PHILLIP TALLIO, IN HIS WORDS
Finale on 34 years behind bars
After a nine-year-old boy found the body of his mother, dead from alcohol and pills on New Year’s Eve of 1974, he spent most of the next eight years shuttling around the province from Vancouver Island to the Cariboo, from group homes to foster families and a stint in juvenile detention.
Shortly after that orphan, Phillip Tallio, turned 17, he returned home to the Nuxalk Nation reserve in Bella Coola. A few months later, according to Tallio’s account, he discovered the dead body of a younger relative: a 22-month-old girl.
According to court records and his own accounts as set out in his statement filed with the court, almost every time Tallio was placed in a new home, he ran away. He described it once as “an attempt to escape from everything.” But since Tallio was arrested after he reported finding the toddler dead in April 1983, there has been no escape from his latest reality.
Tallio has spent the last 34 years in prison — two-thirds of his life — for the murder of young Delavina Mack. Now, he is mounting an appeal of his conviction. If Tallio’s appeal were to be successful, it would make Canadian legal history as the longest prison sentence served by someone found to be wrongly convicted.
In 2011, the B.C. RCMP’s Serious Crimes Unit opened a new investigation into Delavina’s 1983 murder, as outlined in an affidavit sworn by Cpl. Kelly Katilinic and filed with the B.C. Court of Appeal in connection with Tallio’s appeal application.
In July of that year, according to an interview transcript filed with the court, investigators Cpl. Bill Robinson and Sgt. Dave Hall visited Tallio in Mountain Institution, a federal penitentiary in Agassiz.
A picture of Tallio’s life in prison emerges from the audio recording of Tallio’s conversation with the investigators and documents reviewed by Postmedia, including the prisoner’s correspondence with his lawyers and his loved ones on the outside, and his own 35-page affidavit sworn and filed last year with the court registry as part of his attempt at an appeal.
Tallio’s life was difficult long before he went to prison. In Tallio’s
affidavit filed as part of his appeal, he asserted his earliest memory was being sexually abused as a child.
Shortly after being sentenced to life imprisonment with no parole eligibility for 10 years, he was sent to maximum-security Saskatchewan Penitentiary in Prince Albert, where he found, he asserted, “the kinds of guys who want to make a name for themselves so that no one bothers them. I was scared. I started getting into the weight room and putting on weight, in case I needed to fight.”
Though Tallio was described as a “model inmate” in a 1994 corrections report attached to his affidavit, one key thing prevented him from obtaining parole.
In 1992, a correctional officer observed Tallio “directs his anger and frustrations to writing poetry. The only real concern is the fact that he denies committing the offence for which he is serving time,” according to a casework record included in Tallio’s affidavit filed with the court in the appeal.
Over the next two decades, the parole board repeatedly cited his refusal to admit guilt as a reason for denying his release.
In Tallio’s affidavit, he writes: “People have asked me why I don’t just say that I did it so that I can get out on parole. I said that I wouldn’t do that, because I am innocent.”
None of the affidavits in the case have been tested in court or accepted as evidence. But lawyers for the B.C. Justice Ministry, who opposed Tallio’s bid to file an appeal, have said the prisoner has a different reason for maintaining innocence: his own safety.
In submissions filed with the court last month, Crown lawyer Mary Ainslie said when Tallio was sentenced, he was “a vulnerable 17 year old starting a sentence at Kent Institution within the general population. He was right to conclude that he would be the target of violence if the inmate population learned that he was guilty of, let alone admitted to, having sexually assaulted and killed a 22-monthold child. Assuming a stance of being wrongfully convicted is a matter of self-preservation for many inmates.”
In a written submission to the court, Ainslie said Tallio should not be allowed to proceed with the appeal more than 30 years after the usual filing deadline, citing the “interest of finality in legal proceedings.”
Ainslie’s memorandum of argument sets out Tallio’s “almost exclusive opportunity to commit the offence,” explaining the child died within a 40-minute window that morning, and “if Tallio was not the perpetrator then the perpetrator left moments before he arrived, a remarkable circumstance.”
Last week, lawyers representing Tallio and the Crown met for a case-management conference, and they will reconvene in the fall to discuss Tallio’s application for further DNA testing.
In her decision last month to allow Tallio’s appeal to proceed, Justice Elizabeth Bennett of the B.C. Court of Appeal said that while the evidence convinced her that DNA testing could be a viable ground for appeal, there is a chance that further testing has the possibility to not exonerate Tallio, but to conclusively affirm his guilt in the 1983 crime.
But even if that does happen, even if further DNA testing confirms the accuracy of Tallio’s conviction, the appeal process will have been a worthwhile exercise, said Tallio’s lawyer, Tom Arbogast.
“Of course, none of us want that to happen,” Arbogast said last week in an interview.
“But let’s say this just does not turn out how we think it’s going to. Then because of all the questions that have been raised and the extraordinary circumstances, the public will have confidence that justice was done. And that’s an important thing in and of itself.”
“There’s an old legal maxim that I like, I wish I made it up,” he said. “Sunlight is the best disinfectant.”