The smell of smoke woke him, so faint at first it seemed like a dream.
Tomas Yebes had been listening to music in bed – earphones on, cord snaking to the stereo system downstairs – but when he awoke, the cassette had ended, and it was quiet.
He was confused at first. Was the smoke coming from his pipe? The toaster?
Downstairs, an acrid brown-grey haze was emanating from the small utility room where one of his sons had been sleeping. Tomas opened the door to find both boys there, lying still on the bed even as flames licked around them.
He pulled Tommy out first, fire blistering his hands and feet as he dragged the small, stiff body from the room. He tossed pans of water onto the child, though it was already far too late. He didn’t touch the older boy, Gabriel. It was clear he was already gone.
It was Feb. 24, 1982, a Wednesday, just after 1 a.m. in Surrey, B.C.
Police and firefighters arrived at the townhouse at 10570 Holly Park Lane in minutes, spraying the smouldering mattress first with fire extinguishers, then pulling it onto the balcony and tossing it to the ground, dousing it with water until it finally stopped smoking. Tomas was on the phone with his wife, speaking in what officers and firefighters would recall as a “foreign language.”
“The boys are dead,” he was saying, in Spanish. “They’re gone.”
He was, depending on whose impression was accurate and what moment they were describing, either completely distraught or totally emotionless. One officer described him as agitated and crying, while another said he was calm and “fairly detached from the situation.” Firefighter Wendell Dicks thought Tomas seemed emotionally “kind of cool,” and firefighter Gerald Wilson would later recall how he didn’t look at the boys, how he didn’t cry for them.
It appeared to be a terrible accident. As the Vancouver Sun reported the next day, police believed the boys succumbed to smoke inhalation “after apparently starting a fire in their mattress with a lighter.” It made sense. A silver butane lighter was found open on the floor in the room, and the boys had a history of playing with fire. Just weeks earlier, Tomas had been awakened in the middle of the night as they cried, “Fire! Daddy, fire!” and he ran into their room to find one of their bedspreads burning.
“Somebody was here,” Gabriel told him then. “Somebody was looking at me. Somebody was looking at Tommy.”
Tomas believed it at first. He grabbed a stick and ran through the house searching for an intruder, but found no one. He phoned the police in a panic, scared and struggling to get the words out in English. “Can this hand to someone please, someone tried to burn out my inside my apartment,” he said.
But the officer who came to the townhouse found no sign anyone else had been inside. The officer saw matches and a candle on a plate near the boys’ bed.
When the boys told Tomas a monster had been there, he understood they’d set the fire.
Tommy was six years old, Gabriel seven. A few days later, Tomas separated them, moving Gabriel to sleep in a tiny utility room downstairs. It was to be temporary, only for a few days until Gabriel stopped scaring his brother with talk of monsters and strangers, keeping Tommy awake late into the night.
Tomas and his wife, Elvira, met with Sergeant Gerald Tilley, the head of the major crimes section, in the officer’s glass-walled office at the RCMP building in Surrey on Feb. 25, 1982, the day after the fire. Elvira answered most of the officer’s questions while Tomas sat beside her, in tears. They talked about their family, about their struggles leading up to the fire. Tomas’s hands were burned and bandaged. He spoke quietly when he spoke at all.
The officer was sympathetic and understanding at first, but toward the end of the interview, the tenor of his questions changed. He told Tomas and Elvira no carbon had been found in the children’s tracheas and bronchial tubes, as would be expected if they had inhaled smoke from the fire. He made his message clear: He believed the boys were dead before the fire started.
Tomas had been increasingly upset during the interview, and at this, he was overcome. He curled up on the chesterfield in the office, pale and sweating, racked with sobs.
Sgt. Tilley asked Elvira to leave the room, so he could speak to Tomas alone.
“Did you put a pillow over the boy’s head?” he asked.
Tomas lay stricken, growing so distressed eventually the officer thought it was best to call an ambulance, and Tomas was taken to the hospital.
A month later, police charged him with two counts of first-degree murder.
Tomas Yebes was born in Madrid, and moved to Canada in the fall of 1967 for a woman he would later say liked him a lot when they met in Spain, but in Canada realized she didn’t like him so much. When they broke up, he stayed to learn English and met Elvira, who had moved to the country from Switzerland in the spring of 1968. They married the next year, and later built a new home in Surrey. Tomas worked as a hairstylist and wig maker, and became co-owner of a business called New Century Hair Design. Newspaper ads showed him handsome and smiling, with a friendly, open face, and thick, dark hair.
Where Tomas was warm and easygoing, Elvira could be stern and demanding – “authoritarian,” as Sgt. Tilley would describe her – but somehow it worked.
Tomas and Elvira’s first daughter was born in 1971; their second, two years after that.
The couple had been very affected by images of suffering children in TV news coverage of the Vietnam War, and after the birth of their two daughters, Tomas and Elvira decided to adopt two sons to make their family complete. When they realized a Vietnamese adoption wasn’t possible, they looked at other options, ultimately finding two boys through a government agency in Chile. Elvira travelled to South America in late 1979 to pick up the boys, Gabriel and Yerko, whom they would call Tommy. It was not clear whether the boys were related by blood, but in their new family, they would be brothers.
Tomas and Elvira were thrilled when the boys arrived in Surrey, but it didn’t go as they imagined. The boys, then 3 and 4, arrived with limited ability to speak in English or Spanish, and they lacked some of the basic skills and knowledge of other children their age. While they learned and adapted quickly, there were tensions with Elvira, who struggled to deal with the boys’ behaviour, and was impatient with their difficulties. As months passed, the situation only got worse.
In meetings in the spring and summer of 1981, Elvira told psychologist June Smith the boys had never connected with her, and still weren’t fitting into the family or following her rules. Elvira said she wanted to give them back and get two new little boys instead.
The boys responded better to Tomas, who was gentler and more patient with them. Sometimes he wondered if Elvira resented the boys because she thought he loved them more than he loved her.
The situation deteriorated to the point that, in September, 1981, Tomas and the boys left the family home and moved into a townhouse. Tomas hoped that with a bit of time the boys would settle down, and Elvira would take them back. The couple sought professional help from a variety of sources both separately and together, trying to work through the issues and discuss options.
It was not easy to care for the boys as a working single father, and when some of Tomas’s friends told him it was not fair to the boys to raise them that way, he listened. In the early weeks of 1982, Tomas went to see a family support worker, to talk about what it would mean to give the boys up. It was possible, of course. But it would be devastating for them, and for Tomas.
Tomas loved the boys, and they loved him. He was their father. At the end of the meeting, he asked whether he could get some kind of official document saying the boys couldn’t be adopted out, something to show Elvira to convince her it wasn’t even an option.
Three weeks later, on the evening of Feb. 23, 1982, Elvira and the girls went to the townhouse for the evening. They ate as one big family – wieners, potatoes and sauerkraut for dinner, and chocolate marshmallow cookies for dessert. Afterward, the kids played while Tomas and Elvira talked in his bedroom upstairs. Tomas made a good living, but it was impossible to keep supporting two households and paying for daycare on his income. He told Elvira when the six-month lease expired at the end of the month, he and the boys would have to move back into the family home.
Hours later, the brown-grey smoke was rising up the stairs.
To many who knew Tomas Yebes, the idea he would murder his sons and set fire to their bodies defied belief and imagination. To those who were closest to Tomas and the family – including Elvira’s sister and brother-in-law, who had their own young son – it was impossible.
As his trial began in the final days of August, 1983, Tomas’s family and friends were at his side, supporting him and, in some cases, testifying to his good character.
John Widman, who met Tomas through the hair salon, and became his friend while building his house in Surrey, said he’d seen Tomas and the boys often in the weeks before the fire – joining them for walks to the park, or out for fish and chips – and sensed no signs of trouble. He described his friend as “a real straight-up guy” who always showed how much he loved the boys and took good care of them. “He said to me on different occasions, no matter what, he was going to keep those kids,” Mr. Widman testified.
Even Melih Dille, a psychiatrist who had seen Tomas and Elvira separately and together as they dealt with their marital and family problems, spoke of Tomas in glowing terms. “My opinion was that Mr. Tomas Yebes was a very kind, loving, caring and considerate father who, having realized that his wife was unable to handle the children, decided to separate for the purpose of himself alone trying to, at least for a period of time, try and help the children … become more manageable and then eventually reconcile with his wife,” Dr. Dille said.
Testifying in his own defence, Tomas swore he did not hurt or kill the boys.
But the evidence, it seemed, was clear. And damning.
Fire Inspector William Coleman testified a rolled-up piece of fabric had been found underneath Gabriel’s body, one end burned in what he described as “a wick.” Fire Marshall Thomas Hardman, a former firefighter whose investigation included recreating the scene using pieces of chimney pipe in place of the children’s bodies, testified with certainty that an accelerant had been used to start the blaze.
William Cave, the pathologist who performed autopsies on the children, said he didn’t find burning in the boys’ mouths, throats, lungs or airways, as he should have if they were breathing when the fire began. He said the undigested food in their stomachs further indicated they likely died hours before Tomas reported the fire. “I feel certain that these boys were not alive at the time of the fire,” he said.
Wayne Jeffery, a toxicologist with the RCMP’s crime-detection laboratory, echoed the findings, on the basis that he didn’t find measurable carbon monoxide in samples taken from the boys’ bodies. He repeated his conclusion firmly twice under cross-examination. “They did not die in the fire.”
Though there were none of the signs typically seen in smothering or strangulation murders, the experts’ certainty that the children were dead before the fire and that an accelerant had been used to set the blaze was almost impossible to overcome.
The trial lasted two weeks. Jurors received their instructions on the morning of Sept. 13, 1983, and returned the verdict late that night: Guilty of two counts of second-degree murder.
In his sentencing, Justice W.J. Wallace noted Tomas had been a loving and caring family man, and acknowledged the murders were “a bizarre act” given the concern and care Tomas had previously shown for the boys.
But Justice Wallace attributed the murders to the “domestic problems and discord” that had been going on in the family, and speculated Tomas “murdered these young boys and deprived them of their lives, presumably to remove an obstacle or impediment to your domestic happiness.
“One can only feel revulsion for the senseless deprivation of the lives of these two young men,” he said.
He sentenced Tomas to life in prison with no chance of parole for 10 years.
When Tomas addressed the court, he pleaded with officials to re-examine the case.
“I would beg the police to not close the case, to not only use circumstantial evidence but please use feelings and sensitivity. I understand it is hard work, but I beg,” he said.
“To my friends [who] believe in me. I beg to them to not lose their faith because the truth will come out … I am innocent.”
The conviction of Tomas Yebes passed with relatively little notice. Though the murder of two children is typically a highly publicized crime, the case received sparing media coverage and only occasional follow-up, even as Tomas and those around him maintained his innocence.
When Tomas was released on bail during his appeal the following summer, Elvira told a reporter with the Province she was certain he hadn’t killed the boys.
“I believe he is innocent,” she said. “He has never been violent, he has never hurt anyone physically.”
The headline screamed “KILLER DAD - FREE.”
But the B.C. Court of Appeal, and then the Supreme Court of Canada, upheld the convictions.
“I don’t like the verdict,” said lawyer Tom Braidwood, after the Supreme Court decision in 1987. “But there’s not much else I can do for him.”
Speaking to a reporter at the William Head prison, Tomas offered to do a polygraph or be hypnotized, anything that could prove he didn’t kill his sons.
“The most important thing to me is to clear my name,” he said.
“To be in jail is not such a terrible thing. The worst thing to have in life is a murder charge. The fact someone can think of you as such a thing can depress you all your life.”
But Corporal Glenn Woods, one of the original officers on the case, said he remained confident investigators got it right, and his only question was whether there had been an accomplice.
“This is the one case in my career I’ll never forget,” Corp. Woods said then.
“Can you think of any worse crime? Here these poor kids were brought out of the holes of Chile and murdered by their father.”
Tarek Elneweihi says he always knew he would have to become a lawyer. It wasn’t exactly a straight line – as a young man in a band, a life in rock and roll beckoned – but by 2010, he knew what he had to do, and had started law school at the University of British Columbia.
Tarek was in his first year when a friend told him about the UBC Innocence Project, a new program where students and lawyers reviewed cases of potential wrongful conviction. He’d missed the deadline but applied as soon as he heard, then met with Tamara Levy, a former defence lawyer and Crown leading the project at the school.
Tarek was three years old when his cousins died, and his memories of the time were hazy. He remembered the way his uncle smiled in those days, the sweet smell of Captain Black from his pipe. He remembered the guitar his uncle decorated with copies of famous signatures, like Elvis Presley’s. He remembered the boys only in flashes.
Tarek’s parents (his mother is Elvira’s sister) were upfront and direct by nature, and they never shielded him from what happened. Even as a child, he knew the story. His cousins had died, and his uncle was convicted of killing them. The spectre of that had been present throughout his life. Had defined it, even.
When Ms. Levy asked why Tarek wanted to be part of the UBC Innocence Project, he told her something he’d been thinking about as long as he could remember: Because my uncle was wrongfully convicted of murder and I want to clear his name.
Tomas had been out of prison for 20 years by the time Tarek started law school. Tomas had started a sign business, and married a woman he met through a friend while he was living in a halfway house on parole. When they met, Martha had two children of her own. She, like many others, never even entertained the idea that Tomas could have murdered his sons. He was so good, so kind. It simply was not possible.
The UBC Innocence Project was starting its fourth year when Ms. Levy accepted Tarek into the program. (To avoid any potential conflict, he would not be able to work on his uncle’s case, and would be assigned to other files instead.) She told Tarek to talk to his uncle, and invited them both to a meeting at her office.
Tomas and Tarek had never spoken to each other about the boys’ deaths. Tarek was nervous about even bringing it up. But Tomas had been waiting a long time for someone to reopen his case, and he trusted his nephew deeply. He said if Tarek thought it was a good idea, they should do it. They met with Ms. Levy together. At the end of the meeting, Tomas broke down in tears. “I just can’t believe anybody would think I could have hurt these boys,” he said.
Having taught classes on wrongful conviction and miscarriages of justice, Ms. Levy knew the patterns present in many wrongful cases, and the common elements they often held: Individuals who are outsiders in some way, sometimes facing cultural or language barriers, and who don’t behave as others expect them to in the midst of a crisis.
The meeting with Tomas was emotional and moving, but she knew she had to put aside her feelings. It didn’t matter if she personally believed Tomas was innocent. Basing investigations on feelings and hunches was the same kind of flawed approach that led to wrongful convictions in the first place. If there was a case to overturn the convictions, it would have to come from the evidence.
Still, Ms. Levy believed there was something there. It was significant to her that Tomas had no obvious reason to re-open the case after so many years. He was out of prison, and had gone on to live a good life. His family stood by him, he had a devoted wife and a successful business. The only reason to open everything up all those years later was to clear his name.
That, in itself, was no small thing. While Tomas’s trial and convictions had largely disappeared from public view, in the country’s courtrooms the case had become deeply entrenched in law, his name virtually synonymous with guilt. R v. Yebes had become one of the most cited cases in Canadian law, mentioned hundreds – then thousands – of times in written decisions of other cases. The Yebes case was taught in law schools, and was well known to any lawyer who worked with criminal appeals. The case set the threshold required to find a jury’s verdict unreasonable. That standard was sometimes called “The Yebes test.”
If you looked at it closely, there was always something about the case that didn’t sit quite right.
Don Sorochan, a veteran B.C. defence lawyer who had been involved in the inquiry into the wrongful conviction of David Milgaard, was the first to review the Yebes case with the UBC Innocence Project. He immediately had questions about the forensics and the fire science, but there was something else, too.
In his lengthy career, which included a five-year term on the National Parole Board, Mr. Sorochan had worked with hundreds of murderers, and he had gotten to know the similarities and patterns among many of those who perpetrated such violence.
But Tomas Yebes was unlike any of the killers Mr. Sorochan had known. There was nothing before or after that day that even hinted Tomas could be capable of the cold-blooded murder of two children he deeply loved.
And even if Tomas could do something so out of character and brutal to his sons, why would he, when he had been the one fighting to keep them? The things that had been accepted as motive for one of the worst crimes imaginable, on examination made no sense at all.
“I didn’t have any doubt the first time I ever saw this file,” Mr. Sorochan says. “Right from the get-go, I didn’t think he did it.”
Reports from the National Parole Board described Tomas as polite, co-operative, hard working and “pro-social,” with no apparent psychological defects. They deemed him a low risk to reoffend. The board’s primary concern before his release, and it was significant, was that he refused to admit he’d murdered the children.
Refusing to admit to an offence can be a serious problem before the parole board. A person who does not accept responsibility can be seen as someone who is not sorry, and inmates who don’t take ownership of the offences for which they’re convicted are often denied parole. Because of this, people who maintain their innocence may remain in custody far longer than if they admitted the crime, meaning wrongfully convicted inmates can serve longer than the guilty.
(In another case taken on by the UBC Innocence Project, Phillip Tallio spent more than 34 years in prison without parole for a murder he says he didn’t commit. If he is exonerated, it may not only be the longest known imprisonment for a wrongful conviction in Canadian history, but also one of the country’s longest single prison terms. The case is currently before the B.C. Court of Appeal.)
For whatever reason, refusing to admit guilt didn’t appear to be an insurmountable issue for Tomas. He was released on parole to a halfway house in the summer of 1990, seven years into his life sentence, and received full parole early in 1994.
Mr. Sorochan began working on the case in 2010, and was soon joined on the project by Marilyn Sandford, another B.C. defence lawyer who volunteered her time to wrongful conviction investigations. Third on the project was Richard Fowler, a defence lawyer with a particular interest in forensics.
Because of its role in case law, the lawyers all already knew the Yebes case. But as they read through the transcripts of the trial and appeal, the holes, inconsistencies and issues with the case became increasingly clear.
Reading between the lines, it seemed like others had doubts about his guilt as well.
If the jury believed Tomas Yebes killed his children as the Crown had argued, the convictions should have been for first-degree murder. Yet the jurors convicted him of the lesser charge of second-degree, which implied they didn’t believe exactly what the Crown alleged. Surprisingly – given the highly disturbing nature of the alleged offences – the jury recommended mercy.
While the B.C. Court of Appeal upheld the convictions, one of the three justices had strongly dissented, and in his decision made it clear he didn’t believe Tomas was guilty. Even in prison, where other inmates can pose a threat to those who hurt or kill children, Tomas had no problems, and he was later granted parole very early for someone convicted of the most heinous and inexplicable of crimes, and still refusing to admit guilt.
“It was almost like everybody saw there was a problem with this case,” Mr. Fowler says. “But nobody could stop the train going down the track.”
Soon, each of the lawyers was certain of his innocence. But knowing something was wrong and being able to prove it to the standard needed to overturn an historic conviction entrenched in law were two very different things.
Unlike some wrongful conviction cases, Tomas had a competent defence, and good lawyers representing him at trial. Both his lawyers would go on to be a Supreme Court justices in B.C.
But while the defence urged caution with all aspects of the expert evidence – “what the scientists know in any given moment of research is constantly changing,” defence lawyer David Crossin noted in his closing address – the argument was largely predicated on the idea that someone else had committed the murders, and that Tomas was innocent because police had charged the wrong person.
The appeals of the conviction had been similarly focused primarily on the idea Tomas should not have been found guilty of the murders because someone else could have committed them.
But, as Mr. Sorochan, Ms. Sandford and Mr. Fowler reviewed the case, they realized that – outside expert testimony that the boys were dead before the fire and that the blaze was arson – there was actually nothing to say a crime had even occurred.
“In most murder cases, there’s compelling evidence of a crime,” Mr. Fowler says. “Somebody’s got a stab wound to the heart, somebody’s got a bullet in the head, those are murder cases. There’s no doubt there’s a murder. It’s all then about who did it, and what was their state of mind.”
But with the Yebes case, there was no such evidence. Everything rested on the expert testimony.
As the lawyers began re-examining the case three decades later, they were struck by a staggering question: What if the children’s deaths weren’t murders at all?
The room was small, six feet by four, more like a utility closet than a bedroom. Gabriel was to be sleeping there only temporarily, and it was intentionally spare, an incentive for him to stop keeping his little brother awake with monster stories so he could move back into their bunk bed in the big room upstairs. There was a mattress on the floor, a water heater, nothing else.
By the time the UBC Innocence Project took on the Yebes case in 2010, faulty fire investigation had been identified in numerous wrongful convictions in the United States, including that of Cameron Todd Willingham, who was executed after being convicted of murder in a fire that killed his three children in Texas in 1991. In that case and others, the conclusions of fire investigators had been exposed as extremely unreliable, often proffered by firefighters with very limited training in the science and, in many cases, confidently testifying to conclusions that were far less certain than they appeared.
With that in mind, the lawyers reviewing the Yebes case knew the conclusion that an accelerant had been used to start the fire on Holly Park Lane would have to be re-examined using modern fire science.
The scene of the fire was also particularly unusual. The small utility room was not the kind of space typically considered in studies of residential fires, and the lawyers wondered how the size of the room and the presence of the water heater may have affected the blaze.
Another factor was that Gabriel’s mattress was made from kapok, a vegetable material so combustible it can burn underwater.
The lawyers learned kapok was prone to “flameless combustion,” where it can smoulder for hours, incinerating itself without ever becoming fully enflamed. Because kapok depletes oxygen, it is highly dangerous in enclosed spaces, and ships have protocols for entering spaces with large amounts present.
As Mr. Sorochan had learned through earlier work with prison fires and workplace fatalities in manholes, oxygen deprivation can be an undetectable and even unprovable form of death, yielding autopsy results so vague they are essentially meaningless.
Using stomach contents to establish a time of death was already shaky science in the 1980s, and through the years had only become less legitimate. There were serious questions about both how and when the boys died.
It struck the lawyers that investigators originally thought the fire was an accident, and that initial impression was still the one that made the most sense. There were no signs of struggle or violence, none of the injuries usually seen in smothering or strangling deaths. The children had a recent history of playing with fire, and there was nothing to explain why Tomas would suddenly commit such an horrific act.
Each of the pieces of evidence used by the experts to prove murder was questionable. Everything else pointed to a horrible accident.
So how did the deaths come to be considered a crime? One news story during the trial attributed it to “scientific sleuthing by a pathologist and a fire marshal.”
But when the lawyers retained new fire scientists to review the evidence, it became clear that scientific sleuthing had been devastatingly wrong.
By the early months of 2019, the UBC Innocence Project team was finally ready to make its case, and the lawyers submitted an application for ministerial review. It had been a long road to that point, each aspect of the case requiring significant time and effort to fully investigate and consider, every report and inquiry stretching months and even years.
On Nov. 5, 2020, an order came down from the Minister of Justice and Attorney-General. After reviewing the application, Minister David Lametti had determined there was a “reasonable basis to conclude that a miscarriage of justice likely occurred in this matter.” He ordered a new trial. It was set for the following week.
Tomas and Martha arrived at the B.C. Supreme Court in New Westminster on Nov. 14, 2020. It was the same courthouse where Tomas had been tried and convicted of murder. He had been 40 years old then, young and strong. Now he was 77, and in a wheelchair. In the years since the UBC Innocence Project took on his case, Tomas had suffered serious health problems, including a stroke that left him unable to walk, and with difficulty speaking.
But as the clerk read aloud the two murder charges against him, his voice was as firm and strong as it had ever been. Clear and unwavering.
“Not guilty,” he said, to the first charge.
“Not guilty,” he said, to the second.
Marilyn Sandford addressed the court. She said three independent forensic reports commissioned by the UBC Innocence Project team had exposed critical flaws with the expert evidence at trial. Using contemporary fire science, the new reports upended everything that had been used to convict Tomas of murder. They concluded there was no evidence an accelerant was used, and that the lighter found in the room could have started the fire. The reports said the kapok mattress could have smouldered for hours without becoming fully inflamed, and that the children could have died shortly after it began to burn.
“While the jury was told by the experts in 1983 that, in effect, science proved a crime had occurred, the present state of forensic science provides an entirely different picture of the circumstances,” Ms. Sandford told the court. Three more forensic reports commissioned by the Crown had reached the same conclusions.
The Crown called no evidence, and the judge declared Tomas Yebes not-guilty of both murder charges. The proceedings lasted 20 minutes. It was 37 years and two months after his conviction. The case was over.
Tarek sat with his mother, tears running down his cheeks, wishing his father was alive to see it, too. It was the greatest thing Tarek had ever experienced, a moment he had imagined his entire life finally happening. It was almost impossible to comprehend. “I get to be one of the people that are able to say the most important dream they had as a child came true. That’s amazing to me,” he would say later. “Literally I could die tomorrow and I’m totally satisfied with my life.”
After court, Tomas and Tarek and the lawyers all had their photos taken together, Tomas thanking everyone again and again for their help and support, and for believing him.
Then he went home, an innocent man.
On Canlii, the online database of judgments from Canadian courts, R. vs. Yebes has been cited nearly 3,000 times, including appearing in more than 20 cases in the months since Tomas was found not guilty.
Exonerations are rare, and the systems are not made to fix such a catastrophic mistake. When Tomas’s parole officer called to set their regular appointment and learned he was no longer serving a life sentence, she told Tomas and Martha she’d never heard of that happening before.
The original decision in his case will remain on Canlii, the test for upholding guilty verdicts, with nothing to note it was a wrongful conviction.
Tamara Levy says she would like to see Tomas’s exoneration updated and recorded everywhere, in every police, and court and justice system database. So that if he ever wanted to, or was able, he could travel. So that when his name is searched, he is free not only from the convictions, but from their long shadows.
For those who worked on the case, the victory is profound. Mr. Sorochan, who graduated from law school nearly 50 years ago, calls it one of the most significant achievements of his career. But still, the celebration is uneasy.
It took 37 years to overturn the convictions, with 10 years of work by three veteran lawyers and students working countless hours, all mostly for free. Others contributed reports and resources, and the effort received essential funding from Legal Aid. If it weren’t for Tarek, the convictions would never have been re-examined at all. Few cases can receive that kind of treatment.
“I have a strong view that our justice system is good at giving guilty people a fair trial,” Richard Fowler says. “I’m less convinced it’s good at protecting the truly innocent.”
There are tangible changes that could help, including funding for experts, so defence lawyers have the same access to expert evidence as the Crown. David Milgaard, who served 23 years in prison for a murder he didn’t commit, has been arguing for the creation of an independent review board, to ensure there are mechanisms to review and overturn wrongful convictions as quickly as possible.
Ms. Sandford says she remembers going to watch the inquiry into the wrongful conviction of Donald Marshall in Halifax, when she was a student at Dalhousie University in the late 1980s, and thinking it was something historic and rare.
“What I’ve come to realize, sadly, the longer I practise, is that it can happen now and it is happening now,” she says. “My sort-of naïve belief that these are ancient wrongs, and they’ll fade away as we become more civilized and progressive, that was a mistake.”
Tomas Yebes said he hopes people can learn from what he went through, and that maybe his experience can help others who have been – or could be – wrongfully convicted. He says he’s not angry, only grateful to those who helped him, and glad that, after all these years, the truth has finally come out.
“There’s nothing to forgive. That’s the way life is,” he said, speaking slowly in a recent interview, Martha at his side. “You know, life brings you bad times but also brings you good times. You take both and try to learn from the experience of both. You learn a lot from the bad times, almost as much as the good times.”
Tomas and Martha have been together more than 30 years. They’ve spent nearly every moment together, once working side by side at their sign business, and now as she cares for him. Martha says Tomas has taught her patience and peace. In all that time, she says she’s never seen him mad.
Even before the pandemic, Tomas didn’t go out much. His wheelchair is big and heavy, his movements uncertain. They sold the business a few years ago because of his health, and he gets nervous outside. He says he doesn’t look too far into the future, or think too much about the past.
“Now is the time, and this is very important,” he says. “For me, every day is a beautiful thing.”
He lives a quiet life, spending most of his time playing chess on the computer or painting. He loved to draw and paint as a child in Spain, and he took it up again in prison, sweeping brushes through colour and pigment, creating anything he wants to see. It is a perfect world he paints. Vast mountains and lush forests, serene fields glowing in the sun.
Martha set up a bird feeder outside their window. When Tomas isn’t painting, he likes to sit there watching the birds come and go, wings lifting them up into the sky, so graceful and free.
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