BC Court of Appeal will hear the wrongful conviction case of Phillip Tallio

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In a historic decision, the BC Court of Appeal has agreed to hear the appeal of Phillip Tallio, the man who has maintained his innocence throughout his 34 years in prison. If found innocent, his case will become the longest known wrongful conviction imprisonment in Canada.

Mr. Tallio was convicted for the murder of his cousin, who was only a toddler when she was raped and killed in the small community of Bella Coola on the northern coast of BC. From the moment Mr. Tallio was charged he has continued to claim his innocence, which has restricted Mr. Tallio’s eligibility for parole or release. The interrogation and charge of Mr. Tallio from back in 1983 has raised questions even with the original judge from the preliminary hearings decades ago, who in an affidavit wrote that he had serious concerns surrounding the policing in the case, and now wonders whether Mr. Tallio is actually guilty.

The conviction of Mr. Tallio rested entirely on one of two confessions he gave allegedly admitting his guilt. His first confession was to an RCMP officer after 10 hours of interrogation, and the second to a forensic psychiatrist later on. The first confession was thrown out by the judge from 1983 due to the nature of the interrogation, his lack of advice (legal or otherwise), and his intellectual level. Due to comprehension challenges, it would be possible Mr. Tallio did not understand that to what he was confessing when he signed the statement written out by the police interrogator.

Consider there was no direct evidence that linked Mr. Tallio to the murder, the second confession held the entire weight of the case. But the confession to the forensic psychologist was never had the chance to be put to the jury: Mr. Tallio made a plea deal for second-degree murder.

The reliability of the now-deceased forensic psychologist to whom Mr. Tallio allegedly made his second confession is also in question. Mr. Tallio claims that he never made the confession and never met with the doctor, Dr. Pos. In an affidavit to the court by a retired criminal defence lawyer, the lawyer wrote that he believed Dr. Pos had lied about meeting a client from a different murder case, and put forward serious concerns about Dr. Pos’ professional capabilities.

The UBC Innocence Project took on Mr. Tallio case years ago to try to appeal his wrongful conviction, and has amassed over 1,000 pages of materials, including affidavits, legal arguments, and other documents. An affidavit from a neighbour of the house where the child was found killed wrote there had been suspicious behaviour after the discovery of the child’s death, which may cast doubt on Mr. Tallio’s involvement. At the time, the neighbour had gone to speak to the RCMP about what she saw, but no statement was taken and no one spoke to her again about what she saw. Being ignored or dismissed by authorities was not an uncommon experience for those of the Nuxalk Nation.

When the lawyers and students from the UBC Innocence Project found that the records and exhibits from the original case had been destroyed, the case stalled. They then discovered that the tissue samples from the victim’s autopsy were still being stored at the BC Children’s hospital, which restarted the hope of the project. The RCMP spoke to Mr. Tallio soon after, and he offered to give them any DNA sample they wanted.

The Crown fought the idea of an appeal this long after the deadline has expired. An appellant typically has 30 days after their sentence begins to file an appeal. Mr. Tallio did not even know what an appeal was until many years after being incarcerated when two older inmates explained it to him. The Crown’s memorandum of argument says the affidavits that have been amassed are “not reliable because of the passage of time and apparent bias”. The Crown maintains that Mr. Tallio was properly tried and convicted.

The Crown also fought the DNA testing that Mr. Tallio’s lawyers presented to the court. One of the samples excluded Mr. Tallio, but the Crown argued this is not proof of his innocence because the samples are contaminated. The samples were collected decades ago before DNA analysis existed, so the method of collection has led to contamination. A second sample came back inconclusive and the Crown is not allowing any more DNA tests, arguing there is no point due to contamination.

In addition to being barred from parole or release, Mr. Tallio has not completed other programming that would be seen as aiding his rehabilitation, such as a sex offender program. He does not participate because he maintains he is not a sex offender, which has denied him additional privileges and freedoms.

A previous Rights Watch post outlined some of the background of Mr. Tallio’s case, and the difficulty created by maintaining innocence in a system that favours admissions of guilt.

This blog post was written by a CCLA summer student. Views expressed do not necessarily reflect the view of the CCLA.