Judges express skepticism at testimony of European psychologist

TORONTO - Romeo Phillion's defence team concluded its case Thursday by asking the province's highest court to accept evidence on false confessions, testimony that, if accepted, could set a legal precedent in Ontario and affect courts across the country.

"I know this is not DNA evidence," lawyer Philip Campbell told a three-judge panel of the Ontario Court of Appeal. "(But) it is a powerful tool in the prevention or correction of miscarriages of justice."

Mr. Phillion spent 31 years in prison for the 1967 murder of Ottawa firefighter Leopold Roy. His appeal was ordered in 2003 by Martin Cauchon, then the federal justice minister, after a 1968 police report came to light, indicating police thought Mr. Phillion had been at a service station in Trenton when Mr. Roy was stabbed in the stairwell of a Sandy Hill apartment building.

The court can confirm Mr. Phillion's conviction, order a new trial, or acquit him and set him free.

In 1972, Mr. Phillion was convicted of the murder partly on the strength of a confession he gave to police after he had been arrested on an unrelated robbery charge. He quickly recanted, saying he had only confessed in the hope of freeing a friend arrested with him.

Mr. Campbell and his colleagues Thursday asked the court to accept the testimony of a European forensic psychologist who has developed a model for assessing the reliability of confessions. The scholar, Gisli Gudjonsson, flew to Canada in 2002 to interview Mr. Phillion. He ultimately determined the 1972 confession was "probably false."

Mr. Gudjonsson and his supporters call the field an evidence-based science, but Crown lawyers insist his opinion is based on "junk science" and argue it is not admissible.

The judges hearing the case Thursday expressed skepticism over the issue.

"I don't know whether all this will get debunked at some time," Justice Michael Moldaver said. "This is one of the dangers."

Mr. Phillion's lawyers, whose case has been attacked by the judges on a number of fronts, said the court could ignore the false confession expert and still quash his 1972 murder conviction.

They argued the police report clearing Mr. Phillion of the murder was suppressed at trial as parties tried to conform their cases to Mr. Phillion's confession. Crown attorneys in the case have shown little or no evidence proving otherwise.

Mr. Campbell says Mr. Phillion's original defence lawyer, Arthur Cogan, came within "an inch" of learning of the alibi, but Crown prosecutor Malcolm "Mac" Lindsay and Ottawa police Det. John McCombie steered him away. In the case of the veteran police officer, Mr. Phillion's lawyers accused him this week of lying on the stand to block the truth from emerging.

"If Mr. Cogan had the undisclosed evidence ... he could have used it to develop a powerful attack on the confession," Mr. Campbell said. "In my submission, that much in itself reaches the test for a fair trial."

The case is complicated by Mr. Phillion's perverse, self-defeating character, which, according to his lawyers, prompted him to confess to the murder despite the verified alibi. Mr. Phillion never knew he was cleared until a parole officer passed him a copy of the 1968 police report in his cell decades later.

Mr. Campbell Thursday called Mr. Phillion, who suffers from borderline personality disorder, an "attention seeker" who "wanted to go out as a big man." He did this by implicating himself in a big news story without regard to the consequences, according to his lawyers.