Court of Appeal for Ontario
Date: 2025-07-10
Docket: C70478
Coram: Pepall, Harvison Young and Sossin JJ.A.
Between:
His Majesty the King (Respondent)
and
Heeralall Ramdeo (Appellant)
Appearances:
Paul J.I. Alexander, for the appellant
Meghan Tait, for the respondent
Heard: December 5, 2024
On appeal from the convictions entered by Justice Kofi N. Barnes of the Superior Court of Justice on March 9, 2021, with reasons reported at 2021 ONSC 1784.
Reasons for Judgment
Introduction
1This appeal arises from the abduction and serious assault of the complainant, Dharwant Singh Gill (“Sonu”). It was uncontested that on December 11, 2015, kidnappers abducted and beat Sonu before he ultimately escaped from the trunk of the kidnappers’ car. The question at trial was whether the Crown had established the involvement of the appellant, Heeralall Ramdeo (“Rocky”), in the kidnapping. Following a 12-day judge-alone trial, the appellant was found guilty of the following charges contrary to the Criminal Code, RSC 1985, c C-46: kidnapping (s. 279(1)(a)), use of an imitation firearm to commit an assault (s. 267(a)), and possession of an imitation firearm for a purpose dangerous to the public peace (s. 88(1)).
2The appellant submits that the trial judge erred by relying on the evidence of Sonu (a Vetrovec witness) to corroborate his own evidence, failing to apply the W.(D.) standard, and misapprehending the evidence and subjecting it to uneven scrutiny. For the following reasons, I would dismiss the appeal.
The Facts
3The following facts were not controversial and form the context for the evidence relating to the appellant’s involvement in the kidnapping.
4On December 7th, 2015, a man rented a grey Hyundai with a Manitoba license plate from Sky Car and Truck Rentals in Vaughan. A few days later, on December 11, 2015, the grey Hyundai was used to kidnap Sonu. That same day, Sonu was able to escape his captors by exiting from the trunk of the grey Hyundai on the shoulder of Highway 400.
5The grey Hyundai drove away after Sonu’s escape and Sonu was left walking across five lanes of live traffic towards the passing lane just before the Steeles Avenue exit ramp. Shortly thereafter, a GO Bus driver saw Sonu on the shoulder of the highway and stopped the bus. Sonu was distraught and bleeding. The bus driver called emergency personnel to tend to the situation.
6On December 14, 2015, the grey Hyundai was returned to the car rental company outside of regular business hours. Rocky was arrested that same day.
The Evidence at Trial
(1) Sonu’s Evidence
7Sonu had a significant criminal record for crimes of dishonesty. At trial, he denied being a drug dealer or user but readily acknowledged his involvement in several multi-million dollar trailer heists.
8On December 11, 2015, Sonu took his son and niece to Kennedy Mall to spend time at the playground. He called his friend to come watch the children so he could get them some food nearby. Some time later, Sonu’s friend arrived to watch the children and Sonu left the play area to head to his parked van. According to Sonu, he was driving his friend Paul’s van that day. As he approached the parked van, he was attacked and forced into the back seat of a car by three men. The attackers tied Sonu’s hands, put a cover over his face, and pushed his head down so that he was unable to see his surroundings. At that time, he did not recognize their voices and the men wore masks.
9The car was eventually driven out of the shopping center parking lot and stopped at a gas station. En route, Sonu tried to escape but one of the men threatened him that if he continued, he would be killed. Once at the gas station, Sonu’s evidence was that he overheard one of the men outside the car say, “Rocky, we have picked up Sonu”.
10After a few minutes, the car left the gas station and proceeded to the highway. Once on the highway, Sonu attempted to escape again, but was met with a similar threat. Eventually, the attackers drove Sonu to an area he described as a jungle. In the jungle, Sonu tried to escape again, but his attackers stopped him and proceeded to beat him. Despite this, Sonu attempted to escape a second time in the jungle and managed to exit the car and run. Sonu said that he heard Rocky’s voice instruct the men to chase after him, which they did before eventually catching him. He was beaten and placed in the trunk of the car. Moments later, Rocky threatened Sonu with what looked like a gun before proceeding to close the trunk and returning to the highway.
11While on the highway, Sonu was able to open the trunk, put his legs over the edge of the car, and begin waving at other motorists. The car pulled over and one of the men pushed him back in the trunk before speeding off again. Sonu managed to open the trunk again, this time jumping out onto the road. He crossed the highway and was able to wave down a bus.
12Sonu obtained several injuries from the beatings and the impact of hitting the ground when jumping out of the car. He said that the men in the car threatened to kill him with a gun several times during this encounter.
13At some point during the kidnapping, when Sonu was in the trunk of the car in the jungle, he testified that he saw Rocky. Sonu and Rocky had met several times before. According to Sonu, Rocky and Sonu’s friend Paul sold drugs together. Rocky would supply Paul with drugs and Paul would give money to Rocky. Sonu insisted he was never involved in the drug transactions and was merely a bystander.
14On Sonu’s evidence, Rocky arranged for his kidnapping because Paul stole approximately 20 to 25 kilograms of cocaine from him. Sonu was to help Paul arrange for the drugs to be transported to Vancouver by truck, but this arrangement never came to fruition.
(2) Rocky’s Evidence
15In 2015, Rocky ran an auto-collision shop. He recalled meeting Sonu about seven times and had seen him use drugs on a few occasions.
16As previously mentioned, Rocky was involved with drug dealing. With regard to the particular drug transaction giving rise to the underlying offences, Paul approached Rocky to purchase drugs. Rocky obtained the drugs from a supplier named Kasheev and gave them to Sonu and Paul. Sonu was to help arrange for the drugs to be transported to Vancouver in a tractor-trailer load of ice cream. That did not happen, however, and Paul and the drugs disappeared. Kasheev demanded payment for the drugs from Paul, Sonu, and Rocky. Rocky made regular payments. The others did not.
17By the fall of 2015, Rocky was in financial difficulty and had not repaid the entire debt. On a number of occasions, Rocky attempted to meet with Sonu to obtain payment. At one point, Sonu was at a gas station in Rocky’s neighbourhood. Sonu stated that Rocky tried to touch his steering wheel and take the keys out of the ignition of his car. Rocky denies this characterization of events and said that he merely went to speak to Sonu. In cross-examination, Rocky conceded that Sonu never made any promises to repay the debt, and that it was Paul who promised to pay the balance.
18Ultimately, Rocky denied any involvement in Sonu’s abduction. The extent of his participation was renting a car for Kasheev’s henchmen, but he claimed that he did not know why the rental car was needed.
The Decision Below
19The Crown’s central theory at trial was that Sonu was targeted by the appellant after a plan to transport $1.5 million worth of cocaine to Vancouver went awry. The drugs, which had been given to Paul, went missing and Paul could not be located. Rocky, under pressure to pay for the drugs from Kasheev, had been making payments but was running out of money. Rocky believed that Sonu knew where Paul could be found, which gave rise to his kidnapping.
20On the defence’s theory, Rocky recognized his role in the drug deal, but insisted that he had nothing to do with the kidnapping and denied being present for any part of the ordeal. While he acknowledged renting the car that was used, Rocky framed it as a small favour because he owed Kasheev a large sum of money. He insisted that he did not know what the car was being used for.
21The central witness for the Crown was Sonu himself. As I will review below, the problem was that it was common ground that Sonu was a Vetrovec witness. Sonu testified and was cross-examined at length. After reviewing his evidence in considerable detail, the trial judge stated as follows:
[Sonu’s] testimony is central to the prosecution’s case. His testimony was full of inconsistencies. His memory seemed to improve with time. He has previous convictions for offences of dishonesty. He described a drug scheme involving Paul and Rocky and offered it as motive for Rocky’s involvement. He was involved at least initially in that transaction. He has a motive to fabricate and to be dishonest. Therefore, I approach his evidence with extreme caution. I treat him as a Vetrovec witness. [Footnotes omitted.]
22Nevertheless, the trial judge accepted Sonu’s evidence in part and found that his evidence of the kidnapping and Rocky’s involvement was confirmed by external evidence. This external evidence includes the fact that Sonu’s DNA was found on the latch of the car that Rocky rented days before the kidnapping, Sonu’s DNA was found on plastic ties that were used to bind his hands on the highway, highway cameras showing Sonu walking across the highway, cell tower evidence that placed Rocky in the area where the kidnapping took place, and evidence of a motorist travelling on the same highway whose testimony supported aspects of Sonu’s evidence at trial.
23The trial judge rejected Rocky’s testimony, finding it “fantastic and unreasonable.” He ultimately concluded that, alone or cumulatively, it did not raise a reasonable doubt.
24Ultimately, the trial judge relied on Sonu’s evidence, though not exclusively, in convicting the appellant of kidnapping, use of an imitation firearm to commit an assault, and possession of an imitation firearm for a purpose dangerous to the public peace. He was sentenced to six-and-a-half years in custody.
Issues
25At the judge-alone trial, the main issue was whether the trial judge erred in relying on Sonu’s evidence to establish that the appellant was one of the parties involved in the kidnapping. The appellant raises a number of related grounds of appeal. First, he submits that the trial judge erred in allowing the complainant, a Vetrovec witness, to corroborate himself. Second, he submits that the trial judge failed to apply W.(D.). Third, he argues that the trial judge applied uneven scrutiny and misapprehended the evidence. I will address each issue below.
(1) Did the Trial Judge Err in Allowing the Complainant, a Vetrovec Witness, to Corroborate Himself?
26It is trite law that the evidence of an unsavoury witness requires special consideration when it plays an important role in the proof of guilt: see R. v. Sauvé, para 76, leave to appeal refused, [2004] S.C.C.A. No. 246. Aligned with the Supreme Court’s guidance in R. v. Vetrovec, the evidence of certain kinds of witnesses attracts risks that require the trier of fact to carefully examine the trial record for confirmatory evidence: see R. v. Stevenson, 2024 SCC 41; R. v. Fuller, 2021 ONCA 888, para 19. The rationale for seeking confirmatory evidence is that, because the witness has “good reason to lie”, other evidence may be useful in convincing the trier of fact that they are telling the truth: Vetrovec, at p. 826. This court in R. v. Roks, 2011 ONCA 526, para 63 provided the following guidance:
The trier of fact is to look for confirmation from some other source (the independence requirement) that the suspect witness is telling the truth in some part of his story that goes to show that the accused committed the offence charged (the implicative quality or materiality requirement). [Citations omitted.]
27There was no dispute that Sonu was a Vetrovec witness. While the trial judge did ultimately accept parts of Sonu’s evidence, he approached his evidence with “extreme caution” and careful scrutiny. He rejected various parts of Sonu’s evidence, for example, that he had actually seen Rocky in the jungle. However, the trial judge accepted other parts of his evidence, including that he recognized Rocky’s voice in the jungle. The trial judge ultimately concluded that while Sonu’s account of statements he attributed to Rocky were not verbatim, they nonetheless accurately conveyed the substance of what was said to Sonu during the kidnapping. Sonu’s extensive familiarity with Rocky’s voice combined with the ample opportunity he had to listen to the voice during the kidnapping contributed to the trial judge’s satisfaction that Sonu accurately identified Rocky’s voice.
28The appellant argues that a trial judge should not accept the uncorroborated evidence of a Vetrovec witness, though I note, parenthetically, that the trial judge did seek and find evidence that was confirmatory of material elements of Sonu’s testimony. The appellant’s argument is not an accurate statement of the law. In Roks, Watt J.A. offered the following clarification at para. 66:
It is worth reminder that a trier of fact is entitled to convict on the evidence of a Vetrovec witness in the absence of confirmatory evidence where the trier of fact, cautioned about the danger of doing so, is satisfied that the witness is telling the truth. [Citations omitted.]
29Undoubtedly, the trier of fact is required to carefully scrutinize such evidence, which he did. It is evident that the trial judge was alive to the notion that “triers of fact will not lightly accept unsupported assertions by a disreputable or unsavoury witness where nothing but the word of that witness implicates the accused in the commission of the crime charged”: R. v. Kehler, 2004 SCC 11, para 17.
30In addition, I do not agree that the trial judge relied on Sonu’s evidence to “self-corroborate”. He considered much evidence that was independent of Sonu, such as evidence that the appellant leased the Hyundai that was used to kidnap Sonu. The appellant himself admitted this, although he claimed he was not doing it to facilitate Sonu’s kidnapping, but because he was asked to do so by one of Kasheev’s “muscle” men to whom he felt indebted. The trial judge also considered other evidence, including that of a motorist on the highway, whose description of a man waving his hands in the trunk of a car was consistent with Sonu’s evidence. The highway cameras also captured Sonu walking across the highway. There was also the evidence of the bus driver who was flagged down by Sonu. In addition, the trial judge also considered cell phone evidence that placed the appellant’s cell phone within the coverage areas at the relevant times. In the end, the trial judge did as he was entitled to: he accepted some, but not all of Sonu’s evidence. He accepted the key identification evidence, but did so after considerable scrutiny and finding that a number of pieces of other evidence, independent of Sonu, were confirmatory in nature. I see no error on the trial judge’s part.
(2) Did the Trial Judge Err by Failing to Apply the W.(D.) Standard?
31There is no merit to the submission that the trial judge failed to apply the standard set out in R. v. W.(D.). Trial judges are presumed to know the law and, specifically, to “know a principle as elementary as the presumption of innocence”: R. v. C.L.Y., 2008 SCC 2, para 10. The case law is unequivocal that “[t]he approach set out in W.(D.) is not a sacrosanct formula that serves as a straitjacket for trial courts”: R. v. Boucher, 2005 SCC 72, para 29. Put differently, trial judges do not need to recite the W.(D.) procedure verbatim, “[t]he key is whether the correct burden and standard of proof were applied, not what words were used in applying them”: C.L.Y., at para. 7.
32After reviewing the appellant’s evidence, the trial judge rejected the contention that the appellant was not involved in the kidnapping. The trial judge also found that Rocky’s evidence did not raise a reasonable doubt as to his involvement. In the context of assessing Rocky’s credibility, the trial judge stated the following: “Any of these circumstances, alone or cumulatively, leads me to conclude that Mr. Ramdeo’s testimony is fantastic and unreasonable. I reject it and conclude that it does not raise a reasonable doubt.” In short, he explicitly rejects the appellant’s evidence and offers an explanation for doing so, as he was entitled to do.
33The trial judge then reviewed all the evidence before him to conclude that a conspiracy to kidnap Sonu was proved beyond a reasonable doubt and that Rocky was a probable member of that conspiracy. He relied on Sonu’s evidence recounting the substance of what the co-conspirators said during the kidnapping, Sonu’s recognition of Rocky’s voice, data from the cell towers placing Rocky in the vicinity of the kidnapping at the relevant time, some of Rocky’s evidence that confirmed some of Sonu’s evidence, and other external evidence. On the basis of all the evidence, the trial judge found that the Crown established beyond a reasonable doubt that the appellant was one of Sonu’s kidnappers. The trial judge made careful and reasoned findings at each step, including that some of Sonu’s evidence was inconsistent and embellished. He was entitled to make such findings and they are owed deference on appeal.
(3) Did the Trial Judge Apply Uneven Scrutiny and Misapprehend the Evidence?
34In arguing that the trial judge misapprehended the evidence and applied uneven scrutiny to it, the appellant emphasized that the trial judge accepted the core testimony of the complainant, a Vetrovec witness, despite having enumerated a “29-paragraph list of reasons to doubt him.” By contrast, he submits that the uneven scrutiny is exemplified by the trial judge’s rejection of the appellant’s evidence explaining his cell phone activity placing him in the general area of the mall at the time of the kidnapping even after finding that it could reasonably be true. As the appellant submitted, there were other explanations for his presence near the mall, including general proximity to his place of work and residence. The appellant’s evidence was, unlike the complainant’s, internally consistent and uncontradicted by any independent evidence apart from that of the complainant. Moreover, he submits that the trial judge gave slim reasons for believing Sonu, and misapprehended the appellant’s evidence, particularly on the issue of whether he was under financial pressure from Kasheev, which played a key role in the verdict. Cumulatively, the crux of the appellant’s argument is that the trial judge’s misapprehension of his evidence formed part of the foundation for applying uneven scrutiny. I do not agree.
35First, I do not agree that the trial judge misapprehended the appellant’s evidence. The test to establish a misapprehension of evidence as a ground of appeal is difficult to meet. The law on the misapprehension of evidence is aptly summarized in R. v. Doodnaught, 2017 ONCA 781, paras 71-72, citing R. v. Morrissey:
A misapprehension of evidence may involve a failure to consider relevant evidence; a mistake about the substance of evidence; a failure to give proper effect to evidence or some combination of these failings. To succeed before an appellate court on a claim of misapprehension of evidence, an appellant must demonstrate not only a misapprehension of the evidence, but also a link or nexus between the misapprehension and the adverse result reached at trial.
To determine whether an appellant has demonstrated that a misapprehension of evidence has rendered a trial unfair and resulted in a miscarriage of justice, an appellate court must examine the nature and extent of the misapprehension and its significance to the verdict rendered by the trial judge in light of the fundamental requirement of our law that a verdict must be based exclusively on the evidence adduced at trial. The misapprehension of evidence must be at once material and occupy an essential place in the reasoning process leading to the finding of guilt. [Citations omitted.]
36In describing the stringent standard set out in Morrissey, the Supreme Court in R. v. Lohrer, 2004 SCC 80, para 2, noted that:
The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”.
37The appellant takes issue with the following portions of the trial judge’s reasons:
In the face of the plain and obvious financial crisis with impacts on his professional and family life, he was facing financial ruin, his assertion that he was not under pressure or tension at the Weston Road meeting, does not ring true. It simply makes no sense. 1.5 million dollars worth of cocaine had gone missing. Mr. Ramdeo was facing pressure to pay it back.
He said he paid his half of the debt. Despite this, Kasheev wanted him to pay more. Despite his own description of the financial pressure on him, he resisted the prosecution’s suggestions that he was feeling financial pressure from Kasheev to pay the debt. Paul was evading Mr. Ramdeo and was not forthcoming with promises to make payments towards the debt. [Emphasis added.]
38The appellant took us to various parts of the transcript to support his argument that the trial judge misapprehended the evidence because the appellant had not disputed that he was under pressure from Kasheev. For example, on cross-examination, the appellant made the following observations:
Q. Okay; and was there some tension at that meeting [with Paul]?
A. No. He said he’s going to pay, just give him some more time.
Q. Yes.
A. Yeah.
Q. There was some tension, wasn’t there, Mr. Ramdeo?
A. Not necessarily tension. Not from – not from Paul and me, but from the other people who were trying to collect.
39However, when read as a whole, the transcript supports the trial judge’s conclusion that Rocky was resistant to suggestions that he was facing financial pressures. Though the appellant admitted to feeling pressure from Kasheev, but not from Paul, to repay the debt, it was still open to the trial judge to disbelieve the appellant because of his resistance to suggestions of financial pressure. It is clear that the trial judge turned his mind to the appellant’s “own description of the financial pressure on him”, but determined he was unbelievable nonetheless. The appellant minimized the financial pressure he was under. The trial judge’s assessment of the appellant’s credibility was influenced by his finding on this issue, and it was open to him on the record.
40Second, I do not believe there is any basis for the argument that the trial judge applied uneven scrutiny to the appellant’s evidence. This is a notoriously difficult argument to prove: see R. v. G.F., 2021 SCC 20, para 99. This is because “a trial judge’s credibility determinations are entitled to a high degree of deference, and courts are justifiably skeptical of what may be veiled attempts to have an appellate court re-evaluate credibility”: R. v. Kiss, 2018 ONCA 184, para 83, citing R. v. D.T., 2014 ONCA 44, paras 71-73; R. v. Aird, 2013 ONCA 447, para 39. It is not sufficient to show that a different trial judge could have reached a different credibility assessment, that a trial judge failed to say something when assessing respective credibility, or that a trial judge failed to set out the legal principles relevant to the credibility assessment: R. v. Howe, para 59. Success requires the appellant to show something in the reasons or elsewhere in the record that makes it clear the trial judge applied different standards in assessing the evidence: Howe, at para. 59.
41I do not believe the appellant has met the strict standard required to succeed on this ground of appeal. The trial judge gave detailed reasons for his credibility findings and the appellant has not shown any palpable or overriding errors. In his reasons, the trial judge accepted parts and rejected some parts of Sonu’s evidence, found parts of Rocky’s evidence to be unbelievable, and concluded that there were pieces of external evidence that supported Sonu’s evidence and contradicted Rocky’s. Conducting such an assessment does not mean the trial judge applied uneven scrutiny. The appellant’s argument ultimately rests on the assertion that his evidence “was internally consistent and was not contradicted by any independent evidence”. This position, however, does not account for external evidence the trial judge accepted.
42In short, the trial judge’s conclusions were well-grounded in the evidence, particularly when read as a whole. This exemplifies the reason for a high degree of deference to a trial judge’s credibility findings. Assessing credibility is a difficult task that requires trial judges to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”: R. v. Gagnon, 2006 SCC 17, para 20. Our law recognizes that trial judges are “uniquely positioned to assess credibility and reliability of witnesses”: R. v. A.B., 2023 ONCA 254, para 3, citing R. v. G.F., 2021 SCC 20, paras 69, 76-82, 81. This is because trial judges are finders of fact that have the “benefit of the intangible impact of conducting the trial”: G.F., at para. 81. All in all, the trial judge’s reasons for disbelieving the appellant’s evidence were open to him on the record before him.
43In addition, the trial judge’s treatment of the cell phone evidence which places the appellant’s phone in the general vicinity of the kidnapping was only one aspect of the trial judge’s reasons for rejecting Rocky’s evidence and finding that it did not give rise to reasonable doubt.
44In short, the trial judge carefully reviewed the evidence and scrutinized it in its entirety, finding that the Crown established Rocky’s involvement beyond a reasonable doubt, and there is no merit to the submission that the trial judge misapprehended the evidence and applied uneven scrutiny to it.
Disposition
45For these reasons, I would dismiss the appeal.
Released: July 10, 2025
“S.E.P.”
“A. Harvison Young J.A.”
“I agree. S.E. Pepall J.A.”
“I agree. L. Sossin J.A.”
1The appellant abandoned his sentence appeal during oral argument.