R v Benn, 2023 ABKB 306

Court of King’s Bench of Alberta Citation: R v Benn, 2023 ABKB 306 Date: 20230523 Docket: 210539797Q1 Registry: Calgary Between: His Majesty the King - and - Gerald David Benn _______________________________________________________ Reasons for Judgment of the Honourable Justice N.E. Devlin _______________________________________________________ [ 1 ] On the evening of August 28, 2020, three men were shot inside a red Nissan Altima on a residential street in Northwest Calgary. Two of those men, Abas Ibrahim and Mohamed Shaikh, were fatally wounded.

They were found deceased inside the car a short distance from where the shooting took place. The third victim, Dimetri Marr, survived. [ 2 ] The accused, Gerald Benn, stands charged with two counts of first-degree murder and one count of attempted murder with a firearm in relation to this incident. He pled not guilty and was tried before me. The following are my reasons for judgment in this case. The Shooting [ 3 ] The shooting that led to this tragic loss of life took place as the result of a meeting between six men in two cars.

The encounter unfolded along the south side curb of Sandarac Road, just past its intersection with Sandarac Drive, in the Sandstone neighbourhood of northwest Calgary. A commercial building stands at that intersection and two of its CCTV cameras captured the fatal interaction. [ 4 ] The four-door Nissan carrying the victims pulled up to the curb, followed closely by a black two-door Infiniti with a distinctive rear decal. The vehicles stopped just over a car length apart. The rear passenger in the Nissan, Dimetri Marr, partially lowered his window and made a beckoning wave towards the car behind.

The front passenger of the Infiniti, a man known as ‘Jonathan’, [i] got out, walked up to the Nissan, entered the rear passenger door, and sat there with it partially open. As he did this, a second person, clad in a pink T-shirt and salmon-coloured pants, exited from the rear passenger seat of the Infiniti, closed the door, and strolled to the trunk area. This individual stood around, appearing to check his phone. [ 5 ] After less than a minute in the Altima, Jonathan walked back to the Infiniti and had a three second conversation with the driver, with the man in pink standing right beside him.

He then returned to the Altima. He spent some time speaking to the occupants

while standing in the open rear passenger door and eventually re-entered the back passenger side, leaving the door ajar and sitting with his right foot outside the car. [ 6 ] Immediately upon Jonathan returning to the Altima, the man in pink walked around to the back of the Infiniti and opened the trunk, retrieving an object from it. When he turned the front of his body into camera view, a bulge was apparent in his waist band and he fidgeted uncomfortably with the clothing over it. He then re-opened the trunk and rummaged around.

Moments later, he is seen standing at the trunk holding something in his right hand at waist level, covered with a number of other objects. It was a gun. [ 7 ] The man in pink then returned to the passenger seat of the Infiniti, clumsily concealed gun in hand, and closed the door. [ 8 ] Having repeatedly watched the video, I find that the shooter first retrieved the weapon from the trunk and placed it in his waistband. It protruded so obviously that he reconsidered and went back into the trunk to find objects with which to conceal it.

What he used were two plastic bags, one from Wendy’s and one from Walmart, together with a pair of blue and white men’s swim trunks. Satisfied that the weapon was now better concealed, he returned to the Infiniti, taking a seat in the front and closing the door. [ 9 ] The front seat passenger of the Altima was Mohamed Shaikh. Two and a half minutes into Jonathan’s second visit to the Altima, he got out, turned abruptly, and began to jam the rear passenger door shut on Jonathan. His surprised victim managed to push back on the door and get out.

The two men then began grappling inside the open rear door. [ 10 ] The moment the fight began, the man in pink jumped out of the Infiniti and rushed towards his struggling confrere. As he did this, the force of his movements began to unwrap the gun. The swimsuit and white Wendy’s bag peeled off almost immediately and fell to the ground beside the Infiniti. The shooter pulled the third piece of covering, the grey Walmart bag, off as he reached the Altima. [ 11 ] When the man in pink reached the fight, Mr. Shaikh was facing away from him.

He. levelled the weapon towards Mohamed and fired twice into his back at near point-blank range. Mohamed fell into the car and Jonathan fled back towards the Infiniti. [ 12 ] The man in pink then leaned into the open car door and fired four more shots before the Altima sped away. He can clearly be seen pointing and firing the gun both forwards at the driver, Mr. Ibrahim, and inwards at the rear-seat passenger, Mr. Marr.

After a total of six shots, he turned and ran back towards the Infiniti. [ 13 ] The driver of the Infiniti, who I find was its owner Dennis Wong, stepped out of the car briefly when the attack on Jonathan began. He jumped back in a second later when the man in pink started shooting. [ 14 ] The Altima sped away. Mr. Ibrahim had been fatally wounded by a shot that punctured his aorta and shortly lost control of his vehicle. It crashed into a tree a block and a half down Sandarac Road. The Infiniti gave chase almost as soon as the Altima rolled away.

It then sped back up Sandarac Road, fourteen seconds later. [ 15 ] Neighbours heard the crash and rushed to the scene of the accident. Once they were able to open the car doors, they found Mr. Shaik and Mr. Ibrahim dead inside. Mr. Marr was bleeding but alive and these good citizens tended to him until emergency services arrived. [ 16 ] Police found what appeared to be a Glock handgun in the driver’s side footwell of the Altima. While it turned out to be an air- powered pellet gun, it looked for all intents and purposes like a full-sized Glock.

Nothing else of note was found inside the Altima. [ 17 ] The black Infiniti was found a few days later, parked in Dennis Wong’s garage. Its distinctive rear-decal had been removed. Only a pile of lawn chairs was found in the trunk. [ 18 ] The gun, a somewhat unusual long-barrelled .22LR semi-automatic, was never located. Its calibre is known only from the recovered casings and bullets. The shape of the gun can be made out on the video, together with its mechanism of operation. Cause of Death [ 19 ] Dr. Eric Bol performed autopsies on both deceased. His expertise in pathology was agreed.

He testified that both men suffered gunshot wounds which punctured their aortas and that these injuries were rapidly fatal. I accept Dr. Bol’s evidence and find beyond any doubt that Mr. Ibrahim and Mr. Shaikh died from the shots fired into them at the roadside by the man in pink, as captured on the CCTV recordings. The survivor’s evidence [ 20 ] Dimetri Marr testified. His evidence was vague, reluctant, and filled with forgetfulness and memory blanks. He was unable to identify the person who shot him, outside of their somewhat distinct attire.

He told the Court little about the circumstances of the fatal meeting, other than that he had had contact only with Jonathan and that it was to do with a pound of marijuana. Mr. Marr even purported not to remember who was buying or selling, though moments later explained that the reason Jonathan had come and gone from his vehicle was because he did not have money on him when he first entered the Altima. [ 21 ] Mr. Marr also said little about the nature of his physical injury, somewhat downplaying it. His evidence was largely worthless.

The forensic evidence [ 22 ] CPS forensic investigators painstakingly examined the scene and both vehicles for evidence. The swim trunks and both plastic bags were recovered at the scene of the shooting, along with five .22 calibre shell casings. The sixth casing was recovered from inside

the rear passenger area of the Altima. [ 23 ] Both cars, along with the objects seen to have covered the gun, were examined for fingerprints and DNA. Police were able to develop 27 fingerprint impressions from the Walmart bag and twelve impressions from the Wendy’s bag. DNA samples were taken from the swim trunks, locations on the Infiniti touched by the shooter, and from items recovered from inside that vehicle, including a vape pen found on the rear parcel shelf.

The Altima was also examined for DNA and fingerprint impressions in locations touched by the parties as seen on the CCTV. [ 24 ] Neither DNA nor fingerprints was recovered from the spent shell casings. Fingerprint evidence [ 25 ] Four fingerprints on the Walmart bag matched Mr. Benn. As seen in the CCTV, this is the last object covering the gun, which the shooter is holding in his right hand. Specifically, two adjacent impressions on the outside rear of this bag matched Mr. Benn’s right thumb and ring finger. A third impression on the front outside edge of the same bag matched Mr. Benn’s right forefinger.

A fourth matched his left middle finger. [ 26 ] Constable Krezanoski was qualified to give expert evidence on the identification and comparison of fingerprints and provided a detailed explanation for how she located the latent prints, performed her comparison, and came to the conclusion that three of the fingerprints on the Walmart bag belonged to Mr. Benn. Using electronic images of the prints, she identified the salient points of similarity she relied on to establish a match with each print.

Her approach allowed a clear understanding of her process, methodology, and conclusions. [ 27 ] In cross-examination, the defence challenged aspects of the comparison on the basis of alleged inconsistencies between the impressions recovered from the surface of the plastic bag and Mr. Benn’s exemplars. The defence also noted that Constable Krezanoski seemed unduly resistant to common sense propositions that would lower the probability of the matches she was advancing. [ 28 ] I accept Constable Krezanoski’s explanation for why the features of the impressions said to be inconsistent with Mr.

Benn’s known prints may have appeared as they do, and why that does not undermine her opinion. Even to an untrained eye, each of the prints looks strikingly similar in multiple key points of comparison. Moreover, as a matter of simple logic, the presence of four different prints on the same bag closely matching multiple fingers of Mr. Benn exponentially reduces the possibility that they come from someone else. [ 29 ] I accept Constable Krezanoski’s evidence and find as fact that Mr.

Benn’s fingerprints were on the Walmart bag as she described. [ 30 ] Constable Malmgren was similarly qualified as a fingerprint examiner and opined that a fourth print, found on the lower front edge of the Walmart bag, matched Mr. Benn’s left middle finger. Constable Malmgren was a fair and objective witness. His evidence was easily understandable and consistent with common sense observation of the comparisons he performed. I accept his evidence and find as a fact that Mr.

Benn’s left middle fingerprint was found as described on the Walmart bag. [ 31 ] It was put to Constable Malmgren that another print overlapped the one he identified as Mr. Benn’s. That intermeshed impression was not identified in any way (ie: it could have been Mr. Benn’s or someone else’s). He agreed that, from the way the impressions were laid down, it was likely that the over-smudged impression was laid down after the identified one. [ 32 ] The Court heard no evidence as to whether any of the other fingerprints on the Walmart bag was identified or who they may have come from.

None of the fingerprints on the Wendy’s bag matched Mr. Benn. The Court heard no evidence as to who they may have matched. [ 33 ] I accept both examiners’ evidence that the fingerprint identification process gives no information as to when any print was deposited. DNA evidence [ 34 ] A small blood-like stain on the handle of the Wendy’s bag was sampled for DNA. It yielded a match to Mr. Benn. The source of that DNA sample and the timing of its deposit could not be determined. [ 35 ] The vape pen produced only an identifiable female sample. The swim trunks yielded the DNA profile of an unknown male.

The same unknown male’s DNA was also found on the rear edge of the Altima’s passenger door. I would note that the shooter did not touch the Altima during the shooting as his hands were busy with the gun, whereas Jonathan did. [ 36 ] Mr. Benn’s DNA was not found in any sample taken from either vehicle. Video evidence [ 37 ] Two items of video evidence are key to the Crown’s case. The first is the CCTV from Sandarac Road. Two commercial security cameras mounted on the side of the building where the shooting took place captured the event.

The video provides continuous motion capture but, owing to it being motion-activated, the recording of the fatal encounter is discontinuous. All of the key moments were, however, recorded. [ 38 ] One of the cameras was positioned on the north facing wall of the building behind where the black Infiniti stopped. Both cars are fully in view from this angle, in the upper right corner of the frame. The second camera is in an alcove further east along the same wall, positioned between where the two vehicles were parked. This angle provides a better view of the Altima, but only a partial view of

the Infiniti, beginning at its passenger door. Both cameras provide a wide-angle view, meaning that objects and people on the street arerendered smaller as a matter of perspective than items closer to the cameras. [39] As I noted in my directed verdict reasons, the CCTV video is of good quality. For instance, it might well allow foridentification of ‘Jonathan’.

However, owing to the distance and angles of view, the shooter is captured in a pixelated fashion that lackssufficient resolution for definitive identification. [40] The second important piece of video evidence is the body worn camera of Constable Watson, who transported and paradedMr. Benn subsequent to his arrest in Calgary on September 6, 2020, nine days after the shooting. That video depicts Mr.

Benn’s physicalfeatures in close-up high-resolution detail, from a variety of angles, front to back and sides, in both full outdoor and bright indoorlighting. [41] In the course of deliberations, I examined these videos very closely. Using the software with which the CCTV was played incourt, I viewed it at a reduced playback speed, allowing it to advance on essentially a frame-by-frame basis, zoomed-in to maximumresolution as was done in court. Again using VLC Player’s built in capabilities, I saved screen captures of each of the moments at whichthe shooter was most clearly in view on the CCTV.

I focused on those frames where the parties were most static, since frames in whichthe people in the video are in motion are somewhat blurry and thus of less use. I then viewed these still images on my computermonitors, at their optimal enlargement. [42] I undertook the same critical examination of the body worn camera footage, selecting the clearest and most revealing front,back, and side profile views of Mr. Benn.

Comparing these sets of individual images side by side allowed the best examination of theevidence. [43] Simply viewed in motion at regular run speed, the videos give less information than when paused and examined closely.

Oneof the great advantages of video recordings is, as the Supreme Court noted in R v Nikolovski, (SCC), [1996] 3 SCR1197 at para 21, that a “tape may be stopped and studied at a critical juncture.” I am satisfied that, as the trier of fact, I am both entitledand obligated to look this closely at what was presented to me, and have done so in the optimum manner possible, utilizing only whatwas played in court, with the software used in court: see e.g., R v Short, 2016 ONSC 4594 at para 32; R v Bayani, 2011 ONSC 5225 atpara 209.

This process is similar to what the jury did in R v Johnson, (ON SC) at para 13. [44] In examining the video evidence I have followed the guidance of the Supreme Court in Nikolovski at paras 22-23 and 28-32,both in respect of its probative value when scrutinized to its maximum effect and in respect of the cautions as to its limitations. The accused’s appearance [45] The Crown supplemented the visual recording of Mr. Benn’s features as of September 2020 with agreed statements of factrecording Mr. Benn as being 5’9” tall and weighing approximately 180 pounds at the time of his arrest.

Now, almost 3 years later, Mr.Benn is slimmer, has a different hairstyle, and wears glasses. Mr. Benn is Indigenous and has a medium brown skin tone. He has adistinctly angular facial profile. Other evidence [46] Mr. Wong’s girlfriend, Stephanie Hollinger, testified. She told the Court that she did not know Mr. Benn, had not seen himbefore, and had not heard of him as one of Mr. Wong’s friends. The Crown submits that her lack of knowledge about Mr. Benneliminates the possibility that his fingerprints and DNA got on bags emanating from the trunk of Mr. Wong’s car in the ordinary course.The defence argues that Ms.

Hollinger’s evidence is exculpatory since it distances Mr. Benn from the Infinti’s owner. [47] I find this witness’ evidence to be of little value. She was unduly reluctant to make an obvious identification of Mr. Wong andbarely cast Mr. Benn a glance before saying she did not know him. I give Ms. Hollinger’s evidence no weight, outside of marking Mr.Wong as the driver. The net effect is that she did not provide any link between Mr. Benn and the events at hand. [48] Neither the driver of the Infiniti, Dennis Wong, nor ‘Jonathan’ was called to testify. There was no explanation for this.

Thedefence elected to call no evidence. Basic Principles [49] This is a criminal trial and Mr. Benn is presumed innocent. He remains innocent unless the Crown proves his guilt on eachelement of the offence beyond a reasonable doubt. That is a very high standard. Proof beyond a reasonable doubt falls much closer tocertainty than to satisfaction on a balance of probabilities. It is not sufficient that the Crown prove that the accused is likely guilty. Thetrier of fact must be sure of the accused’s guilt before convicting them. [50] The Crown does not, however, have to prove the charge to an absolute certainty.

If any doubt that remains at the end of thetrial is not grounded in a logical and rational presence or absence of evidence, making it fanciful, the case has been proven to therequisite criminal standard: see R v Clarke, 2023 ABCA 62 at para 37. [51] A reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or thelack of evidence. A reasonable doubt must not be imaginary or frivolous.

Reasonable doubt cannot be based on sympathy or prejudice,nor do these form any part of the proof against an accused person: R v Lifchus, (SCC), [1997] 3 SCR 320 at para 36. [52] The onus of proving the accused’s guilt beyond a reasonable doubt lies with the Crown throughout the trial and never shifts.Mr. Benn does not have to prove anything; in particular he has no obligation to explain anything, including circumstances which may

cast suspicion on him. [53] The presumption of innocence is displaced only when the evidence accepted by the Court proves all the elements of anoffence beyond a reasonable doubt. If the trier of fact is left with a reasonable doubt, arising from any evidence or the lack thereof, theaccused must be found not guilty. [54] This is a circumstantial case. The law dictates that an inference of guilt should only be drawn from circumstantial evidencewhere it is the only reasonable inference that such evidence permits.

In assessing the circumstantial evidence, I must consider otherplausible theories and other reasonable possibilities that are inconsistent with guilt. The Crown’s burden to prove the case requires it tonegate reasonable possibilities consistent with innocence: R v Villaroman, 2016 SCC 33 at paras 18-25. [55] The Crown does not, however, have to “negative every possible conjecture, no matter how irrational or fanciful, which mightbe consistent with the innocence of the accused”.

Other plausible theories or other reasonable possibilities that are said to be exculpatorymust be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [56] In the case of R v Dipnarine, 2014 ABCA 328 at paras 22, 24-25, our Court of Appeal helpfully instructed that circumstantialevidence: … does not have to totally exclude other conceivable inferences.... It is still fundamentally for the trier to fact to decide if any proposedalternative way of looking at the case is reasonable enough to raise a doubt in the mind[s] of that trier.....

Alternative inferences must bereasonable and rational, not just possible. [57] As the Supreme Court instructed in Villaroman at paras 39-43, and Chief Justice McEachern articulate in R vTo,

(1992) CanLII 913 (BC CA), (BC CA), 16 BCAC 223 at para 41: It must be remembered that we are not expected to treat real life cases as a completely intellectual exercise where no conclusions can bereached if there is the slightest competing possibility.

The criminal law requires a very high degree of proof, especially for inferencesconsistent with guilt, but it does not demand certainty. [58] Simply put, unless the evidence I accept excludes, beyond a reasonable doubt, any rational innocent explanation for thecircumstances said to prove the accused’s guilt, I must find him not guilty as the presumption of innocence will not have been displaced. Identification [59] This is an identification case. There is no question that the man seen on the video firing shots into the Altima caused thedeaths of both Mr. Ibrahim and Mr.

Shaikh, and was responsible for lodging a bullet in Mr. Marr’s body. There is no question that thesewere unlawful acts. The question is whether the Crown has proven beyond a reasonable doubt that Gerald Benn was that man. [60] The Crown seeks to prove its case through the intersection of two bodies of circumstantial evidence which, it argues, narrowsthe possibility that someone other than Mr. Benn was the shooter to a point that no reasonable doubt remains. [61] The first pillar of the Crown’s case is the presence of Mr.

Benn’s DNA and fingerprints on two of the three items in which theshooter wrapped the gun in the moments before the killings. This forensic evidence creates a strong inferential link between Mr. Bennand the firearm used by the shooter. The forensic evidence does not, however, conclusively place Mr. Benn at the scene of the crime. Itdoes not allow one to know when Mr. Benn touched the two plastic bags, simply that he did. As it turns out, others did as well. WhileMr.

Benn’s connection to both bags makes that inference stronger, it does not provide a conclusive link. [62] The Crown also argues that the placement of the fingerprints is consistent with the shooter holding the gun through the bagand also subsequently pulling the bag off with his left hand. The defence countered that Constable Malmgren’s evidence was consistentwith someone else having possibly touched the bag after Mr.

Benn deposited his left middle fingerprint on it, thereby undermining theinference that this print was created during the events captured on the CCTV. [63] Based on my review of the video and fingerprint evidence, I find that the placement of the prints, particularly R36 and R37from Mr. Benn’s right hand, are consistent with them having been made during the handling of the gun seen on the video.

However,given the extremely crumpled nature of the bag, the difficulty in discerning conclusively whether the shooter was in fact holding the gunthrough the Walmart bag as it appears at certain points, the numerous other impressions found, and Constable Malmgren’s evidence thathe could not tell whether the partial impression overlapping R40 belonged to Mr. Benn or someone else, I cannot find that Mr. Benn’sprints were necessarily laid down proximate to the shooting. The prints are consistent with this conclusion, but other reasonablepossibilities exist. [64] Mr.

Benn’s fingerprints on the Walmart bag place him in close proximity to it and prove that he handled it. They fall short,however, of linking him conclusively to the events seen in the CCTV. [65] The same is true for his DNA on the Wendy’s bag. This sample was taken from a distinct visible stain which testedpresumptively positive for blood on the scene, but which could not be confirmed as blood by the DNA lab. Ms. Lilly, the DNA analyst,was not privy to the circumstances of the collection of this sample, which appeared in the evidence of Constable Krezanoski.

Herevidence as to the potential of this DNA coming from transfer from an intermediary object must be qualified by this limitation in herknowledge. Given that the sample came directly from a visible stain, there is an inference that it came from Mr. Benn’s bodily fluidsbeing deposited directly on the bag. I draw that inference. [66] Therefore, the DNA, like the fingerprints, creates a close and direct link between the bags in which the shooter covered thegun and Mr. Benn. Also like the fingerprints, it does not provide a temporal link to the shooting.

[67] In conclusion, the DNA and fingerprints create a close inferential connection between Mr. Benn and the firearm. Taken alone,the forensic evidence creates a strong suspicion that Mr. Benn was the shooter, but falls short of eliminating alternate reasonablepossibilities for how such extensive traces of him got on those bags. Comparison of the shooter to the BWC footage of Mr. Benn [68] This is not a case in which the Crown argues for positive identification of the shooter from the video. Rather, it argues thatthe similarities between the shooter and Mr.

Benn, as he appeared a few days later, are so extensive that they intersect with the forensicevidence to eliminate reasonable doubt that anyone but Mr. Benn committed these crimes. [69] The CCTV reveals a lot of physical characteristics of the shooter. These, in turn, are capable of comparison to the high-qualityimages of Mr. Benn captured on Constable Watson’s BWC. [70] The Court is well aware of the dangers associated with the visual identification of accused persons by witnesses to criminalevents.

I have reviewed the case law relating to this issue and, in particular, the application of these concepts to the examination of videoidentification evidence, beginning with R v Nikolovski, and including R v Mohamed, 2014 ABCA 398. [71] I have paid particular attention to the risk of a viewer becoming more sure over time and seeing what they want to see: R vAtfield, 1983 ABCA 44, (1983) 42 AR 294 at para 3. I examined the videos very closely for the directed verdict motion and then put thematter aside for some time and repeated that examination afresh when deliberating on this final verdict. [72] In R v.

Brown, [1999] OJ No 4865 (SC), Justice Trafford said the following about video evidence that did not easily permitfacial identification of a perpetrator: [t]o the extent the videotape showed the perpetrators on the camera without a facial exposure, they show, inter alia, their physical statureand movements. This information is probative of identity….

The limits on the spatial resolution and temporal resolution of the tapes arereadily discernible and can be weighed by the jurors … [73] The Court of Appeal affirmed this reasoning, and it applies with equal force to this case: R v Brown, (ONCA), [2006] OJ No 5077 (CA). Here, the video comparison is not being examined to say conclusively that the man in pink seen in theCCTV is Mr. Benn.

Rather, what is being gauged is the degree of similarity, to determine whether the extent of that resemblance,coupled with the presence of his DNA and fingerprints on the bags used by the shooter to cover the gun, exclude any reasonablepossibility that someone else is the shooter. i. No dissimilarities [74] I begin the comparison by noting a key fact: there are no observable dissimilarities between the men in the two videos.Defence counsel fairly noted that none was obvious, aside from different clothing. There is nothing in the two videos that points awayfrom Mr. Benn in any way. ii.

Skin tone [75] Both videos show a man with similar skin tone. This is a minor factor and more a matter of the two being consistent ratherthan similar in a distinctive fashion. iii. Size and weight [76] While the defence argued that shooter’s size and weight cannot be estimated from the CCTV without further expert evidenceon this point, I respectfully disagree. The CCTV allows a contextual understanding of the shooter’s height as gauged by his movementsin and out of, and around, two vehicles of a familiar design and size.

It also allows for observation of his build and volume for a man ofthat stature. [77] The shooter matches very closely the height and weight given for Mr. Benn in the Agreed Statements of Fact that are Exhibits1 and 23. I appreciate that there are limits to how accurately a lay observer can estimate physical size. However, as noted in Nikolovski, avideo recording can be viewed and reviewed carefully and at length, as opposed to a fleeting in-person sighting.

Drawing inferentialconclusions about the general height and weight of a person from watching them move about in a specific context is the sort of judgmentfrom logic, sense, and experience that triers of fact are charged with making, as described by the Supreme Court in R v Calnen, 2019SCC 6: see also Enns v Corbett, 2020 BCSC 168 at para 19. [78] I find that, at the relevant time, Mr. Benn very closely resembled the physical proportions of the shooter. iv. Body shape [79] People of similar size vary in their bodily shapes and proportions.

In this case, a comparison of views from the two videosshows that the shooter and Mr. Benn have a similar leg-to-torso proportion and similar arm length. Viewed from the front, a developedchest and slight weight on the abdomen is visible on both sets of images. Viewed from the rear, both are seen to have similarly broadshoulders that curve downwards and a form a slight V-taper towards the waistline. [80] Even more prominently, the shooter stands with a visible forward curve across the top of his upper back and neck. Mr.

Benndisplays the same prominent curvature when first seen standing with the arresting officers. This feature is quite pronounced and moredistinct than general comparisons of size.

[ 81 ] Comparing the two videos, through the side-by-side observation of individual frames showing each of these aspects of the men’s physicality, I find as fact that the shooter and Mr. Benn had closely similar physical proportions and features of body shape. v. Hair shape, size, and style [ 82 ] Both videos show a man with short dark brown hair that was full and had a bit of vertical volume, especially towards the back. This can be seen distinctly on a few frames when the shooter steps from the Infiniti before donning his hat, and at numerous points in the BWC footage when Mr.

Benn has his hood off. [ 83 ] More importantly, the shape of Mr. Benn’s hairline as it descended from his temple was quite distinctive at the time of his arrest. It was cut into a sharp 90-degree angle from his temple towards his upper cheek, with a subsequent curve towards the ear. The same sort of defined right angle and curve can just be made out on a few of the best frames of video capture of the shooter. Overall, I find that the CCTV and BWC both show a man with hair that is very similar, including in some distinguishing facets.

The line of the cut around the temple towards the ear is particularly similar and distinct. vi. Face shape [ 84 ] Both the shooter and Mr. Benn have a distinctly angular forehead-to-nose profile. This can be discerned in multiple points on the CCTV, especially when the shooter exits the Infiniti, adjusts his hat beside the car, and stands at the back of it during the earlier parts of the interaction. It can also be observed repeatedly on the BWC footage of Mr. Benn, and as he appeared in court. Conclusion on similarity of appearance [ 85 ] When closely examined, the CCTV allows a detailed comparison to Mr.

Benn as seen in the contemporaneous BWC footage. The two men look very much alike across the range of physical characteristics. Their size, weight, body shape, facial shape, and hair shape are strongly similar, including a few more distinctive features, such as the profile haircut line, back curvature, and facial profile angle.

There are no dissimilarities. [ 86 ] In terms of articulating the strength of the similarity, while none of the enumerated points of comparison, taken separately, narrow the pool of people potentially seen on the CCTV that much, their combined effect does so dramatically. [ 87 ] The question in this case is whether the aggregate effect of the physical similarities together with the forensic evidence elevates the Crown’s case to proof of guilt beyond a reasonable doubt.

Conclusion on proof beyond a reasonable doubt [ 88 ] I begin the final weighing of the evidence by noting that it is proper in law to consider the combined force of a forensic link to a crime with a less than conclusive visual identification or comparison.

In R v Stjepanovic , 2006 BCCA 169 at para 11 , the British Columbia Court of Appeal upheld a conviction premised on exactly this process of reasoning, with Justice Hall writing for the Court that: I view that DNA evidence as powerful circumstantial evidence that could properly be used by the judge to support the admittedly less than strong evidence of identification from the eye witnesses. [ 89 ] That is what the Crown asks me to do as the trier of fact in this case. Mr.

Benn resembles the shooter in every observable facet, to a degree that he would be part of a very small subset of people fitting the description discernible from the CCTV of the shooting. The shooter and Mr. Benn share the same phenotype to a high degree of particularity. Mr.

Benn’s fingerprints and DNA were also found at the scene, on both bags — bags from completely different original sources — in a manner that is consistent with the shooter’s handling of them. [ 90 ] In analysing whether this package of evidence ousts any alternative reasonable possibilities, I must consider whether any specific evidence, or absence of evidence, strengthens those alternate possibilities. As noted in Villaroman at para 35 , “ inferences consistent with innocence do not have to arise from proven facts”.

However, they are stronger, and move further from mere speculation, when they do. [ 91 ] Here, there is no evidence pointing to any other specific person having committed this crime and, in particular, no evidence pointing to someone so physically similar to the shooter being involved. There is also no positive evidence enhancing the innocent possibilities as to how Mr.

Benn came into contact with the bags in which the gun was wrapped. [ 92 ] Critically, this is not to say that a failure to provide alternative explanations weighs against the accused or that an adverse inference arises from his failure to explain the coincidence of his resemblance to the shooter and the presence of his forensic traces on the bags. Axiomatically, neither of these assists the Crown in meeting its exclusive burden of proof in any way.

Rather, these conditions are noteworthy only in so far as there is no evidence strengthening or particularizing any alternative possibilities that could account for the circumstantial evidence against Mr. Benn. [ 93 ] The defence is effectively left with only the abstract possibility of another such person, and other explanations for Mr. Benn’s contact with the bags. Reasonable doubt can be, and often is, found from such inherent possibility: Villaroman at para 36 . [ 94 ] I also note certain absences of evidence from which the defence argued that a reasonable doubt arises.

These include the absence of evidence specifically placing Mr. Benn in either vehicle or in association with the victims or the other individuals in the Infiniti. I further consider that there are other people associated with the bags, though I know nothing of their identity or appearances.

[95] I have considered all of these factors, along with the others raised by Ms. Urquhart in her very able closing. [96] At the end of the day, applying the reasoning described in Villaroman at paras 40-42, the question reduces to this: is there areasonable possibility that someone could physically resemble the shooter as much as Mr. Benn does, and have left his fingerprints andDNA on the bags the shooter used to wrap the gun in, but not be the shooter? [97] After lengthy consideration, I find that the answer is “no”.

The totality of the evidence paints a picture that is beyond therealm of reasonably possible coincidence. Any doubt that still exists here is fanciful and of the “anything is possible” variety. Based onhis resemblance to the shooter, and forensic traces of his presence all over the gun wrappings, I am sure that Mr. Benn is the man seen inthe CCTV video shooting the victims at the side of Sandarac Road. [98] There are many questions as to the provenance of the gun and the items it was wrapped in, as well as what brought the men tothis fatal encounter, and why it turned violent in the way it did.

The presence of unanswered questions does not, however, necessitatefinding that reasonable doubt persists. Indeed, unanswered questions are a feature of most criminal cases. Those questions, however,invite only speculation and doubt that is fanciful, not rationally reasonable: per Villaroman at para 71. Murder vs Manslaughter [99] The defence did not make argument in support of a manslaughter finding. The Court must nonetheless be satisfied that themens rea for murder has been proven beyond a reasonable doubt.

A culpable homicide becomes second degree murder when the accusedis proven to have committed the fatal act either (

i) meaning to cause death or (ii) meaning to cause bodily harm that he knows is likely tocause death but proceeding with recklessness as to whether death ensues or not. [100] In this case, I am satisfied that Mr. Benn acted with the intention to cause bodily harm by repeatedly shooting his victims,knowing that this was likely to kill them but proceeding in reckless disregard of that consequence. I am not satisfied that he specificallymeant to kill. [101] As I detailed in my reasons on the directed verdict, the evidence shows that Mr.

Benn clearly contemplated the use of deadlyviolence in the context of a fraught drug interaction. Jonathan’s reluctance to enter the Altima fully, together with Mr. Benn’s decision toarm himself immediately after the three men spoke at the Infiniti, describe a situation in which the potential for violent escalation wasclearly contemplated. [102] Mr. Benn did not attempt any alternative to lethal force in responding to Mr. Shaikh physically engaging Jonathan. Theirstruggle consisted of physical grappling. Mr. Benn immediately resorted to shooting Mr. Shaikh in the back.

Then, after Jonathan brokefree, he fired a further volley of shots into the Altima, aiming distinctly at all of its occupants. [103] There is no doubt Mr. Benn meant to hurt his victims. He did so with multiple shots from a firearm at close range. In theabsence of any attenuating explanation, the only reasonable inference is that he knew death was a likely outcome of this assault and heproceeded to shoot the victims regardless: see R v Bains, (1985) 7 OAC 67 at para 27. The Crown has proven that the deaths of AbasIbrahim and Mohamed Shaikh were murder in the second degree.

Attempted murder of Dimetri Marr [104] I am satisfied that Mr. Benn leaned into the Altima, pointed the gun at Mr. Marr and shot him in the torso with the sameintention he had when shooting Mr. Ibrahim and Mr. Shaikh. Namely, he meant to cause bodily harm from which he knew death was alikely result but proceeded nonetheless, reckless as to the result. [105] It is, however, an anomaly in our law that one cannot commit attempted murder except with a direct intention to kill. This hasbeen repeatedly made clear in cases such as R v Ancio, (SCC), [1984] 1 SCR 225 and R v Logan, (SCC), [1990] 2 SCR 731.

On a charge of attempted murder, it is insufficient for the Crown to prove that someone intended to causebodily harm knowing it was likely to cause death but being recklessly indifferent to this potential consequence: R v Boone, 2019 ONCA652. [106] I am certain that Mr. Benn intended to harm Mr.

Marr to the point of likely lethal incapacitation when he shot him, but I am notsure that he actually meant for Dimetri Marr to die. [107] Therefore, I have a reasonable doubt that he committed attempted murder. [108] The mode by which someone attempts to commit murder is not necessarily a lesser included offence of that attempt unless themodality of harm is very specifically charged in the indictment: see R v Pelletier, 2012 ONCA 566. In this case, Mr. Benn is chargedthat he “did attempt to murder Dimetri Marr, while using a firearm, contrary to section 239 (1)(

A) of the Criminal Code.” The Crownconcedes that aggravated assault is not a lesser included offence on this formulation of the charge. [109] For these reasons, I find Mr. Benn not guilty on count three. Conclusion [110] Mr. Benn please stand up. I find you guilty of Count one, the murder of Abas Ibrahim in the second-degree, and Count two, themurder of Mohamed Shaikh in the second degree. I find you not guilty on Count 3.

Heard on the 17 th day of April, 2023 to the 21 st day of April, 2023. Dated at the City of Calgary, Alberta this 23 rd day of May, 2023. N.E. Devlin J.C.K.B.A. Appearances: Doug Taylor and Jack Kelly for the Crown Andrea Urquhart and Kirsten Lancee for the Accused [i] I heard and noted the named of this person as “Jonathan”, but Counsel advised that Mr. Marr had named him as “Jordan”. I have left the reasons consistent with the form delivered in Court.