This week on Legally Speaking with Michael Mulligan:
In 1983 Tomas Yebes was convicted by a Vancouver jury of murdering his two adopted sons, ages 6 and 7. The conviction was upheld by the BC Court of Appeal and the Supreme Court of Canada.
Now, at the age of 77, after having spent a decade in jail, and 26 years on parole, thanks to work by the UBC Innocence Project, he has been acquitted.
The two boys died as a result of a fire in their bedroom. The original conviction was based on an incorrect expert opinion that the boys had died of an unknown cause before the fire started.
When he was sentenced, in 1983, Mr. Yebes turned to the prosecutor and said “I also realize you are doing your job, and although I know you have made a mistake, I hold no animosity. To my friends, they believe me. I beg them not to lose their faith because the truth will come out. I am innocent.”
Section 696.1 of the Criminal Code permits the Minister of Justice to order a new trial for someone who has exhausted their appeals where they are “satisfied there is a reasonable basis to conclude a miscarriage of justice likely occurred.”
Based on the evidence and submission of the UBC Innocence Project the Minister of Justice agreed that this test had been met and ordered a new trial. The Provincial Crown then agreed that Mr. Yebes should be found not guilty and called no evidence at his new trial.
Also discussed on the show are changes to the Provincial Court Family Rules in Victoria and Surrey, which will require parenting education, mediation, and a meeting with a family justice counsellor before many family law cases go to court.
The hope is that more disputes can be resolved on a consensual basis, with the assistance of mediation and other services, rather than needing to proceed to court.
Finally, a Court of Appeal case involving the Delta Hospice Society is discussed.
The board of directors of the Delta Hospice Society is opposed to medical assistance in dying and was attempting to amend the constitution of the society to turn it into a “Christian community that furthers biblical principles,” including the sanctity of life.
To accomplish this, the board of directors was denying memberships in the society to people that didn’t agree with their proposal in order to prevent them from voting.
The Court of Appeal upheld a decision by a Chambers Judge that the board of directors didn’t have the authority to deny memberships in the society for this reason.
Because virtually all of the funding for the Delta Hospice Society is provided by the province of British Columbia, and because medically assisted dying was legalized in 2016, it could lose its funding unless these services are made available on-site.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am.
Automated transcript of the episode:
Legally Speaking Nov 19, 2020
Adam Stirling [00:00:00] Time for Legally Speaking, where we check in with Barrister and Solicitor with Mulligan Defence Lawyers Michael Mulligan joining us, as always. Good morning, Michael. How are you?
Michael T. Mulligan [00:00:08] I’m doing well. Thanks so much for having me.
Adam Stirling [00:00:10] And I can say with a great deal of confidence that I am not in possession of any weapon, pepper spray or otherwise at this time, because that would be highly inappropriate.
Michael T. Mulligan [00:00:17] That’s exactly right. It’s a bear deterrent, not a weapon of any kind.
Adam Stirling [00:00:21] Absolutely. What’s on the docket for us today?
Michael T. Mulligan [00:00:24] Well, the first case, I think, is one more cautionary tale for all of us in the justice system in terms of what can go wrong when there is a wrongful conviction. And this case is a case of Mr. Yebes. He’s a man who back in 1983, who was convicted of a double murder of his two adopted sons, Gabriel, who is seven, and Tommy, who was six. It’s a case from over in the Lower Mainland. And it’s a tragic circumstance; the background of the case was that Mr. Yebes and his wife became concerned about the plight of poor children in Third World countries and went through an extended process to adopt two young boys, I just mentioned.
Adam Stirling [00:01:14] Yes.
[00:01:14] From Chile and they moved to the Lower Mainland and joined Mr. Yebes and they had two daughters of about the same age at the time. Unfortunately, things at home didn’t work out well Mr. Yebes’ wife became concerned the boys weren’t following rules around the house and tension arose as a result. And Mr. Yebes agreed to move into a townhouse nearby with the two boys to give some, I guess, respite for his wife.
Adam Stirling [00:01:42] Yes,.
Michael T. Mulligan [00:01:43] He was a hairdresser. He’d been living there for about six months, taking care of the boys. They were still getting together as a family for meals and so on. And then tragically, one night, a fire broke out in the bed where the boys were in their bedroom. Mr. Yebes called 91, police showed up fire department eventually and the two boys were found to be dead. So, it was a complete tragedy. The, at the time, there was a doctor who gave expert opinion that the boys had not died from the fire in the bed. The doctor claimed that because of a test of their blood, they must have been dead beforehand, although he could find no other cause of death. There was a jury trial. The other piece of evidence was this, that about two weeks prior to this tragic incident that led to the murder charges and the conviction, the other piece of interesting evidence was that Mr. Yebes had phoned the police, out of concerned for a fire started by the boys in their bedroom. And the police on that occasion had shown up, investigated it, spoken to the two boys, found a candle on a plate in the room. The two boys explained that the fire had been caused by a, “monster who had been in the room”. The police officer concluded the boys had been playing with fire and told the tale of the monster to avoid reprimand.
Adam Stirling [00:03:14] Very likely.
Michael T. Mulligan [00:03:15] Very likely so, but based on that evidence from the doctor about the fact that the boys had been dead before the fire started, even though they couldn’t point to any other cause of death, the jury convicted him.
Adam Stirling [00:03:28] Hmm.
Michael T. Mulligan [00:03:29] And so he was convicted of murder, interestingly and this was recited in the most recent court appearance following the conviction, he turned and said this; said, I would beg the police not to 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 then turned to the prosecutors and said, I also realize you were doing your job and although I know you have made a mistake, I hold no animosity. To my friends, they believe me. I beg them not to lose their faith because the truth will come out. I am innocent. And indeed, it has. It just took a very long time. Mr. Yebes was sentenced to life in prison. He, his parole eligibility was ten years. He spent about eleven years in prison and was released 26 years ago but has been on parole with conditions ever since.
Adam Stirling [00:04:23] Hmm
Michael T. Mulligan [00:04:23] He’s maintained his innocence and with the support of a program called the Innocence Project, which is run by the law school, the University of British Columbia. He eventually made an application pursuant to a provision of the Criminal Code that now exists, Section 690. That allows once somebody has exhausted all of their appeals to appeal to the minister of justice to review the case. And Mr. Yebes had, in fact, exhausted all of his appeals. He appealed his conviction to the British Columbia Court of Appeal and on a two to one split, they upheld the conviction.
Adam Stirling [00:05:00] mhmm.
Michael T. Mulligan [00:05:00] And he appealed it all the way to the Supreme Court of Canada in a case which for a long period of time was pointed to as a significant case in terms of what amounts to sort of deference on a on an appeal.
Adam Stirling [00:05:14] Hmm
Michael T. Mulligan [00:05:15] The Supreme Court of Canada pointed out that, you know, where there is an appeal based on a claim that the verdict was an unreasonable one. The test that ought to be applied is whether the verdict is one which a properly instructed jury could reasonably have rendered, sort of this deferential test.
Adam Stirling [00:05:33] Yes.
Michael T. Mulligan [00:05:33] And on that deferential test, found that, no, the jury could have reached this verdict and dismissed his appeal. The Innocence Project, now, after all of these years, with the benefit of more modern medical science concerning the assessment of the blood of the children, concluded that that doctor’s testimony about the fact they must have already been dead based on the, I guess, gases in their blood, was wrong. And the Minister of Justice, pursuant to the review and they actually have a team, I guess, six lawyers who work for the Ministry of Justice.
Adam Stirling [00:06:09] Mhmm.
Michael T. Mulligan [00:06:09] Doing these reviews of claims of miscarriages of justice, where there’s no further appeal possible that’s been exhausted, reviewed it and the evidence and material provided by the Innocence Project. And it concluded that indeed it appeared likely that there was a miscarriage of justice. And as a result of that, the Ministry of Justice ordered a new trial just at the beginning of this month. In fact, November 6, the order was made, very promptly the matter was put back into court and crown counsel now, with the benefit of the modern medical science about the cause of death, quite properly stood up and said, I’m calling no evidence and I invite the court to acquit. And that’s exactly what just occurred. And so, Mr. Yebes, after all of these years, 37 years, was finally found not guilty of killing his two adopted children. Happily, during all of that time, his daughters stood by him and believed in his innocence. And thanks to the good work done by the, The Innocence Project.
Adam Stirling [00:07:23] Wow.
[00:07:23] Finally, we’ve sort of best the system can do to put that right. But I think one of the real takeaways here is just how much harm can be done when, we in the criminal justice system, get something like this wrong.
Adam Stirling [00:07:40] Yes.
Michael T. Mulligan [00:07:41] It’s obviously just a completely ruinous, this person’s life and reputation was taken from him. He spent many years in prison and on parole and now with the benefit of more modern medical evidence, appears clear that he simply didn’t do it. And so we all need to be, I think, very careful everyone from people serving on juries to judges and it should, I think, also cause us to reflect upon things like sort of the level of deference that we was expressed there by the Supreme Court of Canada. And the case that bore this man, bears this man’s name, which was pointed to for many years as being sort of a leading case on how deferential courts of appeal should be.
Adam Stirling [00:08:30] Yes.
Michael T. Mulligan [00:08:31] When assessing claims of a wrongful conviction like this. It’s all very well to say, you know, well, you know, could somebody have come to this verdict? But here is yet one more example of where we got it wrong and somebodies’ life was ruined. In addition to the tragic loss of the two young boys.
Adam Stirling [00:08:52] A reminder of the importance of the checks and balances that we have within this system and also why the work that you and other defence counsel do, Michael, is so important because the state has so much power over a person’s life and it is absolutely crucial that their rights be preserved and upheld in all cases, regardless of what they may not have done to guard against situations just like this.
Michael T. Mulligan [00:09:14] Yeah, I mean, some of the concepts that we, you know, perhaps take for granted and sort of use in a loose way, you know, the presumption of innocence and the need for proof beyond a reasonable doubt. You know, you really, really need to think very carefully about those things, particularly when you see cases like this, and this Mr. Yebes was not alone. There have been many cases now that have with the benefit of DNA and other scientific advances, we now know that we simply convicted innocent people of doing very serious things. And of course, it’s only going to be in very serious cases like murder convictions, where you’re going to have groups like the Innocence Project.
Adam Stirling [00:09:55] Yeah
Michael T. Mulligan [00:09:56] They spent 10 years working on this.
Adam Stirling [00:09:59] Yeah.
Michael T. Mulligan [00:09:59] That’s not happening in every sort of routine case.
Adam Stirling [00:10:02] No.
Michael T. Mulligan [00:10:03] So cases like this should be a reminder for all of us about why we just need to be so careful and just how much harm can be caused when we get it wrong and come to the wrong conclusion.
Adam Stirling [00:10:14] Indeed. Let’s take a quick break, Legally Speaking. We’ll continue in just a moment on CFAX 1070.
Adam Stirling [00:10:18] Legally Speaking, with Michael Mulligan from Mulligan Defence Lawyers as we continue our conversation on CFAX 1070. Up next on the agenda, Michael. A new provincial court approach to family disputes in Victoria and Surrey.
Michael T. Mulligan [00:10:31] Yes, indeed. So, this is a process which is a project that’s been in place now, started in 2019 in Victoria as a pilot. And on December 7th, it’s going to be formalized and extended to both Victoria and Surrey. And the idea is to make some changes to how family court cases are dealt with in provincial court. And I should pause there for a moment to see some family cases go to provincial court and other family law cases have to go to the Supreme Court.
Adam Stirling [00:11:05] Mhmm.
Michael T. Mulligan [00:11:05] If somebody wants a divorce or is doing an adoption or is asking for the division of property. Those things have to be dealt with in Supreme Court. But there’s a large number of family cases that don’t involve those things which are dealt with in provincial court. Provincial court tends to be less procedurally intense, and as a result, you tend to wind up with more people who don’t have a lawyer who were in provincial court. Right.
Adam Stirling [00:11:36] hmm.
Michael T. Mulligan [00:11:37] Also, that’s a function of the fact that if you’re not dealing with the division of property, probably money to hire counsel is tight. Right.
Adam Stirling [00:11:44] Makes sense.
Michael T. Mulligan [00:11:45] The other reality.
Adam Stirling [00:11:46] Yeah.
Michael T. Mulligan [00:11:47] And so you wind up with a large number of people who are often unrepresented. And the court process has traditionally been, you know, you would make an application, you go before a judge, a judge to make a decision. But what is being tried here is rather than having every application go straight in front of a judge for a determination to be made by the judge. The idea is to try to encourage people to come to a resolution together with some assistance prior to going into a courtroom. And so for in provincial court what’s going to be tried is to require for most applications before somebody would be allowed to just go in front of a judge for a decision, to require the person or the couple to go and meet with a family justice counsellor, to go through a parenting education program and then to participate in at least one mediation session to see whether it’s possible for the couple to come to some agreement with those kind of assistance, you know that kind of assistance being provided. Along with some, at least, general legal advice being available to try to encourage the early resolution of things on a consensual basis, rather than having everything go before a judge for a decision to be made. Some applications can still go before a judge without going through those steps. They would include things like protection orders, where there’s some danger posed by one person to the other potentially, or some urgent parenting matter, you know, where there’s some danger to a child. But the concept is to rather than having everything be dealt with in court, to try those steps of mediation and counselling and parenting information and so on, hoping that it would result in an agreement. And then where that doesn’t happen, before simply the application would be heard by a judge and decided, to have one of these things called a family management conference occur.
Adam Stirling [00:13:55] mhmm.
Michael T. Mulligan [00:13:55] Where there would be sort of an informal process with a judge after the parties have gone through things like the parenting course and the meeting with the family justice counsellor, and the mediation to then try with the assistance of a judge to sort of manage the case and see whether some interim things can be done so that things can be hopefully resolved in a fashion that’s less confrontational with fewer things simply winding up as a black and white fight in court and then a decision being made. And then for things that do ultimately need to wind up going into the courtroom, the hope is that by having this procedure at the front end, people would be ready to do that in terms of things like having exchanged financial information and other material that will be necessary for the judge to make a decision. Whereas if you had two people just immediately go into court not having a lawyer, legal advice, you could well imagine what would happen. Right. People would show up and, oh, you know, she hasn’t given me her tax return,.
Adam Stirling [00:14:59] Yeah.
Michael T. Mulligan [00:14:59] He hasn’t done this and that, and then the idea is to conserve sort of sparse judicial resources, and I suppose the other element of it as well is that, you know, if people are with the assistance of mediation and so on, able to come to some agreement themselves, that’s likely to be a more satisfactory thing than a decision imposed by a judge. You know, two people are able to sit down with the benefit of a mediator, sort out where Johnny’s going to go and what days.
Adam Stirling [00:15:30] Yea.
Michael T. Mulligan [00:15:30] and whose picking him up and so on. That’s likely to be a more satisfactory thing than having a third party say here’s how it’s going to work. And so hopefully this has some success. And as I said, Victoria and Surrey, are going to be the places where we’ll try it out and see how it works.
Adam Stirling [00:15:50] The B.C. Court of Appeal, dismissing an appeal by the Delta Hospice Society with respect to membership and medically assisted dying, a sensitive topic for many.
Michael T. Mulligan [00:15:59] Yes, indeed. So, this case comes out of the Delta Hospice Society over and not surprisingly, Delta. And the issue is this. The board of directors of the Delta Hospice Society does not want to have medically assisted dying provided in their facility for religious reasons. And the board of directors was trying to amend the Constitution of the Delta Hospice Society to turn it into a, “Christian community that furthers biblical principles, including the sanctity of life.” That’s what they wanted to do.
Adam Stirling [00:16:39] mhmm.
Michael T. Mulligan [00:16:40] Now, that takes us to what is the Delta Hospice Society.
Adam Stirling [00:16:44] mhmm.
Michael T. Mulligan [00:16:44] And its society under the society’s act, almost all of its funding, though, is provided by the province, 94% percent of its funding is provincially, provided provincially. But the way the thing got into court is that the Delta, The Delta Hospice Society has bylaws that sort of set out things, including who can be a member of the Delta Hospice Society. And basically, the process is you apply, and you pay $25. Congratulations, You’re a member of the Delta Hospice Society.
Adam Stirling [00:17:17] mhmm
Michael T. Mulligan [00:17:17] So when this issue became contentious, what the board of directors started doing is rejecting people who wish to join the Delta Hospice Society who were not, in their view, opposed to medically assisted dying. And so, when people would apply that they thought might support medically assisted dying, they would reject their application and only accept applications by people who had the opposing view.
Adam Stirling [00:17:48] mhmm
Michael T. Mulligan [00:17:48] With the hope that they’d be able to pass this resolution at an extraordinary general meeting to turn the hospice society into the Christian community that furthers biblical principles. Right.
Adam Stirling [00:18:00] mhmm.
[00:18:00] And so that’s how the thing wound up in court. And the both the Chambers Judge and now the Court of Appeal made clear that, you know, the court is there to determine whether you know or what exactly that Delta Hospice Society ought to do or, you know, whether public funding ought to go to this society or whether medically assisted dying is a good idea or not. But the court does have a role under the society’s act to ensure that the society is acting in accordance with its bylaws and the societies act.
Adam Stirling [00:18:34] Hmhh.
Michael T. Mulligan [00:18:34] And so the chambers judge and now the court of appeal reviewed the history of that, including, you know, how do the bylaws for this organization, you know, what do they require and what is the history of things like membership?
Adam Stirling [00:18:49] Yes.
Michael T. Mulligan [00:18:49] And so they reviewed all of that. It’s also interesting to see just of what happened to membership here back in when all of this controversy arose, a number of people who were members of about 400 and after this became a controversial issue, membership potentially exploded. I think it was up to like 1600 or something of that sort. But with this group of several hundred that the board was rejecting their membership because they didn’t like their, their views. And so, the court was analyzing what is the society’s bylaws require. And they concluded that the board does not have the authority to reject applications based on, you know, the moral viewpoint of the potential member.
Adam Stirling [00:19:38] mhmm
Michael T. Mulligan [00:19:38] Also, interestingly, the board tried to utilize one of the COVID related emergency ministerial orders, Ministerial Order 116, which is an order that allows corporations and societies to have meetings by telephone or other media provided that all persons at the meeting communicate with each other and vote. The idea being that we have to have an annual general meeting, we don’t want to have everyone packed into a gymnasium. So, let’s set up MS Teams call or something, right?
Adam Stirling [00:20:10] Yes, yes.
Michael T. Mulligan [00:20:11] Well, that’s fine so far as it goes. But what the anti-medically assisted dying board of directors did, is that after denying the membership of the people who were in favour of medically assisted dying, they tried to conduct a mail in ballot by having the people that they had approved all vote on the change to adopt the Christian community biblical principle idea.
Adam Stirling [00:20:37] mhmm.
Michael T. Mulligan [00:20:37] And the court chambers judge in the Court of Appeal concluded that no, the that ministerial order, while, it permits meetings to be conducted by telephone or other media Zoom or Teams or something of that sort. It doesn’t permit you to turn your general meeting into a mail in ballot. And so that got rejected as well. The board then tried arguing that they had a constitutional right to Freedom of Association, and they shouldn’t be required to associate with all of these people that didn’t adopt their values of being a Christian community. That got rejected by the Court of Appeal, in part because they didn’t raise that issue back in the original chambers hearing. And so, the outcome of all of this is that the Delta Hospice Society is going to need to try again. They’re been ordered to approve the memberships of all the people who paid the $25. And then there will be a meeting called where everyone can actually communicate with each other. And ultimately, I suppose there’s going to be a vote on whether there should be a change to what’s been proposed by the board of directors. The other thing which is layered on top of all of this is an issue about government funding. Right.
Adam Stirling [00:21:56] mhmm.
Michael T. Mulligan [00:21:56] I mentioned the 94% of the funding was provided through the provincial government and the health authority. And so, there’s another issue there about whether there should be public funding continue to be provided to this society if they decide to adopt this religious principle and refuse to provide medically assisted dying services in the facility.
[00:22:20] You know, should the provincial government be paying for this society? And so, they may have a separate issue there. So, tensions are high. The Delta Society, no doubt they do all sorts of other very good work. You’ve got funding by the provincial government, but they’ve also got all kinds of volunteers who are, you know, diligently trying to help people in the last stages of their life.
Adam Stirling [00:22:45] Yes.
Michael T. Mulligan [00:22:46] Well, you know, well-intentioned people, I think, all around, but very high tensions based on the religious differences about, you know, how that should be handled and then various important public policy questions in terms of funding. But I guess at least as a result of the court decision, all the people that paid their $25 are going to eventually get to have a meeting and have a vote on what they think they should do. And then it will be over to the government, I suppose, to determine whether they’re going to continue to fund the society depending on what approach they take.
Adam Stirling [00:23:20] Very well. We’re all out of time for today, Michael, but thank you for your time, as always. And we look forward to next week.
Michael T. Mulligan [00:23:24] Thank you so much. Stay safe.
Adam Stirling [00:23:26] Take care. Michael Mulligan with Mulligan Defence Lawyers.
Automatically Transcribed on November 19, 2020 – MULLIGAN DEFENCE LAWYERS