Phillip Tallio was denied bail Friday during the extraordinary appeal of his decades-old murder conviction for the 1983 sex slaying of an Indigenous toddler.

Court of Appeal Justice Elizabeth Bennett said Tallio would require more community support and supervision than his supporters had arranged to protect public safety.

“The court is just being careful,” Tallio’s disappointed lawyer Tom Arbogast said. “There’s still optimism there, with what’s transpired. It’s a difficult process because of what (support) is available to him. That’s just part of everything about this appeal which is complicated.”

Tallio has been in prison for more than 36 years for the killing of 22-month-old Delavina Mack, his cousin, in Bella Coola. She was raped and suffocated.

“I would refuse the application for release with leave to reapply,” Bennett said in a brief ruling from the bench.

“The issue as I see it is whether there is sufficient protection to the public in terms of whether Mr. Tallio is likely to reoffend.”

Tallio has maintained his innocence since his arrest as a 17-year-old.

Bennett noted that the promise of exonerating DNA evidence that put so much wind into the sails of the rare historic appeal two years ago had proven overblown.

“The primary hope at the time was there would be irrefutable DNA results either exonerating Mr. Tallio or confirming his guilt,” she said.

That evidence turned out to be too degraded to be useful.

“We wanted a slam dunk, it didn’t happen,” Arbogast explained outside court.

Regardless, there are other aspects of Tallio’s prosecution that have been impugned.

“It’s complicated,” Arbogast said. “But there is still optimism.”

The Crown told the court Tallio’s release plan was inadequate and that he should have pursued parole rather than bail — he has served well past his parole eligibility date.

Still, relatives of the little girl told the court they remained fearful about his release, concerned about potential contact with him and the safety of children in the community.

“At this point, I’m not satisfied that (the transition house) provides sufficient supervision to satisfy the public safety aspect (of the criminal code bail provisions),” Bennett said after a review of the evidence she heard.

“This is not a criticism of the organization. It clearly provides a wealth of services for those individuals who are transitioning into society sometimes after long periods of incarceration.”

She was persuaded, however, Tallio required “at least initially” to have a “highly structured” release program.

“If released Mr. Tallio would require strict perhaps graduated but certainly strict conditions and (the transition house) does not provide any staff in the residence after 6 p.m. I am not satisfied despite their best intentions that they have the ability to enforce the bail conditions.”

Bennett did not agree with the Crown submission that Tallio must apply for day parole.

“That said,” she added, “day parole would likely provide the appropriate supervision and support that in my view is necessary. In addition, if his appeal is dismissed he would be able to continue on day parole whereas he will be re-institutionalized if his release is by way of bail.”

Although she dismissed this application for bail, Bennett gave Tallio leave to reapply and said she would consider release if a more structured and supervised environment was available.

Some of the victim’s family were in court for the decision — they smiled with relief at each other and quickly left without comment.

The appeal continues.