“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
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
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