Case Summary
On July 6, 2002, a fight broke out sometime after midnight at the HHMS Nightclub in Scarborough, Ontario.1 51-year-old Collin Moore was hosting “a social event for members of [Toronto’s] . . . Guyanese community in their 30s, 40s, and 50s,” as he had done on the first Friday of each month for the preceding several years.2 Collin and his brother Roger, who was selling tickets, denied entry to a group of four men and a woman in their late teens to mid-20s who refused to pay the $10 cover charge for admission. The group pushed their way into the club, leading to an altercation. The intruders left, but three men arrived back on the premises shortly after, two of whom were armed.3
Gary Eunick, who was known at the nightclub and recognized by several eyewitnesses, had a semiautomatic handgun. The other armed man, whose identity was unknown, carried a long-barrel revolver. Eunick and the other man entered the club’s kitchen, where the Moore brothers had retreated.4 The intruders shot Collin Moore eight times and killed him. Roger Moore received a bullet graze wound to his forehead, but survived.5
In the aftermath of the shooting, the nightclub’s owner observed Eunick fleeing the premises in a green Honda. He wrote down the licence plate, which enabled police to retrieve the vehicle’s registration: the Honda belonged to Leighton Hay’s mother. 19-year-old Leighton and his sister, who was Eunick’s girlfriend, lived at home with their mother. Police commenced surveillance at the Hay residence and found the green Honda parked in the driveway. Meanwhile, other officers showed photo line-ups to a number of eyewitnesses at the police station.6
It quickly became apparent that Eunick was one of the shooters. Several witnesses identified him as the man with the semi-automatic handgun. Police went on to retrieve an “overwhelming” amount of physical evidence connecting Eunick to the crime, notably including a “distinctive orange vest” found with his “blood and gunshot granules on it” that witnesses recalled him wearing at the nightclub.7
Only one witness, however, connected Leighton Hay to the homicide: Leisa Maillard, an acquaintance of the deceased who had been in the nightclub kitchen during the shooting.8 Maillard described the second shooter as a tall, Black man with his “hair in dreads but shorter”, approximately two inches in length.9
Maillard was shown a photo line-up with twelve pictures, including an old photo of Hay that had been taken approximately two years prior, arranged on a single page.10 Det. Young, who conducted the line-up, knew which picture was Hay’s and that he was considered a suspect (due to his connection to Eunick and a prior firearm conviction).11
Maillard stated in regards to Hay’s photo that “[o]ut of all of these pictures this gentleman most fits the description” of the second shooter, and that on “a percentage scale I would say maybe 80 percent.”12 Det. Young then asked if she was “saying this is the person that did the shooting? I have to have a yes or no.”13 Maillard replied: “No. The photograph is about 80 percent . . . of what depicts the likeness of the person that did the shooting.”14
Later that day, Hay and Eunick were both arrested at Hay’s mother’s residence. They were charged with one count each of first degree murder and attempted murder.15 Upon searching the residence, police retrieved bullets that had been concealed “in a sock in a hamper at the entrance to . . . Hay’s bedroom,” and a white T-shirt from this hamper that was found to contain a single speck of gunshot residue.16
At the time of his arrest, Hay had “very short” hair, which did not match the eyewitnesses’ descriptions of the second shooter as having at least two-inch-long dreadlocks.17 However, police retrieved hair clippings—which were less than one centimetre in length—from: “(1) a crumpled piece of newspaper dated three weeks earlier found in the waste basket in the bathroom near Mr. Hay’s bedroom[,] and (2) an electric razor found in the nightstand next to Mr. Hay’s bed.”18 This hair was not sent out for any forensic testing.19
Within a day of two of Hay’s arrest, Maillard called police to confirm whether she had identified “pretty much the right person or not.”20 Approximately three weeks later, police arranged a second photo line-up for Maillard that included a recent picture of Hay, taken upon his arrest. This time, she was shown the photographs sequentially. Maillard did not identify anyone from this line-up.21 At the preliminary inquiry held before Hay’s trial, Maillard identified Eunick—not Hay—as the second shooter.22
At Hay’s trial, the prosecution’s theory was that he had had short dreadlocks at the time of the shooting, as per the eyewitness accounts, but had shaved his head immediately after to conceal his involvement.23 Crown counsel vividly suggested to the jurors that Hay’s shorn dreadlocks had been “dumped into the toilet. They were taken off, and only the small hairs that weighed the least stuck to that newspaper, and he crumpled it up and threw it in the garbage. . . . Everything else was flushed.”24
Hay’s position was that he had been asleep at his home while the shooting occurred. Hay did not take the stand, though both his sister and Eunick testified that he had indeed been home sleeping. Hay’s sister stated that he had never had dreadlocks.25 Hay’s counsel also argued that the bullets retrieved from the hamper had been placed there by Eunick, which contaminated the white T-shirt with the single gunshot residue particle.26 Moreover, “[i]t was undisputed that if the bullets in the sock had any connection to the shooting, it was to the semi-automatic gun” that Eunick had fired.27
On May 29, 2004, after a six-week trial, the jury found both Hay and Eunick guilty on all charges. Each man was sentenced to life imprisonment with no possibility of parole for 25 years.28
Hay appealed his conviction, arguing that the jury’s verdict was unreasonable since it was based solely on a marginal eyewitness identification and what his counsel characterized as “the so-called confirmatory evidence found at the residence.”29 The Ontario Court of Appeal dismissed his appeal in May 2009. Justice Moldaver found, for the Court, that the circumstantial evidence taken together with Maillard’s evidence was sufficient to sustain Hay’s conviction.30 In this decision, Justice Moldaver also criticized comments made by Hay’s trial lawyer, finding that: “counsel . . . [made] inappropriate closing remarks to the jury that the police suffered from ‘tunnel vision’ and had arrested Hay because he was a young black male who happened to reside” at an address connected to the crime.31
With the assistance of counsel from wrongful conviction advocacy organization AIDWYC (now Innocence Canada), Hay applied to the Supreme Court of Canada for leave to appeal his conviction.32 Hay’s counsel requested that the Crown release the hair clippings seized from his residence to the Centre of Forensic Sciences, where testing could be performed to distinguish scalp hair from facial hair. This request was refused. Crown counsel Susan L. Reid stated that “[e]ven if testing establishes that the hair clippings . . . are beard rather than scalp hairs, this can have no impact on the unassailable fact that . . . [Hay’s] head was shaved on arrest.”33
Hay’s counsel applied to the Supreme Court for an order that the hairs be released for forensic testing.34 While awaiting the court’s decision, Hay’s trial lawyer told reporters that “I have all along believed and still believe that Leighton Hay is totally innocent of these charges. . . . To me, it is critical that when science develops, we can get a closer look at what the Crown relied on.”35 In November 2010, the Supreme Court granted Hay’s request, finding that it was in the interests of justice for the hairs to be forensically tested, and ordered the Crown to provide them to the Centre of Forensic Sciences.36
The Supreme Court granted Hay’s application for leave to appeal in July 2012.37 Hay’s counsel proffered fresh evidence from two forensic experts, who determined that the hair clippings were predominantly to exclusively “comprised of facial hairs” rather than scalp hairs.38 In other words, the clippings had come from Hay’s beard, discrediting the Crown’s theory that he had shaved his head after the shooting.39 The Crown also obtained opinions from two forensic experts, who agreed that “there was, as a scientific matter, no evidence to support the proposition that the hair clippings represented a head shave.”40
In November 2013, the Supreme Court quashed Hay’s conviction and ordered a new trial.41 One year later, on November 28, 2014, the Crown withdrew the charges against Hay rather than prosecute him a second time.42 Hay, who has schizophrenia, had spent most of his 12 ½ years in prison on the psychiatric wing of two different institutions. His mental health greatly deteriorated during his incarceration.43
The presiding judge, Justice John McMahon, addressed Hay after the Crown withdrew the charges: “Nothing I can say will bring back the 12 years that Mr. Hay has been in custody. . . . I apologize for the fact that it has taken this long for the justice system to get it right.”44