(Toronto, Ontario) A man who spent 31 years in prison for a murder he confessed to and then immediately recanted has been granted a new trial in a split court ruling that did not clear his name.

That means Romeo Phillion, a self-admitted pathological liar, has failed in his decades-long quest for a declaration from Ontario’s top court that he did not kill an Ottawa firefighter more than 40 years ago, and he now appears unlikely ever to get one.

Both Crown and defense have agreed there would be little point in retrying him given that the murder happened so long ago.

The province’s attorney general must now decide whether to stay or withdraw the charge. The prosecution could also decide to arraign Phillion anew but offer no evidence – which would lead to an automatic acquittal.

In his 103-page majority ruling, Ontario Appeal Court Justice Mike Moldaver accepted defense arguments that the prosecution at Phillion’s trial in 1972 did not disclose the fact investigators had at one point found he had a verified alibi which they later ostensibly discredited.

Had that information been known to Phillion’s trial lawyer and been put to the jury that convicted him, it is possible jurors might have reached a different verdict, Moldaver found.

“I have no hesitation in concluding that this is not a case in which a verdict of acquittal should be substituted,” Moldaver wrote. “Rather it is one that calls for an order for a new trial.”

While Phillion’s confession to police was “compelling” in its level of accuracy and detail, the court concluded at least one important fact in it was wrong.

A jury might have viewed it differently had the lead detective been cross-examined in court about whether he ever did discredit the initially verified alibi, Moldaver wrote in a decision supported by Justice John Laskin.

“There is a reasonable basis for concluding that the appellant’s trial would have proceeded very differently,” Moldaver wrote.

Moldaver was emphatic in stating he had not concluded Phillion was innocent. He said while the discredited alibi evidence should have been disclosed, it did not make it “clearly more probable than not” that a jury would have acquitted the accused.

All that can be said is that the fresh evidence might have changed the result of the trial, Moldaver wrote.

In his dissenting opinion, Justice James MacPherson emphatically disagreed with his colleagues, arguing that the evidence indicated that police had initially verified Phillion’s alibi but later discredited it.

MacPherson also found that Phillion’s confession to police four years after the crime was factually sound and showed a level of detail that only the killer could have known.

Phillion was released from prison in 2003 awaiting the Appeal Court hearing and said he was looking to have his name cleared of stabbing Leopold Roy to death in 1967.

He never clearly explained why he confessed, but his lawyers said he was trying to look big and impress his gay lover.

Moldaver called the case “exceptional if not unique,” saying it was “anything but normal.”

He said he remained troubled by “a host of unanswered and now unanswerable questions” around Det. John McCombie’s initial verification of Phillion’s alibi as documented in a report in April 1968 and its subsequent debunking for which there is no documentary evidence.

The justice said he was at a “stalemate” on whether the alibi was disproved but nevertheless concluded the jury should have heard about the issue given its importance.

“That is the stuff’ that reasonable doubt is made of,” Moldaver said, adding that McCombie had been “less than forthcoming and hardly enlightening” during Phillion’s preliminary inquiry.