‘I did not’: B.C. man convicted of killing toddler 37 years ago takes stand for historic appeal

VANCOUVER—Phillip Tallio sat in front of three B.C. Court of Appeal Justices on Tuesday and said, under oath, something he has asserted for the past 37 years.

“No, I did not.”

The question, posed by his lawyer, was whether he, in the early morning of April 23, 1983, had sexually assaulted and killed his 22-month-old cousin, Delavina Mack.

It’s the grisly crime to which he pleaded guilty and was imprisoned for 37 years, before being released in January in anticipation of a long-awaited appeal.

If the hearing goes Tallio’s way, his 37-year prison term will be the longest any Canadian inmate in modern times has served before having their conviction overturned.

Wearing grey sneakers, black track pants and a hoodie, Tallio walked at a measured pace to the courthouse in downtown Vancouver on Tuesday morning for the first day of what will be a four-week hearing. He arrived alone, his lawyer, Rachel Barsky, exiting the courthouse with umbrella in hand to escort him.

He stopped to sanitize his hands and smile at reporters — but not answer any questions — before the hearing began.

He would have plenty of questions to answer in the courtroom, where Crown prosecutor Janet Dickie soon began questioning his recollections of what happened in 1983 and the years since.

Phillip Tallio walks to court. If his conviction is overturned, he will have served the longest time in prison of any wrongfully convicted person in modern Canadian history.

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, and attending a hearing he hopes will formally make him a free man.

He is appealing his conviction on the grounds that his lawyer did not adequately explain the consequences of his guilty plea when it was entered on his behalf on Day 9 of his first trial, and that the investigation into Delavina’s sexual assault and death itself was inadequate and failed to find the true killer.

In previous court documents, Crown lawyers have argued that no miscarriage of justice occurred and that Tallio knew what he was doing when he pleaded guilty to second-degree murder.

Tuesday’s hearing began with a brief exchange between Tallio and his lawyer, in which he answered that he did not kill Mack.

The prosecutor then took the floor and began asking Tallio questions about a large package of evidence — including affidavits by Tallio, and letters he had written during his time in prison.

She began by asking questions about a letter Tallio wrote to a corrections officer, in which he refers to his guilty plea.

Tallio answered each question slowly, sometimes pausing for more than 20 seconds before answering and, at other times, trailing off and saying he had lost his train of thought.

He said he didn’t understand his plea bargain at the time it was made, but expressed confusion about the timelines and when he came to understand what his plea truly meant.

At one point, when Dickie asked about what was confusing Tallio, he responded: “Everything’s been confusing for the last 37 years.”

Tallio’s tone remained quiet and he spoke slowly throughout the questioning.

Due to COVID-19 restrictions, space in the courtroom was severely restricted. About six relatives of Delavina Mack, who identified themselves during a break but declined to speak with media, observed the proceedings from spaced-out chairs in an overflow room. While standing outside, some of the women put their arms around one another.

A lawyer representing Mack’s mother, Sarah Rauch, said simply it was important for the family that they be there for the appeal.

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“Of course the little girl is always in their thoughts,” Rauch said. “They are very much here representing her.”

The family of Delavina Mack exits court on a lunch break.

Tallio was 17 at the time the little girl was sexually assaulted and killed.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.

But Tallio would be repeatedly denied parole because behind bars he maintained his innocence.

The crime happened on the Nuxalk Nation reserve in Bella Coola. The victim 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.

On April 22, 1983, Phillip Tallio, who was living with his aunt and uncle at the time, 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.

According to a factum filed by Tallio’s lawyers, he 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.

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Tallio says that was when he found Mack’s grandparents asleep in the living room, and Mack’s body in a bedroom. He says he tried to wake up the grandparents, but that they wouldn’t wake.

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 17-year-old 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 — that he had found Delavina Mack’s body but not caused her harm. 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 early morning of the day she was killed. Many of those interviewed by Tallio’s lawyers were not interviewed by police in 1983.

An important part of the appeal is Tallio’s lawyers’ argument that police in 1983 did not conduct a thorough investigation to find the true killer.

As summarized in the factum provided by Tallio’s lawyers on his behalf: “There was a miscarriage of justice because the investigation into the murder of Delavina Mack was inadequate and fresh evidence points to a reasonable probability that others perpetrated the crime and covered it up.”

Tallio’s lawyers also plan to call into question evidence provided by a psychiatrist, Dr. Robert Pos. Pos wrote a letter indicating Tallio had admitted to the crime in response to his questions during a psychiatric interview. Tallio says it did not happen, and there is no written or taped record of the interview itself, nor was anyone else present.

The factum filed by the Crown was entirely redacted in the version provided publicly. It’s clear from a response to that factum filed by Tallio’s lawyers that the Crown plans to argue Tallio entered his guilty plea having been fully informed of what it meant, and that no miscarriage of justice had occurred in the investigation into Mack’s death.

Alex McKeen

Alex McKeen is a Vancouver-based reporter covering transportation and labour for the Star. Follow her on Twitter: @alex_mckeen