R v Rakka, 2024 ABCA 1

In the Court of Appeal of Alberta Citation: R v Rakka, 2024 ABCA 1 Date: 20240105 Docket: 2201-0252A Registry: Calgary Between: His Majesty the King Respondent - and - Ahmed Hassan Rakka Appellant _______________________________________________________ The Court: The Honourable Justice Peter Martin The Honourable Justice Kevin Feehan The Honourable Justice Anne Kirker _______________________________________________________ Memorandum of Judgment Appeal from the Conviction by The Honourable Justice M. Dinkel Dated the 13th day of December, 2021 ( Docket: 190975961P1)

_______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Overview [ 1 ] Ahmed Rakka was found to have been one of two persons engaged in a gun fight in a parking lot of a 7-Eleven store strip mall in northeast Calgary. The other participant was never identified, and no firearms were recovered from the scene. Mr Rakka appeals his seven convictions of December 13, 2021: possession of a firearm, a semi-automatic handgun, knowing that he was not a holder of a license for its possession, s 92(1)(

a) of the Criminal Code ; unlawful possession of a firearm, a semi-automatic handgun, knowing that he was not a holder of a registration certificate for that firearm, s 92(1)(b); being an occupant of a motor vehicle in which he knew there was a firearm, a semi-automatic handgun, s 94(1); possession of an unloaded firearm, a semi-automatic handgun, together with readily accessible ammunition capable of being discharged in the firearm, without authorization or a license, s 95(1); discharging a firearm at an unknown male, s 244(1); possession of a firearm while he was prohibited from doing so by reason of an order in a recognizance, s 117.01(1); and contravention of a recognizance prohibiting him from being in possession of a firearm, s 145(3).

The s 92(1)(

b) conviction was conditionally stayed. [ 2 ] The Crown’s case included several CCTV videos; physical evidence of recovered .40 and .45 calibre bullet casings; a bullet in the frame over the door of a business located further north in the strip mall; and witness testimony of the clerk in the 7-Eleven store, three neighbours who lived across the street from the 7-Eleven store, six Calgary police officers, and a firearms expert. Mr Rakka did not call evidence. [ 3 ] For the reasons below, the appeal is dismissed. II.

Facts [ 4 ] We know from a store video that at approximately 9:23 pm on July 31, 2019, a man wearing a black hoodie arrived at the strip mall parking lot in a grey or silver Nissan, parked several stores north of the 7-Eleven store, and entered the store. He made no purchases. Soon after, a black Nissan pulled up in front of the store and parked immediately north of the front door of the store. A man wearing a white hoodie exited the passenger side of the black Nissan, went to the main door of the 7-Eleven store, opened the door, but did not enter.

He turned around and proceeded quickly back to the passenger side of the black Nissan. The man in the white hoodie was clearly identified on CCTV and in a police line-up, and was admitted to be Mr Rakka. [ 5 ] As the man in the white hoodie returned to the passenger side of the black Nissan, the man in the black hoodie tried to exit the 7-Eleven store by the rear employee door but could not do so. He then exited the store by the front door and turned right, or north, towards the grey or silver Nissan.

The man in the white hoodie, Mr Rakka, exited the front passenger side of the black Nissan and proceeded to follow the man in the black hoodie. About 25 seconds later several gunshots were heard. The 7-Eleven store clerk said there were “many people ... outside” at that time. [ 6 ] One of the neighbours was in her backyard when she heard three loud bangs that she thought were gunshots. She went to her

front yard and saw the black Nissan speeding away while a man in a black hoodie shot at it. That man then got into the grey or silvercoloured Nissan and it also sped out of the parking lot. This neighbour did not see a gun but did see a black object in the hand of the manin the black hoodie. [7] The second neighbour was also in his backyard when he heard three shots. He then heard tires squealing, attended theparking lot, and found two shell casings in a parking stall which he protected until police arrived. [8] The third neighbour’s testimony was critical to the Crown’s case.

He lived “pretty much right across the street” from the 7-Eleven and his house faced the store’s front door. He arrived home that evening at about 9:20 pm and he was in his basement when heheard a first gunshot. He proceeded upstairs to his front door when he heard a second gunshot. He said it took “a minute and a half or so,two minutes tops” to arrive at his front step between the first and second gunshot. He said he saw a person in a white hoodie kneelingbeside a black Nissan, putting his hand over the top of the windshield and pointing an object toward the north end of the mall.

He thenheard a third shot and saw a second person in a dark blue hoodie standing beside a silver Nissan, north of the first person in the whitehoodie. He was apparently shooting south towards the person in the white hoodie. [9] From the time this third neighbour reached his front step and a fourth shot occurred, he estimated that about 45 to 50 secondshad passed. At that time he said there were very few people in the parking lot.

He then heard what he described to be a fifth shot but hedid not know who fired it. [10] The man in the white hoodie then re-entered the front passenger side of the black Nissan and it exited the parking lot headingwest. The third neighbour then saw the man in the dark blue hoodie get into the silver Nissan and it drove away. [11] This witness was pressed repeatedly on whether he saw a gun in the hand of the man in the white hoodie. During directexamination he said on three occasions that the man in the white hoodie was holding a gun shooting northward toward the man in thedark blue hoodie.

During cross-examination he said on nine occasions that he saw a gun in the hand of the man in the white hoodie. Oncontinuing to be pressed, he agreed with defence counsel that he saw “what [he] believed to be a gun”. [12] However, during questioning by the trial judge, after cross-examination and redirect examination, he said he saw “what lookslike a gun. I can’t tell if it was.

I can’t tell what kind of gun it was.” He agreed with the trial judge that he “believed it to be a gun”. [13] The police found two bullet casings from a .40 calibre handgun in the parking lot of the strip mall, near the location of the 7-Eleven store, two .45 calibre casings in front of the store three units north of the 7-Eleven store, and one .40 calibre bullet lodged in theframe over the door of one of the stores further north in the strip mall. [14] Based on the direction the third neighbour said the shooters were facing, the location of the casings, and the spent bulletfound in the frame over the store further north, the Crown argued and the trial judge accepted that Mr Rakka had fired the .40 calibreshots northward and the man in the black hoodie was firing back with the .45 calibre shots.

III. Grounds of Appeal [15] Mr Rakka says the trial judge erred in: (

a) misapprehending material evidence, making logically incompatible findings, and misapplying the law regarding circumstantialproof of guilt, thereby rendering an unreasonable verdict; (

b) interfering with cross-examination of the third neighbour, a key Crown witness, causing an unfair trial and miscarriage of justice;and (

c) failing to consider the issues of specific intent required pursuant to s 244 (1) of the Criminal Code and self-defence. IV. Standard of Review [16] The standard of review for unreasonable verdict is reasonableness. An unreasonable verdict may arise where it is one aproperly instructed trier of fact could not have reasonably rendered, the trial judge materially misapprehended the evidence, or thereasons demonstrate a finding to be logically incompatible with the evidence not rejected by the trier of fact.

The appellate court mustcarefully review, analyze, and weigh the evidence in light of the standard of proof in a criminal case: R v Burke, (SCC), [1996] 1 SCR 474, paras 3-6, 105 CCC (3d) 205; R v Beaudry, 2007 SCC 5, paras 93-97, [2007] 1 SCR 190; R v Sinclair, 2011SCC 40, paras 16-21, [2011] 3 SCR 3; R v RP, 2012 SCC 22, paras 9-10, [2012] 1 SCR 746; R v Villaroman, 2016 SCC 33, para 55,[2016] 1 SCR 1000. [17] Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially,could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence.

Averdict on circumstantial evidence is not reviewable merely because the appeal court concludes that the evidence, including gaps, givesrise to competing inferences: Villaroman, para 55; R v Bjornson, 2018 ABCA 282, para 17, 365 CCC (3d) 175; R v Profeit, 2021ABCA 379, paras 72-74, 407 CCC (3d) 494. [18] Misapprehension of evidence may constitute an unreasonable verdict, error of law, or miscarriage of justice if it involves afailure to consider evidence relevant to the material issue, is mistaken as to the substance of the evidence, or fails to give proper effect toevidence: R v Morrissey (1995), (ON CA), 80 OAC 161, paras 83, 93, 97 CCC (3d) 193; R v Sheppard, 2002 SCC

26 , para 47 , [2002] 1 SCR 869 ; R v Lohrer , 2004 SCC 80 , paras 1 , 2, 8, [2004] 3 SCR 732; Sinclair , para 13 . [ 19 ] Where misapprehension of evidence is alleged, the appellate court should first consider the reasonableness of the verdict. If the verdict is not unreasonable then the court should determine whether the misapprehension of evidence occasioned a miscarriage of justice, and as a third step, whether the misapprehension of evidence amounted to an error of law: Criminal Code , s 686 (1)(a)(i)-(iii); Morrissey , paras 88-89 ; Lohrer , paras 2, 7-8 . V. Analysis (

a) Misapprehension of evidence and reasonable alternate inferences [ 20 ] Mr Rakka says the eyewitness evidence in this case was “entirely problematic”. He says that while he was admittedly the passenger in the black Nissan, no one ever considered the role of the driver, and it is quite possible the driver also got out of the black Nissan and may have been in the location where the third neighbour observed the actions of the “white hoodie shooter”. However, the store clerk said that only one person got out of the black Nissan.

Additionally, the CCTV video shows the black Nissan already backing out of the parking stall as the man in the white hoodie runs back and gets into the passenger side door. The driver was clearly operating the vehicle at that moment and there was no evidence to suggest the driver ever exited the vehicle while it was in the parking lot.

Finally, the .40 calibre bullet casings were located approximately two parking stalls north of the black Nissan, and it is not logical that they could have originated from a driver in or beside that vehicle. [ 21 ] The third neighbour initially described the white hoodie shooter as wearing black sweatpants or black jeans. In the CCTV video, Mr Rakka is seen wearing light-coloured blue jeans. However, the third neighbour immediately qualified his evidence and said: “I was pretty much paying attention, you know, where the action was going on.

I didn’t really notice what he was wearing for pants.” [ 22 ] Additionally, even if there is a conflict on this point, it was minor and peripheral. The colour of the jeans worn by the man in the white hoodie was not central to the determination that it was the passenger from the black Nissan who got out of the car and began to follow the man wearing the black hoodie. [ 23 ] Mr Rakka says there was also an inconsistency in the evidence of the store clerk. She said the man wearing the white hoodie had his hood up as he followed the man in the black hoodie. The CCTV footage shows that the hoodie was down.

Further, the store clerk described the man in the white hoodie as rushing towards the man in the black hoodie, while the CCTV shows that he was walking. The views of the store clerk and the CCTV camera were different. It is quite possible that the man in the white hoodie put up his hood and rushed after the man in the black hoodie while he was still in view of the store clerk, but then out of the view of the CCTV camera. [ 24 ] The CCTV footage also shows the man in the white hoodie with his hood pulled over his head as he was running back to the passenger side and getting into the black Nissan.

If the hood had not been up when the man wearing the white hoodie initially got out of the passenger side of the black Nissan, it was certainly up when he rushed back to the car and got in the passenger side. This was recognized by the trial judge. [ 25 ] As noted, the store clerk said there were many people outside. The first neighbour agreed the parking lot was “busy with people”. The third neighbour said by the time he reached his front step, after three shots had been fired, the parking lot was largely empty.

This difference is a matter of timing; it is reasonable that the people in the parking lot dispersed when the shooting began. This was acknowledged by the trial judge. [ 26 ] In oral submissions, Mr Rakka was critical of the trial judge’s lack of analysis of timing, particularly in the evidence of the third neighbour.

While the trial judge did not expressly compare and contrast the timing evidence of the various witnesses, he found that the “shooting started shortly after” the man in the white hoodie exited the black Nissan “as soon as the male in the black hoodie went by”, and the “timing of the male in the white hoodie leaving the black Nissan and then returning ... to the vehicle, which then quickly departs, dovetails with the timing of the shooting.” Finally, the trial judge held that the “shooting took place at the time the people in the 7-Eleven were all seen reacting in an alarmed manner on the video...”. [ 27 ] Although the third neighbour may have been inexact in his estimates of time, he was clear he saw the man in the white hoodie shooting what he believed to be a gun between the time the man in the white hoodie was seen leaving the black Nissan and the time he is seen re-entering the passenger side of the black Nissan.

That is the substantive finding by the trial judge on timing. [ 28 ] The most significant inconsistency was in the evidence of this witness, who said the man in the white hoodie was crouching beside the black Nissan and firing shots over its windshield. This was incorrect. The casings from the .40 calibre semi-automatic handgun were found several car stalls north of that location.

If the man in the white hoodie was firing behind a car, it had to be a different car several stalls ahead of the black Nissan. [ 29 ] The trial judge addressed this inconsistency: “No shell casings were found in the vicinity of the black Nissan. They were found two stalls over, closer to the location of the second light coloured vehicle driven by the male in the black hoodie”. He agreed the third neighbour was “incorrect about the location in which the man in the white hoodie fired the shots, not that the shots were never fired”.

He inferred that the man in the white hoodie went towards the car belonging to the man in the black hoodie and discharged the firearm at that point. [ 30 ] He also found that the possible equivocation of the third neighbour on whether he positively saw a gun was “not fatal”: “He saw what he believed to be a gun being fired”. That was sufficient in all the circumstances, including hearing the shots fired and the recovery of the casings and bullet fragments. He said he could “reasonably infer that the individual who was in possession of a firearm was Rakka”.

The trial judge also said the test for circumstantial evidence “has been met, and that the only reasonable inference to be

derived from the facts is that the accused was the individual in the 7-Eleven parking lot who was in possession of a firearm, and that hedischarged that same firearm…”. [31] The trier of fact is entitled to accept all, some, or none of the witness’ evidence: R v Hardy, 2019 ABCA 160, para 45, 377CCC (3d) 189. That is what the trial judge did. He accepted that the third neighbour was in error in describing the location of the shooterin the white hoodie, but said all of the evidence taken together left him in no doubt the shooter in the white hoodie was Mr Rakka asclearly identified by the store clerk.

There was no evidence that the shooter might have been some other person, including the driver ofthe black Nissan. [32] The inferences drawn by the trial judge were fair and reasonable, and he did not ignore alternate inferences as to guilt.Ultimately, the “role of the trier of fact in a circumstantial evidence case is entitled to be respected in the same way as the role of triers offact in cases which have direct evidence”: Profeit, para 73. [33] This ground of appeal is dismissed. (

b) Trial judge’s questioning [34] After the third neighbour said on seven occasions that he had seen a gun in Mr Rakka’s hand, the Crown objected to thequestion: “You’re assuming he had a gun, right?”. The trial judge interjected that the witness had answered that question. The witnessthen again immediately repeated twice that Mr Rakka had a gun.

When the trial judge questioned the witness, he said what he saw“look[ed] like a gun”, and he “assumed that it was a gun”. [35] Mr Rakka says the trial judge should not have prevented the repeated question on cross-examination as to whether the thirdneighbour had actually seen a gun in Mr Rakka’s hand, and then later pressed the third neighbour himself on that point.

He says the trialjudge improperly “descend[ed] into the arena”, citing R v Oracz, 2011 ABCA 341, para 7. [36] It was not unreasonable for the trial judge to uphold the Crown’s objection that the question posed was already asked andanswered seven times. The trial judge is charged with managing the trial and upholding the Crown objection was not unfair. [37] Additionally, the trial judge’s questioning did not prejudice Mr Rakka. In fact, it led to the third neighbour possiblyequivocating on his evidence. [38] This ground of appeal is dismissed. (

c) Specific intent and self-defence [39] Mr Rakka says the charge of discharging a firearm requires proof of specific intent on behalf of the shooter beyond areasonable doubt; s 244 (1), Criminal Code: Every person commits an offence who discharges a firearm at a person with intent to wound, maim or disfigure, to endanger the life of orto prevent the arrest or detention of any person – whether or not that person is the one at whom the firearm is discharged.

See R v Foti, 2002 MBCA 122, paras 24-26, 169 CCC (3d) 57; Villaroman, para 30. [40] Both counsel and the trial judge agreed on a “blended” directed verdict application together with closing arguments. Defencecounsel argued that the trial judge would not have to go through each element of each offence if he accepted that there was no possibleway to properly convict on the record, since possession of a firearm was a “common thread” for each count.

He said the Crown hadfailed to put a gun in Mr Rakka’s hands. [41] While a directed verdict of acquittal was rejected by the trial judge, it appears everyone treated this as being an “all ornothing” fact situation resting solely upon whether the Crown had “put a gun in [Mr Rakka’s] hand”.

Defence counsel conceded: “Ifthey put a gun in his hand, he’s in trouble”, but that would “require an exercise of walking through the constituent elements of at leastseveral of the …. counts”. [42] The Court in Foti said that in determining whether an accused has formed the requisite intention to wound, the trier of factwill often have to infer that intention from circumstantial evidence, and “[i]n doing so, it is acceptable for the trier of fact to consider aperson generally intends the natural consequences of his actions”, citing R v Cashman (1951), (ON SC), 102 CCC 208,214, (ON SC), 13 CR 45 (Ont Co Ct). [43] Mr Rakka says it is impossible on this record to rule out that he was the first one shot at, or that the two shots attributed tohim based on the location of shell casings were not directed at the man in the black hoodie.

The one shot for which a bullet wasrecovered was from a frame over the door of a store further north in the strip mall, approximately 2.3 metres (seven and a half feet) high.The other bullet is unaccounted for and could have been even higher and further away from the man in the black hoodie. [44] The Crown replies that the issues of specific intent and self-defence were never live issues at trial. Defence counsel’s closingsubmissions covered 46 pages of transcript and touched on neither of those topics. Given defence counsel’s lack of submissions, the trialjudge did not specifically discuss these topics.

The Crown submits that defence counsel made no submission about specific intentbecause proof of specific intent was obvious, and the only reasonable inference was that Mr Rakka had the intent to wound, maim,disfigure, or endanger the life of the man in the black hoodie by firing a semi-automatic handgun in his direction. It also submits there isno air of reality to self-defence, which was never argued at trial.

[ 45 ] The trial judge answered the issues before him on the record. The issue of specific intent was not identified as a question to be addressed and on this record appears to have been conceded by counsel. In any event, the evidence was overwhelming: Mr Rakka recognized the man in the black hoodie in the 7-Eleven store. When that man left the store, Mr Rakka followed him. He shot at the man in the black hoodie and was shot at by that man.

The specific intent to wound, maim or disfigure the man in the black hoodie, or to endanger his life, is obvious. [ 46 ] We need go no further, but if we did, we would see no other reasonable inference than that Mr Rakka had the necessary specific intent, an essential element of this offence. [ 47 ] Likewise, with regard to self-defence, not only was that not an issue at trial, there was no evidence to lend an air of reality to that defence. VI.

Conclusion [ 48 ] The appeal is dismissed. [ 49 ] Mr Rakka is currently on judicial interim release pending appeal and is to report to the Calgary Remand Centre within 48 hours of the filing of these reasons. Appeal heard on December 8, 2023 Memorandum filed at Calgary, Alberta this 5th day of January, 2024 Martin J.A. Feehan J.A. Kirker J.A. Appearances: R.S. Dhillon for the Respondent M.G. Bates for the Appellant