On July 6, 2002, two men shot and killed Collin Moore and wounded his brother Roger in a Toronto nightclub. Collin, a father of two and respected member of the Guyanese-Canadian community, had been hosting a monthly charity dance when a group of men arrived sometime after midnight and refused to pay the cover charge. When Collin and Roger tried to intervene, a fight broke out, and the brothers retreated to the kitchen inside the club. Two of the intruders pursued them. They shot Collin eight times. He was rushed to the hospital, but passed away within hours. Roger survived a bullet graze to his forehead.
One of the two shooters was identified by several witnesses as Gary Eunick, a club regular. The club’s owner observed Mr. Eunick driving away in a green Honda and wrote down the licence plate. Police then traced the car to Lydia Hay, Leighton’s mother. Both nineteen-year-old Leighton, and his sister Lisa, lived with their mother. Gary Eunick was Lisa’s boyfriend.
Believing that Leighton might be involved, police included his picture in a photo line-up that they immediately showed to eyewitness Leisa Maillard, a family friend who had been in the kitchen when the shooting began. She described the shooter as having “two-inch-long ‘picky’ dreadlocks” and wearing a blue-and-green plaid shirt. Leisa was given photos by the police of potential suspects. Leisa picked out Leighton’s picture – an old photo taken when he had longer hair – and said that his appearance was about “80 percent” similar to that of the second shooter. Later, at trial, she testified that she did in fact intend to identify Leighton as the shooter, though she was being cautious due to the poor quality of the photograph.
Leighton was arrested on July 7, the morning after the shooting. He and Gary Eunick were charged with first-degree murder and attempted murder.
Leighton pled not guilty. From that day until now, he has always maintained that he never went to the club that night, and that he was at home sleeping when Collin and Roger Moore were shot. His sister Lisa testified at his trial that Leighton was at home, in bed, on the night in question.
Gary Eunick pled not guilty as well. But from the beginning, the Crown’s case against Gary was ironclad. Among other things, numerous eyewitnesses had identified him, and police had found the distinctive orange vest that he wore to the club, covered in blood and gunshot residue.
The case against Leighton was much shakier. No one but Leisa Maillard had placed Leighton at the club, and as time passed, more and more problems with this evidence emerged. Two days after the line-up, she called the police station to ask if she had picked out the right person; apparently, she was unsure. Three weeks later, Leisa was shown a second line-up. This time, she was shown several photographs in sequence and asked each time if any of them depicted the second shooter. Included was a much newer photo of Leighton, taken on the day of his arrest. However, Leisa did not select anyone. And when asked to point out the shooter wearing the blue-green shirt at the preliminary hearing before their trial, she repeatedly identified not Leighton but Gary Eunick. (At trial, she was not asked to point out the second shooter.)
But perhaps the biggest problem for the prosecution was that when the police picked Leighton up, his hair did not remotely resemble “two-inch-long ‘picky’ dreadlocks.” In fact, his head was shaved. While searching his house, the police did find very short hairs inside a crumpled old newspaper in a bathroom wastebasket, and an electric razor on his nightstand. Though all the hairs were less than one centimeter long, and the newspaper was dated three weeks before his arrest, the prosecution used these hairs to convert this evidence of Leighton’s innocence into powerful proof of his guilt. The Crown’s theory was that either Gary Eunick or Leighton had shaved Leighton’s head right after the shooting, so as to disguise his appearance and conceal his involvement.
Leisa’s photo line-up evidence, supported by this hair evidence, was the centerpiece of the Crown’s case. In addition, the jury heard that police had found bullets hidden inside a sock in Leighton’s hamper – one of which might have been loaded into the chamber of Gary Eunick’s gun – as well as a single particle of gunshot residue on a T-shirt in the same hamper. Leighton’s counsel argued that Gary Eunick had hidden the bullets in the hamper, and had contaminated the shirt with the gunshot residue particle as he did so.
The jury, however, found Leighton and Gary guilty of the first-degree murder of Collin Moore and attempted murder of Roger Moore. Both men were sentenced to life in prison on June 8, 2004.
Leighton’s Incarceration and First Appeal
In 2009, Leighton appealed his conviction to the Ontario Court of Appeal. His counsel, Phil Campbell argued that the jury’s guilty verdict was unreasonable, and that the trial judge had made mistakes in his instructions to the jury on how to handle the eyewitness evidence.
The Court of Appeal upheld Leighton’s conviction. The Court agreed with Leighton’s lawyers that there were, indeed, weaknesses in the eyewitness evidence. However, the Court also found that this evidence was sufficiently strengthened by the rest of the Crown’s evidence – especially the hair clippings – such that the jury had acted reasonably in finding Leighton guilty.
Leighton would stay behind bars for another five and a half years.
Fresh Evidence Emerges
Some months after Leighton’s appeal, his lawyers (Phil Campbell and James Lockyer, Innocence Canada’s founding director) learned that forensic scientists could determine where on the body a hair sample came from. No one at Leighton’s trial and appeal had known that this was possible. As a result, the hair clippings tendered by the Crown had never been forensically tested.
Leighton’s lawyers went to the Supreme Court of Canada to request that the hair clippings be sent to the Centre of Forensic Sciences (CFS), in Toronto, where the hairs could be analyzed within three weeks.
Over the Crown’s objections, the Court ordered that the samples be released for this purpose.
Accordingly, two CFS experts analyzed the hair clippings that were taken from Leighton’s home. The results were shocking: the hairs had not come from Leighton’s head, nor from anyone else’s. Rather, they were identified as beard hairs.
With that revelation, the Crown’s theory that Leighton was the second shooter – a man with short dreadlocks, who then supposedly shaved his head – suddenly fell apart.
Leighton’s Appeal to the Supreme Court of Canada
Armed with this knowledge, Leighton and his lawyers appealed the Ontario Court of Appeal’s decision to the Supreme Court of Canada, asking that his conviction be overturned.
Prior to the appeal, the Crown retained their own forensic experts to challenge the CFS experts’ conclusions. However, both of the Crown’s experts agreed that the clippings were not from a head shave, but rather were beard hairs.
The Supreme Court agreed with Leighton’s lawyers that the faulty hair evidence suggesting he could be the second shooter played a crucial role in his conviction. The Court struck down Leighton’s conviction and ordered a new trial.
On November 28, 2014, the Crown withdrew the charges against Leighton, having concluded that trying him again would be against the public interest. Justice McMahon of the Superior Court of Ontario, who presided over this hearing, apologized “for the fact that it has taken this long for the justice system to get it right.” He added, to applause: “I wish you well. With the support of your family, I hope you have a long and fulfilling life.”
Twelve years and four months after his arrest, Leighton was finally free.
The actual second shooter was never found.
Causes of Leighton’s Wrongful Conviction: Incorrect Eyewitness Identification
Leighton was wrongfully convicted because the jury believed the eyewitness evidence casting him as the second shooter, supported as it was by the Crown’s theory that he had shaved his head in hopes of disguising his identity.
We now know that Leisa Maillard was mistaken in her photo line-up identification of Leighton as the shooter. This is less surprising than it might first seem: incorrect eyewitness identification is one of the major causes of wrongful convictions. In fact, as the Ontario Court of Appeal explained in its decision overturning the conviction of fellow Innocence Canada exoneree Anthony Hanemaayer: “mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions.” In approximately three-quarters of DNA exonerations, one or more witnesses mistakenly identified the wrongfully accused person. In many cases, the mistaken eyewitness is both certain and honest – and therefore compelling in court – but incorrect nonetheless.
In Leighton’s case, however, it was quite clear that Leisa Maillard’s evidence, no matter how sincere, was unreliable. The Supreme Court found that if the Crown’s case against Leighton had consisted solely of this eyewitness evidence, then the jury would have had no choice but to acquit him.
Mistaken eyewitness evidence also played a role in the wrongful conviction of several other Innocence Canada exonerees: Robert Baltovich, Guy Paul Morin, Romeo Phillion, Jack Salmon, and Thomas Sophonow.
Causes of Leighton’s Wrongful Conviction: Misleading Hair Evidence
The mistaken eyewitness evidence that played a central role in Leighton’s wrongful conviction was compelling only in light of Crown’s theory that he had shaved his head shortly after the shooting. We know now, however, that the short hairs found in Leighton’s wastebasket and razor were beard hairs, torpedoing this theory.
Erroneous reliance on hair evidence has played a prominent role in many wrongful convictions. While hair microscopy evidence (i.e., the forensic study of hair follicles to determine their origin) can play an important role in proving someone’s innocence, as it did for Leighton, the science is not precise enough to make a “match” between a hair sample found at the crime scene and a hair sample taken from a specific suspect. In the cases of fellow Innocence Canada exonerees James Driskell, Guy Paul Morin, and Kyle Unger, a supposedly conclusive hair “match” linking them to the victim was later proven not be a match at all.
In 2015, the Motherisk hair testing laboratory at SickKids Hospital in Toronto was shut down, after an inquiry determined that the lab’s hair-strand drug and alcohol testing program was dangerously unreliable. By then, the program had been used to convict six people of criminal offences, in over 16,000 child protection proceedings.
Worse still, were the first results of the FBI’s ongoing review of hundreds of U.S. criminal cases where hair microscopy evidence was used to convict the defendant. The review found that the hair experts made mistakes in a shocking 96% of these cases.
Nine of these defendants were executed before the mistakes in their cases came to light. Five more died of other causes on death row. This is one of many reasons that Innocence Canada does not support the death penalty.
Wounds We Cannot Heal
As Leighton’s counsel James Lockyer put it on the day of his release, “Leighton has been through a nightmare all these years.” He spent over twelve years – all of his twenties – in prison for a crime he did not commit.
On the day of his release, Leighton’s father Lascelles told media that he had always known this day would come. “He lost 12 years, I hope a lot of good things for him.”
Lawyer Philip Campbell, who also represented Leighton at his appeals, similarly expressed both grief and hope:
“I will never forget how crushed I was on the day Leighton’s conviction was upheld after his first appeal; it was the bleakest day of my career. Today is a better, brighter day. Leighton has faced many challenges during his years in penitentiary and more lie ahead. The consequences of his wrongful conviction will linger long after the courts and lawyers close their files. But for today, his freedom, and the righting of a wrong, are worth celebrating.”
Leighton and his family have lost precious and irreplaceable years because of the cruelty of a wrongful conviction. Let’s hope that Leighton’s future will bring him peace, fulfillment, and endless possibilities and supports in order that he may realize his dreams and reach his goals.
 R v Hay, 2013 SCC 61 at paras 4-6 [Hay SCC]; R v Hay, 2009 ONCA 398 at paras 2-9 [Hay ONCA]; Peter Edwards, “Wrongful conviction: Key dates in the legal nightmare of Leighton Hay of Mississauga”, Toronto Star (28 Nov 2014), online: Toronto Star https://www.thestar.com/news/gta/2014/11/29/wrongful_conviction_key_dates_in_the_legal_nightmare_of_leighton_hay_of_mississauga.html [Edwards]; Jesse Johnston, “Leighton Hay finally freed a decade after wrongful first-degree murder conviction”, National Post (28 November 2014), online: National Post http://nationalpost.com/news/leighton-hay-finally-freed-a-decade-after-wrongful-first-degree-murder-conviction [Johnston].
 Hay SCC, supra note 1 at paras 5-8, 12.
 Hay SCC, supra note 1 at paras 8, 15-19; Hay ONCA, supra note 1 at paras 10-11, 21; Jacques Gallant & Sadiya Ansari, “Murder charge withdrawn against man who spent 12 years in prison”, Toronto Star (28 November 2014), online: Toronto Star https://www.thestar.com/news/crime/2014/11/28/crown_asks_to_withdraw_murder_charge_against_man_who_spent_12_years_in_prison.html [Gallant].
 Hay SCC, supra note 1 at para 10; Hay ONCA, supra note 1 at para 15.
 Hay SCC, supra note 1 at paras 11, 13; Hay ONCA, supra note 1 at para 23; Gallant, supra note 3.
 Hay SCC, supra note 1 at paras 5, 12.
 Hay SCC, supra note 1 at paras 15, 20-23.
 Hay SCC, supra note 1 at paras 3, 28-29, 33, 70-74; R v Hay, 2010 SCC 54 at para 7 [Hay SCC Motion].
 Hay SCC, supra note 1 at paras 12, 24-27.
 Hay SCC, supra note 1 at para 31; Edwards, supra note 1.
 Hay SCC, supra note 1 at para 32; Hay ONCA, supra note 1 at para 27.
 Hay SCC, supra note 1 at paras 32-35; Hay SCC Motion, supra note 8 at paras 7, 9; Hay ONCA, supra note 1 at paras 30-37, 42-48.
 Edwards, supra note 1.
 Hay SCC Motion, supra note 8 at para 8; Hay, supra note 1 at paras 28, 65-66.
 Hay SCC Motion, supra note 8 at paras 1, 8.
 Ibid. at paras 1, 9-10.
 Hay SCC, supra note 1 at paras 58-61.
 Ibid. at paras 68-75.
 Ibid. at para 1.
 Ibid. at para 62.
 Ibid. at paras 3, 68-78.
 Gallant, supra note 3; Maki, supra note 11; “Leighton Hay, Wrongfully Convicted of Murder in 2002, Walks Free”, CBC News (28 November 2014) online: CBC News http://www.cbc.ca/news/canada/toronto/leighton-hay-wrongfully-convicted-of-murder-in-2002-walks-free-1.2853578 [CBC].
 Hay SCC, supra note 1 at para 10; Edwards, supra note 1.
 CBC, supra note 23 (at 1:45 – 1:55).
 R v Hanemaayer, 2008 ONCA 580 at paras 21, 29; The Honourable Peter Cory, Commissioner, The Inquiry Regarding Thomas Sophonow, Government of Manitoba (5 November 2001), online: digitalcollection.gov.mb.ca/awweb/pdfopener?smd=1&did=12713&md=1 at paras 17-18; Committee on Scientific Approaches to Understanding and Maximizing the Validity and Reliability of Eyewitness Identification in Law Enforcement and the Courts, Identifying the Culprit: Assessing Eyewitness Identification (Washington, DC: National Academies Press, 2014) at 11, 108; Lauren O’Neill Shermer, Karen C Rose & Ashley Hoffman, “Perceptions and Credibility: Understanding the Nuances of Eyewitness Testimony” (2011) 27 Journal of Contemporary Criminal Justice 183 at 183, 185.
 Hay SCC, supra note 1 at paras 41-51.
 National Research Council Committee on Identifying the Needs of the Forensic Sciences Community, Strengthening Forensic Science in the United States: A Path Forward (Washington, DC: National Academies Press, 2009) at 156, 161; The Honourable Patrick LeSage, Q.C., Commissioner, Report of the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (Winnipeg: The Commission, 2007), online: www.driskellinquiry.ca/pdf/final_report_jan2007.pdf at 172, 178-181.
 “Motherisk News: Operations of Motherisk Drug Testing Lab Closed”, Hospital for Sick Children (17 April 2015), online: SickKids Motherisk www.motherisk.org/women/commonDetail.jsp?content_id=1100; The Honourable Susan E. Lang, Independent Reviewer, Report of the Motherisk Hair Analysis Independent Review (15 December 2015), online: www.m-hair.ca at 1, 4, 17.
 Federal Bureau of Investigation, News Release, “FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90 Percent of Cases in Ongoing Review” (20 April 2015), online: FBI www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review.
 CBC, supra note 23; Edwards, supra note 1; Johnston, supra note 1.
 Gallant, supra note 3; CBC, supra note 23 (at 00:10 – 00:25).
 Association In Defence of the Wrongly Convicted, “Leigthon Hay to be Released from Court after 12 ½ Years in Jail for a Murder he Didn’t Commit”, AIDWYC Press Release (28 November 2014), online: http://3alb.org/presentations/AIDWYC_Cases.pdf.