12-YEAR JAIL NIGHTMARE OVER
By Gerald V. Paul
“Today is a better, brighter day.” With that, lawyer Philip Campbell celebrated the release from prison of Leighton Hay, wrongfully convicted 12 years ago at 19 for a murder the court now acknowledges he did not commit.
“Hay 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 file,” said Campbell of the Association in Defence of the Wrongly Convicted who acted for Hay in the Court of Appeal and the Supreme Court of Canada.
“His freedom and the righting of a wrong are worth celebrating,”
Colleague and senior counsel James Lockyer told The Camera Hay has been through a nightmare for all these years.
“His walk into freedom today will be momentous for him and the Association of the Defence of the Wrongly Convicted. Thanks for his family being at court and he will continue to need all their support and AIDWYC’s support in the months to come.
“This is a miscarriage of justice of the highest order.”
Superior Court Justice John McMahon made a touching apology for the wrongful incarceration of Canadian-born Hay who is of Jamaican heritage.
McMahon told court nothing he could say will bring back 12 years. He apologized that it has taken this long for the justice system to get it right. And he hoped Hay will have a long and fulfilling life.
Hay, who has schizophrenia, spent most of his incarceration in the psychiatric wings of two institutions.
His father Lascelles said his son was happy to worship and praise God in Church. “He always loved church and it is a good sign that he has decided to go back.”
His father thanked the “excellent work” of the association’s lawyers, Lockyer and Win Wahrer.
Lockyer noted, “On the night of Saturday, July 6, 2002, Collin Moore and his brother, Roger Moore, were hosting an event at a nightclub in Etobicoke. At 1:13 a.m. two men armed with handguns stormed into the nightclub. They shot Collin who died of his injuries; Roger was grazed on the forehead by one of the shots.”
At the Guyanese fundraising event, Hay’s original trial was told the killers had been ejected from the nightclub in a dispute over a cover charge 15 minutes earlier.
It was revealed one of the gunmen, Gary Eunick, was recognized by some of those at the party. As Eunick fled, a witness got the licence plate of his car. He had borrowed Hay’s mother’s car.
Police quickly traced the car and by 1:46 a.m. were at the Hay home where the mother’s car was already in the driveway.
After watching the house all night, the police entered the Hay home at 11:58 a.m. and arrested Eunick who was inside for first degree murder. Hay was also there and was arrested.
The Crown’s case against Hay depended on witnesses from the nightclub who described the second gunman as having “two-inch picky dreads”. One witness was shown a photo line-up which included Hay and pointed to his photograph saying that he looked more like the gunman than the other 11 photos and that “on a percentage scale I would probably say 80%.”
She was shown a second line-up three weeks later and did not select Hay’s photo. At court at the preliminary hearing, she identified Eunick as the second gunman.
“The problem for the police was that Hay had extremely short hair when arrested, hair that could not be remotely described as “two-inch picky dreads,” Lockyer noted.
This meant there has to be a theory that Hay, after shooting, had immediately returned to his home and had a haircut in the period between the crime and his arrest. If the Crown could not prove a haircut had taken place, the description of the gunman provided by the eyewitness proved Hay’s innocence.
Further, if the Crown could prove a haircut, then it would not only explain the eyewitness’s description but prove that Hay tried to disguise his appearance after the shooting.
Police scoured the Hay home for evidence of a haircut. They found some very short hairs in a newspaper in a garbage bin, and on an electric razor in his bedroom. At his trial in 2004, the Crown told the jury that this must be the residue left behind by Leighton after he had cut his dreadlocks and flushed the longer hairs down the toilet.
The jury convicted Hay of first degree murder. They also convicted Eunick.
On May 12, 2009, Hay’s appeal was dismissed by the Ontario Court of Appeal. The Court laid particular emphasis on the supposed haircut which “tipped the scales” in support of the jury’s verdict. Eunick’s appeal was also dismissed.
After he lost his appeal, the association became involved for Hay.
Eventually, scientists found that the hairs were from a facial shave “to a reasonable degree of scientific certainty” and were not from a haircut. So the prosecution theory that Hay had shaved his head to disguise his appearance evaporated.
He could not have been the gunman with the two-inch picky dreds described by the Crown witness and his conviction has now been overturned.