Case Summary
On September 13, 1983, a Vancouver jury convicted Tomas Yebes, a hairdresser who was born in Madrid and came to Canada in 1967, of killing his two young sons by setting a fire in his Surrey, B.C. townhouse.1
Yebes had separated from his wife as a result of conflict over the boys, whom the couple had adopted from Chile. On February 23, 1982, Yebes told his wife after a family dinner at the townhouse that he could no longer afford to keep two households; she was reluctant to reunite. She left the townhouse at around 8:00 p.m., leaving Yebes alone with the boys.2
Yebes awoke to fire and discovered his two sons together on a mattress and lifeless. It was apparent that Gabriel, his older son, was gone. Yebes pulled his younger son, Tommy (Yerko), out of the room, sustaining burns to his hands and feet. He poured water over Tommy’s body, but the boy was already dead.3
Yebes called the police. RCMP Sergeant Shaw entered the house through the unlocked front door. He found that the mattress was still on fire. To put it out, firefighters had to spray the mattress with fire extinguishers, push it over the balcony, and finally douse it with water on the ground.4
Initially, police believed the boys’ death to be a tragic accident: they seemed to have set the mattress on fire with a butane lighter that was found open in the room. Two weeks earlier, police had been called to Yebes’ house about another fire that the boys told him had been set by an intruder. Finding no signs of forced entry, they concluded that the boys, aged six and seven, had been playing with fire.5
However, the police theory changed when they received forensic pathology results suggesting that the boys had not died of smoke inhalation.6 On February 25, RCMP Sgt. Tilley made it clear to Tomas and his wife that he believed the boys were already dead by the time the fire started. The following month, Yebes was charged with two counts of first degree murder.7
At Yebes’ trial, forensic evidence supported the Crown’s theory that he had killed his sons before setting the mattress fire. A fire expert testified that it had been deliberately set with an accelerant, not by the lighter that was found nearby.8 A pathologist testified that the boys must have died before the fire started because he found no evidence of carbon particles in their mouths or throats. In addition, toxicology results revealed only normal (trace) amounts of carbon monoxide in the boys’ bodies. The pathologist also established the boys’ time of death, based on the stomach contents of their last meal, as approximately between 10:30 p.m. and 12:30 a.m., when Yebes was alone with them in the townhouse.9
Yebes testified as to his innocence.10 A psychiatrist who had interviewed him testified that Yebes was, in her opinion, “a very kind, loving, caring and considerate father who, having realized that his wife was unable to handle the children, decided to separate” in order to try to “help the children . . . become more manageable and then eventually reconcile with his wife.”11
After a two-week trial and a full day of jury deliberation, Yebes was convicted on two counts of second degree murder. He was sentenced to life imprisonment without the possibility of parole for 10 years.12
Yebes told the Court: “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.”13 Addressing his friends, he said, “[T]hey believe me. I beg them not to lose their faith because the truth will come out. I am innocent.”14
Yebes appealed to the British Columbia Court of Appeal in 1985, and was released on bail pending appeal. Yebes’ lawyer argued that the jury’s verdict was unreasonable, meaning that the evidence could not support it. Since the forensic science seemed to show that the children had been murdered, defence counsel argued that Yebes was not the only person who could have committed the crime, due to the unlocked front door. In addition, Yebes’ counsel argued that the jury was lacking important information in reaching its decision because the Crown did not call Yebes’ wife as a witness.15
The court dismissed his appeal, however: two judges concluded that the jury’s verdict was reasonable; the third judge dissented on the basis that there was no significant evidence of Yebes’ exclusive opportunity to kill the children.16
In 1987, the Supreme Court of Canada unanimously dismissed Yebes’ further appeal, with Justice McIntyre concluding that:
[T]here was evidence before the jury from which it could reasonably find that the two boys were dead before the fire in the mattress was set and that they did not die from natural causes. There was evidence upon which the jury could reasonably find that the fire in the mattress was not accidental but was set by a human hand with the aid of a liquid accelerant. There was evidence upon which they could reasonably find that . . . Yebes had a motive for killing the boys and that he had an opportunity to do so.17
Justice McIntyre found that there was no evidence of anyone besides Yebes and his sons being in the townhouse late that night, so it was reasonable for the jury to conclude that he “had exclusive opportunity to kill the boys.”18
In addition, Justice McIntyre found that Yebes’ wife’s testimony would not have led to a different result: “What could Mrs. Yebes add to the narrative? The whole tragic history of these children and this family was put before the court by other witnesses.”19 Justice McIntyre concluded that since there was “no evidence, or any suggestion that she was present, when the deaths occurred . . . all that she could have contributed was the bald assertion that she did not kill the boys.”20
Yebes’ lawyer, Thomas Braidwood, commented after the decision: “I don't like the verdict, but there’s not much else I can do for him.”21 Prosecutor John Hall said that Yebes’ case “was primarily a case of circumstantial evidence. But there's nothing unusual in that. It all pointed in one direction.”22 Yebes, however, maintained his innocence. From prison, he told reporters that:
The most important thing to me is to clear my name. . . . 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 [i.e., a murderer] can depress you all your life. . . . I'm willing to talk to the police, take a polygraph test, [undergo] hypnosis. Anything they want.23
Having exhausted his appeal options, and with no fresh evidence forthcoming, Yebes continued serving his sentence. In the summer of 1990, he was released on day parole to a halfway house; he received full parole in February 1994.24
In 2010, six years after Yebes’ release, the UBC Innocence Project took on his case. His nephew had started law school at UBC and applied to the program, stating that his uncle had been wrongfully convicted. Fire science had advanced considerably in the decades since Yebes’ conviction, and experts retained by the Innocence Project identified a number of serious errors in the forensic evidence called at his trial. They concluded that the lighter could have lit the fire, there was no evidence that accelerant was used, and the children could have died as the mattress smouldered. (It was made of kapok, a highly flammable material that can smoulder for hours without fully igniting, depleting oxygen as it combusts.) In other words, the boys’ death was in fact a tragic accident.25
In early 2019, Yebes applied for ministerial review of his conviction under s. 696.1 of the Criminal Code.26 On November 5, 2020, Minister of Justice David Lametti found that there was a “reasonable basis to conclude that a miscarriage of justice likely occurred.” The Minister of Justice ordered a new trial 37 years after the death of Yebes’ sons.27
In a proceeding that lasted 20 minutes, Tomas Yebes, then 77 years of age, was found not guilty after the prosecutor called no evidence.28 Yebes’ lawyer, Marilyn Sandford, told the court:
Had a jury heard the new expert evidence that the boys may have been alive for a short period after the fire started, and that the possible timeframes when the deaths occurred and when the fire was ignited were both quite broad, the case for homicide would have evaporated.29
Sandford observed that Yebes’ “two daughters, just children when their brothers died, have always believed in his innocence.”30 She further stated that:
Since his release from custody 26 years ago, Mr. Yebes has had his liberty curtailed by the restrictions that are imposed on “lifers” released on parole. Today is the day that he spoke about at his sentencing hearing, 37 years ago, the day he never lost faith would come, the day when the justice system has recognized what he and those close to him have always known – that he is an innocent man.31
After his acquittal 37 years after his murder convictions, Yebes told reporters: “I'm very grateful to so many people who put in so much time to correct the mistakes that were made before. That’s all I have to say now. That I’m very hopeful and thankful. I have waited a long time. Thank you. Thank you. I never expected it. I can't believe it.”32