Toronto Star

Appeal denied in child’s 1983 murder

B.C. man maintains his innocence after spending almost 40 years in prison

- ALEX MCKEEN

VANCOUVER—A man who spent almost four decades in prison for the murder of his toddler cousin — a crime he insists he did not commit — has lost his bid to have the conviction overturned.

British Columbia’s top court on Thursday rejected an appeal from Phillip Tallio, who will now return to prison after 19 months out on bail.

Tallio pleaded guilty and was convicted of second-degree murder in the death of his cousin, Delavina Mack, in 1983. He was released on bail in January 2020 in anticipati­on of a longawaite­d appeal.

Over the decades, Tallio has maintained that he did not kill his cousin — that he was just the person who found her body.

He had appealed his conviction on the grounds that his lawyer did not adequately explain the consequenc­es of his guilty plea, and that the investigat­ion into Delavina’s sexual assault and death itself was inadequate and failed to find the true killer.

In their judgment, posted online Thursday morning, the three justices of B.C.’s top court said fresh evidence presented in Tallio’s appeal did not demonstrat­e that there had been a miscarriag­e of justice when he pleaded guilty and was convicted of killing Mack.

“The rules governing the admissibil­ity of the appellant’s evidence are not attenuated because he is Indigenous,” the justices wrote. “He must prove the facts that warrant setting his plea aside on a balance of probabilit­ies.”

The court agreed with Crown counsel that Tallio had received adequate legal representa­tion in 1983, and was not persuaded by DNA evidence and testimony regarding possible other suspects.

“The evidence the appellant relies on to implicate alternate suspects is speculativ­e or circumstan­tial and does not come close to meeting the balance of probabilit­ies threshold,” the justices wrote.

The crime happened on the Nuxalk Nation reserve in Bella Coola. The victim, who was 22 months old, was being watched at her grandparen­ts’ house while her parents were at a nearby house party at the home of Cyril and Nina Tallio, Phillip’s aunt and uncle.

Phillip Tallio, who was 17 at the time and had been living with his aunt and uncle, ended up staying up all night while his aunt and uncle’s party was going on. According to his version of events, and witnesses, he was not drinking that night, but stayed awake because there was nowhere to sleep with all the party guests around.

Tallio says he went in the early morning hours of April 23 to check on Delavina Mack, as her mother had asked him to do earlier. Neighbours witnessed him entering Mack’s grandparen­t’s house, then leaving about 10 minutes later looking scared

and running back to his aunt and uncle’s house.

Tallio says that was when he found Mack’s grandparen­ts asleep in the living room, and Mack’s body in a bedroom.

Police arrested Tallio for the murder and interrogat­ed him three times before he spoke to a lawyer. A doctor who did a physical exam of Tallio the day of his arrest testified that the teenager did not seem to understand his right to an attorney at that time.

During two audio recorded interrogat­ions by RCMP officers, Tallio maintained his innocence. In a third interrogat­ion, which was not audio recorded, the interrogat­or obtained a confession. The confession was found to be inadmissib­le at trial.

According to affidavits collected by Tallio’s lawyers, other members of the community, including Tallio’s uncle, Cyril, now dead, were seen by neighbours going into Mack’s grandparen­ts’ house in the morning of the day she was killed. Many of those interviewe­d by Tallio’s lawyers were not interviewe­d by police in 1983.

Tallio initially pleaded not guilty to the crime, but, 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.

 ?? JENNIFER GAUTHIER ?? B.C.’s top court Thursday rejected an appeal from Phillip Tallio, who spent almost 40 years in prison in the murder of his cousin.
JENNIFER GAUTHIER B.C.’s top court Thursday rejected an appeal from Phillip Tallio, who spent almost 40 years in prison in the murder of his cousin.

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