Robyn Batryn, holds a picture of Phillip Tallio holding a cat, at her home in Maple Ridge, British Columbia on July 7, 2017.BEN NELMS/The Globe and Mail
Lawyers for a British Columbia man who pleaded guilty in the murder of his young cousin more than three decades ago but is now challenging his conviction say testing additional DNA evidence is in the interests of justice.
Phillip Tallio was convicted of second-degree murder in November, 1983, about six months after the rape and murder of his 22-month-old cousin in the small community of Bella Coola, B.C.
Mr. Tallio has been in prison ever since. He denies he ever agreed to a guilty plea and has maintained his innocence.
The B.C. Court of Appeal said in June that Mr. Tallio could appeal his conviction, more than three decades after the deadline to do so passed. His application to appeal focused on DNA evidence, concerns about the police investigation, evidence of Mr. Tallio's cognitive limitations and reports of systemic racism, among other things.
The University of British Columbia Innocence Project took on Mr. Tallio's case in 2009, and DNA testing was done in 2011 that cast doubt on the conviction. The appeal has not yet been heard, but lawyers for Mr. Tallio and the Crown were in court on Tuesday to discuss additional DNA testing. "Right now, we are just concerned with getting an order to have this testing done," said Thomas Arbogast, who represents Mr. Tallio.
Mr. Arbogast said the RCMP seized 45 histology samples from BC Children's Hospital – where the toddler's autopsy was conducted – in 2011. Seven were sent to a U.S. laboratory for DNA testing. Mr. Arbogast said Mr. Tallio was excluded as a possible contributor to the DNA profile in that round.
Mr. Arbogast said the RCMP then sent the remaining samples for testing. However, this time, Mr. Tallio could not be excluded from the DNA profile. Mr. Arbogast said Mr. Tallio's uncle also could not be excluded.
Mr. Arbogast said the Innocence Project then asked the laboratory if any material remained that could be tested and was told it did. He said another laboratory using new developments in testing could better differentiate between Mr. Tallio and his uncle, who died in 2014.
Mr. Arbogast said the additional testing could be completed within a couple of months.
"Mr. Tallio will co-operate with respect to anything that needs to be done and we just wish to get over this step to get the tissues released so that they can get tested on the basis of the science," he said.
Rachel Barsky, Mr. Arbogast's co-counsel, said the additional testing could exclude Mr. Tallio and not his uncle from the DNA profile, or vice versa.
Mary Ainslie, a lawyer for the Crown, said reliability is a primary concern.
She said the laboratory at the University of Central Lancashire in Britain, which Mr. Tallio's counsel wants to use, has not been clear enough about its methods in its contact with the Crown.
"Once the testing is done, those results have to be assessed, and if the testing has been done by a non-accredited lab, by somebody without potentially the expertise to be meeting the standards that a court requires, that damage is done," she told the court.
Justice David Harris asked Ms. Ainslie why Mr. Tallio would involve a substandard lab.
"I would have thought that Mr. Tallio's counsel, Mr. Tallio, would have an overriding interest in trying to ensure that if there is a result that's generated through testing, that it be unimpeachable," he said.
Ms. Ainslie reiterated her concerns about the lab, although Mr. Arbogast described it as the "gold standard."
The three-judge panel adjourned the case for about three weeks.
It asked the parties to obtain information on the British laboratory's protocols and to determine whether its forensic pathologist would be willing to perform his testing at an RCMP facility.