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[This edited version of the report has been prepared by Dr Robert N Moles]

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On 26 January 2008 Kirk Makin of the Globe and Mail reported “The Romeo Phillion Case: Prosecution concealed proof of alibi, lawyer says”.

>Police accused of losing a towing slip that proved the accused was not at the scene of a 1967 slaying.

An extraordinary, toe-to-toe battle played out in a Toronto courtroom yesterday between a Crown attorney defending the honour of her colleague and a defence lawyer alleging that his client was cheated out of a fair trial 35 years ago. Romeo Phillion, 68, is challenging his 1972 conviction in the fatal stabbing of Ottawa firefighter Leopold Roy. He claims authorities concealed from his former lawyer, Arthur Cogan, vital evidence that police had confirmed his alibi.

In the sort of Perry Mason moment rarely seen in the refined atmosphere of an appellate courtroom, Crown counsel Lucy Cecchetto attacked Mr. Cogan for suggesting that Mr. Phillion's trial prosecutor - Malcolm Lindsay - buried a police report verifying the alibi. "I'm suggesting that you were told not that the alibi was verified, but that it had been debunked," Ms. Cecchetto said. She added that, once aware that Mr. Phillion's alibi was no longer valid, Mr. Cogan had decided not to pursue an alibi defence. "Absolutely not," Mr. Cogan shot back. "I swear it under oath. Never. It's wrong to suggest that." Mr. Cogan insisted that Mr. Lindsay and the police took elaborate steps to prevent him from discovering that, at the time of the slaying, Mr. Phillion's car was being towed to a service station in Trenton, Ont., where he traded his car radio for a tank of gas.

Mr. Cogan said it was ridiculous for Ms. Cecchetto to suggest that he would just accept that police had debunked an alibi they had earlier declared ironclad. "Have the police become judge and jury?" Mr. Cogan asked. "They discount evidence? I should accept that in Canada? They just say: 'Don't worry about it - we've discounted it.' That's not the rule of law." Mr. Cogan said that the concealment of the alibi report was bad enough, but the police lost a towing slip and the radio Mr. Phillion had traded - none of which came to light until lawyers for Mr. Phillion ferreted out the information in recent years. "That's why I'm a little upset," he said heatedly. "Because I don't believe that's the way the game should be played. They never gave me exculpatory evidence that could help me." "You can sleep at night, knowing that slip is missing - and it might have had the time on it?" he challenged Ms. Cecchetto. "How, as a Crown, can you be comfortable ... still prosecuting the man after they lost the means for him to prove his innocence?"

The conviction review has obliged the appeal court to wade through 35-year-old transcripts and reports to adjudicate whether Mr. Cogan was made aware of the police alibi investigation. Ms. Cecchetto and co-counsel Howard Leibovich maintain that Mr. Cogan was far too careful not to have asked Mr. Lindsay - in private, if not in court - for details on the police investigation of the alibi. They allege that police and Mr. Lindsay made enough references to Mr. Phillion's alibi that Mr. Cogan could have easily called police witnesses about it. Mr. Lindsay provided little help on the point when he testified earlier this week. He said that he has no recollection of what he did and didn't do 35 years ago. Ms. Cecchetto said yesterday that his strong reputation for fairness and integrity is proof enough that he would have disclosed the alibi report.

However, Mr. Cogan said that he possesses something considerably stronger: "Mr. Lindsay doesn't have a memory of giving me the information," Mr. Cogan snapped. "I do have a memory - that I never got it." Mr. Cogan said that Mr. Phillion - a chronic fibber who spent much of his time driving around the countryside - offered so many possible alibis that Mr. Cogan didn't know what to believe and anything police uncovered involving an alibi would have been vital to the defence. A few more witnesses will be questioned in the summer. Legal arguments in the case will be heard next November.

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