknowledged by government, prosecutors, police and, sometimes, the courts," the association says in court documents."
The hearing is expected to continue for several days this week.http://www.thestar.com/news/ontario/article/758502--romeo-phillion-fights-murder-rap
Harold Levy...hlevy15@gmail.com;
