Exonerations

Romeo Phillion

Introduction: The Unsolved Murder of Leopold Roy

The story of Romeo’s wrongful conviction began on August 9, 1967, when a firefighter named Leopold Roy was stabbed to death by an unknown assailant. His wife, Mildred, described the man to Ottawa Police officers, who then placed Romeo and his identical twin brother, Donald, in a police lineup. However, police learned that Donald had been out of town at the time that the murder was committed, so he was released. On August 13, however, Romeo was back in the police station, having been arrested on an unrelated charge. At this time Mildred observed him and said that, though she was not certain, she thought that Romeo resembled the man who had killed her husband. Since she could not make a positive identification, Romeo was released.[1]

The police did not make any headway in their investigation into Leopold’s death for the next four-and-a-half years. During this period, Mildred identified three other men whom she believed resembled her husband’s killer. Police eventually released all three of these suspects without laying any charges.[2]

Romeo’s False Confession

On January 11, 1972, Romeo again found himself in trouble with the law. This time, he had been arrested for an armed robbery of a taxi driver. Although this matter was completely unrelated to Leopold’s unsolved murder, in the end Romeo confessed to the murder, much to the surprise of Detective Huneault, the officer who interviewed him.[3] Romeo first asked Detective Huneault if Neil, Romeo’s lover, had told him anything. When Detective Huneault played along and responded that Neil had said “a lot about the things you bragged about to him,” Romeo suddenly confessed to murdering “the fireman.” [4] He asked Detective Huneault to bring him a coffee so that they could talk about it.[5]

When Detective Huneault returned with the coffee, Romeo kept his side of the bargain. He explained that he had murdered Leopold many years ago, and said that he would make a full confession after being allowed to meet with Neil. The police allowed this meeting, and Romeo signed his confession shortly after.[6] Moreover, Neil informed the police that Romeo had made a similar confession to him four days prior to his arrest.[7] Romeo’s reasons for making the false confession are complex and will be explored below. These deeply regrettable decisions would follow him for the rest of his life.

Romeo’s Trial

Romeo’s trial began on October 16, 1972. The Crown built its case on three key pieces of evidence:

1. Mildred’s identification of Romeo as the man who had killed her husband (notwithstanding the fact that she had also identified four other people as his killer);[8]
2. Romeo’s confession to the crime, which he had given freely;[9] and
3. Romeo’s earlier confession to Neil.[10]

Romeo’s defence counsel argued that despite these confessions, his client was innocent. He led evidence from two experts who stated that Romeo suffered from antisocial personality disorder, and that he had a propensity “to lie and to invent stories to make him feel important.” The experts believed Romeo’s desire to feel important had prompted him to falsely confess to Leopold’s murder.[11] Moreover, on the very night of his (false) confession, Romeo had recanted his confession to another police officer. He had explained that he was innocent, and that he and Neil had come up with a scheme to send the police “on a wild goose chase” and enable them to collect the reward money from Neil’s report of his false confession.[12] Romeo has consistently maintained that he is innocent from this recantation until the present time.[13]

Romeo’s lawyer, Arthur Cogan, also pointed out that the police had lost many pieces of evidence that should have been presented in the case, including a hair sample taken from Romeo and fingernail scrapings, blood and hair samples taken from Leopold. He asked the jury to “look very carefully at the lack of a proper police investigation in arriving at their verdict.”[14]

Despite these troubling features of the evidence, the jury found Romeo guilty on November 7, 1972, and he was sentenced him to life in prison with no parole eligibility for ten years.[15]

Romeo’s Unsuccessful Attempts to Appeal his Conviction

Romeo attempted to appeal his conviction to the Ontario Court of Appeal, arguing among other things that due to the many problems with the police investigation, he had been deprived of the presumption of innocence to which all accused persons are entitled. He was unsuccessful and the Court dismissed his appeal on September 3, 1974.[16]

Romeo subsequently sought leave to appeal to the Supreme Court of Canada. On March 22, 1977, this appeal was dismissed.[17] After this appeal had failed, Romeo began writing letters of the Minister of Justice, stating that he had been out of town at the time of Leopold’s murder and asking that his case be reopened, but no action was taken.[18] Romeo would spend the next 31 years in prison for a crime he did not commit.[19]

A Miscarriage of Justice

More than 20 years later, in 1998, Romeo’s case took a surprising turn. His parole officer gave him an envelope containing police reports from his Corrections Canada file. One of these documents was a police investigation report that had been prepared on April 12, 1968 by prepared by the investigating officer, Detective McCombie. This report appeared to provide Romeo with an alibi: it indicated that Detective McCombie had spoken to a Trenton service station operator who confirmed that Romeo had been in Trenton between 12 and 1 p.m. on August 9 – the day of Leopold’s murder – “therefore making it impossible for him to return to Ottawa by 2:45 p.m. at the time the murder was committed.”[20] This possible alibi had never been raised in Romeo’s trial. In fact, his lawyer specifically stated at trial that there was “no issue” with the fact that Romeo had been in Ottawa at the time of Leopold’s death.[21]

Finally, Romeo had compelling evidence with which he could get his case reopened. He sent Detective McCombie’s report to the Innocence Project at Osgoode Hall Law School. On May 15, 2003, the Innocence Project and Innocence Canada (formerly AIDWYC) submitted a s. 696.1 application for ministerial review to determine whether Romeo’s conviction was a miscarriage of justice.[22] Romeo was awarded bail while the Minister of Justice considered the application, bringing an end to his 31 years spent in prison. Although Romeo could have applied for parole much earlier, he had refused to do so because he felt that that applying for parole would be tantamount to admitting that he had killed Leopold. Romeo continued to insist that he was innocent.[23]

On August 2, 2006, the Minister of Justice ordered that the Ontario Court of Appeal reopen Romeo’s case.[24] The judges heard evidence to determine why Detective McCombie’s 1968 report giving Romeo a verified alibi for the time of the murder had never been disclosed to his lawyer.[25]

In its decision, the majority of the Court concluded that the Crown had not intentionally pursued their case against him knowing that he was innocent. The majority found that there was a great deal of confusion surrounding whether and when the police learned further information that discredited this alibi. Detective McCombie testified that after submitting the April 12, 1968 report, he had retrieved tow records of Romeo’s car showing that he could actually have made it back to Ottawa in time to have killed Roy.[26] However, there was no evidence to confirm that Detective McCombie had in fact made this trip and found evidence that discredited the alibi. Justice Moldaver stated in his decision that “the tow records … and the occurrence report that Detective McCombie claims to have prepared upon his return from Trenton – if these items in fact existed and were deposited there – had gone missing from the [police] property room by January 1972 when … [Romeo] was charged” with Roy’s murder.[27] Justice Moldaver did not conclude that Detective McCombie was lying, given his distinguished career and sterling professional reputation.[28] However, he found the complete lack of documentation confirming Detective McCombie’s supposed trip to Trenton to be “disturbing,” though perhaps not particularly surprising, given the numerous other exhibits that the police had lost and could not locate for Romeo’s trial.[29]

Regardless of what exactly happened because of a sloppy police investigation, it was abundantly clear that the Crown prosecutor had a copy of the April 1968 report, which was never disclosed to Arthur Cogan, Romeo’s lawyer.[30] As a result, Mr. Cogan was unable to use the report – which, as noted by Justice Moldaver, “would have been gold in his hands” – to cross-examine the officers about Romeo’s alibi.[31] Therefore if Mr. Cogan had known about the report, Romeo’s trial would likely have gone very differently, and Romeo probably would not have spent three decades in prison.[32]

The Court of Appeal overturned Romeo’s conviction and ordered a new trial.[33] However, the Crown withdrew the murder charge against Romeo on April 29, 2010, since there was no reasonable chance that the new trial would result in his conviction.[34] Coincidentally, April 29 is Romeo’s birthday: his name was finally cleared on the day he turned 71. After the charges were withdrawn, he told reporters that he “got an apology from the judge, which was a gift” that he was “not expecting.”[35] “I’m 71 years old today,” he explained, “but I feel like I’m 21.”[36]

The Causes of Romeo’s Wrongful Conviction

Numerous factors contributed to Romeo’s wrongful conviction. First, Romeo falsely confessed to a murder, and though he recanted the confession soon afterward, the damage had already been done. At first it is very difficult to understand why Romeo chose to put himself in such a dangerous position. However, the Court of Appeal heard testimony by Dr. Gudjonsson, the world’s foremost expert on the psychology of false confessions, which sheds light on this baffling decision.[37] Dr. Gudjonsson explained that voluntary false confessions are actually common in high profile cases such as Roy’s unsolved murder case, and can be motivated by many factors, including:

1. “a desire for notoriety,” fueled by “a pathological need to be infamous or draw attention to himself” (as described by the experts who testified at Romeo’s trial);
2. “an unconscious need to expiate guilt over unrelated transgressions”;
3. “an inability to distinguish fact from fantasy” (indeed, Neil testified that Romeo was someone “who lived in … a world of fantasy”[38]);
4. a desire to aid and protect someone else, typically the real criminal” (Romeo’s lawyer later suggested that his confession was a “desperate bid” to protect Neil from other charges)[39]; and/or
5. “revenge – either on someone who the confessor also implicates or on the police whose time is wasted by the false admission.”[40] As noted above, Romeo stated during his recantation that he “wanted to get even” with the police “and send them on a wild goose chase.”[41]

Dr. Gudjonsson also stated that Romeo did indeed suffer from antisocial personality disorder, as well as borderline personality disorder, and that interaction of these two conditions might have led to his making the false confession.

Perhaps increased knowledge regarding these conditions and/or access to mental health services for Romeo prior to his false confession might therefore have prevented this tragic chain of events from coming about. Unfortunately, our society still struggles to appropriately address the needs of Canadians who suffer from mental illness, both within and outside of the justice system.[42]

Another factor contributing to Romeo’s wrongful conviction was the fact that the police investigation was plagued with an incredible degree of disorganization. Police officers frequently lost evidence and failed to keep records of their investigations.[43] These organizational failures intersected with the Crown’s failure to disclose the crucial April 1968 report containing Romeo’s alibi to his lawyer. Unlike in 1972, Crown prosecutors are now required to disclose every relevant document to the defence, including information that the Crown does not plan to use in court but that could be important to the defence.[44]

Finally, it seems likely that the jury in Romeo’s trial put too much emphasis on Mrs. Roy’s eyewitness testimony. Many people believe that eyewitness testimony is very credible but in fact, witnesses make confident – and incorrect – eyewitness identifications at an alarmingly high rate, and these problems grow worse as the time interval increases between crime and trial.[45] In fact, of the Innocence Project’s first 225 exonerations of wrongly convicted persons in the US, 77% of the convictions had been based on mistaken eyewitness identification.[46]

Wounds that Innocence Canada Cannot Heal

Due to his refusal to seek parole and accept responsibility for a crime that he did not commit, Romeo is the longest-serving innocent Canadian to have a murder conviction overturned.[47]

In May 2013, Romeo was denied the right to sue for compensation by Superior Court Justice Eva Frank[48], but that decision was overturned on appeal and ultimately the Supreme Court gave him the right to proceed with his civil case. Sadly and tragically, Romeo passed away on November 2, 2015 without ever receiving any compensation for the time he spent locked up for a crime he did not commit. He was a staunch supporter of others who too were wrongly convicted. He made himself available to attend their court hearings and to encourage and listen to them. He understood the trauma and pain of being wrongly convicted. He was a source of hope to many. His love of life, boyish charm and commitment to helping to right wrongs will be deeply missed.

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[1] R v Phillion, 2009 ONCA 202 at paras 1-3, 241 CCC (3d) 193 (Moldaver J) [Phillion].

[2] Ibid at para 4.

[3] Ibid at paras 5, 16.

[4] Ibid at para 16.

[5] Ibid at paras 16-17.

[6] Ibid at paras 17-19.

[7] Ibid at para 18.

[8] Ibid at para 23.

[9] Ibid at para 24.

[10] Ibid at para 23.

[11] Ibid at para 27-28.

[12] Ibid at para 21.

[13] CBC News,“Romeo Phillion Timeline.” November 19, 2008: http://www.cbc.ca/news/canada/romeo-phillion-timeline-1.727759 [“Phillion Timeline”].

[14] Phillion, supra note 1 at para 32.

[15] Ibid at para 8.

[16] Ibid at paras 8, 33-4.

[17] Ibid at paras 8, 35-36.

[18] Ibid at para 38.

[19] Ibid at para 43.

[20] Ibid at paras 39-40., 105.

[21] Ibid at para 27.

[22] Ibid at paras 9, 43.

[23] Ibid at para 43; The Canadian Press. “Romeo Phillon Loses Bid to Sue for Quahsed Conviction.” May 8, 2013: http://www.cbc.ca/news/canada/ottawa/romeo-phillion-loses-bid-to-sue-for-quashed-conviction-1.1370125 [“Phillon Loses Bid to Sue”].

[24] Phillion, supra note 1 at para 9.

[25] Ibid at para 50.

[26] Ibid at para 78.

[27] Ibid at para 79.

[28] Ibid at para 82.

[29] Ibid at paras 87, 89.

[30] Ibid at para 106-108.

[31] Ibid at para 146.

[32] Ibid at para 173.

[33] Ibid at para 243.

[34] CBC News. “Phiillion Murder Charge Dropped.” April 29, 2010: http://www.cbc.ca/news/canada/ottawa/phillion-murder-charge-dropped-1.903878 [“Charged Dropped”].

[35] “Phillion Timeline,” supra note 13.

[36] “Charge Dropped,” supra note 34.

[37] Phillion, surra note 1 at para 202.

[38] Ibid at para 220.

[39] “Phillion timeline,” supra note 13.

[40] Ibid at para 208.

[41] Ibid at para 21.

[42] See, for example: VB Lord et al, “Factors Influencing the Responses of Crisis Intervention Team-Certified Law Enforcement Officers” (2011) 14 Police Quarterly; Jennifer Teller et al, “Crisis Intervention Team Training for Police Officers Responding to Mental Disturbance Calls” (2006) 57 Psychiatric Services; and William Wells & Joseph A Schafer, “Officer Perceptions of Police Responses to Persons with a Mental Illness” (2006) 29 Policing: An International Journal of Police Strategies & Management 578.

[43] Phillion, supra note 1 at paras 32, 79, 87-89.

[44] See R v Stinchcombe, [1991] 3 SCR 326, [1991] SCJ No 83.

[45] See discussion in: Lauren O’Neill Shermer, Karen C Rose & Ashley Hoffman, “Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony” (2011) 27 Journal of Contemporary Criminal Justice 183 at 185.

[46] Ibid at p. 183.

[47] “Phillon Loses Bid to Sue,” supra note 22. 

[48] Ibid