Case information

Criminal law — Evidence — Fresh Evidence — Hearsay — Evidence of third party suspect — Sentencing — Concurrent sentences — Whether Court of Appeal erred in law in rejecting fresh evidence — Whether Court of Appeal misunderstood legal nature of fresh evidence and whether there was an air of reality to third-party suspect issue — What is the difference between evidence that some other person could be the perpetrator and evidence some other person is the perpetrator and the accordingly differential application of the hearsay rule — Whether Court of Appeal erred by not requiring concurrent sentences because action constituting kidnapping underlies accessory to murder conviction?

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Mr. Downey was convicted by a jury for being an accessory after-the-fact in the murder of Mr. McInnis and for the unlawful confinement and kidnapping of Mr. Thompson. The Crown’s theory was that Mr. Downey participated with others in an attempted robbery that resulted in Mr. McInnis being fatally shot and the shooting of Mr. Thompson after he had been bound and transported to a graveyard. Mr. Downey was given consecutive sentences for the accessory after-the-fact and kidnapping offences. On appeal, Mr. Downey applied to admit fresh evidence consisting of hearsay evidence that one of the accomplices made inculpatory out-of-court statements and he challenged the decision to make his sentences consecutive. The Court of Appeal dismissed the fresh evidence motion and the appeal.