Friday, November 8, 2013

Bulletin: Leighton Hay: Supreme Court of Canada orders new trial on nightclub murder conviction a decade ago after considering fresh forensic (hair) evidence. The Canadian Press;

STORY: "Supreme Court orders new trial in Toronto nightclub murder," published by the Canadian Press on November 8, 2013. (Keep an eye on this site for updates. HL);

GIST: "After hearing fresh forensic evidence, the Supreme Court of Canada has ordered a new trial for a Toronto man convicted of murdering a respected community figure a decade ago. Leighton Hay was convicted of the first-degree murder of Colin Moore, 51. Moore was shot and killed in July 2002 at a Toronto nightclub where he was hosting a monthly fundraiser. Hay has served about 10 years of a life sentence. In an unusual move, the Supreme Court considered new forensic evidence — hair samples that Hay’s lawyers say prove his innocence."
The entire story can be found at:

See Supreme Court of Canada decision:  "The motion to adduce fresh evidence should be granted and a new trial should be ordered.  H’s fresh evidence consists of affidavits and cross‑examinations of two forensic experts, in which each expert provides an opinion as to the percentage of hairs in the newspaper and the razor that came from H’s scalp, as opposed to his face or trunk.  The experts agreed that the samples taken were predominantly facial hairs.  The Crown’s experts conducted a paper review and testified that there was no evidence to support the proposition that the hair clippings represented a head shave.  The overriding consideration upon a motion to adduce fresh evidence is “in the interests of justice” and this requires consideration of the principles enunciated in Palmer v. The Queen.  The Crown has conceded that the expert evidence H seeks to adduce is credible.  Mere lack of knowledge on the part of H’s trial counsel without any indication that he inquired into the possibility of obtaining and presenting the evidence is a factor against admitting the evidence for the first time on appeal.  However, in view of the fact that this is a criminal case, involving charges of the most serious nature, the evidence should not be excluded solely on the basis of a lack of diligence.  It cannot reasonably be disputed that H’s fresh evidence bears on a decisive issue.  The evidence of hair clippings was used to explain the discrepancy between the eyewitness description of the shooter and H’s actual appearance at the time of arrest.  This was also how the Crown explained L.M.’s inability to identify H based on his arrest photo.  The hair clippings were also adduced as evidence that H had attempted an after‑the‑fact change of his appearance.  The evidence was directly relevant to whether H was in fact the shooter in the blue/green shirt.  The fresh evidence that H seeks to admit could reasonably be expected to have affected the jury’s verdict.  The Crown relied heavily on the haircut evidence at trial.  The significance of the hair clippings was also reflected in the jury charge.  The Court of Appeal too recognized that the hair clipping evidence was significant to the Crown’s case and noted that the hair clippings allowed for a powerful inference of guilt.  Given the significance of the haircut to the Crown’s case, the fresh evidence could reasonably be expected to have affected the result.  For these reasons, H’s motion to adduce fresh evidence should be granted.  The appropriate remedy here is a new trial."


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