Docket

33536

Leighton Hay v. Her Majesty the Queen

(Ontario) (Criminal) (By Leave)

Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.

Proceedings
Date Proceeding Filed By
(if applicable)
2014-09-24 Record returned to, Mr. James Lockyer, Re: Posters/pictures for Motion to adduce new evidence.
2013-11-28 Appeal closed
2013-11-12 Formal judgment sent to the registrar of the court of appeal and all parties
2013-11-12 Judgment on appeal and notice of deposit of judgment sent to all parties
2013-11-08 Judgment on the appeal rendered, CJ LeB F Abe Ro Cro Wa, The appeal from the judgment of the Court of Appeal for Ontario, Number C42026, 2009 ONCA 398, dated May 12, 2009, heard on April 23, 2013, is allowed. The motion to adduce fresh evidence is granted and the matter is remanded for retrial.
Allowed
2013-05-06 Transcript received, (91 pages)
2013-04-23 Judgment reserved OR rendered with reasons to follow
2013-04-23 Appellant's condensed book, (Book Form), submitted in Court (2 volumes) Leighton Hay
2013-04-23 Acknowledgement and consent for video taping of proceedings, from all parties
2013-04-23 Hearing of the appeal, 2013-04-23, CJ LeB F Abe Ro Cro Wa
Judgment reserved
2013-04-22 Supplemental document, supplemetary BOA, Completed on: 2013-04-22 Her Majesty the Queen
2013-04-19 Correspondence received from, James Lockyer, re: request for additional time for oral argument Leighton Hay
2013-04-11 Notice of appearance, James Lockey, Phillip Campbell and Joanne McLean will be present at the hearing. Leighton Hay
2013-04-09 Notice of appearance, Susan Reid will present at the hearing. Her Majesty the Queen
2013-03-11 Notice of hearing sent to parties
2013-03-07 Appeal hearing scheduled, 2013-04-23
Judgment reserved
2013-02-20 Appeal perfected for hearing
2013-02-15 Supplemental document, Fresh Evidence Record of Respondent pursuant to the order of Cromwell J. dated January 27, 2012. (3 volumes with volume 1 containing the memorandum of argument on fresh evidence), Completed on: 2013-02-15 Her Majesty the Queen
2013-02-15 Respondent's book of authorities, Completed on: 2013-02-15 Her Majesty the Queen
2013-02-15 Respondent's record, Completed on: 2013-02-15 Her Majesty the Queen
2013-02-15 Respondent's factum, Completed on: 2013-02-15 Her Majesty the Queen
2013-01-15 Order on miscellaneous motion
2013-01-15 Decision on miscellaneous motion, Reg, to file a Fresh Evidence Record and a Fresh Evidence Factum of 45 pages, to dispense with the printing of the Record by filing Volume A and extending the time to serve and file the Appellant's book of authorities to Dec. 13/12
Granted
2013-01-15 Submission of miscellaneous motion, Reg
2013-01-09 Response to miscellaneous motion, Completed on: 2013-01-09 Her Majesty the Queen
2012-12-20 Notice of miscellaneous motion, to file a Fresh Evidence Record and a Fresh Evidence Factum of 45 pages, to dispense with the printing of the Record by filing Volume A and extending the time to serve and file the Appellant's book of authorities to Dec. 13/12, Completed on: 2012-12-20 Leighton Hay
2012-12-13 Appellant's book of authorities, Completed on: 2012-12-13 Leighton Hay
2012-12-10 Supplemental document, Fresh Evidence Record of Appellant, Volume A (see motion granted Jan. 15/13), Completed on: 2012-12-10 Leighton Hay
2012-12-07 Appellant's record, (Volume A + 7 volumes), Completed on: 2012-12-07 Leighton Hay
2012-12-07 Appellant's factum, Completed on: 2012-12-07 Leighton Hay
2012-10-17 Order on motion to extend time
2012-10-17 Decision on motion to extend time, to serve and file the appellant's factum, record and book of authorities to Dec. 10/12, Reg
Granted, no order as to costs
2012-10-16 Submission of motion to extend time, Reg
2012-10-09 Response to motion to extend time, to serve and file the Appellant's documents, email from Karen Collins dated October 9/12, Completed on: 2012-10-09 Her Majesty the Queen
2012-10-05 Motion to extend time, to serve and file the appellant's documents to December 10/12, Completed on: 2012-10-05 Leighton Hay
2012-08-29 Notice of appeal, Completed on: 2012-08-29 Leighton Hay
2012-07-20 Letter advising the parties of tentative hearing date and filing deadlines (Leave granted)
2012-07-20 Copy of formal judgment sent to Registrar of the Court of Appeal and all parties
2012-07-20 Judgment on leave sent to the parties
2012-07-19 Judgment of the Court on the application for leave to appeal, The motion for an extension of time to serve and file the application for leave to appeal is granted. The request for an oral hearing is dismissed. The application for leave to appeal from the judgment of the Court of Appeal for Ontario, Number C42026, 2009 ONCA 398, dated May 12, 2009, is granted without costs. The motion to adduce fresh evidence is deferred to the panel hearing the appeal.
Granted, without costs
2012-07-19 Decision on motion to adduce new evidence
Allowed in part
2012-07-19 Decision on motion to extend time to file and /or serve the leave application, See above
Granted
2012-06-05 All materials on application for leave submitted to the Judges, LeB Abe Cro
2012-06-05 Submission of motion to extend time to file and/ or serve the leave application, LeB Abe Cro
2012-06-05 Submission of motion to adduce new evidence, LeB Abe Cro
2012-01-27 Order on motion to adduce new evidence, (BY CROMWELL J.)
2012-01-27 Decision on motion to adduce new evidence, Cro, UPON APPLICATION by the applicant for an order to admit fresh evidence on the leave application, brought pursuant to and in accordance with the Order of the Court dated November 18, 2010, for an Order permitting a 46 page Memorandum of Argument and for an Order for an oral hearing of this application pursuant to section 43(1)(c) of the Supreme Court Act;
AND THE MATERIAL FILED having been read;
IT IS HEREBY ORDERED THAT:
The motion to file a 46 page Memorandum of Argument is granted. The respondent is granted permission to file a Memorandum of Argument of 21 pages.
IT IS HEREBY FURTHER ORDERED THAT:
The request for an oral hearing of the application to admit fresh evidence is referred to the panel of the Court which will be seized of the application for leave to appeal.
Allowed in part
2012-01-27 Submission of motion to adduce new evidence, Cro
2012-01-13 Reply to motion to adduce new evidence, (bookform), Completed on: 2012-01-13 Leighton Hay
2011-12-20 Response to the motion to adduce new evidence, Volumes 1 to 3, Completed on: 2011-12-20 Her Majesty the Queen
2011-12-08 Supplemental document, suppl. record (bookform) -(volume IV, exhibits) (6 copies) Leighton Hay
2011-12-08 Correspondence received from, Gowlings on behalf of the Applicant dated Dec. 8, 2011, re.: Application to Adduce New Evidence filed on June 29, 2011 is not needed, Dec. 6 application replaces it. Leighton Hay
2011-12-06 Supplemental document, Cross-examination transcripts of Richard Bisbing and Johanne Almer (2 volumes) Leighton Hay
2011-12-06 Motion to adduce new evidence, (Book Form) Pursuant to and in accordance with the Order of the Court dated Nov. 18, 2010, and for an Order permitting a 46 page MOA, and for an oral hearing., Completed on: 2011-12-06 Leighton Hay
2011-08-10 Order on motion to extend time
2011-08-10 Decision on motion to extend time, Cro, UPON APPLICATION by counsel on behalf of both parties to a judge in chambers for an Order extending the time for the completion of the Fresh Evidence Application, and upon reading the Consent filed by both parties,
IT IS ORDERED that the schedule for the completion of the Fresh Evidence Application shall be as follows:
1) All cross-examinations on all affidavits shall be completed no later than September 30, 2011;
2) The Applicant may file a revised Memorandum of Argument and a revised Record, no later than two weeks after receipt of all of the transcripts; and
3) The Respondent shall file its Responding materials, including a Memorandum of Argument, no later than two weeks after the date the Applicant has filed its revised materials
Granted
2011-08-10 Submission of motion to extend time, Cro
2011-08-08 Response to motion to extend time, Completed on: 2011-08-08 Leighton Hay
2011-08-08 Motion to extend time, that all cross-examinations on all affidavits be completed by 09/30/11-to file an applicant's revised record & argument 2 weeks after receipt of transcripts-to file the respondent's materials & argument 2 weeks filing of applicant's revised materials, Completed on: 2011-08-08 Her Majesty the Queen
2011-07-29 Correspondence received from, Susan L. Reid dated July 29/11 re more time to schedule cross-examinations Her Majesty the Queen
2011-07-08 Correspondence received from, Susan Reid rec'd by fax re: wishes to cross-examine the expert's reports and will file an extension of time to file his response (cc. to the parties) Her Majesty the Queen
2011-07-05 Correspondence received from, Susan Reid dated July 5/11 (copy of a letter addressed to Mr. Lockyer) Her Majesty the Queen
2011-06-29 Supplemental document, Exhibits (pictures for Motion to adduce new evidence filed June 29/11)-6 copies Leighton Hay
2011-06-29 Correspondence received from, Brian Crane re: filing of motion to adduce new evidence Leighton Hay
2011-06-29 Motion to adduce new evidence, (4 volumes filed) - Oral hearing requested. (WITHDRAWN see letter dated Dec. 8, 2011), Completed on: 2011-06-29 Leighton Hay
2011-04-07 Order on motion to extend time
2011-04-07 Decision on motion to extend time, Cro, UPON APPLICATION by counsel on behalf of the Applicant to a judge in chambers for an Order extending the time to April 30, 2011 for the completion of the supplementary reports from the experts and for an Order extending the time to June 30, 2011, to bring an application to adduce fresh evidence and upon reading the Affidavit of Eduard J. Van Bemmel;
IT IS ORDERED that the time is extended to April 30, 2011 for the completion of the supplementary reports from the experts;
AND IT IS ORDERED that the time is extended to June 30, 2011 to bring an application to adduce fresh evidence
Granted
2011-04-07 Submission of motion to extend time, Cro
2011-03-25 Response to motion to extend time, Completed on: 2011-03-25 Her Majesty the Queen
2011-03-18 Motion to extend time, to April 30/11 for the conmpletion of the supplementary reports from the experts and to June 30/11 to bring an application to adduce fresh evidence, Completed on: 2011-03-18 Leighton Hay
2010-12-10 Order by, Reg, (SUPPLEMENTARY) UPON APPLICATION by counsel on behalf of the Applicant for the release of certain exhibits to the Centre of Forensic Sciences for scientific testing;
IT IS HEREBY ORDERED THAT:
1. Trial exhibits 49 (a page from a newspaper containing hairs) and 52 (a razor with hairs attached to it) will be released to the Centre of Forensic Sciences in Toronto for scientific examination pursuant to ss. 695(1) and 683(1)(a) of the Criminal Code of Canada.
2. The testing will be conducted according to the Protocol for Testing of Hairs ("the Protocol") dated December 1, 2010, attached to this order.
3. The exhibits will be picked up, retained, handled, examined, and thereafter returned to the Superior Court of Justice in accordance with the Protocol.
4. A report on the results of the testing will be prepared in accordance with the Protocol and that report, along with any and all notes, raw data, photographs, literature or other documents used in the preparation of the report, will be forwarded to counsel for the Applicant. Thereafter, in accordance with the undertaking provided by counsel for the Applicant, counsel for the Applicant will provide forthwith a copy of all reports and all accompanying materials that were provided to them by the Centre of Forensic Sciences to counsel for the Respondent.
5. Any fresh evidence application that is to be brought as a result of the scientific testing must be filed by the Applicant within 60 days of the receipt of the final report from the Centre of Forensic Sciences.
Granted
2010-11-18 Order on miscellaneous motion
2010-11-18 Decision on the miscellaneous motion, Binnie, Abella and Cromwell JJ.,
[1]The applicant and Gary Eunick were convicted of the first degree murder of Collin Moore and the attempted murder of Roger Moore in a nightclub shooting in the summer of 2002. A joint appeal to the Ontario Court of Appeal was dismissed (R. v. Hay, 2009 ONCA 398, 249 O.A.C. 24) and the applicant has applied for leave to appeal to this Court. The applicant wishes to determine whether he should seek to supplement with fresh evidence his pending leave application with respect to his argument that the verdict was unreasonable. For this purpose, he has applied for an order releasing two trial exhibits and their delivery to the Centre of Forensic Sciences for examination. The respondent Crown opposes the application. I agree with the position of counsel for both parties that the Court has jurisdiction to make the order sought. It is also my view that it is in the interests of justice to do so.

[2]Turning first to jurisdiction, I agree with the position of counsel for the respondent that a panel of this Court considering a leave application is authorized by s. 695(1) (read with s. 683(1)(a)) of the Criminal Code, R.S.C. 1985, c. C-46, to make the order the applicant seeks. That section confers authority on the Court in connection with an “appeal under this Part” to make any order that the Court of Appeal might have made. While there may be some question as to whether this authority extends to the Court considering an application for leave to appeal, three factors combine to convince me that it does.

[3]First, the provisions of the Criminal Code conferring appellate jurisdiction on this Court, while headed “Appeals to the Supreme Court of Canada”, set out situations in which appeals may be taken here either as of right or by leave. Moreover, for at least some purposes, the application for leave to appeal and the appeal itself in the event of a successful leave application are treated as two stages of an appeal to this Court. For example, s. 694.2(1), the provision granting the right to an appellant who is in custody to be present “at the hearing of the appeal before the Supreme Court of Canada”, is qualified by s. 694.2(2)(a) to make clear that a person in custody who is represented by counsel is not entitled to be present “on an application for leave to appeal”. This qualification would not be necessary if the right to be present at an appeal set out in s. 694.2(1) did not include the right to be present for an oral hearing of an application for leave to appeal.

[4]Second, while the term “appeal” is not a defined term in the Criminal Code, it is defined in the Supreme Court Act to include “any proceeding to set aside or vary any judgment of the court appealed from”: Supreme Court Act, R.S.C. 1985, c. S-26, s. 2(1). This definition is broad enough to include in this context an application for leave to appeal. As provided in s. 15(2)(b) of the Interpretation Act, R.S.C. 1985, c. I-21, this definition is to be “read and construed … as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears”. The broader definition of “appeal” in the Supreme Court Act should therefore be applied to that term as used in the provisions of the Criminal Code conferring appellate jurisdiction on this Court absent a contrary intention. I see none.

[5]Finally, as counsel for the respondent pointed out in her oral submissions, a contrary interpretation would leave a potentially significant lacuna in the powers of this Court to fully address leave applications.

[6]I conclude that a panel of the Court considering a leave application has authority to make the order sought. I now turn to why, in my view, it is in the interests of justice that we do so.

[7]There was a significant issue at trial about whether the applicant was the second of two gunmen who participated in the murder. The eyewitness identification at the scene was somewhat equivocal although there was considerable circumstantial evidence tending to link the applicant to the shooting. The Crown at trial argued to the jury that the post-offence conduct of the applicant supported an inference of guilt. It was contended that shortly after the killing he went to his home with the co-accused and changed his appearance by shaving his head. The Crown relied, among other evidence, on hair clippings found wrapped in a newspaper which were found in a garbage can of a washroom adjacent to the applicant’s bedroom and in a hair clipper or razor found in the drawer of a nightstand in the applicant’s bedroom. In its judgment, the Court of Appeal concluded that these clippings, combined with other evidence concerning the applicant’s appearance before the shooting, provided “a powerful inference” that the applicant had shaved his head after the murder to disguise his appearance (paras. 36-36). The Court of Appeal found that this “powerful inference”, coupled with other evidence was enough to put the case over “the unreasonable verdict threshold” (para. 36).

[8]The applicant seeks to have the clippings released for forensic examination to determine whether the hair is facial or scalp hair. The evidence before us on the application is that the Centre of Forensic Sciences has the expertise required to conduct this type of examination and that it can be completed within three weeks of receipt of the items to be tested. This sort of forensic testing was not conducted by the Crown in preparation for trial and was not requested on behalf of the defence until several months after the appeal to the Court of Appeal had been dismissed. Defence counsel at trial indicates in his affidavit that he was unaware that forensic analysis could distinguish between scalp and facial hairs. There is a letter in the record indicating that the applicant’s counsel on the appeal to the Court of Appeal was similarly unaware of the feasibility of such testing. There is no evidence that the Crown was aware of this possibility. Given that it appears that no one requested such testing and the potential importance of the result which might be obtained, I would infer that it simply did not occur to any of the experienced criminal lawyers involved that this testing was available.

[9]Given the importance attached to the head shaving evidence by Crown counsel at trial and the significance of the inference of guilt which the head shaving evidence appears to have had in the Court of Appeal’s conclusion that the verdict of guilty was not unreasonable, it is in my view in the interests of justice that the applicant have access to this information in formulating his application for leave to appeal to this Court. Of course, we are not at the stage of considering an application to adduce fresh evidence which would have to be addressed if and when advanced. At this stage, the applicant wishes simply to explore a possible source of expert evidence that may or may not produce evidence that is capable of laying the basis for such an application.

[10]The motion is allowed and counsel are directed to submit to the Court in draft a supplementary order addressing the precise arrangements to be made for release, transport, testing and return of the exhibits. If counsel cannot agree on a joint draft within 14 days hereof then each party is to submit a proposed draft order within 21 days of the date of this order for the Court’s consideration.
Allowed
2010-11-17 Transcript received, (23 pages)
2010-11-01 Hearing of miscellaneous motion, 2010-11-01, (Justice Binnie for Chief Justice McLachlin), CJ Abe Cro
Judgment reserved
2010-11-01 Correspondence received from, Acknowledgment and Consent from both parties Leighton Hay
2010-11-01 Supplemental document, Condensed Book - Submitted in Court (6 copies) Leighton Hay
2010-10-28 Supplemental document, suppl. record (bookform) - Submitted in Court (6 copies) Leighton Hay
2010-10-21 Correspondence received from, James Lockyer and Philip Campbell will be present at the hearing. Leighton Hay
2010-10-21 Order on motion to leave to intervene, (BY ROTHSTEIN J.)
2010-10-21 Decision on motion for leave to intervene, Ro, UPON APPLICATION by the Criminal Lawyers’ Association for leave to intervene on the motion to release exhibits and present 15 minutes of oral argument at the hearing of the motion on November 1, 2010;
AND THE MATERIAL FILED having been read;
AND ONLY in very exceptional circumstances will the Court grant intervener status in applications for leave or motions ancillary to leave applications and there be no exceptional circumstances in this case;
AND UPON the motion to intervene being filed less than two weeks prior to the scheduled hearing of the applicant’s motion, although the applicant’s motion was filed on April 22, 2010, and the oral hearing was ordered on June 24, 2010;
IT IS HEREBY ORDERED THAT:
The motion for leave to intervene of the Criminal Lawyers’ Association is dismissed.
Dismissed
2010-10-20 Correspondence received from, Susan Reid will be present at the hearing. Her Majesty the Queen
2010-10-20 Submission of motion for leave to intervene, Ro
2010-10-20 Reply to the motion for leave to intervene., Completed on: 2010-10-20 Criminal Lawyers' Association
2010-10-19 Response to the motion for leave to intervene, Completed on: 2010-10-19 Leighton Hay
2010-10-19 Response to the motion for leave to intervene, (Letter Form), from Robert E. Houston, Q.C. dated oct. 19/10, Completed on: 2010-10-19 Her Majesty the Queen
2010-10-18 Motion for leave to intervene, on the motion to release exhibits and present 15 minutes of oral argument at the hearing on Nov. 1/10 (bookform), Completed on: 2010-10-18 Criminal Lawyers' Association
2010-07-30 Appeal hearing scheduled, 2010-11-01, (application for leave - oral hearing on motion to release exhibits) (start time 9:30 am)
2010-07-30 Correspondence (sent by the Court) to, the parties with the order
2010-06-24 Order by, CJ Abe Cro, An oral hearing is ordered to decide whether the motion to release exhibits should be granted. The hearing date will be fixed by the Registrar.
Oral hearing ordered
2010-05-25 All materials on application for leave submitted to the Judges, 2010-11-01, CJ Abe Cro
Judgment reserved
2010-05-25 Submission of motion to extend time to file and/ or serve the leave application, CJ Abe Cro
2010-05-25 Submission of miscellaneous motion, 2010-11-01, CJ Abe Cro
Judgment reserved
2010-05-20 Correspondence received from, James Lockyer dated May 19/10 in response to Ms. Reid letter of May 13/10 Leighton Hay
2010-05-13 Correspondence received from, Susan L. Reid dated May 13/10 re: applicant's reply Her Majesty the Queen
2010-05-12 Reply to miscellaneous motion, Completed on: 2010-05-12 Leighton Hay
2010-05-07 Response to miscellaneous motion, (bookform), Completed on: 2010-05-07 Her Majesty the Queen
2010-04-22 Book of authorities, on Miscellaneous Motion Leighton Hay
2010-04-22 Notice of miscellaneous motion, pursuant to s. 683(1)(a) of the Crim. Code for an order releasing trial exhibits 49 and 52 and that they be delivered to the Centre of Forensic Sciences for forensic examination (Vol. I & II) (3 extra copies rec'd May 19/10), Completed on: 2010-04-22 Leighton Hay
2010-03-24 Correspondence received from, Susan L. Reid dated March 24/10 in response to Mr. Lockyer's letter of March 19/10 Her Majesty the Queen
2010-03-19 Correspondence received from, James Lockyer dated March 19/10 joint with a letter dated Dec. 9/09 addressed to the Crown re: will file a motion to release exhibits and to hold up the application until motion is adjudicated Leighton Hay
2010-02-26 Applicant's reply to respondent's argument, Completed on: 2010-02-26 Leighton Hay
2010-02-18 Respondent's response on the application for leave to appeal, Completed on: 2010-02-18 Her Majesty the Queen
2010-01-27 Letter acknowledging receipt of a complete application for leave to appeal
2010-01-26 Supplemental document, Charge to the jury Leighton Hay
2010-01-26 Motion to extend the time to file and or serve the application for leave to appeal, included in the application, Completed on: 2010-01-26 Leighton Hay
2010-01-25 Book of authorities Leighton Hay
2010-01-25 Application for leave to appeal, Completed on: 2010-01-27 Leighton Hay