New trial ordered

Supreme Court orders new murder trial after tests show "head shave" hair clippings were mostly beard hair

The Crown told the jury Leighton Hay shaved off his dreadlocks after a nightclub shooting. Nobody tested the hair at trial. Years later, forensic experts found the clippings came mainly from his face, and the Supreme Court of Canada admitted that evidence and set aside the convictions.

R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694

Court: Supreme Court of Canada
Decided: Nov 8, 2013
Sentence: Not stated in the source decision

Appeal allowed, fresh evidence admitted, convictions set aside and a new trial ordered The conviction was set aside, but the charge can be tried again. The presumption of innocence applies.

What happened

In the early hours of 6 July 2002, two armed men entered the kitchen of a Toronto nightclub and shot the host of a fundraising event, killing him, and shot at his brother, who was grazed. One shooter, the co-accused, was identified by several witnesses who knew him. He left in a car registered to Mr. Hay's mother, with whom Mr. Hay lived. Police went to the house, watched it for hours, then arrested both men. Only one eyewitness implicated Mr. Hay. Shown a photo lineup on the morning of the shooting, she picked a two-year-old photo of him but said it was "about 80 percent" of the likeness and could not say yes or no that he was the shooter. She described the shooter as having two-inch dreadlocks. Mr. Hay's hair at arrest was very short. Three weeks later she did not pick his arrest photo from a second lineup. At the preliminary inquiry she repeatedly pointed to the co-accused instead. The Crown's case against Mr. Hay rested on her evidence plus four items: bullets in a sock in his laundry hamper, a white T-shirt there with one particle of gunshot residue, hair clippings wrapped in newspaper in the bathroom bin, and hair in an electric razor in his nightstand. The Crown's theory was that he shaved his head on returning home, which explained the hair discrepancy and showed an attempt to disguise himself. The hair was never examined by an expert at trial. Mr. Hay said he was home asleep.

Procedural history

Jul 6, 2002
Fatal shooting at a Toronto nightclub; Mr. Hay and a co-accused arrested the same day after police watched the house for about ten hours
Undated
Mr. Hay and the co-accused subsequently charged with first degree murder and attempted murder
Undated
The sole eyewitness against Mr. Hay repeatedly pointed to the co-accused, not Mr. Hay, as the shooter in the blue/green shirtPreliminary inquiry (Ontario)
Undated
Joint trial; jury found Mr. Hay and the co-accused guilty of first degree murder and attempted murderTrial court (Ontario), McCombs J. and jury
2009
Appeal dismissed; verdict held not unreasonable and jury charge on eyewitness evidence upheld (2009 ONCA 398)Court of Appeal for Ontario
2010
While leave to appeal was pending, motion to release hair clipping exhibits for forensic testing allowed; fresh evidence motion deferred to the appeal (2010 SCC 54)Supreme Court of Canada
Dec 1, 2010
Parties submitted a proposed protocol for releasing the hair clippings and having them examined by the Centre of Forensic SciencesSupreme Court of Canada
Undated
Court ordered the hairs released and examined in accordance with that protocol; Mr. Hay later filed a motion under s. 683 to adduce the experts' reports and testimonySupreme Court of Canada
Apr 23, 2013
Appeal and fresh evidence motion heardSupreme Court of Canada
Nov 8, 2013
Fresh evidence admitted, appeal allowed, convictions set aside and new trial orderedSupreme Court of Canada

The offence and its elements

First degree murder

Criminal Code, R.S.C. 1985, c. C-46 (section not cited in the decision)

What the prosecution had to prove:

The accused was one of the men who shot the victim (identity)disputedFrom the reasons
The accused caused the death of the victim by an unlawful actnot addressedGeneral law: check the current text
The accused meant to cause death, or meant to cause bodily harm he knew was likely to cause death and was reckless whether death ensuednot addressedGeneral law: check the current text
The murder was planned and deliberatenot addressedFrom the reasons

Attempted murder

Criminal Code, R.S.C. 1985, c. C-46 (section not cited in the decision)

What the prosecution had to prove:

The accused was one of the men who shot at the victim's brother (identity)disputedFrom the reasons
The accused did an act going beyond mere preparation toward killing the victim's brothernot addressedGeneral law: check the current text
The accused had the specific intent to killnot addressedGeneral law: check the current text

The questions on appeal

Did the trial judge wrongly tell the jury it could convict Mr. Hay on the single eyewitness's evidence alone?: Majority: no. Her evidence alone could not have proved guilt beyond a reasonable doubt, so such an instruction would have been an error, but read as a whole the charge directed the jury to look for confirmatory evidence. Fish J. disagreed and found the charge did contain that fatal error.
Should the new forensic hair evidence be admitted on appeal?: Yes. Applying Palmer, the evidence was credible (the Crown conceded this), went to a decisive issue, and could reasonably be expected to have affected the verdict. Trial counsel's lack of knowledge of the testing, without any inquiry into it, weighed against admission but could not alone exclude the evidence in a case this serious.
What is the right remedy?: A new trial, not an acquittal. The fresh evidence was powerful but not so conclusive as to settle the case, and the Crown had raised possible limits in the expert evidence that it should be able to test at a retrial.

The law the court applied

Fresh evidence on appeal (the Palmer test)

Under s. 683 of the Criminal Code the overriding question is the interests of justice. The court asks whether the evidence could have been adduced at trial with due diligence (applied less strictly in criminal cases), whether it bears on a decisive or potentially decisive issue, whether it is reasonably capable of belief, and whether, taken with the trial evidence, it could reasonably be expected to have affected the result.

Palmer v. The Queen, [1980] 1 S.C.R. 759; Criminal Code, R.S.C. 1985, c. C-46, s. 683; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; McMartin v. The Queen, [1964] S.C.R. 484

When a single eyewitness can ground a conviction

Weighing eyewitness evidence is the jury's job, and a properly cautioned jury may convict on one eyewitness despite the known frailties of identification. The limit is reached where that evidence, even if believed, would necessarily leave a reasonable doubt in a reasonable juror's mind. In that situation the jury must not be told it may convict on the eyewitness alone, and if that is all the Crown has, a directed acquittal is required.

R. v. Mezzo, [1986] 1 S.C.R. 802; R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828; R. v. Nikolovski, [1996] 3 S.C.R. 1197; R. v. Turnbull, [1976] 3 All E.R. 549

Reviewing a jury charge

An appeal court reads the alleged error in the context of the whole charge and the whole trial. A passage that looks wrong in isolation will not cause the appeal to succeed if the jury as a whole was properly instructed. Trial judges need not use any particular form of words.

R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198

Remedy after fresh evidence is admitted

If the fresh evidence is conclusive, the appeal court decides the case itself. If it is not conclusive but could have changed the result, the court orders a new trial.

R. v. Stolar, [1988] 1 S.C.R. 480; Palmer v. The Queen, [1980] 1 S.C.R. 759

What the court decided

The Supreme Court unanimously granted the motion to adduce fresh evidence, allowed the appeal and ordered a new trial. Six judges, through Rothstein J., held the jury charge contained no error because, read as a whole, it told the jury to look for evidence confirming the lone eyewitness. Fish J. agreed with the result but would also have found the charge wrongly left the jury free to convict on her evidence alone. All agreed the new expert evidence, showing the hair clippings were predominantly facial hair and gave no scientific support for a head shave, went to a decisive issue and could reasonably have affected the verdict. Because the Crown had identified possible gaps in that evidence, an acquittal was not ordered. The Court did not decide whether Mr. Hay was wrongly identified; it held only that the identification, standing alone, could not prove guilt beyond a reasonable doubt.

What happens next: The convictions were set aside and the case was sent back for a new trial, at which Mr. Hay would be presumed innocent and the Crown could challenge the reliability of the new hair evidence. The decision does not say what happened after.

Analysis

This is our commentary, separate from the court’s reasons.

A story stood in for science

The case turned on an exhibit that nobody examined. The Crown needed to bridge the gap between a shooter with dreadlocks and a man arrested hours later with very short hair. A bin of clippings and a razor gave it a narrative: a head shave in the night, both an explanation and a sign of guilt. The trial judge called it potentially powerful evidence and the Court of Appeal said it tipped the verdict over the unreasonable-verdict threshold. Yet the question the hair could actually answer, where on the body did it come from, was never asked. When it finally was, four experts, including the Crown's own, agreed there was no scientific basis for a head shave. The lesson is not about hair. It is that a confident inference drawn from an untested object can carry the same weight before a jury as a tested one, and that the gap is often invisible until someone insists on the test.

Due diligence bent, not broken

The Court was candid that trial counsel simply did not know this testing existed and never asked. The due diligence factor in Palmer asks whether the evidence could have been adduced at trial with reasonable effort. Here the testing was available, so a lack of knowledge coupled with no inquiry counted against admission, and the Court said so. But it refused to let that factor alone shut the door in a first degree murder case, applying the principle from G.D.B. that due diligence must yield where rigid application risks a miscarriage of justice. The decisive procedural step was the earlier order in 2010 SCC 54 releasing the exhibits for testing while leave was still pending. Without access to the physical evidence there would have been nothing to adduce. The judgment shows the fresh evidence route working as intended: test the thing, let the Crown respond, and send the contest back to a jury rather than resolving it on paper.

Identification: disputed reliability, not a finding of error

This brief does not classify the case as one of mistaken identification, and the reason matters. The Court did not find that the eyewitness picked the wrong man. It found that her identification, taken by itself, was too frail to prove guilt beyond a reasonable doubt, and that the Crown's answer to its frailties depended on the hair evidence that has now been undermined. Whether Mr. Hay was the second shooter remains a live, disputed question for a new jury, where he is presumed innocent. The majority and Fish J. applied the same law to the same transcript yet reached opposite views on what the jury would have understood. The majority gave weight to the whole charge, the judge's detailed catalogue of the identification's problems, and the fact that every counsel approved the disputed paragraph at the pre-charge conference. Fish J. looked instead at what the Crown told the jury in closing, uncorrected, and at the difference between telling jurors they "should" look for confirmation and telling them they "must". The disagreement is a reminder that an instruction can be legally accurate in the abstract and still misleading in context. Fish J.'s remark that the law is clearer now than at trial suggests the settled threshold may matter in future identification cases.

If this feels close to home

Physical exhibits can sometimes be tested years after a conviction. Appeal courts have ordered exhibits released for forensic examination even while an application for leave to appeal is pending.
Fresh evidence on appeal is judged by the four Palmer factors. The due diligence factor asks whether the evidence could have been obtained for trial with reasonable effort. Where testing was available and trial counsel did not know of it and never asked, that counts against admission, though in serious criminal cases it is applied less strictly and is not an automatic bar. Evidence that could not have been obtained despite diligent efforts is in a different position.
Admitting fresh evidence does not mean acquittal. Unless the new evidence is conclusive, the usual remedy is a new trial at which the Crown can test it.
Challenges to a jury charge are read against the whole charge and the whole trial. Where defence counsel approved the wording at the time, the challenge is harder, though not impossible.
Weaknesses in an eyewitness identification do not by themselves take the case away from the jury; a properly cautioned jury may still convict on one witness. The line is crossed only where the identification, even if believed, would necessarily leave a reasonable doubt. Then the jury cannot be told it may convict on that evidence alone, and if nothing else supports it, a directed acquittal follows. The Supreme Court placed this identification on that side of the line, which is why the collapse of the confirmatory hair evidence mattered so much.

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What went wrong

Flawed forensic science Fresh evidence

How this was checked

Written by Claude Fable 5.1 (Anthropic AI) from the source below, then independently audited against it by GPT-6-Astra (OpenAI AI) on Oct 30, 2026. Every citation here was confirmed by software to appear in the decision or an official text. No lawyer has reviewed this brief. Our standards

Citations

R. v. Hay, 2013 SCC 61, [2013] 3 S.C.R. 694 The decision under discussion
Palmer v. The Queen, [1980] 1 S.C.R. 759Test for admitting fresh evidence on appeal; applied
R. v. Hay, 2010 SCC 54, [2010] 3 S.C.R. 206Earlier order releasing the hair exhibits for forensic testing
2009 ONCA 398, 249 O.A.C. 24Court of Appeal decision dismissing the first appeal
R. v. Mezzo, [1986] 1 S.C.R. 802Jury's role in weighing eyewitness evidence and duty to caution
R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828Eyewitness evidence that necessarily leaves reasonable doubt cannot ground a conviction
R. v. Nikolovski, [1996] 3 S.C.R. 1197A single eyewitness may in some cases support a conviction
R. v. Turnbull, [1976] 3 All E.R. 549No particular form of words required for eyewitness caution
R. v. Jaw, 2009 SCC 42, [2009] 3 S.C.R. 26Jury charge must be read as a whole
R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198Trial judge's latitude in conveying legal principles to the jury
R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520Due diligence is not an essential requirement in criminal fresh evidence motions
McMartin v. The Queen, [1964] S.C.R. 484Counsel's lack of knowledge as a factor against admitting fresh evidence
R. v. Stolar, [1988] 1 S.C.R. 480Choice between deciding the case and ordering a new trial after fresh evidence
Criminal Code, R.S.C. 1985, c. C-46, s. 683Power of an appeal court to receive fresh evidence

Sources

R. v. Hay, 2013 SCC 61

This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.