Listen to this article
Estimated 4 minutes
The audio version of this article is generated by AI-based technology. Mispronunciations can occur. We are working with our partners to continually review and improve the results.
A Calgary man serving a life sentence for two counts of murder should not have been found guilty, said the province’s top court Monday in its decision to overturn the convictions and enter acquittals.
The Alberta Court of Appeal found “serious flaws” in the trial judge’s analysis of the evidence, which led to an “unreasonable verdict.”
Gerald Benn will now be released from prison. He’s been in custody for more than five years since his arrest in September 2020.
“A conviction cannot be supported by this evidence,” wrote the Alberta Court of Appeal in its decision, siding with Benn’s appeal lawyer, Alias Sanders.
The finding aligns with what Benn’s original lawyer, Andrea Urquhart, argued at trial.
On Aug. 8, 2020, three men were shot inside a vehicle in Calgary’s northwest community of Sandstone Valley. Abas Ahmed Ibrahim, 27, and Mohamed Khalid Shaikh, 19, were killed. Dimetri Marr was injured but survived.
In 2023, following a trial, Court of King’s Bench Justice Nick Devlin found that Benn was the shooter based on the accused’s fingerprints and DNA found on two bags discovered in the trunk of the vehicle used in the shooting.
‘Unique danger’ in video evidence
But of the 27 fingerprints found on a Walmart bag, only four were Benn’s. The other 23 were never identified.
Benn’s DNA was also found on a Wendy’s bag, but prosecutor Doug Taylor did not call any evidence of when or how it had been deposited.
Devlin also relied on low quality, pixilated CCTV footage of the shooting to find that the shooter and Benn had “similarities.”
The appeal court noted that there was a “unique danger” raised when the judge compared the grainy video of the shooter with high-quality images of Benn taken during his arrest. That is, the decision says, “the risk that a trier of fact viewing poor quality video images of an unidentified perpetrator and comparing it to high-quality video image of the prime suspect would unconsciously expect to see significant similarities between the two.”
None of Benn’s prints on or in car
The appeal panel also pointed out that despite the video showing the shooter touching the vehicle he was in with his bare hands, Benn’s fingerprints were not found on or inside the car.
There was also no evidence presented of any connection between the two other men in the shooter’s vehicle and Benn.
During the trial, the Crown said the shooting, which was captured on CCTV footage from a nearby business, took place over a botched $700-$900 drug deal.
The struggle
On Aug. 28, 2020, two vehicles — an Infiniti and a Nissan Altima — pulled over on a residential street in northwest Calgary. The Infiniti was behind the Altima, which contained the three victims.
Inside the Infiniti was Dennis Wong, a man named “Jordan,” and the unidentified shooter.
The video shows Jordan walking over to the Altima, sitting in the back seat with the door ajar and chatting with the victims.
A man can be seen getting out of the Infiniti and riffling around in the trunk before grabbing a Walmart bag, which contained the gun.
At some point, Shaikh got out of the Altima and tried to close the back door on Jordan, who pushed his way out of the car. The two men struggled with each other.
The killer then ran up to the Altima, shooting Shaikh in the back twice before firing at the others who were inside the car.
The trial judge found there was no reasonable likelihood that someone else who resembled Benn could have been the shooter given the fact that the accused’s fingerprints and DNA were found at the scene of the crime.
“We disagree,” wrote the court of appeal.
“Properly considered, the totality of the evidence at trial should have left the trial judge with reasonable doubt that the appellant was the shooter.”
