Appeal, bail application by B.C. man 37 years after sex assault and killing of toddler
Published Tuesday, July 23, 2019 7:20PM PDT
Last Updated Thursday, July 25, 2019 11:41AM PDT
Aug. 9 update: The B.C. Court of Appeal has denied Phillip Tallio's bail application.
Despite a guilty plea and alleged confession as a teen, Phillip Tallio has always maintained his innocence, and now that he’s appealing his decades-old conviction with fresh DNA evidence, he’s trying to get out of prison on bail.
Lawyers for the 53-year-old, who’s been behind bars since shortly after the 1983 killing, appeared before Justice Elizabeth Bennett at the B.C. Court of Appeal in downtown Vancouver on Tuesday. They said that with Tallio’s appeal scheduled for the spring, and in the face of his poor health and recent death of his daughter, the Bella Coola man wanted to live in a halfway house while awaiting the result of his appeal.
The appeal period is only 30 days, but based on DNA new evidence unearthed by student’s at UBC law school’s Innocence Project, which champions cases of suspected wrongful conviction, the Court of Appeal agreed to hear Tallio’s case. If his conviction is overturned, Tallio could become the longest-serving wrongfully convicted person in Canadian history.
“Mr. Tallio has always maintained that he’s innocent,” lawyer Rachel Barsky told reporters outside the courthouse. “For someone like Mr. Tallio, who says ‘I did not commit this crime’, that doesn't go over very well with the Parole Board, so he's been denied [unescorted day passes].”
Crown counsel told Justice Bennett that Tallio should have to go through the same process as any other inmate serving a life sentence and go through the parole board, noting the board had denied his recent attempts at Unescorted Temporary Absences, commonly known as “day passes”, though he has had up to 60 Escorted Temporary Absences. He was eligible for parole after 10 years but was repeatedly refused.
Parole Board of Canada documents from 2017 obtained by CTV News cite evidence provided at Tallio’s conviction in 1983, describing the crime as the “horrific murder of an innocent 22-month-old child.”
Tallio claims he found his distant cousin, Delvina Mack, dead in her grandparents’ Bella Coola home when he’d gone to check on her. She’d been smothered by a pillow after a brutal sexual assault, which Tallio was held responsible for. A recent APTN documentary on the case cited family members and friends who were upset investigators didn’t interview members of the community and that Tallio was interviewed for hours without a lawyer.
The documentary includes audio from a 2011 interview with Mounties and Tallio, where they ask him why he didn’t argue when his lawyer entered a guilty plea. Tallio responded, "Because I didn't know anything. I'm 17 years old, I just got out of juvie. What are the chances I know anything about the law?"
Court heard that despite being 17 years old at the time, Tallio had the intellectual capacity of a 10 to 12 year old and had been in and out of foster care for years after his parents’ death and sexual abuse as a child. The day of Mack’s death, his then-girlfriend had told him she was pregnant.
Tallio was imprisoned as a result, but refused sexual offender programming, insisting he hadn’t committed the crime. In the eyes of the Parole Board of Canada, acknowledgement of one’s offence and working towards rehabilitation through coursework and counselling are considerations for eligibility for parole, and the fact Tallio wouldn’t do so counted against him. His recent completion of some sex offender programming appears to have impacted their decision to allow the escorted day passes.
In 2009, UBC law students with the Innocence Project took up Tallio’s case and found DNA evidence still in the possession of BC Children’s hospital where Mack’s autopsy was performed. Subsequent testing found that while some of the samples could belong to Tallio, they could also belong to someone who shared similar DNA, like a family member. There are now more sophisticated tests the court is willing to consider.
This was the basis of the Court of Appeal’s rare approval for an appeal more than three decades years after the conviction.
“The risk Mr. Tallio takes if this testing is performed is that it will not exculpate him, but conclusively include him. This is a risk he is willing to take,” wrote the judges when they approved his appeal in 2017.
Barsky says she warned Tallio the judge was unlikely to allow bail Tuesday after hearing arguments, and that she would likely reserve her decision.
Justice Bennett seemed unimpressed with his legal team’s plan for unescorted release to a halfway house on bail. She’s asked his lawyers for answers to a series of questions, including who will be directly responsible for a man who’s spent his entire adult life behind bars. Bennett said while Tallio has shown improvement, his bail application is likely “premature."
Barsky is optimistic about her client’s chances, noting it’s a unique case.
“If Mr Tallio is successful in his appeal, he will be sadly – and it's not a club you want to belong to – the longest-serving wrongfully-convicted person in Canadian history," she said.
The appeal is scheduled for six weeks of court time, with a judgement from the three-judge panel typically coming well after arguments wrap up, and no guarantee of success. If the judge grants Tallio bail and his conviction is upheld, his lawyers say he’s willing to go back to prison and go back to applying for parole.
They cite his only child’s recent death and his desire to spend time with his grandchildren as his primary motivator for freedom, no matter how brief it may be.