B.C. man hopes for freedom after 37 years
Phillip Tallio’s appeal aims to clear his name in 1983 killing of toddler
It was a simple enough meeting — a spring picnic lunch with a strict curfew to satisfy a grandfather’s parole requirements.
Still, Theresa Hood knew the introduction of her grandchildren to the man they had heard of but never met could be an inflection point for Phillip Tallio, a time from which the rest of his adult life could proceed differently from everything that had come before.
Tallio exchanged hugs and conversation with two of his three granddaughters, 11 and 13, then sat with Hood.
“Phillip just started crying really hard. He said, ‘This is the day I’ve been waiting for my whole life,’” Hood told the Star of the encounter.
It was a taste of one possible future for Tallio, and of the life he might have had — had he not been convicted of killing a child.
The man from the community of Bella Coola in northern British Columbia emerged from prison in January after serving nearly four decades behind bars for second-degree murder of his 22-month-old cousin, Delavina Mack.
Hood herself was pregnant when Tallio, then her boyfriend, was arrested. He was imprisoned for the entire life of their daughter, who died suddenly in 2018.
Over the decades, Tallio has maintained that he did not kill his cousin — that he was just the person who found her body. Now, he is living in a halfway house outside of Vancouver, waiting for the hearing he hopes will formally make him a free man.
If the hearing, which begins Tuesday, goes his way, his 37year prison term will be the longest any Canadian inmate in modern times has served before having their conviction overturned.
Tallio was 17 years old at the time the little girl was sexually assaulted and killed.
Tallio initially pleaded not guilty, but, nine days into his trial, his lawyer entered a guilty plea on his behalf.
Pleading guilty to second-degree murder meant Tallio would get a life sentence, but be able to apply for parole after 10 years, instead of the 25 years imposed on those convicted of first-degree murder.
But Tallio would be repeatedly denied parole because behind bars he maintained his innocence.
The key pieces of evidence against Tallio were two records of alleged confessions. One, which was made to RCMP and thrown away by a trial judge because of concerns it was involuntary, and another allegedly made to a psychiatrist who has now died.
The killing of Delavina has haunted her family, whose members have attended the B.C. Court of Appeal while Tallio’s case has progressed in recent years.
At a hearing where lawyers argued for Tallio to get bail last year, Mack’s cousin, Rhonda
Desjarlais, spoke for their family.
“It’s been a ripple effect on our family. Our children are kept close to us. My children, my grandchildren are kept close. There’s a loss of trust. My kids have maybe had one or two sitters in their whole life, because we don’t trust anybody,” she told CBC at the time.
Sarah Rauch, a lawyer who represents Mack’s mother, told the Star that, although Mack’s family members are not officially parties to Tallio’s appeal, they hope to be there.
“Her voice is important and her presence is important,” Rauch said.
Almost a decade ago, there was a pivotal development for Tallio.
His case was taken on by the UBC Innocence Project — a volunteer effort in which students and lawyers investigate claims of wrongful conviction. Rachel Barsky was assigned to the case in 2008, and she used the investigative skills she had learned through her journalism degree to look for new evidence.
“As I was doing this investigation, I was locating some pretty stunning fresh evidence,” Barsky said in an interview last week.
Barsky stayed on the case, now as one of Tallio’s two lawyers, and almost a decade later is preparing to present three weeks’ worth of fresh evidence to the B.C. Court of Appeal.
The evidence includes affidavits or testimony from dozens of people who were not interviewed back in 1983, as well as new DNA evidence, according to Court of Appeal reasons allowing the case to go forward.
Tallio’s lawyers have focused on three areas in the appeal.
They argue that Tallio received inadequate legal counsel, and that his cognitive abilities were so low that he did not understand the consequence of his guilty plea at the time he made it.
DNA evidence, which includes samples taken from the victim’s autopsy that were stored at B.C. Children’s hospital, is also a complicated and important part of the appeal.
In two rounds of testing, scientists found the presence of DNA belonging to a different male. One of the samples could not have come from Tallio. The other may have come from Tallio, but could also have come from another male.
Tallio’s lawyers have submitted evidence in the case that presents the possibility that the second DNA sample came from Cyril Tallio, Phillip’s uncle.
Cyril Tallio, who died in 2014, could not be excluded as a possible contributor of the second male DNA sample found based on the tests performed, and affidavits from Bella Coola community members indicate he was seen at the house where Delavina was sexually assaulted and killed the night of the crime. Cyril Tallio had a criminal record of child sexual assault.
The Crown has argued there was no miscarriage of justice in Tallio’s trial, and that DNA evidence presented may be unreliable because of contamination.
His refusal to admit guilt was the main reason Tallio remained in prison so long.
An inmate acknowledging what went into their criminal behaviour is one of the main factors the parole board considers in its decisions — something that is not possible when an inmate maintains their innocence.
“It’s been termed the prisoner’s dilemma,” said Thomas Grant, a retired parole board commissioner in New York state. “In many jurisdictions, parole boards look at if you have remorse for the crime. But it’s difficult to have remorse for a crime you (say you) didn’t commit.”
Grant said the introduction of risk-assessment tools — checklists that help parole board members decide how likely an inmate is to commit another offence if released — have provided many jurisdictions with another option to consider other than expressions of remorse.
Age and behaviour while in prison are factors in the risk assessment tools used in Canadian federal institutions.
Grant said parole board members in his state have become more open to granting parole for inmates who maintain innocence, as wrongful conviction cases enabled by modern DNA testing have amassed over time.
“The availability of accurate DNA has opened up parole board members’ eyes to a lot of cases,” Grant said. “There is a sense that mistakes could have been made in the past. The wrong person could have been incarcerated.”
Barsky and Simon Fraser University researcher Adam Blanchard wrote about the effect of innocence claims on parole in a 2018 study, concluding that claiming innocence did have a negative impact on inmates’ ability to complete prison programming and gain parole.
Barsky said her primary role is and has always been as Tallio’s legal counsel, but she said the uniqueness of the case and the long time she’s worked on it have allowed her a window into parts of his life that wouldn’t be typical of all clients.
“It’s been almost a decade and I have seen some pretty sad things happen in Phillip’s life during that time, the passing of more family members, one of his aunts he was extremely close to,” Barsky said.
The most emotional moment came when Tallio got news that Honey Hood, his daughter with Theresa, had died suddenly in 2018.
“I was on the phone with him right after it happened and just listening to him sob, it was just heartbreaking,” Barsky said.
“It’s different from a lot of typical cases when you’re a lawyer.”
Honey Hood, who was 34 when she died, always wanted to see Phillip get out of prison. She visited him during his incarceration only once, and described the experience as traumatic, according to Theresa Hood.
Now that their daughter is gone, Theresa Hood said she wants to see through Honey’s wishes to be part of Tallio’s life on her behalf. “I will be there to support him. I have to be there for Honey,” she said. “I’m going to be beside him until it’s all said and done. When it’s all said and done, he’ll get to see his grandchildren a lot more.”
Throughout the decades Tallio was in prison, Hood went on with her life — becoming a family counsellor, marrying, raising her kids, spending time with grandchildren. But she never lost touch with Tallio, first writing letters and sending pictures of their daughter, then talking with him on the phone. She knew that, as the father of her first-born daughter and grandfather to three children, they would always share a family.
And she says she still believes what he told her that day in1983 before the police came, and what he has maintained to her ever since: that he did not kill Delavina.
The memory is ingrained in Hood’s mind, not only because of the fear and confusion she felt at Tallio’s arrest, but because it was only the evening before that the two of them went to the playground, sat on the swings, and she told Phillip she was pregnant.
“He just looked at me, got off the swing and hugged me,” Hood remembered. “We said we’d name her Honey because I really liked the book that was called Honey. I knew she would be a person who showed a lot of love.”