Leighton Hay leaves a Toronto Court on Friday November 28 2014.
It took 12 years for the justice system to believe in Leighton Hay's innocence, and because of that, the Superior Court of Justice apologized to him on Friday, saying it took too long to get things right.
Mr. Hay became a free man after the Crown ended its prosecution of him for the shooting death of Colin Moore on July 6, 2002. Justice John McMahon said Mr. Hay was free to go and deserving of an apology. The judge acknowledged how slowly and wrongly the legal system had handled Mr. Hay's conviction for first-degree murder.
"You don't get [an apology] very often," said James Lockyer, Mr. Hay's lawyer and the founding director of the Association in Defence of the Wrongfully Convicted (AIDWYC). "It was important to all of us because this man was done wrong, terribly wrong."
Mr. Hay showed no emotion when told he could go home. He hugged his sister, Lisa, went to his parents, Lascelles and Lydia, then walked out of the courtroom. He did not speak to the media outside the court house, either.
Mr. Hay has schizophrenia, a condition his family and lawyers say worsened while he was in prison.
Mr. Hay was charged with murder in a deadly shooting at a charity event in a Toronto nightclub. Multiple witnesses told police that two men entered the club and got into a fight with organizers Colin and Roger Moore. One of the attackers was identified as Gary Eunick, a club regular who flew into a rage when told he had to pay a $10 cover charge. Mr. Eunick left the club only to return minutes later with a 9 mm handgun and a second shooter.
Mr. Eunick opened fire, killed Colin Moore and wounded his brother. The second shooter used a long-barrelled revolver. He had dreadlocks, and a witness later said she was 80-per-cent sure it was Mr. Hay.
Mr. Eunick lived in the same house as Mr. Hay, and a police search found a long-barrelled revolver, a T-shirt with gunshot residue on it and other clothes that witnesses at the club had described. Investigators also discovered a newspaper with hair clippings on it.
Mr. Hay maintained that he was not at the club that night. The Crown contended that Mr. Hay returned home after the shooting and shaved his head to rid himself of the telltale dreadlocks. The hair evidence helped send Mr. Hay to the Kingston Penitentiary for life in May, 2004. Mr. Eunick was also sentenced to life. (Mr. Hay was later moved to the Millhaven Institute's mental health facility.)
Mr. Lockyer, along with fellow lawyers Philip Campbell and Joanne McLean, appealed Mr. Hay's case all the way to the Supreme Court. Mr. Lockyer presented fresh evidence from two forensic experts who said the clippings found on the newspaper, although they came from Mr. Hay, were mostly facial hair, not hair from the head.
The Supreme Court voted unanimously in favour of a retrial for Mr. Hay. One judge, Marshall Rothstein, wrote: "Given the significance of the haircut to the Crown's case, Mr. Hay's fresh evidence … indicating that the hair clippings did not come from a scalp shave could reasonably be expected to have affected the result."
The Crown said it is not in the public interest to go forward with the second trial.
Now that Mr. Hay has been freed, there is another matter to take care of – compensation for his time in prison. When asked about that, Mr. Lockyer told the media: "If anyone ever deserves compensation it is Leighton Hay. He sorely needs it and deserves it. …We're going to do our damnedest to make sure that happens."
It was an eventful week for AIDWYC. On Monday, Glen Assoun was granted bail after spending 17 years in jail for a murder he says he did not commit. On Tuesday, Minister of Justice Peter MacKay referred Frank Ostrowski's first-degree murder conviction to the Manitoba Court of Appeal. Mr. Ostrowski, another client of Mr. Lockyer, served 23 years in prison adamantly denying he had anything to do with the 1986 drug-related murder of Robert Neiman.