An Indigenous man who spent 37 years claiming his innocence in the murder of a toddler is going back to prison after losing his appeal in British Columbia’s highest court.
A three-member panel of the B.C. Court of Appeal unanimously ruled Phillip Tallio didn’t prove his lawyer provided ineffective representation, that the police investigation 40 years ago was inadequate, that someone else killed the girl, or that DNA evidence exonerates him.
“The appellant is not credible and his evidence that he did not understand the plea is rejected,” the panel says in a written decision released Thursday. “Fresh evidence tendered by the appellant does not support his contention that he lacked the capacity to understand the nature and consequences of a guilty plea in 1983.”
Tallio was 17 years old when the body of 22-month-old Delavina Mack was found in April 1983 in the family home in Bella Coola on B.C.’s northern coast.
The girl, who was Tallio’s cousin, had been sexually assaulted and a pathologist later determined that she likely died after being smothered.
He was originally charged with first-degree murder, but received a life sentence with parole eligibility set for 10 years in a plea bargain.
Because of his refusal to admit guilt, he was never paroled and was only released last year on bail during the appeal.
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Rachel Barsky, one of Tallio’s lawyers, said in an interview that he was to be taken into the custody of Correctional Services on Thursday.
Barsky said the legal team is examining the ruling and intends to file an application to appeal to the Supreme Court of Canada.
“It’s not the outcome we were hoping for, but we always knew this would be a possibility.”
Barsky said Tallio is also disappointed with the outcome.
During the month-long Appeal Court hearing last year, Tallio told the panel that he wasn’t aware of the implications of the plea agreement his trial lawyer had him sign.
A Crown lawyer argued that Tallio exaggerated some aspects of his testimony while giving different details about his whereabouts around the crime scene in Bella Coola.
The panel ruled that Tallio appeared to be aware of the details of both his sentencing and plea agreement. It also questioned Tallio’s credibility throughout his appeal process.
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“Our impression was that he often claimed he could not remember when presented with evidence that was unfavourable to him, yet was forthcoming with information that was supportive,” the decision says.
Lawyers for Tallio argued during the hearing that there is an important Indigenous cultural component in assessing issues and evidence in the case, that the Nuxalk Nation in Bella Coola has significant communication and trust issues with the non-Indigenous community.
“That Mr. Tallio may face difficulties in marshalling evidence in relation to events that occurred nearly four decades ago does not relieve him of the requirement to satisfy the usual rules that govern the admissibility of evidence,” the decision says.
Tallio’s lawyers introduced the possibility of two other suspects who could have been responsible for Mack’s death.
However, the decision says the evidence against both those potential suspects was unpersuasive and that it “falls far short” as proof.
Tallio’s attempt to overturn his conviction had been taken up by the University of British Columbia’s Innocence Project in 2009.
The project, run through the university’s law school, reviews cases where there are claims of wrongful conviction.
Barsky joined the Innocence Project in 2011 and has been involved with Tallio’s case since.
“(The case) has really been my entire legal career. It has been wrapped up in this case, so of course it is disappointing, but it’s not hopefully the end,” she said.
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