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PROCEDURE - Pleas - Setting aside guilty plea

Tuesday, September 14, 2021 @ 5:22 AM  

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Appeal by Tallio, an Indigenous man, from his 1984 conviction for second degree murder. In 1983, an infant was sexually assaulted and murdered. The appellant was asked to check on the infant. He woke his mother up and told her the infant was dead and had been raped. The appellant gave an incriminating statement to police and was charged with first degree murder. A psychiatric evaluation found the appellant was fit to stand trial. While on remand, he made an inculpatory statement to a psychiatrist. The trial judge excluded the appellant’s statement made to the police. After the Crown indicated its intention to tender the appellant’s statement to the psychiatrist and to call the psychiatrist as a witness, defence counsel obtained verbal instructions from the appellant to offer to plead guilty to second degree murder. The Crown accepted the offer. Defence counsel obtained written instructions for the guilty plea. The appellant was sentenced to life imprisonment with no parole eligibility for 10 years. The appellant maintained his innocence and refused to participate in rehabilitation programs. He was never granted parole. Both parties adduced fresh evidence on appeal. Subsequent DNA testing showed DNA associated with the victim’s uterus and vagina came from two different males. The appellant could not be excluded as one of the donors.

HELD: Appeal dismissed. The fact the appellant was Indigenous had no bearing on the rules that governed the admissibility of evidence tendered in the appeal. The powers conferred by s. 465 of the Criminal Code in 1983 were not limited to a justice holding a preliminary inquiry. The provincial court judge had jurisdiction to remand the appellant for observation. The appellant did not demonstrate he received ineffective assistance from counsel. In 1983, nothing prevented the Crown from seeking to adduce the appellant’s statement to the psychiatrist. Defence counsel was properly concerned about the statement and did not err by obtaining instructions to negotiate a guilty plea. The appellant’s credibility and reliability were adversely affected by the inconsistent and irreconcilable alternative positions he advanced throughout the proceedings. The appellant did not establish his guilty plea was uninformed. Fresh evidence tendered by the appellant did not support his contention that he lacked capacity to understand the nature and consequences of his plea in 1983. The DNA evidence, which appeared likely to have been contaminated, did not exonerate the appellant. The evidence did not establish an inadequate investigation was conducted. The appellant did not establish someone else sexually assaulted and murdered the victim.

R. v. Tallio, [2021] B.C.J. No. 1789, British Columbia Court of Appeal, S.D. Frankel, S. Stromberg-Stein, J.J.L. Hunter JJ.A., August 20, 2021. Digest No. TLD-September132021004