Romeo Phillion, 70, who spent nearly 32 years in prison, returns to court in hopes of hearing a judge acquit him of the 1967 stabbing death of an Ottawa firefighter

Romeo Phillion wants to go to his grave an innocent man, he said outside an Ottawa courtroom Monday.

Inside, his lawyers argued he has the right to hear a judge acquit him of a 1967 murder, rather than just having the Crown withdraw the decades-old charge against him, for which he served nearly 32 years in prison. Those lawyers argued further that Phillion's constitutional rights were violated for decades by a Crown prosecutor's failure to disclose evidence that could have exonerated him of killing an Ottawa firefighter.

The argument was part of the 70-year-old's legal fight to clear his name in the 1967 stabbing death of Leopold Roy in a Friel Street apartment building. A troubled and mentally ill drifter at the time, Phillion confessed to the crime after being arrested years later for robbing a taxi driver, although he quickly retracted that confession.

Phillion, whose 1972 conviction was overturned by the Ontario Court of Appeal last year after evidence came to light that he may have been stuck at a service station in Trenton shortly before the killing, is now asking an Ottawa judge to order the Crown to arraign him a second time on the murder charge.

Phillion would then plead not guilty, and if the Crown failed to call any evidence -- and prosecutors have indicated they wouldn't -- he would be acquitted of the murder.

The move is an attempt to prevent the Crown from simply withdrawing the charge, something Phillion argues denies him the opportunity to "have my name cleared."

"I'm not a killer, far from being one. I might not be an angel, but I am no killer," Phillion said outside of court. "I want that cloud off of me. I won't stop until it's done, my name cleared."

Phillion's lawyers, James Lockyer and Philip Campbell, argued that the Crown attorney who handled his case, Mac Lindsay -- who on Monday was prosecuting a case just a few courtrooms away from where Phillion's matter was being heard -- breached Phillion's rights by failing to correct information he knew was wrong during Phillion's trial.

That breach "crystallized" into a violation of Phillion's constitutional rights in April 1982, when the Canadian Charter of Rights and Freedoms was enacted.

Phillion, who by 1982 was locked away in the Kingston penitentiary, was denied his right to life and liberty when the Crown failed to meet their ongoing obligation to provide post-conviction disclosure, his lawyers say.

During Phillion's trial, detectives failed to reveal there was evidence that Phillion might have been at a Trenton service station with a broken-down car less than two hours before the killing.

That evidence was outlined in an April 1968 report by Ottawa police officer John McCombie.

The report, along with three others that seemed to eliminate Phillion as a suspect, were never disclosed to Phillion or his defence attorney. Phillion only received the document in the late 1990s from a parole officer and ultimately led to his conviction being quashed by the court of appeal.

However, the court of appeal found the Crown's decision to not disclose the evidence was within the rules of disclosure at the time of Phillion's trial, if the prosecutors felt the alibi had been discredited.

"The undisclosed evidence could and would have been gold in the hands of the defence," said Lockyer. "In other words, the stuff that reasonable doubt is made of."

If the Crown were allowed to withdraw the charge -- which is within prosecutors' discretion -- it would violate Phillion's constitutional right to be presumed innocent, Lockyer argued.

"The Crown's decision not to proceed is borne out of an inability to prove the case. The Crown has no evidence of any substance at all that Mr. Phillion was anywhere other than Trenton," he said.

Lockyer said Phillion is not seeking to challenge the Crown's right to exercise discretion to withdraw the case, instead asking the court for a constitutional remedy forcing prosecutors to arraign him on the charge.

But Crown prosecutors allege in court documents that Phillion is trying to "parlay his right to a fair trial to a right to a public-relations exercise."

"Many of these issues have already been litigated at the court of appeal," said Ottawa Crown attorney Hilary McCormack.

Roy's niece, Helen Faucher, sat in the front row of the courtroom behind McCormack, next to an Ottawa police homicide detective. She declined to comment outside of court.

Phillion, on the other hand, vowed to "pitch a tent on Parliament Hill" if he was denied the opportunity to be found not guilty of the crime.

Phillion said his confession was a "stupid thing for me to do."

"I'm tired of being a bouncing ball. This is going to stop today. That's the bottom line -- it is my life," said Phillion, who suffers from emphysema. "I'm sick. I'm not well. I don't want to go to my grave without clearing my name."

aseymour@thecitizen.canwest.com