SUPERIOR COURT OF JUSTICE - ONTARIO

Court File No.: CV-12-452300
Date: 20130627

RE: Romeo Joseph Phillion (Plaintiff) and Attorney General for Ontario, John Andrew McCombie, Stephen Nadori, and The Ottawa Police Services Board (Defendants)

BEFORE: Frank J.

COUNSEL:
David Robins/William Sasso, for the Plaintiff

C. Kirk Boggs/Jasmine Akbarali, for the Defendants, John Andrew McCombie, Stephen Nadori and The Ottawa Police Services Board

HEARD: written submissions

C O S T S E N D O R S E M E N T

[1] The defendants succeeded in obtaining an order dismissing this action. The Attorney General of Ontario does not seek costs from the plaintiff. The remaining defendants, the Ottawa Police Services Board and the two individual members of the Ottawa Police Services named as defendants have chosen to seek their costs.

Background

[2] This action follows upon Mr. Phillion’s release from prison after having served 31 years of a sentence that resulted from his conviction for murder in 1972. In 2009, the Court of Appeal, in a Reference before it, quashed Mr. Phillion’s conviction and ordered a new trial: R. v. Phillion, 2009 ONCA 202 ["Phillion 2009"].

[3] The conviction was quashed based on new evidence – an April 1968 Ottawa police investigation report - revealing that the Crown had failed to disclose an alibi that had been verified by the police early in their investigation. The alibi made it impossible for Mr. Phillion to have been at the scene of the murder when it was committed. Although the Court of Appeal held that the Crown did not have a duty to disclose this alibi, it found that the failure to do so amounted to a miscarriage of justice and required that the conviction be quashed.

[4] The Court of Appeal ordered a new trial. It did not grant an acquittal because the Court was unable to say on the available evidence, one way or the other, whether the verified alibi had subsequently been discredited.

[5] Mr. Phillion did not get a new trial. Instead, the Crown withdrew the charge, maintaining that as a result of the passage of time, it would be impossible for the Crown to mount a prosecution on the merits. Mr. Phillion’s efforts to compel the Crown to re-arraign him on the charge failed with the decision of Ratushny J., dismissing his Charter application: R. v. Phillion, 2010 ONSC 1604 [“Phillion 2010”].

[6] Mr. Phillion then commenced this action. In it, he claimed damages against the Crown and police for negligence and wrongdoing based on, and building from, the alibi not having been disclosed. I found that the action must be dismissed as an abuse of process or stayed.

Analysis

[7] There is no dispute that costs follow the event in the normal course. But, as Moldaver J.A. said in the context of the Reference, this case is anything but normal: see Phillion 2009 at para. 191.

[8] In my view, this is one of those exceptional cases in which an award of costs is neither fair nor reasonable and would not be in the interests of the administration of justice. I arrive at this decision for the following reasons.

[9] These defendants submit that there is no public interest in the plaintiff’s action against the defendants given the result of the Reference at the Court of Appeal. They argue, that absent a public interest, there is no reason to diverge from the usual rule as to costs. But, that is based on too narrow a perspective, in my view.

[10] Mr. Phillion was the victim of a wrong. Significantly, it was at the hands of the state that Mr. Phillion suffered the wrong. Although the Court of Appeal found no fault on the part of the defendants, Detective McCombie’s conduct was the object of criticism by the majority of the Court. The criticism was based on his testimony at the preliminary inquiry in which he made no reference to the alibi and confirmed on cross-examination that he had disclosed everything that he had done in investigating the case.

[11] This evidence was wrong. The evidence in the police file confirmed that Mr. Phillion had an alibi and that through his investigations, Detective McCombie had confirmed the validity of that alibi. As Moldaver J.A., put it, had that evidence been disclosed, it would have been gold in the hands Mr. Phillion’s defence counsel. (Phillion 2009, at para. 146)

[12] Why Detective McCombie did not disclose the alibi at the preliminary inquiry will never be known. But, as Ratushny J., concluded in Mr. Phillion’s Charter application, the fact that the alibi was not disclosed resulted in Mr. Phillion having had an unfair trial. As Ratushny J., stated, the trial was not unfair under the test for determining the admissibility of fresh evidence, but rather in the sense that the alibi should have been disclosed as a matter of fairness. (Phillion 2010, at para. 37) Because the alibi was not disclosed, the jury found Mr. Phillion guilty without having had that evidence before it to consider.

[13] Whether the alibi was discredited, as Detective McCombie now believes it to have been, is something else that will never be known. The defendants bear some direct responsibility for this: Moldaver J.A., concluded that critical evidence relevant to the alibi – a car radio, tow truck records and an occurrence report that Detective McCombie claims to have prepared – were missing, assuming they existed, by the time Mr. Phillion was charged. He found this, together with the fact that when Mr. Phillion was charged many of the exhibits in the case and Officer McCombie’s notes could not be found, to be disconcerting. (Phillion 2009, at paras 78, 79 and 87)

[14] My conclusions as to why Mr. Phillion’s action could not proceed do not alter the fact that he was the victim of a miscarriage of justice. In my view, it would not be in the interests of justice to ignore that fact in considering the issue of costs.

[15] In finding Mr. Phillion’s action to be an abuse of process, I relied on the fact that the findings in his action could not be different from those of the Court of Appeal. The reason that there could be no different factual findings is that the evidence in this action would be limited to the evidence that was before the Court of Appeal. There is no more evidence to be had, at least no reliable evidence, because of the effect of the passage of time on witness’s memories. But, that passage of time from Mr. Phillion’s conviction to that conviction being quashed is part of the wrong that was done to Mr. Phillion.

[16] My conclusion that the action must be stayed was also based on the consequences of the passage of time since the investigation. Just as the Crown concluded that it could not mount a prosecution in 2010, I concluded that the defendants could not mount a defence in this action. Whatever memories they had of the relevant events have been lost over the passage of time. Mr. Phillion is the victim of that passage of time. In my view, to award costs to the defendants in these circumstances would serve to compound the wrong done to Mr. Phillion.

[17] I am mindful of the fact that the allegations made by Mr. Phillion against these defendants are of a most serious nature and in the normal course could attract the substantial indemnity costs sought by them. But, weighing against that is the fact that it is the acts of the defendants that gave rise to the miscarriage of justice of which Mr. Phillion was a victim and it is reasonable for Mr. Phillion to have sought redress for the wrongs committed against him in the only way remaining to him.

[18] Accordingly, I exercise my discretion to order no costs of this motion.

FRANK J.

DATE: June 27, 2013