Peter A Allard School of Law

UBC Innocence Project statement on R. v. Tallio decision

Aug 24, 2021

Professor Tamara Levy
Tamara Levy, Q.C., Director of the UBC Innocence Project

The UBC Innocence Project at the Peter A. Allard School of Law respects the decision of the British Columbia Court of Appeal in the case of R. v. Tallio, made on Aug. 19, 2021. The case of Phillip James Tallio is one of many the Project has worked on since it was established in 2007, with the aim of engaging selected law students to review claims of wrongful conviction in B.C.
 

“The issues in R. v. Tallio are multifaceted and complex and we respect the decision of the court,” said Tamara Levy, Q.C. director of the UBC Innocence Project and lecturer at the Peter A. Allard School of Law. “A number of hurdles made this an extremely difficult case to pursue, including the passage of time, the death of certain witnesses and a lost police file. The case took many hours of court time and a great deal of energy from all involved.” 

“Mr. Tallio is disappointed. He respects the court’s decision and we are considering further options,” said lead appellate counsel Thomas Arbogast.  “Cases like this are extraordinarily difficult and Mr. Tallio is grateful that he has had the opportunity to present his position. Simply having the chance to advance his case in a meaningful way is a milestone for Mr. Tallio and others who wish to have their convictions reviewed.”

Of the Project’s 20 cases under review, three involve guilty pleas and all three of those innocence claimants are Indigenous, Levy said “I don’t think that’s a coincidence. It is well known that there are systemic issues operating that affect how Indigenous people interact with the criminal justice system. Those problems were perhaps more acute in the 1980s and 1990s but still exist today.

In a recent report by the Federal/Provincial/Territorial Heads of Prosecutions Subcommittee on the on the Prevention of Wrongful Convictions, titled Innocence at Stake, police and prosecutors recognized the problem of false guilty pleas in a chapter dedicated to the issue. Another chapter is dedicated to at risk populations including First Nations, Inuit and Metis peoples in the criminal justice system, as well as youth in the criminal justice system. “The problems identified in each of these categories are present in Mr. Tallio’s case as he was just 17 when he initially came before the courts,” Levy said.

There should be further study into problems created by offering significant sentence reductions to those who plead guilty, given that an unintended consequence has been the wrongful convictions of factually innocent persons, including Indigenous persons.

Report: Innocence at Stake: The Need for Continued Vigilance to Prevent Wrongful Convictions in Canada

The report states “of particular concern is that Indigenous persons are more likely to plead guilty to offences, including offences of which they are factually innocent, or for which they have a valid defence. Recent Canadian research concludes that aspects of the justice system that provide incentives for guilty pleas disproportionately affect Indigenous people compared to the population at large, and there are several other factors that influence Indigenous people to confess and/or plead guilty.”

The report outlined these factors, including delays/adjournments, “unreasonable” bail conditions, remand, plea bargains, and legal representation. “Finally, there are unique aspects of Indigenous culture that contribute to guilty pleas, including language barriers, a distrust in the justice system, and a “cultural premium” placed on taking responsibility, agreement, and cooperation. These cultural values can lead Indigenous accused to plead guilty even if they are not legally guilty, to provide full confessions to police, and to agree in court whether or not they agree or even understand.”

The report goes on to make extensive recommendations. “There are a variety of strategies that should be explored to address the factors that contribute to the wrongful convictions of Indigenous persons. These include new rules for police interviews of Indigenous persons (whether achieved through legislation, standards, or police policies); improving the capacity of defence lawyers to competently advocate for Indigenous persons, including increasing the availability of culturally and linguistically suitable support persons and interpreters; and committing to actions to reduce the rate at which Indigenous persons are detained without bail, given the rate of guilty pleas among factually innocent Indigenous persons who are denied bail. Further research into guilty pleas among Indigenous persons, such as that which began in 2017 by the Department of Justice Canada’s Research and Statistics Division, should be strongly supported.”

Specific recommendations include:

  • There should be better training available for defence lawyers who represent Indigenous persons to address cross-cultural issues that may create barriers to effective communication
  • There should be further study into problems created by offering significant sentence reductions to those who plead guilty, given that an unintended consequence has been the wrongful convictions of factually innocent persons, including Indigenous persons. Not only is this an unacceptable outcome, it also creates barriers in the future to seeking legal redress, given the prejudicial impact of a guilty plea
  • As recommended earlier for female accused persons, a review of Crown policies across the country should be conducted to ensure all require an admission of all elements of an offence prior to a plea being accepted
  • The research that began in early 2017 by the Department of Justice Canada’s Research and Statistics Division on the issue of guilty pleas among Indigenous people should be strongly supported and its eventual recommendations carefully considered and appropriately resourced
  • Consideration should be given to amending s. 606 of the Criminal Code to ensure that Indigenous persons (and other vulnerable individuals) understand and consider all reasonably foreseeable consequences of a guilty plea

“The benefits that would follow any of these recommendations were not available to Mr. Tallio when he was a 17-year-old on trial in 1983. It is our hope that the government will implement the 2019 recommendations of the Heads of Prosecution Services and Chiefs of Police with regards to Indigenous people and guilty pleas in the criminal justice system,” Levy said.

UBC Innocence Project Director Tamara Levy is available to discuss the Project’s mission, work and current cases. Please contact alex.walls@ubc.ca to arrange.


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