The province’s top court has overturned Markel Jason Downey’s acquittal on three counts of attempted murder. Downey, who came to fame at 15 when he won boxing gold at the 2011 Canada Winter Games in Halifax, is accused of shooting three youths during a Nov. 30, 2014, Dartmouth home invasion.
He was acquitted last February by Nova ScotiaSupreme Court Justice Michael Wood, who citedconcerns with witness Ashley MacLean Kearse’s ability to correctly identify Downey.
MacLean Kearse was one of three youths present that night when four masked individuals broke into a home at 52 Arklow Dr. seeking money and marijuana.
All were held at gunpoint by one assailant while another rifled through a drawer.
According to testimony at the trial, MacLean Kearse told the intruders repeatedly to leave and that they would get caught. At one point, the man holding the gun warned that no one was going to snitch because they were all going to die.
He then fired nine rounds from a snub-nosed .22 revolver, striking all three youths.
As MacLean Kearse was rushed to hospital in ambulance, she told the police officer riding along that the shooter was “Baby Jason.” She repeated this twice more, stating his full name was Jason Downey.
Downey, who was tried as an adult, and the other three, who can’t be identified because they
were under 18, were arrested shortly after.
The three arrested youths admitted to participating in the robbery and one, along with Downey, was also found to have gunpowder residue on him.
The trial hinged on MacLean Kearse’s ability to identify Downey. The gunman was masked during the crime.
She knew him as a friend of friends and from speaking to him at Cole Harbour District High School, and claimed that she recognized him as soon as he walked in the door the night of the attempted robbery — before he even spoke.
In his decision, Wood found her identification not to be strong enough because she didn’t identify any peculiar features particular to Downey.
Downey was acquitted and released.
In a strongly worded ruling, the Nova Scotia Court of Appeal found Wood erred in three points of the law.
“He ignored highly relevant evidence, and considered irrelevant evidence in his reasoning,” wrote Justice Jamie Saunders.
“He misconstrued the Crown’s position concerning significant corroborative evidence connecting the respondent to the shooting. He separated AshleyMacLean’s evidence from the other evidence, and subjected hers to a criminal standard review instead of asking himself if he were left with a reasonable doubt about the respondent’s guilt, based on the whole of the evidence.”
Saunders cited precedents finding there to be a difference between a witness identifying a person who they did not previously know and a witness recognizing someone they know well. As such, he said, there is a different legal test — that in MacLean Kearse’s case recognizing the accused should be enough and that it sets an unreasonable burden to demand she also point out a peculiarity that identifies the accused when none were visible.
While all three victims of the assault survived,MacLean Kearse’s spinal cord was severed and she is permanently disabled.
Downey will be retried on 21 charges related to the incident, including the three for attempted murder, robbery, various firearms offences and breaching the terms of a recognizance.
In an unrelated matter, Downey pleaded guilty last September to being an occupant of a motor vehicle in which he knew there were firearms and was sentenced to serve three months of a oneyearsentence. That charge stemmed from reports of gunfire in North Preston. Responding police chased a vehicle into the Forest Hills Extension. Two guns, one of which was later found to have been loaded, were thrown from the vehicle before police managed to stop it near the Highway 118 interchange.