PUBLICATION BAN ON TALLIO’S APPEAL ATTEMPT LIFTED.
A B.C. Court of Appeal justice has lifted most of a publication ban on Phillip Tallio’s attempt to appeal his second-degree murder conviction.
Tallio pleaded guilty in 1983 to the murder of Delavina Lynn Mack, in Bella Coola, but as Postmedia News reported last month in a series of stories, he has maintained his innocence ever since he was sentenced to prison in early 1984.
Mack’s name, along with several volumes of documents, can now be reported publicly as a result of B.C. Court of Appeal Justice Elizabeth Bennett’s ruling Monday in response to an application from Postmedia and the Aboriginal Peoples Television Network challenging a publication ban.
Several parties opposed the release of information, or argued that its release should be delayed, and Justice Bennett summarized some of their concerns in her ruling.
While Mack’s name had appeared in print in The Province shortly after the girl’s murder, her parents had sought to protect their child’s identity during Tallio’s appeal attempt. They also wished to keep confidential “any information about the current investigation into Mr. Tallio’s innocence or guilt,” as Justice Bennett put it in her judgment.
The federal and provincial governments had sought to protect the identities of some people connected with the case, including those involved in forensic and psychiatric work, and to prevent the release of certain information.
Meanwhile, the lawyers who represented Tallio during his 1983 murder trial had sought to delay the publication of their names, arguing “The open court principle is based on an assumption that light will shine on the evidence of all parties equally.” Those lawyers are listed in 1983 court records as Phil Rankin and Ms. E. Bond.
In their written submissions to the court, the pair argued that court policy prevented the lawyers “from telling their side of the story until a later stage in the proceedings.”
Details of their response to Tallio’s allegations must remain secret due to the privilege that prevents disclosure of solicitor-client communications, they argued. That privilege can be waived by the client in a case like this, but the court must determine the scope of the waiver before the lawyers can fully respond.
“The administration of justice is weakened when the public are left with the false impression that a lawyer’s incompetence contributed to a miscarriage of justice, when in fact the lawyer’s conduct met or exceeded the high demands of the profession,” they said in their submissions to the court.
In Tallio’s case, for example, his lawyers from the 1983 trial said they had succeeded in having certain statements Tallio made to police officers excluded from trial, and that his plea to seconddegree murder resulted in parole eligibility after 10 years. Tallio had originally pleaded not guilty to a charge of first degree murder, with no eligibility of parole for 25 years.
Kevin Woodall, counsel for Rankin and Bond in the Tallio appeal, said in a statement that his clients had also challenged the ethnic makeup of the jury as it did not include aboriginal persons, characterizing that as “an extremely unusual, perhaps unprecedented step to take” at the time, and “strong evidence of the diligence, care and thoughtfulness” with which the lawyers defended Tallio.
Tallio had supported the delay of publication on the names of Rankin and Bond, but Justice Bennett said she found no reason to do so, noting that she expected the media would “fully report” the lawyers’ affidavit evidence once it was filed.
Justice Bennett lifted much of the ban that had been in place since last March and noted that “media is relied upon to bring information about the court’s proceedings to the public.”
In her ruling, the judge also spoke to the concerns of the victim’s parents, but ultimately declined to grant the publication ban they sought.
“I understand, as best I can, how deeply these proceedings must hurt them. However, this case has significant public interest given that there is an allegation of a wrongful conviction,” she said in her ruling.
Scott Dawson, the lawyer representing Postmedia and APTN in their application to lift the publication ban, argued against a limitation on the openness of court during a hearing last week.
“Behind me today are Canadians from the north, from the east, from the south, from the west who have a constitutional right to have this entire process open,” Dawson said.