Supreme Court of Canada refuses to hear BC child killer’s appeal against 1983 conviction

The Supreme Court of Canada has refused to consider the appeal of a British Columbia man who claims he was wrongly convicted of murdering a toddler nearly four decades ago.

Thursday’s decision by Canada’s highest court marks the closing of one of the few avenues left for Phillip James Tallio to undo what he claims was a miscarriage of justice.

His attorney told CBC News that Tallio’s legal team may still consider a direct appeal to Canada’s Justice Minister.

Rachel Barsky said she spoke with Tallio shortly after the Supreme Court of Canada denied her application for leave to appeal.

“I think he’s quite stunned by his disbelief,” Barsky said. “But we will focus on what we can do for him in the future.”

“Not the result we were hoping for”

Tallio was sentenced to life in 1984 after pleading guilty to the second degree murder of his 22-month-old cousin Delavina Lynn Mack in Bella Coola, British Columbia.

As part of his plea deal, he was eligible for parole after 10 years but was never released from prison as he consistently asserted his innocence and refused to participate in rehabilitation programs.

Delavina Mack’s family say they were traumatized watching Phillip Tallio deny responsibility for the 22-month-old’s murder in 1983. The Supreme Court of Canada has refused to hear Tallio’s appeal against his conviction. (Submitted by Rhoda Desjarlais)

Tallio appealed his conviction to the British Columbia Court of Appeal in October 2020, but the province’s highest court found he had failed to prove that he did not understand what he was doing when he pleaded guilty.

In a unanimous decisionthe three appeals court judges said he had failed to establish that he had received an inadequate lawyer, that the DNA evidence exonerated him, that the police investigation at the time was inadequate and that someone else had killed and sexually assaulted the victim.

The Supreme Court of Canada does not give reasons for its decision not to hear cases.

“The only thing I think I can say at this point is how tragic the situation is for Phillip Tallio, and that doesn’t mean it’s the end of the road. There are still a few options available,” Barsky said.

“It’s definitely not the result we were hoping for.”

Barsky said Tallio could consider an application to the Justice Minister under Section 696 of the Criminal Code, which is available to plaintiffs who have exhausted all other avenues of appeal.

According to the Justice Department’s website, a request to the minister must be supported by “significant new matters” — usually new information that has surfaced since the trial and appeal and therefore has not been presented to the courts and have not been reviewed by the Minister upon prior request. »

“Inconsistencies that seriously affect his credibility”

Tallio had been released on bail pending proceedings in the British Columbia Court of Appeal, but he was sent back to bars after the Court of Appeal judges ruled against him.

He was 17 and living with his aunt and uncle in the small First Nations community of Bella Coola when Delavina Mack was killed in April 1983.

Phillip James Tallio was 17 when he was convicted of second degree murder. His lawyer says he can appeal his conviction to Canada’s justice minister. (Submitted by Rachel Barsky)

According to the judgment, the parents of the toddler had left her at her grandparents’ house while they attended a party which continued the next day. Tallio discovered the child’s body after arriving at the grandparents.

He entered a guilty plea to second degree murder on November 1, 1983. He was convicted on January 29, 1984.

During the appeal proceedings, 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 Delavina Mack’s murder.

Appeals court judges accused Tallio of having a selective memory, saying his “evidence was full of shifting positions and inconsistencies that seriously affect his credibility and reliability.”

They said he failed to establish that “he didn’t understand what the term ‘guilty plea’ meant or didn’t appreciate that he was admitting to sexually assaulting and killing Delavina”.

The judges also concluded that the DNA evidence did not exonerate Tallio because he could not be ruled out as a suspect.

Tallio claimed police had developed “tunnel vision” during their investigation and pointed to two men who were potential suspects: an uncle convicted of child sex abuse and another man “generally accused of having molested children”.

The appeals court said the evidence provided by Tallio about the alternate suspects raised suspicions but fell “far short of establishing on a balance of probabilities” that any of them was the real killer.