Appeal court rejects B.C. child killer's attempt to overturn 1983 conviction

B.C.'s Court of Appeal has rejected a bid to undo the guilty plea of a man who claims he was railroaded into admitting the murder of a toddler nearly four decades ago.

In a decision released Thursday, the province's top court said Phillip James Tallio failed to prove he didn't understand what he was doing when he pleaded guilty to killing his 22-month-old cousin in Bella Coola, B.C., in 1983.

In a unanimous decision, the three appeal court judges said Tallio failed to establish that he received inadequate legal counsel, that DNA evidence exonerates him, that the police investigation at the time was inadequate and that someone else had killed and sexually assaulted the victim, Delavina Lynn Mack.

"It's not the outcome that we were hoping for, of course, but we've always known that we're playing for the long game," Tallio's lawyer Rachel Barsky told the CBC after receiving the decision.

"He is, of course, disappointed, but we've been preparing him along the way that this was a possibility. So he was disappointed, but he's hanging in there, and we hope it's not the end of the road."

Back in corrections custody

Tallio received a 10-year sentence after pleading guilty to second degree murder, but was never released from prison because he consistently asserted his innocence and refused to participate in rehabilitation programs.

He was granted bail under strict conditions in October 2020, pending the outcome of the appeal court proceedings.

The immediate effect of the appeal court decision means that Tallio was taken back into the custody of corrections officials.

Barsky said Tallio's legal team has two months to decide if they have grounds to appeal the case to the Supreme Court of Canada.

Tallio was asking for the right to withdraw his plea and for the court to order an acquittal or a stay of proceedings.

Had the decision gone in his favour, the 37 years he spent behind bars would have been the longest time a Canadian has spent in jail following a wrongful conviction.

Tallio was 17 and living with his aunt and uncle in the tiny First Nations community of Bella Coola when Delavinia Mack was killed in April 1983.

According to the judgment, the toddler's parents had left her at her grandparents' home while they attended a party that went well into the next day. Tallio discovered the child's body after arriving at the grandparents' home.

In the hours that followed the arrival of police, Tallio was taken in for questioning and made an incriminating statement that was later excluded from evidence at his trial.

But Crown counsel still planned to call a psychiatrist who claimed Tallio had made statements that suggested he was guilty, leaving Tallio's lawyer concerned that he might get a life sentence without the possibility of parole for 25 years if he took his chances in front of a jury.

As a result, Tallio entered a guilty plea to second-degree murder on Nov. 1, 1983. He was sentenced on Jan. 29, 1984.

'In our view, he lacks credibility'

During the appeal court proceedings the judges heard testimony from Tallio, his former lawyer, a psychologist and psychiatrist who examined him before he entered the plea, and the retired RCMP officer who was first on the scene of Delavinia Mack's murder.

According to the decision, Tallio's credibility was central to his attempt to establish that he was the victim of a miscarriage of justice.

The judges accused him of having selective memory, saying "his evidence was fraught with evolving positions and inconsistencies that severely affect his credibility and reliability."

They also noted that he was prone to long pauses after questions that might undermine his story.

"Mr. Tallio asks us to accept that anomalies in his evidence are indicative of cultural and cognitive issues rather than his lack of credibility. It is our view that the discrepancies are more likely indicative of selective memory, reconstruction, and/or dishonesty," the judges said.

"In our view, he lacks credibility and his evidence is simply not believable."

The appeal court judges referred to records from 1983 that found Tallio was fit to stand trial, concluding he had failed to establish that "he did not understand what the term 'guilty plea' meant or appreciate that he was admitting to sexually assaulting and killing Delavina."

Tallio's attempts at release were backed by the University of B.C.'s Innocence Project, resulting in a police re-examination of the case and new testing of DNA evidence.

The judges found the DNA evidence did not exonerate Tallio because he couldn't be excluded as a suspect.

He also claimed that police developed "tunnel vision" during their investigation, and pointed the finger at two men who were potential suspects: an uncle with convictions for child sex abuse and another man "commonly alleged to molest children."

The judges said the evidence Tallio offered about the alternative suspects raised suspicions, but fell "far short of establishing on a balance of probabilities" that either of them was the real killer.