British Columbia

Supreme Court of Canada refuses to hear B.C. child killer's appeal of 1983 conviction

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

Phillip Tallio's legal team says it may consider direct appeal to Canada's justice minister

Phillip Tallio is seen in a photograph taken by his brother while he was living under bail conditions. The Supreme Court of Canada has refused to hear Tallio's bid for leave to appeal his conviction for second-degree murder. (Submitted by Rachel Barsky)

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

The decision from Canada's top court on Thursday marks the closing of one of the few avenues Phillip James Tallio has left to undo what he claims was a miscarriage of justice.

His lawyer told CBC News that Tallio's legal team may still consider a direct appeal to Canada's minister of justice.

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

"I think that he's quite stunned in disbelief," Barsky said. "But we'll focus on what we can do for him moving forward."

'Not the outcome that we were hoping for'

Tallio received a life sentence in 1984 after pleading guilty to the second-degree murder of his 22-month-old cousin, Delavina Lynn Mack, in Bella Coola, B.C.

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

Delavina Mack's family has said it's been traumatized by watching Tallio deny responsibility for killing the 22-month old in 1983. The Supreme Court of Canada has refused to hear Tallio's appeal of his conviction. (Submitted by Rhoda Desjarlais)

Tallio appealed his conviction to B.C.'s Court of Appeal in October 2020, but the province's highest court found that he failed to prove he didn't understand what he was doing when he pleaded guilty.

In a unanimous decision, the three Appeal Court judges said he 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.

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

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

"It's certainly not the outcome that we were hoping for."

Barsky said Tallio may consider an application to the minister of justice under Section 696 of the Criminal Code, which is available to applicants who have exhausted all other avenues of appeal.

According to the Justice Department's website, an application to the minister must be supported by "new matters of significance" — generally new information that has surfaced since the trial and appeal and therefore has not been presented to the courts and has not been considered by the Minister on a prior application."

'Inconsistencies that severely affect his credibility'

Tallio had been released on bail pending the B.C. Appeal Court proceedings but was sent back behind bars after the Appeal Court judges ruled against him.

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

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

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.

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

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 Delavina Mack's murder.

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

They said he 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."

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

Tallio claimed police developed "tunnel vision" during their investigation, and he 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 Appeal Court 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.

ABOUT THE AUTHOR

Jason Proctor

@proctor_jason

Jason Proctor is a reporter in British Columbia for CBC News and has covered the B.C. courts and the justice system extensively.

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