January 2026 Case of the Month

R v Benn – January 19, 2026

2026 ABCA 14

Heard by the Alberta Court of Appeal; an appeal on two counts of second-degree murder. The Appellant argued that the trial judge had misinterpreted circumstantial evidence, and effectively shifted the burden of proof, expecting the appellant to prove his innocence rather than the Crown prove his guilt.

The charges resulted from the August 28, 2020, shooting of Abas Ibrahim, Mohamed Shaikh, and Dimetri Marr that took place in Northwest Calgary. The events of that night were pieced together through CCTV footage that captured some of the incident. At the time, the three had been in a vehicle, with Mr. Ibrahim driving. When Mr. Ibrahim parked the car on a residential street, an Infiniti with three men inside parked behind him. The driver of the Infiniti remained in the vehicle, as the two other men got out (referred to as “Jordan” and “the shooter”), with Jordan going over to Mr. Ibrahim’s vehicle to speak with Mr. Ibrahim and his passengers. The other man opened the trunk of the Infiniti and removed an object that was covered by a Walmart bag, a Wendy’s bag, and a pair of swim trunks.

A fight broke out between Jordan and Mr. Shaikh, and the shooter ran to the Altima, with the bags and swim trunks falling off the object to reveal it was a gun. The shooter shot Mr. Shaikh in the back at close range twice, with Mr. Shaikh falling into Mr. Ibrahim’s vehicle. The shooter then fired into Mr. Ibrahim’s vehicle 4 times before he and Jordan returned to the Infiniti. Both vehicles drove off, with Mr. Ibrahim losing control of his vehicle and hitting a tree after driving less than two blocks. Mr. Marr was the only survivor, though he had also been injured. Autopsies confirmed Mr. Ibrahim and Mr. Shaikh died from the shooting.

Mr. Marr could not identify the shooter beyond what was visible from the CCTV, and the gun was never recovered. The Infiniti was found and the driver identified as David Wong. One shell casing was found in Mr. Ibrahim’s vehicle, and the police were able to collect five shell casings, the Walmart and Wendy’s bags, and the swim trunks from the scene of the crime.

The only real issue at trial was whether Mr. Benn was the shooter.

Police were able to identify 27 fingerprints on the Walmart bag. Of those 27, 3 were confirmed to be Mr. Benn’s fingerprints. A police officer testified that a fourth fingerprint also belonged to the Accused, though it was overlapped by another fingerprint that was likely placed on the bag afterward. 12 fingerprints were identified on the Wendy’s bag, none of which belonged to Mr. Benn, though a small unidentified stain on the bag contained his DNA. The swim trunks contained DNA belonging to an unknown male, matching DNA found on the outside of Mr. Ibrahim’s car. The CCTV footage however, showed that the shooter never touched the outside of Mr. Ibrahim’s car. 14 sets of fingerprints were found in the Infiniti, none of which belonged to Mr. Benn, and Mr. Benn’s DNA was not found in either vehicle.

David Wong’s girlfriend testified that she was living with him at the time and knew many of his friends but had never heard of Mr. Benn before. No evidence at trial showed that “Jordan” or David Wong had any connection with Mr. Benn.

At trial, the judge accepted the fingerprint evidence and found Mr. Marr’s testimony “largely worthless” due to it being vague, and Mr. Marr being either reluctant to testify or forgetful. The judge also accepted the DNA evidence found on the Wendy’s bag, though he rejected the DNA expert’s testimony that the DNA may have been transferred indirectly.

The trial judge also thoroughly viewed the CCTV footage, slowing it down and pausing to compare the appearance of the shooter in the footage and Mr. Benn. The trial judge considered the size, weight, body shape, face shape, hair shape, hairline, back curvature, and facial profile to be similar between the shooter and Mr. Benn and stated the two “lacked dissimilarities”.

While the trial judge stated the DNA and fingerprint evidence did not prove Mr. Benn’s guilt, when combined with the resemblance between Mr. Benn and the shooter, he was left without reasonable doubt as to Mr. Benn’s guilt. The trial judge took the position that there was no reasonable possibility that someone else could have left DNA on the bags and looked so similar to the shooter.

On appeal, the Alberta Court of Appeal considered the Supreme Court’s guidance from R v Villaroman, 2016 SCC 33, which stated that in cases regarding circumstantial evidence and no “smoking gun” evidence proving guilt: “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?”

The Court of Appeal overturned the conviction, finding that the trial judge had not been reasonable in determining the only reasonable conclusion was that Mr. Benn was the shooter.

Regarding the CCTV evidence, the Court of Appeal highlighted that the CCTV footage of the shooter was far more pixelated and lower quality than the Body-Worn Camera footage of Mr. Benn being arrested that it was being compared with. The Court considered it unreasonable to compare low-quality video of an unidentified perpetrator to high-quality video of a suspect, due to the possibility of unconscious bias. Though the trial judge had been alive to the weaknesses of eyewitness evidence, he did not consider this issue with his analysis of the CCTV footage.

Additionally, the Court of Appeal reviewed the similarities the trial judge found between Mr. Benn and the shooter, including “short dark hair”, “medium-brown skin tone”, “approximately 5’8” and “approximately 180 pounds” to be generic traits that many people have. The Court of Appeal found it unreasonable to find those traits sufficiently identifying, particularly since the CCTV footage may have distorted the sizes of some images.

Regarding the forensic evidence, the Court considered the 23 other fingerprints found on the Walmart bag, including one over Mr. Benn’s fingerprints, to suggest an alternate inference: that Mr. Benn had touched the Walmart bag at some point prior to the shooting, but was not the shooter. Along with the lack of Mr. Benn’s fingerprints in the Infiniti, and only one of the three objects used to cover the shooter’s gun having Mr. Benn’s fingerprints, it was an error for the trial judge to find that the only reasonable conclusion was Mr. Benn being the shooter.

The Accused was acquitted on all charges.

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