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Leighton Hay's lawyer James Lockyer and Hay's father Lascelles Hay react after Lockyer tells him his son’s conviction has been overturned and a new trial has been ordered to consider new evidence in Toronto on Nov. 8, 2013.

Deborah Baic/The Globe and Mail

The Supreme Court of Canada has thrown out a first-degree murder conviction against a Toronto man who has spent more than a decade in prison in a case that underlines the frailty of a lone eyewitness and the willingness of judges to look at fresh evidence.

Leighton Hay, then about 19, was identified by just one witness in the 2002 nightclub killing of Collin Moore – and that witness said a two-year-old photo looked 80 per cent like him. That was backed by evidence that Mr. Hay cut his hair after the shooting to change his appearance and avoid being identified. The Supreme Court's decision turned on where that hair came from – his face rather than his head.

There were two gunmen at that nightclub, and multiple eyewitnesses identified Gary Eunick, who went on to be convicted of first-degree murder. When police searched Mr. Eunick's residence, in which Mr. Hay and his family also lived, they found bullets in a sock, a white T-shirt with gunshot residue in it and hairs wrapped in a three-week-old newspaper. The Crown said the hairs showed Mr. Hay was trying to rid himself of the five-centimetre dreadlocks the witness described one of the killers as having.

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Mr. Hay's defence lawyer at his trial did not attempt to have the hairs analyzed to determine whether they were from his head or face. His appeal lawyer, James Lockyer of the Association in Defence of the Wrongly Convicted, later persuaded the Supreme Court to force the Crown to send the hairs for forensic tests. Those tests showed that most of them were facial hairs.

Justice Marshall Rothstein, writing for a unanimous court, said the "fresh evidence bears on a decisive issue," and Mr. Hay deserves a new trial. The court stopped short, however, of ordering that Mr. Hay be acquitted, saying the hairs "were not so decisive as to allow" that.

Carissima Mathen, a law professor at the University of Ottawa, said the Supreme Court has shown more openness to fresh evidence than some U.S. appellate courts. "When you have a rigid approach, it exacerbates the risk of a wrongful conviction."

She said criminal cases often go forward on circumstantial evidence of the kind that helped convict Mr. Hay. "He lived in the house [with Mr. Eunick], and things were found in his room. Of course there are alternate explanations for that. The temptation to draw what some might think of as common-sense inferences is very powerful in a criminal trial, but we always have to remember the standard in a criminal trial is much higher, for very good reason."

Mr. Lockyer said the case ranks "right at the top for a wrongful conviction: a classically vulnerable individual being convicted on a single eyewitness identification. It's a very troubling case." He described Mr. Hay as vulnerable because of mental-health and developmental problems, and because he was a young black male of Jamaican ancestry. "That's why he came under suspicion – because he was another young black male living in the house with Gary Eunick."

Single eyewitness identification is a "notoriously unreliable basis for conviction," he said, mentioning wrongful convictions of Thomas Sophonow of Manitoba, Ivan Henry of British Columbia and Anthony Hanemaayer of Ontario. "The fact you look like a person 80 per cent means you're not the person."

Mr. Lockyer said he hopes the Crown would not go ahead with another trial. "Leighton's been through enough. He's been in jail for 12 years for something he didn't do." The Ontario Attorney General's office would not comment.

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Mr. Hay's father, Lascelles Hay, and sister Lisa Hay were at Mr. Lockyer's office on Friday when the ruling was released. All three of them, including Mr. Lockyer, became emotional.

Mr. Hay said the family "knew he wasn't that kind of person." He added that "when I went to the high court and saw all the people, I knew he had a chance."

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