Appellant Leighton

Court No: 33536
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for the Province of Ontario)
B E T W E E N:
LEIGHTON HAY
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
______________________________________________________________________________
APPELLANT’S FACTUM
______________________________________________________________________________
James Lockyer
Philip Campbell
Lockyer Campbell Posner
103 – 30 St.Clair Avenue West
Toronto, Ontario, M4V 3A1
Phone: (416) 847-2560
Fax: (416) 847-2564
Counsel for the Appellant
Gowling Lafleur Henderson L.L.P.
2600 - 160 Elgin Street
Ottawa, Ontario, K1P 1C3
Phone: (613) 786-0212
Fax: (613) 788-3500
Agents for the Appellant
Susan Reid
Crown Law Office – Criminal
10th Floor, 720 Bay Street
Toronto, Ontario, M5G 2K1
Phone: (416) 326-2682
Fax: (416) 326-4656
Counsel for the Respondent
Robert E Houston, Q.C.
Burke-Robertson
200 – 441 MacLaren Street
Ottawa, ON K2P 2H3
Phone: (613) 236-9665
Fax: (613) 235-4430
Agents for the Respondent
02374157\OTT_LAW\ 3425523\1
Brian A Crane, Q.C.
INDEX
PART!
OVERVIEW AND STATEMENT OF FACTS .................................................. 1
1.
The Events Surrounding the Shooting ................................................................................ .2
2.
The Identification Issues:
(a)
(b)
Who was Who? ...................................................................... 6
Gary Eunick ............................................................................................................. 6
The Second Gunman ................................................................................................ 7
The Photo Line-Ups and the Pretrial Motions ........................................................ 9
3.
The Evidence of Leisa Maillard ......................................................................................... 11
4.
The Appellant's Appearance on His Arrest ...................................................................... .17
PART II
1.
OUESTIONS IN ISSUE
DID THE TRIAL JUDGE ERR IN DIRECTING THE JURY THAT A CONVICTION
COULD REST ON THE EVIDENCE OF LEISA MAILLARD ALONE? ...................... 21
PART III
STATEMENT OF ARGUMENT
DID THE TRIAL JUDGE ERR IN DIRECTING THE JURY THAT A
CONVICTION COULD REST ON THE EVIDENCE OF LEISA MAILLARD
ALONE? ...................................................................................................................................... 22
Introduction
1.
2.
3.
4.
5.
6.
The Evidentiary Background ............................................................................................. 23
The Crown Closing ............................................................................................................ 27
The Charge to the Jury ....................................................................................................... 28
The Court of Appeal's Judgment.. ..................................................................................... 29
Argument .......................................................................................................................... .30
An Analysis of the Court of Appeal's Approach to This Case ......................................... .31
(a)
(b)
The Application o/the Instruction ........................................................................ .31
The Legal COITectness of the Inst17lction ................................................................. .32
(c)
Was the Misdirection Neutralized by the Iliai fudge's Waming? ............................. 32
Conclusion ..................................................................................................................................... 36
PART IV
SUBMISSIONS CONCERNING COSTS ........................................................ .37
PART V
ORDER SOUGHT .............................................................................................. .37
AUTHORITIES .......................................................................................................................... .38
PART!
OVERVIEW AND STATEMENT OF FACTS
Overview
1.
In the early morning hours of Saturday, July 6, 2002, Collin Moore and his brother, Roger
Moore, were shot by two men at a nightclub in Toronto. Collin died of his injuries, Roger was
grazed on his forehead by one of the shots. The Appellant and his sister's boyfriend, Gary Eunick,
were jointly tried on charges of first degree murder and attempted murder before Mr. Justice
McCombs and a jury in the Ontario Superior Court of Justice. For Eunick, the Crown's case that
he was one of the gunmen can be fairly described as compelling. For the Appellant Hay, the
Crown's case rested largely on the eyewitness identification of a single witness, Leisa Maillard. On
May 29, 2004, both were found gUilty on each count. On May 12, 2009, their appeals were
dismissed, Justices Moldaver, Blair and Macfarland presiding. On July 11, 2012, the Appellant was
granted leave to appeal his convictions to this Court. The leave to appeal application included fresh
evidence. At the time of writing this factum, Eunick' s leave to appeal application is before the Court
awaiting a decision.
2.
Pursuant to the granting of leave, this is both a conventional appeal and an appeal on fresh
evidence. This factum addresses the former and argues that the trial judge made a serious error when
he charged the jury that they could properly rest their verdict on Leisa Maillard's eyewitness
identification evidence alone, a proposition wrong in law and bound to negate his cautionary
instruction about the many problematic features of her eyewitness evidence. A second factum
addresses the fresh evidence and its admission on appeal.
2
1.
The Events Surrounding the Shooting
3.
Collin Moore, the deceased, had an arrangement with Hugh Robinson, owner of the HHMS
Nightclub, to host an event at HHMS on the first Friday of each month.
The event was
predominantly attended by Guyanese guests but was open to the public. There was a $10.00 cover
charge for patrons. On Friday evening, July 5, 2002, the event was being hosted, as usual, by the
deceased. About 100 people were in attendance when an incident occurred that eventually escalated
into gunflfe.
Evidence of Hugh Robinson, Appeal Record (AR), Vol. I, 138/25- 156125
4.
Sometime after midnight, a group attempted to enter the nightclub. They included Gary
Eunick (then 27), wearing a distinctive orange shirt or vest, and his brother Norval Eunick (then 26).
The Eunick brothers were known at the club and were recognized by its owner, Hugh Robinson.
They were also recognized by Jennifer Moore, the deceased's wife. A violent and bloody fight broke
out inside the club as the Eunicks protested having to pay the cover charge and refused to be
searched. Some witnesses testified that, in addition to the Eunick brothers, there were one (or two)
other men involved, and the Crown alleged that the Appellant was one of them. Roger Moore, one
of the fight's participants, hit Gary Eunick (wearing his orange vest or shirt) over the head with a
beer bottle. Moore and his brother, the deceased, struggled by a pool table with a second brownskinned man described by Moore as wearing a sky blue shirt. Other witnesses variously described
this man as wearing a blue or green shirt. Moore also smashed a beer bottle over this man's head.
There may have been a third man involved. One of the men was wielding a pool cue. The man (or
men) eventually broke free and fled.
Evidence ofR. Moore, AR, Vol. I, 330125-348/5; Evidence of J. Moore. AR. Vol. I. 446/25-448125. 45411-471110; Evidence
of Daniels. AR. Vol. II. 606/5-616125; Evidence of McClymont. AR. Vol. II. 680120-688/5. 700125-707115; Evidence of
Maillard. AR. Vol. II. 817125-823125. 849120-850120; Evidence of Clarke-Glasgow. AR. Vol. III. 1027125-1035125
5
the broken door at the Club. As further evidence of Eunick's presence at the Club, his palm print
was found on the outside of the exterior glass door of the Club. His blood was also found on the
door handle at the front entrance of the Club, and in the front passenger area of Lydia Hay's Honda
Civic. Four more granules of gunshot residue were found on the same front seat of the car.
EvidenceofCsl. Annslrong, AR, Vol. III, 1192/15-1197/1,1210/25-1215125, 1238/5-15 Evidence ofEunick, AR, Vol. lV,
182211-25
9.
Police found a laundry hamper in the Appellant's bedroom, located very close to, and beside,
the door to the bathroom. Eunick testified that he used this bathroom immediately upon entering the
house when he and the Appellant's sister, Lisa Hay, returned from the Club. There was a sock in
a plastic bag in the hamper containing six different types of ammunition. Notably, no socks were
found in the bags containing Eunick's clothing or in the shoe box in which his shoes were found.
Two firearms experts, one for the Crown and one for the defence, differed on whether one of the
cartridge casings in the sock may have been cycled through the 9 mm handgun used by the orangeshirted gunman(Eunick) in the shooting. l A shirt was also found in the hamper which contained a
single granule of gunshot residue.
Evidence of Cst. Annstrong,AR, Vol. III, 1257!20-1259/IO, 1266125-1267/5; Evidence of Eunick, AR, Vol. lV, 1819/101820125; Evidence of Lisa Hay, AR, Vol. lV, 1890115-1892120, 1905/10-1907/30
10.
Gary Eunick testified in his own defence, and called Lisa Hay, his girlfriend of three years.
He testified that he drove to the Club with her in her mother's car that night. The Appellant did not
go with them; in fact, he and the Appellant did not get along very well. Eunick and Lisa Hay were
present when the fighting began in the lobby of the Club. It involved three individuals, unknown
to Eunick, who were struggling with those collecting money at the door. Lisa managed to leave the
Neither gun used in the shooting was ever recovered.
6
Club and went to the car; Eunick fell and, when he got up to leave, the exit door would not open.
He kicked the glass to escape and climbed through it getting cut in several places. He then went
looking for Lisa and the car. He did not hear any gunshots. Lisa Hay, in the meantime, drove
towards a man outside whom she thought was Gary Eunick. The man was wearing an orange t-shirt
and holding a black gun. Shortly afterwards, she heard shots. Norval Eunick then came to the car
and got in the backseat for all of thirty seconds and left. Gary Eunick next appeared, got into the car
and Lisa drove home. Eunick testified that he did not see his brother Norval at the Club that night.
Lisa Hay, on the other hand, testified:
"r believe r saw [Norvall in the foyer."
Evidence ofEunick, AR, Vol. IV, 1783/25-1787/10, 1794110, 1818125-181911 0; Evidence of Lisa Hay, AR, Vol. IV, 18791510,1884110-1885/30,1897125-1898115,1902125-1904115
11.
On arrival at the Hay residence, Eunick went to the washroom which could be entered from
the hallway or from the Appellant's bedroom. He and Lisa Hay saw the Appellant asleep in his bed
with the lights out. Lisa closed the door from the Appellant's room to the bathroom, and left Eunick
alone in the washroom. Later, she cleaned the blood off him in the basement, wrapped up his clothes
and put them outside in the garbage because she did not want her mother to see them.
Evidence of Eunick, AR, Vol. IV, 179411-1798120; Evidence of Lisa Hay, AR, Vol. IV, 1889/10-1895/20
2.
The Identification Issues: Who was Who?
(a)
12,
Gary Eunick
The trial revolved around the identity of the two men whofrred the shots. The identity of one
of them, Gary Eunick, was never really in doubt. He was the man in the orange shirt who was
involved in the altercation at the door, who was next observed outside with a gun that he was
apparently loading, and who was then seen to be one of the gunmen in the kitchen. The Club owner,
7
Hugh Robinson, was a distant relative of Gary Eunick and knew him well. He provided Eunick's
first name to the operator during his 911 call. Eunick was also known to, and identified by, Jennifer
Moore, the deceased's wife. Witnesses consistently described one of the gunmen as wearing an
orange shirt and such a shirt, with Eunick's blood and gunshot residue on it, was found at the Hay
residence where he was arrested. Eunick's jeans, in particular, had an extremely significant number
of granules of gunshot residue on them. His palm print was found on the glass door leading into the
Club premises, and his blood and four more granules of gunshot residue were found in the green
Honda getaway car. Numerous items found at the Hay residence further incriminated him. He
admitted in his testimony that he was at the nightclub with Lisa Hay. Lisa Hay's testimony, that
there was a second, unknown, man who was the orange-shirted gunman, was fanciful. Eunick's own
testimony, and Lisa Hay's testimony in this regard, were simply not credible.
See Photo board of Eunick on his arrest, Ex. 61, July 6/02, AR. Vol. VII, 145-146; Evidence of Cst. Handy, AR, Vol. ill,
1368/10-1373/20
(b)
13.
The Second Gunman
The Appellant did not testify in his defence but relied on the weakness of the Crown's case
and the alibi provided by his sister and Eunick that he was asleep at home when the shootings
occurred. The obvious difficulty with his alibi was that the bulk of Gary Eunick and Lisa Hay's
testimony, upon which his alibi depended, was not believable.
14.
Nevertheless, the identity of the second gunman wearing the blue or, as some witnesses
described it, green shirt, was very much in issue at the trial. One question the jury had to decide was
whether Gary Eunick' s brother, N orval Eunick, identified by Robinson as one of the participants in
the initial brawl in the lobby, was the second gunman. Defence counsel put this suggestion to Gary
8
Eunick in cross-examination, but he denied that Norval (who was not called as a witness at the trial)
was even at the Club that night. Defence counsel suggested to the jury that Norval was the man in
the blue/green shirt, and there was support for this in the evidence. For example, Roger Moore
testified that the two men involved in the brawl in the lobby, one wearing an orange shirt and the
other wearing a blue shirt, were the same two men who fired the shots in the kitchen. Since the two
men in the brawl in the lobby were identified by Hugh Robinson as Gary and Norvai Eunick, this
meant that the defence position had evidentiary support. Roger Moore also testified that the two
gunmen were claiming at the door that they did not have to pay an admission fee because they knew
the owner - this made it more likely they were Gary and Norval Eunick. Further to this, blood was
found on the outside and inside of the green Honda getaway car that was not matched to Eunick or
the Appellant. A sample of Norval Eunick's blood was never obtained, so no match could be
attempted for him. In his closing, the Crown acknowledged that "it is very likely that that was
Norval's blood in the back seat."
Crown Closing, AR, Vol. VI, 135/15-25; Evidence ofEunick,AR, Vol. IV,1816120-1818110;Evidence of Cst. Annstrong,
AR, Vol. III, 1240120-1245125; Evidence of Roger Moore, AR, VoI.I.361110-362125.417/IS-43612S; Evidence of Robinson.
AR. Vol. 1,160/20-170/15
15.
The Crown asked thejuryto fmd that Norval was at the Club and was involved in the initial
fight but urged the jury to fmd that he was not the second gunman. The Crown relied on the contents
of Hugh Robinson's 911 call during which, as the action progressed outside, Robinson described the
man, whom he identified in his trial testimony to be Norval Eunick, as wearing a black bomber
jacket. If this was true (and there was reason to question whether it was, if only because Robinson
did not intimate in the 911 call, nor in his police statement, that he knew the man whom he was
describing), Norval could not be the second gunman because no one described the second gunman
as wearing such a jacket - he was described as wearing some kind of blue or green shirt. Jennifer
9
Moore, in particular, said that the gunman in the blue or green shirt was not one of the two men who
had been fighting in the lobby. The jury's verdict meant that they found the Appellant to be the
gunman in the blue/green shirt, thereby accepting that Norval was not the second gunman.
Evidence of Jennifer Moore, AR, Vol. I, 507/10-508/30; Transcript of911 call, Ex. E, AR, Vol. vn. 57a-57g; Evidence of
Robinson, AR, Vol. I, 192/30-204/15,229/20; See cross-examination of Eunick, AR, Vol. IV, 1837/30
The Photo Line-Ups and the Pretrial Motions
16.
The jury heard that three witnesses who had been in the Club were shown photo line-ups.
Hugh Robinson picked out photographs of Gary and Norval Eunick from two different line-ups.
Jennifer Moore picked Gary Eunick from a photo line-up. No evidence was led as to whether either
witness viewed a line-up with the Appellant's photograph in it. Leisa Maillard was shown a photo
line-up which included the Appellant's photograph (taken 18 months earlier) and she selected him
as an 80% likeness of the blue/green-shirted gunman (described in detail infra). Three weeks later,
she was shown a sequence of photographs which included one of the Appellant (taken hours after
the murder) and she did not select any photograph. No evidence was led as to whether Maillard
viewed a line-up with Gary (or NorvaI) Eunick in it. This was all the evidence the jury heard about
the identification processes employed during the police investigation.
Evidence of Robinson, AR, Vol.J, 225115-229/20; (photo line-ups, Ex. 12 and 13, AR. Vol. VII, 32, 45); Evidence ofJennifer
Moore, AR, Vol. 1.492/5-493/20 (photo line-up Ex. 22, AR. Vol. VII, 66); Evidence of DIS Smith, AR, Vol. IV. 1470/251475130
17.
Roger Moore, the surviving victim of the shooting, had been shown several photo line-ups
after the events. He did not select photographs of Gary Eunick or the Appellant but, instead, selected
photographs of two other (unidentified) individuals whom he said "looked like" and, then, "were"
the shooters. Eleven months later at the preliminary hearing, Moore identified Eunick and the
10
Appellant as the two gunmen. Prior to jury selection, on a defence motion, the trial judge, applying
R. v. Holmes (2002), 169 C.C.C. (3d) 344 (Ont.C.A.), ruled that Roger Moore's in-dock
identifications were inadmissible.
April 8/04 proceedings, AR, Vol. A, Part II, Judgments, 6125-915
18.
During the same pretrial motions, the trial judge was asked to rule on the admissibility of
other in-dock identifications made by Crown witnesses who had not picked either Eunick or the
Appellant from a line-up. At least eight more witnesses were referred to in the trial judge's ruling,
but he did not clarify who they were, or which ones had viewed line-ups. Presumably most, if not
all, the Crown witnesses who were at the Club viewed the three photo line-ups that the jury heard
about (though not the sequential line-up shown to Leisa Maillard several weeks later). The trial
judge refused to rule on the other in-dock identifications because he felt that he had insufficient
information on the circumstances of the individual witnesses. Thereafter, counsel entered into an
agreement that witnesses who had not made a line-up selection of Eunick or the Appellant from a
particular line-up would not be asked about their viewing of it. Roger Moore was included in this
agreement. As the Crown put it before calling the nightclub witness, Harold McClymont:
•.. there's another witness waiting in the wings, if time permits, named Harold McClymont, and Ijust
want to understand for sure that the agreement is as always; the Crown's not going to lead any in-dock,
and counsel aren't going to refer to any line-ups, because the two accused weren't picked out;
otherwise it will have to be, I suppose, the subject of litigation.
Later in the trial, further submissions of counsel established that this agreement held throughout the
evidence.
April 8/04 proceedings, AR, Vol. A, Part II, Judgments, 915-11125; Counsel's submissions, AR, Vol. II, 624120-625120,
868/25-876125
11
3.
The Evidence of Leisa Maillard
19.
Of all those present at the Club, estimated at 100 people or so, only Leisa Maillard provided
evidence of identification of the Appellant as the second gunman.
20.
On the night in question, Ms. Maillard went to the Club with her husband and Collin Moore's
sister, Jennifer. They were sitting drinking when, through a mirror, she observed a fight break out
in the corridor area. The Moore brothers were involved. One of the group fighting with them
grabbed a pool cue. According to Maillard, someone had Collin in a headlock. Maillard explained
that she had a very limited opportunity to observe the participants in the fight because there was a
melee of people around them. The fight moved to the dance floor where it broke up. Maillard then
walked over to Collin who was bleeding.
Evidence of Maillard, AR, Vol. II, 81211-82611
21.
According to Maillard, at this point someone approached the Moores and spoke to them. The
Moores ran into the kitchen and Maillard ran after them. Collin, Roger and Jennifer Moore were in
the kitchen, as well as the lady serving behind the bar. Suddenly Maillard heard a crash and two men
came in at a fast pace holding guns - she recognized them as having been involved in the earlier
fight. One gunman was wearing a "bright orange orred shirt". The other gunman, she testified, was
the one she focussed on the most and he was wearing a green shirt. The gunmen were "scary".
Jennifer Moore and the bar lady quickly ran out of the kitchen.
Evidence of Maillard, AR, Vol. II, 826/1 -835/15
22.
Maillard spoke to the green-shirted gunman when he was six feet from her. She said: "You
don't have to do this, you know. lfyou guys want to fight, just fight. He has a wife and kids." The
man turned, pointed his gun at her, and said in a Jamaican accent: "Shut your blood clot before I kill
12
you." The two gunmen then walked to the end of the counter. Maillard was looking at the greenshirted gunman's face "and at the gun". The two men started shooting. The green-shirted gunman
was holding an older long-nosed black revolver; the orange-shirted gunman had a newer silver gun.
Evidence of Maillard, AR, Vol. II, 835/15-844/1
23.
After several shots, Maillard, to use her own words, "woke up". She walked out of the
kitchen and hid behind the wall in the hallway leading to the bathroom. Sixteen seconds, or "much
less", had passed from when the gunmen stormed into the kitchen (the Crown suggested in his
closing it was ten seconds, saying to the jury: "You can piece together, from that 911 tape, it was
probably around ten seconds.") When the shots stopped, the gunmen fled. She saw that they were
trying to pull their t-shirts over their faces. Maillard went back into the kitchen and tried to help
Collin. She was screaming for help.
Evidence of Maillard, AR, Vol. II, 843/30-848130, 91315-25; Crown Closing, AR, Vol. VI, 108115-20, 11315-10
24.
Maillard related her ability to observe the man in the green shirt:
I was looking at, when he [lIst walked by me, the side of his face. When he turned to look at me and
pointed the gun at me, the front of his face; when he walked by me again to do the shooting, the side
of his face; and while he was shooting, the front of his face again.
Her original description of this man to the police that she gave later that morning between 7: 19 and
8: 19 was as follows:
6'0 ft tall' 11 inches taller, skinnier and darker than the other gunman who was 5'1", high cheekbones,
gaunt-looking face, dark complexion, thin moustache, straight pointy noise and bair in dreads but
sborter, wearing a green shirt. (emphasis added)
Evidence of Maillard, AR, Vol. II, 881110-887/10
2
According to the police evidence, the Appellant is between 6'0" and 6'2" tall (infra). His weight
on arrest was not given.
Evidence ofDct Smith. AR, Vol. lV. 1476115-20
13
25.
At this time, the Chigwell residence was still under surveillance and the police had
determined that the Appellant lived there. A photo line-up was prepared with the Appellant's
photograph at number 10 (Exhibit 36). Commencing at 8:50 a.m., Leisa Maillard was shown the
photo line-up by Detective Young. Young knew that the Appellant was a suspect and knew his
location in the line-up. According to Young, as her eyes came to the Appellant's photo, Maillard
began to tremble and cry. She then pointed to the Appellant's photo and "at some point" said "Oh,
God." Maillard said at the time of viewing the line-up: "Of all the people on this page, he looks
most like the shooter" and "on a percentage scale I would probably say maybe 80%." Young asked
her to clarify what she meant by an 80% likeness:
Young:
Are you saying that this photograph depicts the likeness about 80 percent of the
person?
Maillard:
That's correct.
Young:
That did the shooting?
Maillard:
That's correct.
Young:
But are you saying this is the person that did the shooting? I have to have you say
"yei' or "no".
Maillard:
No. The photographs Is about 80 percent of what depicts the likeness of the
person that did the shooting. I wish I could. (emphasis added)
Maillard sought to elaborate on her 80% estimate in her trial testimony:
I meant that the photograph being a photocopy, about not being able to pick up the facial hair, not
being able to see, you know, knowing that it might not be a current photograph of him, noting that his
hair might be different, taking into account all those factors that I was told and being - - seeing
someone get shot and knowing that this is something very important that I was doing, picking
somebody, you know, out of a line-up that was responsible for a man dying, I was being cautious.
Evidence of Maillard, AR, Vol. 11,853120-857120, 890/10-15; Evidence of Young, AR, Vol. III, 963125-981120, 993/1-25,
1012130-1021110; Ex. 36, Photo line-up, AR, Vol. VII, 110; Evidence of Maillanl, AR, Vol. II, 855/10
26.
When Maillard heard on the news that two arrests had been made, she called one of the
investigators "to fmd out whether or not my I.D. was pretty much the right person or not." Three
weeks later, on July31, 2002, Maillard participated in a second identification process and was shown
14
a number of photographs in sequence that included a photograph taken of the Appellant on his arrest
on July 6 (it was the third photo in the sequence). In-chief, Maillard was asked if she recalled this
viewing. She testified: "It's possible" that she looked at the photos. In cross-examination, she
recalled that she "flipped through them." She did not select any photographs and, when shown
during her cross-examination the photograph of the Appellant that she passed by, she said: "He looks
very different there. No, I don't know that that's Leighton Hay." She acknowledged that, in his
arrest photo, the Appellant did not have a gaunt face like the face of the second gunman at the Club.
Evidence of Maillard, AR, Vol. II, 857/30-859/25, 892120-897130; Evidence ofD/C. Handy, AR, Vol. III, 1373120-1375125;
Ex. 62, July 6/02,1 Photo board of the Appellant after his arrest,AR, Vol. VII, 147; Exhibit 37, Sequential photo line-up, AR,
Vol. VII, III, (Evidence of Maillard, Trial Transcript, Vol. II, 858125)
27.
On June 18, 2003, Maillard testified at the preliminary hearing. The Appellant and Eunick
were side by side in the prisoner's box. Maillard identified Eunick as the man in the green shirt.
Part of her testimony at the preliminary hearing was read to her in cross-examination at trial:
Q.
''This man here who is in the box and it doesn't matter what his name is right now_If, and you say: "That's correct":
" - -this man who is in the box - if you could stand up sir - this is the man that you
say was wearing green, right?"
And you answer: "That's correct."
"Question: And this is the man you say you were focusing on, right?"
And you say: "That's correct".
He says: ''This is the man you say had the big revolver?"
And you say: ''That's correct."
"Question: Or the revolver, right?"
Again you say: "That's correct",
1 say: "I think for the record we should say that that's Mr. Eunick in the box."
Do you remember that?
A.
1 do remember that.
15
Q.
You identified Mr. Eunick as having been the person in green.
A.
That's correct.
She identified Eunick in this way several times at the preliminary hearing:
Q.
But, ma'am, you were asked several times - sometimes they were sitting the box, other times
one waS outside, other times they were standing - you were asked and each time you said it
was Mr. Eunick in the green; isn't that right?
A.
If that's what happened, then, yes.
Maillard said at trial: "I was probably mistaken when 1 identified [Eunick] in the courtroom." She
testified that she was "nervous" and "scared" at the preliminary hearing. She said:
A.
You [meaningcounselj kept saying [at the preliminary hearingj"Is this Mr. Eunick?" or "Is
this Mr. Hay?" You guys kept referring to each one of them by name. If - - I didn't know
the gentlemen's names. I didn't know who they were. That's why I knew the clothing. I
knew the characteristics of, you know, the certain facial features. Time had passed. Mr. Hay
or the gentleman that I had identified looked a certain way. Now he's bulked up. He's
heavier set, you know what I mean.
Q.
He doesn't look the same?
A.
He doesn't look the same now.
Photographs taken in June, 2003 of the Appellant and Eunick at the time of the preliminary hearing
were filed as exhibits.
Evidence of Maiillard, AR, Vol. II, 897/30-901115; Exhibit 56, Photos of the two accused, AR, Vol. VII, 133; (Trial
transcripts, Vol. lIT, 1290/30-1291120)
28.
In her trial testimony, Maillard re-described the second gunman as follows:
•
He was the taller and darker skiuned of the two gunmen. He had a gaunt face with
sucked-in cheekbones. He had what she called a straight-boned nose. As for his
hair:
He had shorter dreads on top of his - - my hair is long, it wasn't long dreads. It was
shorter, picky dreads on his head.
She was further asked:
Q.
This person who was in the green plaid top, I think you've described his hair as being
picky, short. Did you use the word "dreads"?
16
A.
I did.
Q.
A.
And in tenos of length from the hair - -length from the scalp rather, how far out would
the hair be from the scalp?
Um-m-
Q.
Sometimes when we talk about dreads we think of - -
A.
It's, as I said before, we're not talking about long dreads like my hair. It was shorter
on top. If I could, I'll just again use the pen as reference. They were maybe standing
off his head maybe this high.
Q.
That looks 6ke a couple of inches?
A.
Yeah.
Q.
Is that accurate?
A.
Yeah. (emphasis added)
Two other witnesses described this gunman as having a similar hairstyle to that described by
Maillard. In his statement to the police after the shooting, Roger Moore referred to one of the
gunmen as "the Rasta guy" with "about shoulder length dreadlocks". He told the police that this man
was the one wearing an orange shirt but, in his trial testimony, said that this was a "mix-up" and it
was the blue-shirted man who had the dreadlocks. Kares Clarke-Glasgow, another person at the
Club, described the blue/green shirted man as having "high" hair.
Evidence of Maillard. AR, Vol. II, 832120·834110, 843110-25, 852/30·853/15;Evidence of Roger Moore, AR, Vol. 1,391/10411125; Evidence of Clarke· Glasgow, AR, Vol. III, 1050/1
29.
During her examination-in-chief, Maillard gave the gunman a beard, something that had not
been in her original description. She said it was:
A scraggly beard on the side of his face and underneath here with patches. It wasn't a full grown
beard. It had patches right in the beard itself.
As for the man's clothing, she said at trial that he was wearing a short-sleeved hunter green or darker
green shirt with a white t-shirt underneath. She believed the outer shirt had a collar and buttons, and
was plaid or pin-striped.
Evidence of Maillard, AR, Vol. II, 832120·834/10,852130·853115,915120·916115
17
4.
The Appellant' s Appearance on His Arrest
30.
For the Appellant, the most striking aspect of Leisa Maillard's description of the second
gunman was her memory of the man' s hairstyle - two inch picky dreads. On his arrest hours after
the shooting, the Appellant, whose height was estimated by the police at between 6'0" and 6'2" , had
extremely short hair, between one and three millimetres long (not, as the trial Crown and some
witnesses suggested, a shaved head).
3
It was misleading to described the Appellant' s head as "shaved" or "shorn" on his arrest as Lisa Hay
and DIS Smith both described it from his arrest photographs. An examination of the photographs on
this page clearly shows that he had a very short haircut, but not a shaved head. Lisa Hay, when she
was first asked at trial how long the Appellant' s hair was on July 6, 2002, said she remembered it to be
three or four millimetres long. Her memory was accurate (see para. 31 infra) .
See evidence ofD/S Smith, AR, Vol. IV, 1493/20-1494/5
18
The investigating officers quickly realized that if the Appellant was the second gunman, he would
have to have cut his hair at home in the hours between the shooting and his arrest. On July 6, the
day after the homicide, they obtained a search warrant authorizing them to search the Chigwell
residence for, inter alia, "cut hair" and "haircutting equipment". As part of their search of the
residence, the police seized two particular items:
•
in a side table, or night stand, in the Appellant's bedroom, DIS Smith found an "electrical
haircutting device - razor". DIS Smith also referred to it as "electrical hair clippers." The
razor, with the hairs still in it, was filed as exhibit 49. Hairs could be seen on, and in, the
device.
•
In the bathroom, DIS Smith found a waste basket in which there was a crumpled page of
newspaper, with a date of June 18, 2002. The newspaper contained some hair clippings in
the form of short curly hairs. The page of the newspaper, with the hairs still in it, was filed
as exhibit 52.
The hairs in the newspaper were approximately the same length as the hairs in and around the razor.
All were less than one centimetre long. None of them remotely resembled two inch dreadlocks. Cst.
Armstrong, an identification officer, was asked by the Appellant's counsel in cross-examination:
Q.
And you can't tell whether those hairs came from someone's chin, or cheeks, or head, or
sides, or anything.
A.
I couldn't say.
No hairs were found on the Appellant's bedroom or bathroom floor, or in the sinks in the home.
Neither the electric razor and the hairs in it, nor the hairs in the newspaper were submitted to the
Centre of Forensic Sciences.
Evidence of DIS Smith, AR, Vol. N, 1457/5, 1458/1-30. 1465/1-1466/15, 1476/15, 1488110-1489130; Evidence of Cst.
Armstrong,AR, Vol. III, 121911-1221125,1227110-1232115,1259110-1262110,1263/30-1264115,1264130-1265115,126612025; Exhibit 49, (Trial transcript, Vol. III, 1221/15); Exhibit 52, (Trial transcript, Vol. III, 1232/10)
31.
Lisa Hay, the Appellant's sister, was called by Eunick at trial and asked about the Appellant's
hair length on July 6, 2002. She testified: "I would say maybe three or four millimetres long." She
19
said that her brother had never worn dreadlocks, though years earlier he had sometimes kept his hair
in corn rows. In. cross-examination by the Crown, Lisa Hay was shown a photograph taken of the
Appellant on his arrest and testified: "It looks like a shaved head." The Crown suggested to Lisa
Hay:
Q.
And when you and Gary came home [after the shooting], you say Gary - I'm suggesting to
you that it was Leighton Hay as well - I suggest to you that there was some conversation
about how those two men would escape their crime?
A.
No.
Q.
And I am going to suggest that the decision was made that Leighton Hay would shave his
head?
A.
No.
A similar suggestion was made by the Crown to Gary Eunick, who was a hairstylist by profession,
during his cross-examination.
Evidence of Lisa Hay, AR, Vol. N, 1908115-1909/20, 1918115-25, 1922110, 1922130-1923/25; Evidence ofEunick, AR, Vol.
N, 1759115, 1856115-25
32.
Lisa Hay had also been called as a witness at the preliminary hearing in June, 2003. There,
she said that the Appellant's hair was similar in length to Eunick's on July 6,2002 and "possibly a
little bit longer". At trial, when shown the arrest photos of the Appellant and Eunick, she agreed that
Eunick's hair was, in fact,longer than her brother's (though it should be noted that it was only a few
millimetres longer). Lisa Hay added:
A.
I couldn't rememberexactiy how my brother's hair was at the preliminary hearing. That was
just my estimate.
A.
When I was asked at the preliminary hearing I guessed and I think I mentioned that as well.
I didn't recall exactly how long his hair was.
The Court:
A.
So your evidence is that you don't remember what his hair was like?
Exactly, no. I COUldn't tell you the length exactly. I don't recall.
20
Ms. Hay told the Court that the Appellant did not have any tools in their home to shave his hair; as
far as she knew, he only had a shaver for his face.
Evidence of Lis. Hay, AR. Vol. IV, 1918/25-1922/30
21
PART II
OUESTIONS IN ISSUE
33.
DID THE TRIAL JUDGE ERR IN DIRECTING THE JURY THAT A CONVICTION
COULD REST ON THE EVIDENCE OF LEISA MAILLARD ALONE?
22
PARTIn
STATEMENT OF ARGUMENT
DID THE TRIAL JUDGE ERR IN DIRECTING THE JURy THAT A
CONVICTION COULD REST ON THE EVIDENCE OF LEISA MAILLARD ALONE?
Introduction
34.
Crown counsel at trial pressed for an instruction to the jury that they could, if they saw fit,
convict the Appellant solely on the identification evidence of Leisa Maillard even if they regarded
it as unsupported by other evidence. The trial judge accepted that submission even though he
described such a conviction as a "scary" possibility. Crown counsel, anticipating the jury charge to
come, emphasized in his closing address that the jury needed no more than Ms. Maillard's evidence
to convict, and that the supporting evidence was icing on the cake.
35.
It is respectfully submitted that the trial judge should not have charged the jury that this was
a permissible route to a verdict. A conviction based only on Maillard's evidence would necessarily
have been an unreasonable verdict because of the dangers inherent in her evidence. The Crown
argued that there was some support for her identification evidence but it can never beknown whether
the jury felt that the additional ambiguous evidence relied upon by the Crown truly was supportive.
In addition, the trial judge's instruction undermined the very cautions in his charge which were relied
on by the Court of Appeal to salvage the instruction - the jury would have understood from the
"Maillard alone" instruction that, despite the cautionary instructions, the weaknesses in her
identification evidence could not be that serious since it could support a conviction on its own.
23
1.
The Evidentiary Background
36.
Ms. Maillard, alone among the seven eyewitnesses who testified, selected the Appellant's
photo on an 80% assessment from the photographic line-up containing his photo that was assembled
in the immediate aftennath of the shooting. As an 'identification' her evidence had serious flaws
which, taken together, constituted a veritable catalogue of the ways in which eyewituess
identification evidence, from a seemingly honest and appealing witness, can lead to a miscarriage
of justice.
In a pretrial motion, defence counsel had unsuccessfully sought to exclude her
identification evidence on a Holmes basis, arguing that it was more prejudicial than probative.
Trial judge's ruling, Apr. 8/04, 4/10·6/25, AR, Part II, Vol. A,ludgments,; R. v. Holmes (supra) at para. 17
37.
The frailties in Maillard's eyewitness testimony may be summarized as follows:
•
Her identification was based on a very short time to observe the gunman, acknowledged by
the Crown to be ten seconds at the most, with concurrent multiple events happening suddenly
and instantaneously. This was a 'fleeting glimpse' of a person who was a complete stranger
to her.
•
Her ability to observe occurred under considerable stress. She was trying to watch out for
two gunmen. The stress of the situation was particularly extreme when one of the gunmen
pointed his gun directly at her. She would have focussed on the gun, or guns, (she actually
testified to this effect) rather than the faces of the gunmen. Indeed, she was able to give a
detailed and, considering other evidence, reasonably accurate description of the colour and
type of both guns used in the shooting.
See R. v. Henry (2011), 262 C.C.C. (3d) 307 (B.C.C.A.) at para. 77
R. v. Quercia (1991), 60 C.C.C. (3d) 380 (Onl.C.A.) al para. II
•
Her original description only referred to the green-shirted gunman's facial hair as being a
"thin moustache". By the time of trial, she was describing the man as having a "scraggly
beard" and gave further details of it. By this time, she had seen the Appellant's beard in the
24
photograph of him in the sequential line-up, and at the preliminary hearing. 4
See Ex. 56; photos of the Appellant taken at the preliminary hearing, AR, Vol. VII, p. 133
•
Her height estimation of the gunmen was not reliable. In her original description, she related
that the gunman on whom she focussed was 6'0 tall, 11 inches taller than the other gunman.
On the evidence, the Appellant's height was between 6'0" and 6'2" and Eunick was 5'11".
In other words, there was little difference in the heights of the two gunmen if the second
gunman was the Appellant.
EvidenceofEunick,AR, Vol. N,I760120
See R. v. Wolfe-Bard (2011), 270 C.C.C. (3d) 154 (Ont.C.A.) at paras. 20·26
•
Ms. Maillard's original description of the killer emphasized two features that were not
characteristic of the Appellant. She said that the man's face was "gaunt", with high
cheekbones. This, she agreed in her testimony, did not describe the Appellant as he appeared
in his arrest photos. She further testified that the second shooter had a notably dark
complexion, much darker than the man in the orange shirt. Indeed, after she failed to select
any photo from the second, sequential,line up, she told the officer that skin complexion had
been the "one really important thing ... in terms of deciding things". As the Appellant's trial
counsel said in his closing address, the Appellant is "if anything" lighter in complexion than
Eunick.s With all these issues arising from Maillard' s original description, there was nothing
about her recollection of the gunman that pointed toward the Appellant - apart from his being
a young black male.
Evidence of Maillard, AR, Vol. II, 901115-20
•
Det. Young, who conducted the line-up, knew who the police suspect was, and knew where
his photograph was in the line-up. This is contrary to best practices and increased the danger
of a mis-identification by Maillard of the police suspect. As Rosenberg J .A. said in
Hanemaayer:
4
The trial judge did not remind the jury of Maillard's original description of the man, which made
no mention of a beard, but only provided them with the description that she gave in her trial
testimony, which included the scraggly beard claim. This was unfortunate because the jury may
not have realized that this, and other features of her description. changed significantly after she
gave her first 'uncontaminated' description on July 6, 2002 before she viewed the first photo lineup.
Charge loJUl)!, AR, Vol V, 2181110-20; See R. v. Turnbull [19771 Q.B. 224 (C.A.)
S
June Daniels, who was in the Club when the shooting happened, also said the gunman in the blue
shirt was not as dark as the orange-shirted gunman. Roger Moore had said the same in his original
statement to the police, but backtracked on this in his trial testimony.
Evidence of Daniels; AR, Vol. D. 626/1-629120i Evidence of Moore. AR, Vol. I, 39312S-408IlO
25
There is a danger that the investigating officers may, even if not consciously, convey
information to the witness to cause her to select the suspect. Commissioner Cory
recommended, at p. 32[Sophonow Reportl, that "it is essential that an officer who does not
know who the suspect is and who is not involved in the investigation conducts the photo pack
line-up.
See R. v. Hanemnayer (2008), 234 C.C.C. (3d) 3 (Ont.C.A.) at para. 25
•
During the first photo line-up, Maillard's choice of the Appellant's photograph amounted to
an exercise in choosing the person in the line-up who looked most like the gunman. This
is a well known danger attributed to the use of photo line-ups - by showing a witness all the
photos at once, there is a danger that the witness will see it as "multiple choice testing and
engage in a process of elimination rather then recognition" Jper Rosenberg J .A. in
Hanemaayer). Notably, when shown a sequential line-up, in which choosing the closest
look-alike is always going to be much harder, Maillard did not pick any photograph.
See R. v. Hanemnayer (supra) at para. 23
Peter deC Cory: The Inquiry Regarding Thomns Sophonow at p. 28
•
An "80% likeness" is not an identification.
R. v. Dorsey (2003), 173 C.C.C. (3d) 443 (Ont. C.A.) at para. 10
R. v.Iemmolo, [1998] OJ. No. 948 (C.A.) at paras. 2, 4
R. v. Henry (supra) at para. 116
•
It is readily ascertainable why Maillard might have chosen the Appellant's photograph as an
80% look-alike in the first photo line-up. The Appellant's photo had been taken eighteen
months earlier and depicted him with a com row hairstyle somewhat like that related by
Maillard in her original description of the green-shirted gunman.
•
Likely because she chose the photograph of the police suspect as the best likeness to the one
gunman, Det. Young pressed her to say "yes" or "no" to whether he was the gunman. This
would likely, at some level, have been taken by Maillard as a hint that she had picked the
police suspect. Despite this, she said she could not say "yes" or "no".
•
The next morning, Maillard heard on the news that two men had been arrested for the
murder. She called the police to ask whether she had selected the 'right' person. This
demonstrated her interest in the case, and also her uncertainty as to whether she had chosen
the 'right' photograph. By the time of trial, her knowledge that she had picked the 'right'
person, would help explain why, in her trial testimony, she was so confident she had got it
right when she had chosen the Appellant's photograph as an 80% likeness on July 6, 2002.
26
•
Three weeks later, Maillard viewed a second line-up, this time being shown a series of
photographs in sequence, a process much less prone to mis-identification problems. A photo
of the Appellant, taken on his arrest on July 6, was in this line-up. On this occasion, Maillard
did not select his photo, or that of anyone else.
•
At the preliminary hearing, almost a year later, she was asked to identify the gunman on
whom she had focussed the night of the shooting. She had one of two choices, and chose
Eunick. She continued to do this throughout the hearing. Logically, this means that Eunick
looked like the gunman whom she was trying to identify. However, Eunick does not look
like the Appellant.
•
No in-dock identification was asked for from, or given by, Maillard at trial. Crown and
defence agreed that an in-dock identification would have no probative value, an
acknowledgment by the Crown of the enormous frailties inMaillard's identification attempts
prior to her trial testimony.
See Evidence of Maillard. AR. Vol. II. 86915-877/10
38.
At the pre-charge conference. despite the many factors which undermined her identification
evidence, the Crown asked the trial judge to instruct the jury that they could return a verdict based
on Maillard's evidence alone, without confmnation. He wanted the jury to be instructed that they
were
...entitled to convict on the evidence of a single eyewitness. if you accept that witness's identification
and you feel that it proves guilt beyond a reasonable doubt. but you should exercise caution before
convicting on this type of evidence alone.
Pre-charge Submissions. AR. Vol. V. 2004/15-2015/10
39.
During pre-trial submissions on the admissibility of Maillard's identification evidence, the
trial judge had asked the Crown (in the context of Maillard's anticipated testimony):
Do you concede that [if] this was all the Crown had. that no reasonable jury properly instructed could
convict on this evidence?
27
During the Crown's response to the question, the trial judge intervened and said:
They could convict all right, that's the scariest part about this kind of evidence.
The Crown suggested that the trial judge' s question would be best left for the pre-charge conference.
During the pre-charge submissions, the trial judge agreed with the Crown's request as he made it.
The Appellant's counsel did not refer back to the pre-trial exchange during pre-trial submissions, and
did not challenge the Crown's request.
Pre-charge submissions,AR. Vol. V, 2018120-25; Pre-trial submissions re admissibility of Maillard's identification (not
reproduced in the Appeal Recortl)
2.
The Crown Closing
40.
In his closing, Crown counsel, now anticipating the jury charge in this regard, suggested
Maillard's 80% identification on its own could allow the jury to convict the Appellant, and presented
the "confirmatory evidence" as a bulwark against any possible lingering doubt. He said to the jury:
The evidence of the first scene is HHMS Nightclub. It's capable, on its own, of convicting these
two men off"ll"St degree murder - and I will explain wby. But it's the power of the second scene
in this case, with all its confirmatory evidence, that makes this stand out. Mr. House doesn't think
much of confmoatory evidence, but I ask you to listen to the charge of His Honour.
I suspect His Honour will also tell you, after considering the strength of eyewitness testimony,
you're entitled to convict on it alone if it persuades you, beyond a reasonable doubt, that the
person identified was tbe shooter.
Let's look at them alone for a moment, because it's my goal to show you that there's layers of proof
against these men. Let's imagine for a moment that we don't have all tbat conftrmatory evidence
at Chigwell. If you use caution, and consider the strength and weaknesses, you're entitled to
convict on positive identification without all the conftrmatory evidence.
Tbe lawyer [for Leighton Hay] has made much of the fact that she said 80 percent. She explained to
you what she meant. 80 percent is of the picture, because it may be an older picture, [Det. Young]
had told ber that .If you accept her explanation - there's no reason not to - you can convict
on the pboto line up and that visceral reaction [to it] all alone. If you're troubled by it, then your
troubles will be wiped away by the overwhelming confirmatory evidence in this case, which under
Canadian law makes up for any frailties you might find in the photo line up.
28
You could, in tbis case, convict Leighton Hay on Leisa Maillard's photo line up, but you don't
have to, as I will get to in a moment. There's a mountain of confirmatory evidence that you caD use.
(emphasis added)
After going through some of the identification evidence, the Crown further said:
On the evidence tbat you bave to tbis point alone· and we baven't got to Cbigwell yet - you can
convict both men as cbarged, of first degree murder of Collin Moore, and attempt murder of
Roger Moore. You don't bave to rely on tbe evidence, at this point, at Cbigwell. (emphasis
added)
Crown Closing Address, AR, Vol. VI, 88/25-89/15, 111120-25, 112/15-25, 117115-25, 119/15-20, 122/10-15
3.
The Charge to the .IuD'
41.
The trial judge charged the jury on Maillard's identification as requested by the Crown. He
said:
So I repeat, ladies and gentlemen, you must be very cautious about relying on eyewitness testimony
alone to find either of the defendants guilty of any crime. In the past, there have been miscarriages
of justice. Persons have been wrongly convicted because eyewitnesses have made mistakes in
identifying the persons whom they saw committing the crime.
As a result, you should look for confirmatory evidence to support the eyewitness identification
evidence. If you find other evidence to support the eyewitness identification evidence, you may
decide tbat the frailties associated witb a conviction based ouly on identification evidence bas
been discounted. It will be up to you.
But even if you find no confirmatory evidence· even tbougb you are to exercise caution because
of the frailties of eyewitoess identification evidence - you are, nevertbeless, entitled to convict
on tbe evidence of even a single eyewitness if you accept tbat witness' identification and find tbat
it proves guilt beyond a reasonable doubt. But you should exercise real caution before
convicting on this type of evidence alone.
On the other band, the eyewitnesses have given a description and it is open to you based on their
evidence to infer that Leighton Hay was at the Ciub that night. It will be for you to decide.
(emphasis added)
He repeated this dictum later in his charge when reviewing the Crown's theory of the case:
Every murder, said Mr. F1umerfelt, has a scene. He said that this murder has two scenes. He said that
they were connected by a licence plate number, the licence plate number that Hugh Robinson gave to
the police. Mr. Flumerfelt submitted to you that the evideuce from the first scene, in the
Crown's submission, provides sufficient evidence to justify the conclusion by itself that botb
defendants are guilty of lirst degree murder of Collin Moore and tbe attempted murder of
Roger Moore.
29
The evidence from the second scene, in the submission of the Crown, provides powerful confmning
evidence from the nightclub. The Crown submission here is lhalthe evidence from Ihe rU'St scene
by itself is enough to justify a conviction for the first degree murder and attempt murder. And
in fact Ihe submission of the Crown was that the evidence from the second scene is really icing
on the cake, removes any possible doubt hecause of its powerful evidence coni"ll'IIIing the
reliability of the evidence from the nightclub.
The Crown position is that eveo wilhout the evidence from the Chigwell residence, the evidence
is sufficient 10 justify convictions against both men. (emphasis added)
Charge to Jury, AR, Vol. V, 2146/5-30, 2153/15-20, 2241120-2242120, 2246/5-10
4.
The Court of Appeal's Judgment
42.
Moldaver J .A. dismissed the challenge to this instruction on appeal. He said:
First, [Leighton Hay's counsell submits that the trial judge erred in instructing the jury that they could
convict on the eye-witness evidence of Ms. Maillard alone.
I would not give effect to this ground. The trial judge did not tell the jury that they could convict on
the eye-witness evidence ofMs. Maillard alone; rather, in the course of his general instructions on eyewitness identification evidence, he told the jury that they were "entitled to convict on the evidence of
even a single eye-witness if you accept that witness' identification and find that it proves guilt beyond
a reasonable doubt. But you should exercise real caution before convicting on this type of evidence
alone,"
The impugned instruction is a correctstatementoflaw: seeR. v. Nikolovski, [1996]3 S.C.R. 1197 per
Cory J. for the majority, a para. 23.
With respect, the trial judge's instruction did, through a simple reasoning process, tell the jury that
they could convict the Appellant on Maillard's evidence alone.
Court of Appealjudgmeo~ paras. 42-44
43.
Moldaver J.A. noted that the general instruction applied to the identification of Eunick as
well as the Appellant which, of course, it did. After pointing out that the trial judge told the jury
of the general and specific frailties in Maillard's identification testimony, he then said:
In the face of those instructions, it is fanciful to think that the jury would have convicted Hay solely
on the eye-witness testimony of Ms. Maillard. On the contrary, they would have looked for
confinnatory evidence - in accordance with the trial judge's instructions - and found it in Hay's
laundry hamper and in his after-the-fact attempt to disguise his identity.
Court of Appealjudgmen~ paras. 44-48
30
S.
Argument
44.
The trial judge's instruction that the jury could convict on Maillard's evidence alone was
legally incorrect and extremely prejudicial. It is submitted that the Court of Appeal erred in its
treatment of the issues.
45.
The only authority cited by the trial Crown in his submissions and by Moldaver J.A. in the
Court of Appeal was Nikolovski. In that case, the trial judge convicted the accused of a robbery
solely on the basis of viewing a video recording of the actual crime. The trial judge concluded that
the person depicted committing the crime in the video was the accused. The majority of this Court
upheld the conviction. In his majority reasons, Cory J. said:
It is clear that a trier of fact may, despite all the potential frailties, find an accused guilty beyond a
reasonable doubt on the basis of the testimony of a single eye-witness.
This passage must be read in context. It does not mean that a jury may properly convict on any
eyewituess's testimony regardless of its defects. Nor does it mean that juries should be instructed
along the lines requested by Crown counsel for Maillard's testimony because, standing alone, it did
not make a case to be met.
R. v. Nikolovski, [1996] S.C.R. 1197, para. 23
46.
It is entirely fair to conclude that, absent any supporting evidence, a conviction based
exclusively on Maillard's evidence could not survive an unreasonable verdict test (Moldaver J.A.
felt that he did not have to decide this issue). In Reitsma, the only eyewituess to a break-in viewed
a photo line-up the next day. He wrote down:
Photo #7 is similar to the suspect although I cannot be 100% sure from the photo, I feel that I could
identify the individual in person.
31
Eleven months later attrial, the witness identified the accused in-dock as the perpetrator. On appeal,
this Court adopted the dissenting reasons of Rowles J.A. in the Court of Appeal and quashed the
verdict as unreasonable. Dorsey, in the Ontario Court of Appeal, was a similar case. There are a
legion of cases which establish that a conviction resting solely on an identification with significant
flaws, especially an 80% identification, as in the case of Maillard's testimony, cannot be upheld on
appeal and will be set aside as an unreasonable verdict. It should be no different if there is some
supporting evidence which can be, or has been, rejected by the trier offact. So, if a trial judge, trying
a case without ajury, rejected evidence alleged to be supportive of an identification, and relied solely
on identification evidence of Reitsma quality to found a conviction, the verdict would be overturned
on appeal as unreasonable.
R. v. Rei/sma [1998]1 S.C.R. 769; reversing (1997),125 C.C.C. (3d») (B.C.C.A.)
R. v. Dorsey (supra); R. v. lemmolo, (supra)
R. v. Harvey (2002), ) 60 C.C.C. (3d) 52 (OnlC.A.) aft'd (2002) 4 S.C.R. 3))
Moldaver I.A.'s Reasons,R. v. Hay (supra) at para. 32
6.
An Analysis of the Court of Appeal's Approach to This Case
(a)
47.
The Application of the Instruction
The Court of the Appeal observed that the trial judge's instruction that the jury could rely on
the evidence of a single eyewitness alone did not specifically refer to Maillard's testimony. But the
jury could not fail to have understood that the only meaningful application of the instruction that it
was "entitled to convict on the evidence of even a single eyewitness" was in regard to Maillard's
testimony. The case against Gary Eunick involved his identification by several eyewitnesses, some
using their past recognition of him, combined with overwhelming supporting evidence. So, when
the jury was told by the Crown and trial judge that they could convict on the testimony of a single
eyewitness, they would have related the instruction to Maillard's testimony and the case against the
32
Appellant. The Crown's repeated references to the proposition in his closing address would have
cemented the jury's understanding that the instruction related to the Appellant, and only the
Appellant.
(b)
48.
The Legal Correctness o/the Instruction
The Court of Appeal found the trial judge's instruction that they could convict on a single
eyewitness's testimony alone to be "a correct statement of the law: see Nikolovski (supra) per Cory
J. for the majority at para. 23". As has already been argued, because of the circumstances
surrounding Maillard's identification, the trial judge's instruction was not correct in law in the
Appellant's case. The instruction could also have undermined the jury's understanding of the burden
of proof in a criminal trial because it would have fundamentally distorted what is needed to sustain
a safe conviction in a case depending on eyewitness identification.
(c)
49.
Was the Misdirection Neutralized by the Trial Judge's Warning?
The Court of Appeal endorsed the manner in which the trial judge cautioned the jury on the
dangers inherent in eyewitness identification testimony as if his warnings served to immunize any
dangers associated with his direction that they could convict on Maillard' s testimony alone. The law
requires that cautionary instructions be given for eyewitness identification testimony in all cases, but
the cautions provided by the trial judge could not cure the impugned direction.
50.
Firstly, the direction undermined the cautionary warnings themselves. Once told that they
could convict on Maillard's testimony alone, despite the numerous problems with her evidence, the
33
jury must have been unimpressed by the purported dangers and the miscarriage of justice concems.
The direction also provided the Crown with a seemingly plausible basis - what he termed "layers
of proof' - to indulge in what was, in reality, rhetorical overkill; after fIrst urging the jury repeatedly
that just Maillard's testimony was enough to prove the Appellant was one of the gunmen, the Crown
then spoke of what he called "some of the strongest confirmatory evidence possible ... the
overwhelming confIrmatory evidence" and "a mountain of confIrmatory evidence" to supplement
her identification. By being able to position Maillard's evidence as a legally sufficient basis by itself
for conviction, and then inflating the allegedly confIrmatory evidence, the Crown was able to create
an impression of inevitability that there could only be one verdict for the Appellant - guilty as
charged.
Crown Closing, AR. Vol. VI, 112110, 117120,119/20
51.
Secondly, the confIrmatory evidence was unimpressive. The bullets in the sock, and the
single trace of gunshot residue on the shirt, found in the hamper in the Appellant's bedroom,
admitted of two equally viable interpretations. One was that sought by the Crown; that the items
belonged to the Appellant because the hamper was in his room. The other was sought by the
defence; that Eunick placed the bnllets in the hamper inrrnediately upon his return home from the
shooting as he passed by the Appellant's room into the adjoining washroom and, while doing this,
contaminated the hamper's contents with a single granule of gunshot residue from his own clothing
(because it was only one granule, the Crown expert, Michael McVicar, saw this as a reasonable
suggestion). The Crown's fIrearms expert testified that the fIring pin mark on one of the bullets in
the sock matched the markings on some of the projectiles fired at the scene with the 9 mm semiautomatic handgun. The semi-automatic was the gun that witnesses placed in the hands of Gary
34
Eunick at the time of the shooting. As a consequence, the Crown took the position at trial that
Eunick gave the bullets from his gun to the Appellant after they got home. During his crossexamination of Eunick, he suggested to him:
Q.
And you cleaned up your cuts, and you shaved Leighton's hair, because you're the
hairdresser. Right?
A.
No, that never happened, sir.
Q.
And you gave him the buDels to get rid or, and he did; he did in that hamper?
A.
No, sir. (emphasis added)
See Evidence of McVicar, AR, Vol. m, 1420/15-30; Evidence of Eunick, AR, Vol. IV, 1856120-30; Crown Closing, AR,
Vol. VI, 126120-127/10
52.
As for the so-called conf1l'Illatory haircut evidence, it was essential for the Crown to prove
the Appellant cut his hair after the shooting or else Maillard's testimony that the gurunan had "two
inch picky dreads" eliminated the Appellant as that man. This meant that the Crown was compelled
to place considerable emphasis on the supposed haircut. He said to the jury in his closing:
Was the description - - another thing His Honour may ask to you to consider is, was it close, the
description, to the way the accused looked at the time? The answer to that was yes, in this case, until
he shaved his head and wouldn't look straight at the camera. This compared to the photographic
lineup where she picked him out. (emphasis added)
The Crown referred to the "haircutting equipment. Cut hair." on the search warrant, and said:
Did he sneak in and shave Leighton Hay's hair too? Did he sneak the clippers into Leighton
Hay's night table? Mr. House says there's evidence to this ef!'ect, that Leighton Hay shaves,
that's why he has hair clippers in his night table - not his bathroom. (emphasis added)
The Crown continued:
When they carne home, they convened at the back of the house. Mr. Hay took off his shirt and they
began to task divide. They took Eunick's bloody clothes to wash them. At some point, an old piece
ornewspaper was laid out, and Leighton Hay's short, short dreads were shaved of!', possibly by
himself but more likely by Mr. Eunick because he knows how to cut hair. They were then
dumped into the toilet. They were taken of!', and only the small hairs that weighed the least
stock to that newspaper, and he crumpled it up and threw it in the garbage, and that's wbere
it was, right on top, the last thing put in. Everything else was flushed.
Mr. House makes something of the date of tbat newspaper. If I understood his submission, the
last time Leighton Hay would have sbaved was June 18th. But he keeps his hair shears ror
35
sbaving in bis nigbt table. He shaved bis bead tbat nigbt. He threw the short dreads down the
toilet. He len just tbe small clippings in tbat piece of newspaper.
Mr. House, if he suggested to you· and I thought be did· that they were all over the newspaper,
they weren't; they were wrapped up inside it. Detective Sergeant Tony Smitb testified to that.
And he threw them in the garbage. And tbe reason was to alter his appearance. Tbere wouldn't
be much point in biding clotbes and bullets, and leaving bair In the waste bin. It was in tbe
toilet. (emphasis added)
This passage lays bare the poverty of the Crown's theory that the Appellant cut his hair before his
arrest. There were no two inch picky dreads in the newspaper or in the razor so the Crown concocted
the proposition that the hairs in the razor and newspaper were from a haircut, not a facial shave
(which is what defence counsel suggested they were), and the "picky dreads" must have been
"dumped into the toilet" while the small hairs "stuck to that newspaper". The former proposition
was imaginative6, the latter was absurd - presumably, short hairs respond to gravity. Both
propositions resulted from conclusory reasoning - (1) the witness described the gunman as having
two inch picky dreads, (2) the Appellant was that gunman, (3) the Appellant did not have two inch
picky dreads hours later when arrested, (4) so he must have cut them off in the meantime, (5) the
hairs found in the house must be the result of that haircut and so were scalp hairs (6) since the only
scalp hairs found were too short to be the two inch picky dreads described by the witness Maillard,
he must have flushed each and every one of the picky dreads in the toilet and (7) he left the short
scalp hairs in the newspaper and razor. Murder convictions cannot rest on such circular chains of
logic.
Crown Closing. AR, Vol. VI, 116/5-10, 12710-15, 128/20-129125
See Chanier v. Quebec (A.G.). [1979]2 S.C.R. 474; R. v. Quercia (supra) at paras. 16,29-30
53.
The Crown referred in his closing to Lisa Hay's testimony, and then said:
6
The trial judge did not remind the jury of this part of the Crown theory, and did not re-charge when
the defence objected.
Objections to Charge, ARt Vol. V. 2272125-2273/25
36
Detective Sergeant Tony Smith testified to what's obvious in these photos: [Leighton Hay's] hair is
not shorter; it's shorn; it's shaved. And it was done that night to alter his appearance, because he
killed Collin Moore, and he tried to kill Roger Moore, along with Gary Eunick.
Faced with that sort of inconsistency when [Lisa Hay] testified, she says he doesn't even have the tools
to cut his hair. You will recall. that the police removed this [indicating the electric razor] when the
search warrant was executed.
The Crown added that the Appellant's dreadlocks may have explained why his head was not cut
when, on the Crown's theory, a bottle must have been broken over his head at the nightclub. From
these submissions on the supposed haircut, it can be seen how imaginative the Crown had to be in
his closing if he was to secure convictions for the Appellant.
Crown Closing, AR, Vol. VI, 129/25-131110
54.
The "mountain of conf1I'Illatory evidence" does not stand up under scrutiny. However, the
jury may have come to the conclusion that they could convict on Maillard's evidence alone, and then
bootstrapped the bullet and haircut evidence to fit their conclusion that the Appellant was one of the
gunman. In other words, the trial judge's direction was wrong in law, and extremely dangerous,
because it provided a tenuous and unsupportable route to conviction.
Conclusion
55.
The trial judge was urged by the Crown to make, and made, a significant legal error in giving
the impugned direction. If it could be proved that the verdict rested on Maillard's evidence alone,
it would be quashed on appeal. This, of course, can never be known, but it may well be that some,
or all, of the jurors, impressed by Maillard's apparent sincerity but not by the conf1I'Illatoryevidence,
may have voted to convict because of her testimony, and the instruction given about its sufficiency.
This Court should not be satisfied that the error did not affect the verdict.
37
PART IV
SUBMISSIONS CONCERNING COSTS
56.
The Appellant does not seek costs.
PART V
ORDER SOUGHT
57.
The Appellant respectfully requests that his appeal from his convictions for fIrst degree
murder and attempt murder be allowed, his convictions quashed, and, taking into account the fresh
evidence, verdicts of acquittal entered; in the alternative, a new trial be ordered on both counts.
All OF WHICH is respectfully submitted this 6th day ofD
ber, 2012.
PIllLIPC
J
McLEAN
38
Authorities
R. v. Holmes (2002). 169 C.C.C. (3d) 344 (Ont.C.A.)
R. v. Henry (2011). 262 C.C.C. (3d) 307 (B.C.C.A.) at para. 77
R. v. Quercia (1991). 60 C.C.C. (3d) 380 (Ont.C.A.) at para. 11
R. v. Wolfe-Bard (2011). 270 C.C.C. (3d) 154 (Ont.C.A.)
R. v. Turnbull [1977] Q.B. 224 (C.A.)
R. v. Hanemaayer (2008).234 C.C.C. (3d) 3 (Ont.C.A.) at para. 25
R. v. Dorsey (2003). 173 C.C.C. (3d) 443 (Ont. C.A.) at para. 10
R. v. lemmolo. [1998] 0.1. No. 948 (C.A.) at paras. 2. 4
R. v. Nikolovski. [1996] 3 S.C.R. 1197
R. v. Reitsma [1998]1 S.C.R. 769; reversing (1997).125 C.C.C. (3d)1 (B.C.C.A.)
R. v. Harvey (2002). 160 C.C.C. (3d) 52 (Ont.C.A.) affd (2002) 4 S.C.R. 311
Chartier v. Quebec (A. G.). [1979]2 S.C.R. 474