OTTAWA -- The Crown won’t retry Romeo Phillion for the 1967 murder of Ottawa firefighter Leopold Roy because the passage of four decades has made a prospect of conviction remote.
But that doesn’t mean that Phillion — who’s fighting to hear the words “not guilty” — couldn’t have been convicted in a fair trial in the first place, Crown attorney Hilary McCormack argued Monday.
“Some 40 years have elapsed, memories have faded, witnesses are dead,” she argued.
“This case can no longer be tried on the merits.”
McCormack noted some of the evidence against Phillion, including a detailed confession — later recanted — and the late Mrs. Roy’s identification of him as the man who stabbed her husband, although she later couldn’t be sure.
While the Ontario Court of Appeal quashed Phillion’s 1972 conviction last year — finding the defence didn’t get key evidence about a potential alibi — it stopped short of an acquittal.
“At the end of the day, the ultimate hurdle Mr. Phillion is unable to get over is to satisfy the court that the evidence that still remains could not justify a conviction at a new trial,” McCormack said.
The Crown wants to withdraw the first-degree murder charge against Phillion, 70.
Phillion is fighting to force the Crown to arraign him — then present no evidence — so he’ll be found not guilty. His lawyers argue it is the only remedy for prosecutors’ violations of his rights.
They argue that the prosecutor at his 1972 trial failed to correct misleading evidence when detectives didn’t say they’d investigated Phillion’s alibi he’d been at a Trenton gas station with a broken-down car at the time of the murder.
Allowing the Crown to withdraw the charge would be a breach of Phillion’s right to be presumed innocent, they argue.
McCormack, however, argued that the Crown has the constitutionally protected discretion to withdraw charges as it sees fit. Otherwise, the courts would be in “shambles.”
James Lockyer, one of Phillion’s lawyers, argued that people like Phillion will continue to be jailed for crimes they shouldn’t have been convicted of at all.
Courts have to confront that reality and offer real help rather than being “straightjacketed,” he said.
“Is the fate of Mr. Phillion to be decided by the party that caused his wrongful conviction in the first place?”
megan.gillis@sunmedia.ca
