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| John L. Hill |
Yaman had broken into a home in Esquimalt in October 2019. He was released on bail in November, with one of the conditions being to reside at a recovery home in the Fraser Valley. He left the facility and committed another break-and-enter at a house in Victoria on Dec. 29, 2019. During this break-and-enter, the homeowner came home just as Yaman was leaving. Yaman fled, but the homeowner and some neighbours were able to chase him down and surround him until police could arrive and arrest him. That background is not recorded in the judgment, which will be discussed later.
It should come as no surprise that he was again arrested for a break-in at a Saanich, B.C., residence on Aug. 12,
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A short while later, a man suspected to be Yaman was taped getting on a bus. This man was wearing different clothing. A baseball cap worn by the man getting on the bus had a different logo than the cap on the homeowner’s video.
The following day, police found objects taken from the home on the ground near the residence and articles of clothing similar to those recorded at the door.
Similarities between the man at the door and the man on the bus included a dark beard and tanned or brown skin. It was also noted that the person or persons seen had a round face and distinctive nose. Police tagged Yaman as a prime suspect and undertook surveillance before his arrest 10 days later.
The trial focused on the crucial aspect of identification. The police officer, who had been diligently observing Yaman before his arrest, was able to identify him in-dock as the person on the home security tape and the bus tape and the man he had been watching. Despite Yaman’s altered appearance in court, with a shaven head and face and weight gain, the officer’s detailed description of his roundish face, distinctive nose, receding hairline and skin colour left no room for doubt. He positively identified Yaman.
After adjourning the case at trial, Yaman returned to court, this time without counsel. He appears to have made an able argument that the quality of the videos was so poor that identification could be made and that the audio on the bus did not mimic Yaman’s voice. Nonetheless, the trial judge convicted Yaman. He appealed. The British Columbia Court of Appeal delivered its decision in R. v. Yaman, 2024 BCCA 141.
Appellant’s counsel argued that the principles outlined in R. v. Nikolovski, [1996] 3 SCR 1197, had been overlooked. In that case, it was argued that a black-and-white photograph was so washed out that a positive identification could not be made. The police had identified a suspect known to them by a distinctive hairstyle. The Supreme Court held that the similarity of haircuts would be of little use to the judge. It was up to the judge to determine if identification had been made.
There was also reliance on R. v. Hibbert, 2002 SCC 39, where the majority noted the danger of wrongful conviction from faulty though persuasive eyewitness identification. It cited the commissioner in the inquiry regarding Thomas Sophonow, who made recommendations regarding the conduct of live and photo lineups (Peter de C. Cory, The Inquiry Regarding Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement to Compensation (2001)).
Yet, in the end, the British Columbia Court of Appeal gave deference to the trial judge’s assessment of Yaman’s identification as the person who broke into the Saanich home. No legal error was found in her reasoning, and Yaman had a fair trial. Appellate intervention was unnecessary.
Perhaps Yaman’s background had more to do with his identification than videotapes.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.
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