Top court asked to block Romeo Phillion wrongful prosecution lawsuit

Romeo Phillion
Romeo Phillion looks on during a break in his appeal trial at the Ontario Courthouse in Ottawa, Monday Feb. 1, 2010. Phillion, the longest serving inmate in Canada to have a murder conviction thrown out, faces a potential new obstacle in his bid to sue those involved in his prosecution. THE CANADIAN PRESS/Sean Kilpatrick

TORONTO – The longest serving inmate in Canada to have a murder conviction thrown out faces a potential new obstacle in his bid to sue those involved in his prosecution.

Ottawa police and the province of Ontario are asking the Supreme Court of Canada to block Romeo Phillion, who spent 31 years in prison protesting his innocence, from pursuing his lawsuit for negligence and prosecutorial wrongdoing.

“They’re ragging the puck,” his lawyer, David Robins, said Wednesday.

“(They’re) hoping that he’s going to get old and pass away while they appeal.”

While it is far from certain the country’s top court will agree to hear the appeal, Phillion’s supporters are unhappy at having to fight anew simply to have his lawsuit considered on its merits.

The Association in Defence of the Wrongly Convicted planned a news conference for Thursday – on the first International Wrongful Conviction Day – to draw attention to the case.

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Now in his mid-70s, Phillion was convicted of second-degree murder in 1972 in the death of Ottawa firefighter Leopold Roy based on a confession he recanted almost immediately. He was jailed for life but always refused to seek parole, saying it would amount to an admission of guilt.

The federal government ultimately referred the case to the Ontario Court of Appeal, which quashed his conviction and ordered a new trial in 2009. The Crown then withdrew the charge, arguing too much time had passed to try him again.

In quashing the conviction, the Appeal Court found that police had initially verified an alibi showing Phillion’s innocence but never told the defence about it, apparently because investigators subsequently found it to be untrue.

Phillion sued for $14 million, alleging negligence and wrongdoing by prosecutors and two Ottawa police officers.

In April last year, an Ontario Superior Court justice decided the suit would be an abuse of process because the Appeal Court had already rejected suggestions of wrongdoing by police or Crown and that too much time had passed to try Phillion’s claim now.

However, the Court of Appeal ruled in July that Phillion should at least have a chance to put his case to a jury.

“It would further bring the administration of justice into disrepute to grant a stay in these circumstances and deprive the appellant of any opportunity to seek financial redress for his conviction when he did not have the opportunity to present a full defence at his trial,” the Appeal Court ruled.

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Lawyer Kirk Boggs, who represents the Ottawa police service and two officers involved, said the Appeal Court made mistakes in overturning the lower court ruling and allowing the lawsuit to proceed.

“The approach that they took raised significant issues with respect to the doctrine of abuse of process and how it should be applied,” Boggs said Wednesday.

“It warrants the Supreme Court of Canada taking a significant look at it.”

Boggs said he also wants the top court to take a look at the scope of a police officer’s duty of care in relation to investigations.

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