Judge 'ignored' evidence in home invasion, sparking new trial for ex-boxer

A Nova Scotia man who was acquitted in a Cole Harbourhome invasion that left a young woman paralyzed has been ordered to stand trialfor a second time.

AshleyMacLeanKearsewas shot during the November 2014 incidentand was paralyzed from the waist down.

In a decision released this week, Justice Jamie Saunders saidthe trial judge, Michael Wood,made"serious errors" when he considered evidence identifying the shooter.

As a result,MarkelJasonDowney was acquitted of all 28 charges, including three counts of attempted murder,andwalked out of court a free man in February 2017.

In February of this year, the Crown appealed that decision.

The trial judge said the Crown couldn'tprove beyond a reasonable doubt thatDowney was the one who pulled the trigger the nightfour masked men burst into thehome.

While Kearsetestified that she knew Downey from school and that he was the one who shot her, the trial judge said she failed to identify unique characteristicsthat pointed to Downey.

Judge 'ignored highly relevant evidence'

Saunders said the trial judge used the wrong legal tests when considering the evidence.

"He ignored highly relevant evidence, and considered irrelevant evidence in his reasoning," Saunderswrote in his April 18 decision. "He misconstrued the Crown's position concerning significant corroborative evidence connecting the respondent to the shooting."

He went on to write that, "he separated Ashley MacLean'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."

Trial date not set yet

That night in November 2014, Kearse was at a friend's housewith two other people who were both injured in the incident.

The four men whobarged indemanded money and weed, and one of them held a handgun.

Three of the intruderswereyouth and their identities are protected by a publication ban. Theypleaded guilty to aggravated assault, breaking and entering, robbery and wearing a mask to commit a crime and were sentenced in 2015.

No dates havebeen set for a new trial. The Nova Scotia Public Prosecution Service said it was too soon to comment on the result.

Halifax District RCMP said they are trying to find Downey.

Downey represented Nova Scotia as a boxer in the 2011 Canada Games, which were held in Halifax. Hewon gold in the 49-kilogram to 52-kilogram category.