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       55-year-old Phillip Tallio's insistence on his innocence led to the denial of parole.

       Courtesy of family

       A man who spent 37 years in jail for the sexual assault and murder of an infant has had his bid for exoneration rejected by British Columbia’s top court.

       Every ground of Phillip Tallio’s appeal – from ineffective counsel, to police inadequacy, to DNA clearing his name, and more – was turned aside, unanimously, by the B.C. Court of Appeal on Thursday.

       Although the 55-year-old was eligible for parole after just 10 years, his insistence on his innocence led to the denial of parole. If cleared, Mr. Tallio would have become Canada’s longest-serving inmate known to have been wrongly accused. His high-profile appeal raised issues of police tunnel vision in a small First Nations community.

       But the appeal court, which heard three days of testimony from him, found the B.C. man evasive and inconsistent.

       “In our view, he lacks credibility and his evidence is simply not believable,” Justice David Frankel, Justice Sunni Stromberg-Stein and Justice John Hunter concluded in a jointly authored ruling.

       Still, a woman who has been fighting for 20 years to clear Mr. Tallio’s name said she believes the appeal court got it wrong.

       “I feel just gutted that he lost the appeal,” Robyn Batryn of Maple Ridge, B.C., said in an interview. Ms. Batryn’s mother got to know Mr. Tallio when he was 13 and in a juvenile detention centre where she was a corrections officer.

       Mr. Tallio is being returned to federal custody. He was briefly free on bail while his appeal was being decided, a freedom that roughly coincided with the COVID-19 pandemic.

       “He got a small sliver of more normal life,” said Rachel Barsky, his lawyer. “He never did get to go to the hockey game that he was hoping for, unfortunately.”

       Mr. Tallio pleaded guilty as a 17-year-old to second-degree murder in the sexual assault and killing of 22-month-old Delavina Lynn Mack, a cousin of his, in 1983. Nearly three decades later, Ms. Barsky, then a law student with the Innocence Project, a clinic at the University of British Columbia’s law school, began investigating his conviction. Long after graduating, she continued pressing ahead, obtaining an appeal hearing, partly on the basis of new evidence.

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       Ms. Barsky said in an interview that she was disappointed, but not surprised by the outcome. “It’s not unexpected with this case and this court,” she said.

       She said Mr. Tallio’s legal team will ask the Supreme Court of Canada to hear an appeal of the B.C. ruling. She said the lawyers will discuss whether to seek bail while the process is under way.

       “I think it’s safe to say that after working for more than 10 years on this case, this is a case that I believe in,” she said.

       Delavina was found in the home of her grandparents on the Nuxalk Reserve in Bella Coola, B.C. Mr. Tallio, a member of the Nuxalk First Nation, had suffered extensive sexual abuse from an uncle, according to a written filing from his lawyers, which asserted that sexual abuse was rife in the community. Mr. Tallio was seen running from the house after the killing; he said he had found her and had gone to tell someone. The RCMP soon detained him, and he signed a confession.

       In a plea bargain nine days into his trial, Mr. Tallio pleaded guilty to second-degree murder with parole eligibility set at 10 years. Critical to the plea was an incriminating statement he made, while in jail on remand, to a forensic psychiatrist, Robert Pos. His confession to the police had been ruled inadmissible, and the Crown, which initially had charged him with first-degree murder, agreed to reduce the charge.

       In his appeal, Mr. Tallio argued that he suffers from poor cognitive ability, and did not understand that his guilty plea meant he had committed the crime. He also said his trial lawyer, Phil Rankin, had been incompetent, and should have attempted to have the statement to Dr. Pos ruled inadmissible.

       Further, he argued that DNA evidence from swabs of the infant’s body would show that he was innocent, and that the police investigation had been “glaringly inadequate.” Mr. Tallio pointed at other possible suspects.

       But the B.C. Court of Appeal rejected each argument. The judges accepted testimony from Mr. Rankin that he had explained the plea and that Mr. Tallio had given instructions, orally and in writing, to him, and understood that his plea meant he had committed the sexual assault and killing. They said that there was no legal rule against the use of Dr. Pos’s testimony.

       The court said the investigation’s adequacy could not be assessed because most of the police file had been lost. But the records that still existed did not show a police failure. And Mr. Tallio’s attempts to show others might have committed the crime were speculative and circumstantial, the court said.

       There were several DNA samples, and Mr. Tallio could be excluded from just one of them. That sample had been contaminated, the judges found. The others might also have been contaminated, they said, but at the very least, they did not clear Mr. Tallio.

       His testimony was inconsistent, they said. “Mr. Tallio asks us to accept that anomalies in his evidence are indicative of cultural and cognitive issues rather than his lack of credibility. It is our view that the discrepancies are more likely indicative of selective memory, reconstruction, and/or dishonesty.”

       Attempts to reach Mr. Rankin on Thursday were unsuccessful.

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