Ex-Crown, defence in Romeo Phillion case argue over police report

More than 35 years after the verdict, opposing counsel in Romeo Phillion's murder trial were back in a courtroom yesterday, offering conflicting testimony about evidence the Phillion jury never heard.

Malcolm "Mac" Lindsay, now a retired prosecutor, admits an investigative report exonerating Phillion in the slaying of Ottawa firefighter Leopold Roy was something the Crown and police had at the time of the 1972 trial, which ended in Phillion's conviction for second-degree murder. He served 31 years in jail.

Lindsay conceded yesterday he would have been under an obligation to disclose the document to Arthur Cogan, Phillion's trial lawyer. While saying he has virtually no memory of the report, all these decades later, he told the court he believes he did exactly that.

But Cogan said that never happened. Taking his turn before a three-judge panel of the Ontario Court of Appeal reviewing the case, he testified he only learned of the report years later, in 1999, when law students from Osgoode Hall's Innocence Project brought the document to his Ottawa office.

"I felt a little bit shocked. And I said that word – shocked – because, remembering how hard I fought the case ... and here there was this alibi out there ... I felt bad, to put it politely," Cogan told Justices John Laskin, Michael Moldaver and James MacPherson.

"The first question I asked was, `Did Mr. Lindsay know about that?'" he said, and added that he felt "a little saddened and disturbed" because of Lindsay's long-standing reputation for fairness.

In an April 12, 1968, report, Det. John McCombie said police verified Phillion was at a Trenton gas station between noon and 1 p.m. on Aug. 9, 1967, making it impossible for him to have driven some 288 kilometres back to Ottawa by 2:45 p.m., when Roy was killed.

Cogan was reunited with his client, now 68, yesterday for the first time since the conviction. "He commented on my hair," said Cogan, who sports the same snowy-coloured locks as Phillion.

Cogan said acquiring the report would have greatly affected his legal strategy back in 1972 on behalf of his increasingly despondent client, who had attempted suicide by swallowing sharp objects in jail.

"It would have changed the whole complexion of how I defended Mr. Phillion," he said. Instead of trying to establish Phillion had uttered and quickly recanted a false confession, he would have been able to rely on the "ultimate" alibi defence and, potentially, asked the court to dismiss the charges.

What's more, during the trial, Lindsay went so far as to ask Cogan if he would concede his client was in Ottawa the day of the murder. He said this would allow him to shorten the Crown's witness list and expedite the trial. With no reliable information on his client's whereabouts, Cogan agreed.

Lindsay may have convinced himself that if Phillion's presence in Ottawa was undisputed, he had no reason to provide Cogan with a copy of McCombie's report, suggested Phil Campbell, a lawyer representing the Association in Defence of the Wrongly Convicted.

"I understand what you're saying, sir," Lindsay replied. "It does make some sense. Except, I don't know, and I don't remember today what else happened between Arthur Cogan and myself ... what conversations we had about it."

The case continues today.