Crown appeals man's acquittal in home invasion that left woman paralyzed

Markel Downey's retrial in triple shooting faces delay

The Crown is appealing the acquittal of a Nova Scotia man who faced 28 charges related to a 2014 home invasion and shooting that left a woman paralyzed.

Markel Jason Downey was accused of being one of four masked men who burst into a Cole Harbour home in November 2014. The charges against him included three counts of attempted murder.

Nova Scotia Supreme Court Justice Michael Wood acquitted Downey last month, and said testimony from a key witness was not sufficient on its own to convict him.

That witness — Ashley MacLean Kearse​ — was shot during the home invasion and remains paralyzed from the waist down. Two others were also wounded.

Nova Scotia's Public Prosecution Service says the grounds of the appeal are that Wood erred in law in the following ways:

- By concluding the evidence of identification in the ambulance was only relevant to recent fabrication rather than to identification overall.

- In finding the identification of the other three assailants was irrelevant to the reliability analysis.

- By considering irrelevant evidence in assessing the reliability of the evidence of identification of Kearse.

- By considering the wrong legal test regarding voice recognition.

- By misapprehending the evidence of a connection between the respondent and one of the other assailants.

- By failing to consider the whole of the evidence related to identification.

Kearse was the only witness at trial to identify Downey as the gunman.

In his ruling, Wood said a particle of gunshot residue found on Downey's right hand after he was arrested could have come from sources other than firing a gun, such as from the arresting officers.

Kearse's testimony was key to the Crown's case as identity was the central issue in Downey's trial. Wood said he believed Kearse was honest, but her identification of Downey as the gunman was not proved beyond a reasonable doubt.

Three young men pleaded guilty in August 2015 to lesser charges in the home invasion and have been dealt with in youth court. Because of their ages, their identities are protected by law.

Downey was the only suspect old enough to face an adult trial.