B.C. man's appeal dismissed decades after sex assault and killing of toddler

Vancouver -

A Bella Coola, B.C., man who spent more than three decades in jail for a crime he says he didn't commit had his appeal of the conviction dismissed Thursday.

As a teen, Phillip Tallio pleaded guilty to killing a child in 1983: his 22-month-old cousin, Delavina Mack. The little girl had been sexually assaulted and smothered.

In 1984, Tallio was sentenced to life in prison with no parole eligibility for 10 years. He steadfastly maintained his innocence ever since, in spite of his plea, and didn't receive parole when the time came as a result.

In appealing the conviction, Tallio previously told the court he didn't understand the plea deal he entered into at the time. He also said his counsel was ineffective and the police investigation was inadequate.

The decision to dismiss Tallio's appeal said he did not adequately demonstrate that his counsel was ineffective or that his guilty plea was uninformed.

"In our view, Mr. Tallio has failed to establish that, as a result of a cognitive disability, he did not understand what the term 'guilty plea' meant or appreciate that he was admitting to sexually assaulting and killing Delavina," the decision said.

At the time of the initial investigation, DNA testing wasn't being used. The decision released Thursday said DNA testing was done in 2011 on three tissue samples taken from the victim during her autopsy. In spite of Tallio's assertion, the decision said the DNA evidence did not exonerate him.

The decision also said remaining police records "cast doubt" on Tallio's claim that the police didn't complete a proper investigation.

"The adequacy of the investigation cannot be assessed because most of the police file has been lost due to the passage of time," the decision said. "The evidence the appellant relies on to implicate alternate suspects is speculative or circumstantial and does not come close to meeting the balance of probabilities threshold."

Tallio's lawyer Rachel Barsky said they do intend to seek leave to appeal to the Supreme Court of Canada.

"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 here," she said, and added her client is "doing OK," and was prepared for this potential outcome.

"He is disappointed, of course, but we knew this was a possibility."

Barsky said Tallio's counsel will now be reviewing the BC Court of Appeal decision "in detail."

Tallio's sister Lena said she is staying optimistic.

"Today obviously it didn't go the way that we had hoped," she said. "But I also believe that there is light at the end of the tunnel. It's not over yet."

She said she has not talked to her brother since the pandemic started, but hopes they will be together in the future.

"I hope that one day I get to reach out and hug him, and welcome him back to a world that is so new to him now," she said, and added a message directly to her brother. "I love you. I always have loved you, and I will remain strong for you." 

CTV News Vancouver has reached out to a lawyer representing Mack's relatives.

Tallio was released on bail last year under several conditions. Following Thursday's ruling, Barsky said he will be in Correctional Services of Canada custody.