Lawyers argue over appeal in 1983 Bella Coola murder case
Man’s counsel cites DNA evidence in bid to withdraw his guilty plea, get new hearing
Lawyers argued Monday before a B.C. Court of Appeal judge over whether an appeal should be allowed to proceed for a B.C. man who has spent 34 years in jail for murder.
Phillip James Tallio was arrested and charged in 1983 with the murder of a twoyear-old girl on a First Nations reserve near Bella Coola. Tallio, who was 17 at the time, initially pleaded not guilty to first-degree murder, but nine days into a jury trial he pleaded guilty to second-degree murder, which brought a sentence of life in prison with no parole eligibility for 10 years.
Tallio’s lawyers argued Monday in support of his application to withdraw his guilty plea 33 years after sentencing.
Tallio’s story was outlined last month in a series of stories by Postmedia News. His notice of appeal alleges that because of Tallio’s cognitive impairments at the time, he did not fully understand the plea that he entered in 1983. This allegation was challenged earlier this month in arguments made in court by Kevin Woodall, a lawyer representing Tallio’s lawyers from the 1983 trial. They argued that they have not yet been able to fully respond to Tallio’s appeal due to their obligation to protect solicitor- client privilege until the scope of his allegation is ruled on by the court.
Ever since Tallio’s sentencing in early 1984, he has steadfastly professed his innocence, a factor which the Parole Board of Canada cited in his parole hearings as a reason to deny his release since the mid-1990s, when he first became eligible for parole. Tallio’s situation highlights the effects of maintaining innocence on obtaining parole, said Rachel Barsky, co-counsel on his appeal.
Tallio’s appeal effort, eight years in the making, was initiated by the University of B.C.’s Innocence Project at the Allard School of Law. Tallio’s is the first file from the UBC Innocence Project, now in its 10th year, to make its way into court.
Tom Arbogast, lead counsel for Tallio’s appeal effort, addressed the court Monday before B.C. Court of Appeal Justice Elizabeth Bennett.
Speaking about the prospective appeal, Arbogast said, “The issue here is: was there a miscarriage of justice? And is there enough evidence, at this early stage, to warrant a review? And we say we have gone far beyond that in terms of presenting evidence before this court,” he said.
Much of Monday’s hearing pertained to DNA evidence.
Arbogast paraphrased a comment made by Justice Bennett in March, in an early case management hearing, saying: “If we are correct, this was a miscarriage beyond the pale.”
He continued: “If we are not correct, then this is simply a review. And ... a review appears to be warranted in these circumstances because of this DNA issue.”
Mary Ainslie, a lawyer representing the respondent Crown, said the DNA evidence could be contaminated and was not enough to warrant a review. Ainslie said the defendant entered the guilty plea in 1983, and argued that evidence of his subsequent conduct suggests he had a full understanding of what he was doing.
“We can’t consider the DNA on its own without considering that there was a guilty plea,” Ainslie said.
Justice Bennett said to Ainslie: “But we know that innocent people confess, and we know innocent people plead guilty. So that in and of itself can’t be the answer.”
Justice Bennett is slated to rule Friday on whether the appeal can proceed.
Earlier Monday, the judge lifted much of a publication ban that had covered many details of Tallio’s appeal attempt. She said the “media is relied upon to bring information about the court’s proceedings to the public,” and referenced freedom of expression under the Canadian Charter of Rights and Freedoms and the principle of an open court.
Several volumes of information can now be reported publicly as a result of Justice Bennett’s Monday ruling, in response to an application by Postmedia and the Aboriginal Peoples Television Network challenging the publication ban.