CALGARY — Lawyers for a man convicted of killing a Calgary woman and her young daughter have asked Alberta's top court for a new trial, arguing that "highly prejudicial" evidence about him should never have been shown to a jury.
Edward Downey is appealing two convictions of first-degree murder in the 2016 deaths of Sara Baillie and her five-year-old daughter, Taliyah Marsman.
A trial in 2018 heard graphic evidence of how Baillie was found dead in a laundry basket in her daughter's bedroom with duct tape wrapped around her face, neck and wrists. Three days later, the child was found dead in some bushes east of the city. Both died of asphyxiation.
The Crown had argued that Downey killed Baillie because he blamed her for a breakdown of his relationship with her best friend, and Baillie had dissuaded the woman from working for Downey as an escort. The Crown also said Downey believed Baillie's daughter was a witness who needed silencing.
A jury found Downey guilty and he was sentenced to life in prison with no parole eligibility for 50 years.
"Mr. Downey's murder trial took place in front of a jury that heard much about bad character conduct that was extrinsic to the charges before the court. To demonstrate a potential escort situation, the Crown asked that a broad swath of such evidence be ruled admissible," Kelsey Sitar, a lawyer for Downey, told a three-member Appeal Court panel Thursday.
"This ruling set the tone for the trial. Escorting was alleged to be the undercurrent of Mr. Downey's life. It was highly prejudicial evidence with propensity and character that undermined trial fairness."
Sitar also said the trial judge erred in his address to the jury and should have explained how to put the evidence in context.
"Juries can't play armchair quarterback. They cannot use inferences of about what may be going on in a person's mind when evidence does not necessarily tell us one way or the other what might have been the reason for the conduct," she said.
The judges reserved their decision.
Downey did not appear in person at the hearing.
Prosecutor Christine Rideout told the Appeal Court that no mistakes were made during the trial, especially when it came to the final instructions to the jury.
"The appellant's position that the final instruction was insufficient in my respectful position in this case is simply tantamount to an argument that juries can't be trusted to follow instructions," Rideout said.
"That is certainly a suggestion that this court … rejected in the past."
This report by The Canadian Press was first published January 14, 2021
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Bill Graveland, The Canadian Press
