It’s the sort of notoriety that no one wants: the title of Canada’s longest serving wrongfully convicted person. Phillip Tallio, however, may just claim it.
He has spent more than two-thirds of his life behind bars and in the almost four decades since he was convicted for the rape and murder of Bella Coola toddler Delavina Mack in 1983, Tallio has steadfastly maintained he’s innocent.
Tallio’s story begins in the early morning of April 23, 1983. A troubled youth who had spent nearly a decade in foster care, 17-year-old Tallio had recently been released from the Willingdon Youth Detention Centre and was back living with relatives in the Nuxalk Nation. It was Tallio who discovered Delavina’s body early that morning after a series of parties had taken place in the community. After alerting his cousin of the horrific discovery, Tallio soon became a suspect.
Within four hours he had been detained by the RCMP. 14 hours later he signed a written confession and was charged with first-degree murder.
Tallio, who lives with cognitive challenges that placed his mental age at approximately 10 – 12 years old at the time of the murder, had apparently confessed to an RCMP officer during a 10 hour interrogation during which the the tape recorder malfunctioned. He hadn’t spoken to a lawyer and had maintained his innocence during the recorded part of the interview.
The judge excluded this admission based on on doubts about the voluntariness of the statement given Mr. Tallio’s intellectual level, that he was unable to speak with anyone who could help him (such as a lawyer or other legal counsel), and the length and type of interrogation.
However, a second confession, also unrecorded, was apparently given to forensic psychiatrist Dr. Robert Pos.
With no direct evidence linking him to the murder, his conviction rested on the alleged confessions. What happened next was what his lawyer Rachel Barsky describes as a “domino effect.”
“Everything that could wrong in Phillip’s case did go wrong,” said Barsky, who has worked on the case for almost 10 years. “It’s not one particular failure in the justice system; Phillip was failed on many, many levels.”
A deal was struck, with a lawyer entering a guilty plea on Tallio’s behalf nine days into his trial. He was convicted of second-degree murder with his first chance at parole in 10 years. Instead, he has spent all his days in prison as he has refused to admit guilt, exposing a dangerous flaw in the justice system.
“Phillip never wanted to say that he did it; he has always maintained his innocence,” Barsky explained.
Appeals must be submitted within 30 days and Tallio, who lives with cognitive challenges, has said that he didn’t even understand what an appeal was until 1992 – nearly a decade after the crime. Tallio made several attempts to get legal aid and assistance while in prison, but it wasn’t until two older inmates explained the process and urged him to get the transcripts of his court proceedings. After reading the transcripts, the two inmates told him he shouldn’t be in prison.
In 2003 Tallio’s case was taken up by Robyn Batryn, the daughter of Marie Spetch. Spetch had grown close with Tallio since encountering him as a youngster in foster care, and she also firmly believed he was innocent. Batryn eventually took Tallio’s case to the Association in Defence of the Wrongly Convicted (now called Innocence Canada), which had been involved in overturning high-profile wrongful convictions such as those of David Milgaard and Thomas Sophonow, and the organization took it on.
Barsky, who had completed a degree in journalism at Ryerson prior to studying law at UBC, took on the case as a second-year student with the UBC Innocence Project in 2011. She’s been with it ever since and it has become an extraordinary part of her life.
“When you look at Phillip’s life it’s astounding the amount of tragedy it contains,” said Barsky. “At this point he’s been in jail for 36 and a half years. Many of his family members have passed away; his only daughter (Honey Hood) passed away last year. He’s spent essentially his whole life in prison and has missed out on everything.”
The case is complex and exhausting; many technologies that exist today (such as DNA evidence) would most likely have resulted in a very different outcome. As is stands, however, the case has already set one precedent that could determine the future of other cases.
“Successfully being able to submit the appeal to withdraw Phillip’s guilty plea decades after the 30-day deadline was a first for the Canadian courts,” Barsky explained. “He is extremely strong to keep going on; you never recover from something like this. The next steps will essentially determine the rest of Phillip’s life.”
Barsky has since applied for bail for Tallio as he awaits his date with the B.C. Court of Appeal this fall. A bail hearing is set for July 23 to determine whether or not Tallio will be granted bail while he waits for his court date.
Tallio’s lawyers, including Barsky, filed the bail application so that he could await the appeal in a monitored residence rather than in jail.
“He will need a lot of support,” Barsky explained. “This is a person who has spent almost their entire life behind bars. He would be living under conditions designed to meet his needs, as he has no financial means to support himself and has not been exposed or accustomed to today’s technology, which is a lot different from 1983.”
Although Tallio’s case has come a long way with the support of the Innocence Project and, in particular, Rachel Barsky, there is still a tough road ahead.
“What we’re hoping is that once the appeal is finished in 2020 his guilty plea will be withdrawn and he will have some time to be a free man,” said Barsky. “What happens after that is another matter.”
As Barsky explains, the withdrawl of the guilty plea does not declare Tallio an innocent man. In fact, the Crown could either stay the case or choose to pursue an appeal in federal court. And, contrary to popular belief, compensation isn’t automatic.
“Phillip will be let out with nothing and compensation is a civil matter,” said Barksy. “Once we get there, that will be another bridge to cross.”
