COURT FILE NO.: CR-17-00000463 DATE: 2021 03 09 AMENDED DATE: 2021 03 11
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN J. Prenger, for the Crown
- and -
HEERALAL RAMDEO A. Newman, for Heeralal Ramdeo
Heard: October 19-23, 26-29, November 27 and December 4 & 9, 2020
REASONS FOR JUDGMENT [1]
BARNES J.
INTRODUCTION
[1] Mr. Heeralall Ramdeo was convicted after a judge alone trial of kidnapping, contrary to s. 279(1)(a) of the Criminal Code; use of an imitation firearm to commit an assault, contrary to s. 267(a); possession of a weapon an imitation firearm for a purpose dangerous to public peace, contrary to section 267(a). The offence date was December 11, 2015 in the City of Brampton. The victim was Dharwant Gill.
BACKGROUND FACTS
Some Agreed Facts
[2] The parties agreed on several agreed facts, which include that on December 7th, 2015, a man rented a grey 2011 Hyundai Sonata four door vehicle, with Manitoba license plate HD 281 from Sky Car and Truck Rentals in the City of Vaughan.
[3] On December 11, 2015, the Hyundai was used by some people to kidnap Mr. Dharwant Singh Gill. Mr. Gill is also known as Sonu. Mr. Gill escaped his captors on the same day by exiting from the trunk of the Hyundai Sonata. Forensic testing found Mr. Gill’s DNA on the interior trunk lid latch of the Hyundai.
[4] Mr. Ramdeo’s place of business was R.F. Auto Collison located at 7089 Torbram Road, Unit 7, Mississauga. On May 29, 2015, police executed a search warrant at this premises and located 56 cases of Fireball Whiskey worth $13,140.00. Some illegal narcotics were also found. In relation to the whiskey, Mr. Ramdeo was charged with possession of property obtained by crime of a value exceeding $5,000.00, contrary to section 354(1)(a) of the Criminal Code of Canada. This charge was ultimately stayed on April 11, 2016. Police could not establish that Mr. Ramdeo was in possession of the drugs.
[5] Northbound on the 400, after the Finch Avenue exit there is an exit ramp which splits into the westbound and east bound 407 ramps. Shortly after this exit, is the Steeles Avenue ramp. The next exit is the exit to Highway 7. On December 11th, 2015 at 9:11:58 p.m. a Ministry of Transportation of Ontario (MTO) camera captured a vehicle pull off to the side of the northbound 400, just before the Steeles Avenue exit. After a short period, the vehicle is depicted returning to the highway and driving off.
[6] Shortly, thereafter at 9:11:58, Mr. Gill is seen walking from the grassy shoulder of the highway and crossing 5 lanes of live traffic towards the fast lane of the northbound highway just before the Steeles exit. Mr. Gill successfully walked across the highway. Shortly, thereafter, a GO Bus driven by Hisham Kombargi stopped in the fast lane of the 400, near Mr. Gill.
[7] Mr. Kombargi stopped the bus because he saw Mr. Gill on the shoulder. Mr. Gill was distraught. He was bleeding. He was not wearing any shoes. From observing Mr. Gill’s movements, Mr. Kombargi concluded that Mr. Gill’s hand was broken. Mr. Kombargi informed Go Dispatch and emergency personnel were called to the scene.
[8] Constable Deol was one of the police officers on scene and took a statement from Mr. Gill. Emergency personnel remained at the scene until at least 9:30 p.m. Detective Constable King took a statement from Mr. Gill at the hospital. Constable Deol assisted with translation from Punjabi.
[9] Mr. Gill’s spouse said she called Mr. Gill 10-15 times shortly after he was abducted. She said she accidently deleted those messages and call logs.
[10] On December 12, 2015, Mr. Gill gave a video recorded statement to the police. Thereafter, Detective Constable Jeff Davis drove Mr. Gill to a few locations in search of evidence. Mr. Gill told DC Davis to stop just before the exit to Highway 7 or Langstaff road off the 400 northbound highway. On the paved shoulder, D.C. Davis, found a broken zip tie. Forensic testing found Mr. Gill’s DNA at two locations on the zip tie.
[11] The Hyundai vehicle was returned to Sky Car and Truck rentals on, December 14, 2015, outside their business hours. The vehicle’s keys were left in the designated drop box. Mr. Ramdeo was arrested on December 14, 2015, at his place of work at 10:22 a.m.
Nicknames
[12] It is not disputed that Mr. Gill is also known as Sonu and Mr. Ramdeo is also known as Rocky.
Crown Theory
[13] The Crown theory is that Mr. Ramdeo was the mastermind of the kidnapping of Mr. Gill in order to find Mr. Gill’s friend Paul. Paul had stolen drugs that Mr. Ramdeo gave him to sell. Paul had disappeared. Mr. Ramdeo could not find Paul, so he arranged for Mr. Gill to be kidnapped so that he could find Paul and collect payment for the drug debt.
[14] Mr. Gill alleges that Mr. Ramdeo was present and actively participated at crucial times during his kidnapping. Evidence relied upon by the Crown include Mr. Gill’s account of hearsay statements of alleged co-conspirators of Mr. Ramdeo, Mr. Gill’s familiarity with Mr. Ramdeo’s features and voice. As well as Mr. Gill’s alleged recognition of Mr. Ramdeo’s face and voice at one of the scenes of Mr. Gill’s kidnapping.
Defence Position
[15] Mr. Ramdeo insists he was not involved. He was no where near any of the kidnaping scene. He had no prior knowledge of the plan to kidnap Mr. Gill. He had no interest in the kidnapping and referred to several inconsistencies and embellishment in Mr. Gill’s testimony. He submits that Mr. Gill is an unsavoury witness. His evidence should be rejected outright. Crown has failed to discharge its onus of proof and all charges against him should be dismissed.
Legal Principles
[16] Statements of co-conspirators made in furtherance of a conspiracy are hearsay and presumptively inadmissible against a defendant, however, if certain preconditions are satisfied, these statements are admissible under the co-conspirators exception to the hearsay rule: R. v. Carter, 67 C.C.C.(2d) 568.
[17] The preconditions for admissibility involve three steps set out in R. v. Carter, 67 C.C.C.(2d) 568. Each step must be answered in the affirmative before moving on to the next step.
As a first step, the existence of a conspiracy must be proved beyond a reasonable doubt.
If proof beyond a reasonable doubt is established, the second step requires an assessment of the accused’s own acts or declarations, to determine if, on a balance of probabilities, the accused is probably a member of the conspiracy.
If the second step is satisfied, then at the third step, the statements of the co-conspirators can be considered to determine whether it has been proven beyond a reasonable doubt that the accused is a member of the conspiracy.
[18] As a general rule, evidence of prior discreditable conduct is inadmissible. There is a danger that the trier of fact will use such evidence to conclude that the accused is a bad person and reject evidence that may otherwise raise a reasonable doubt: R. v. Bhular, (2011) 280 C.C.C (3d).
[19] In this case, the parties have agreed that evidence of Mr. Ramdeo’s previous arrest is admissible for the limited purpose of establishing some timelines for the events leading up to the kidnapping of Mr. Gill.
[20] Mr. Gill and Mr. Ramdeo have met and interacted with each other on at least seven occasions. Initial contact was through Mr. Gill’s friend Paul. Mr. Gill identification of Mr. Ramdeo as the mastermind of his kidnapping is based on Mr. Gill’s familiarity with Mr. Ramdeo’s voice and facial features. Thus, Mr Gill’s evidence is based on his alleged recognition of Mr. Ramdeo’s facial features and voice at the scene of the crime. Recognition evidence is simply a form of identification evidence and is subject to the same inherent frailties and risks and requires the same degree of assessment by the trier of fact: R. v. M.B. 2017 ONCA 653; R. v. Chafe, 2019 ONCA, 113.
[21] The presence or absence of a motive can be considered together with other evidence, to determine whether the prosecution has proven the case against an accused beyond a reasonable doubt: R. v. Lewis, [1979] 2 S.C.R. 821. In this case, the prosecution alleges that Mr. Ramdeo’s motive in kidnapping Mr. Gill was to find Paul in order to secure payment for a drug debt.
[22] Kidnapping contrary to s. 279(1): the prosecution must prove beyond a reasonable doubt that Mr. Ramdeo alone or with the assistance of others intentionally, took control of Mr. Gill against his will and moved him to a place or places he did not wish to be: R. v. Vu, (2012) 2 S.C.R.
[23] Knowingly uttering a threat to cause death or grievous bodily harm contrary to s. 264.1(1)(a): the prosecution must prove that Mr. Ramdeo uttered a threat to Mr. Gill to cause him death or bodily harm and that it was Mr. Ramdeo’s intent to threaten Mr. Gill: R. v. McRae, 2013 SCC 68.
[24] Assault with a weapon (an imitation firearm) contrary to s. 267(a): the prosecution must prove beyond a reasonable doubt that Mr. Ramdeo intentionally applied force against Mr. Gill; that the force was applied without Mr. Gill’s consent and that Mr. Ramdeo used an imitation firearm in applying the force: R. v. Rowe, 100 C.C.C. 97.
[25] Possession of a weapon, to wit an imitation firearm for a purpose contrary to the public peace, contrary to s. 88(1): the prosecution must prove that Mr. Ramdeo was in possession of an imitation firearm; his intent was to carry out the kidnaping of Mr. Gill and that Mr. Ramdeo’s purpose was dangerous to the public peace: R. v. Kerr, 2004 SCC 44, [2004] 2 S.C.R. 371.
The complaint
Mr. Gill (Sonu)
[26] Mr. Gill said on December 11, 2015, after school around 3:30 p.m., he arrived at Kennedy Mall in Brampton. He had his son and niece with him. The children wanted to play at Kiddy Land. He said there is an admission fee of 7 or 8 dollars and a dedicated play area for the children. He said at some point, his children wanted some food.
[27] Mr. Gill has convictions for several crimes of dishonesty. He said he had three phones on him that day. One phone he used for criminal activity; another, phone he used to call his girlfriend; another, he used to call his wife and for day to day legitimate activities. He used this phone to call his friend Mr. Aulakh to come and watch the children so that he could go to McDonalds, located close to but not in the mall. He was also contemplating whether he should leave the children with Mr. Aulakh to go and see his lawyer about some pending charges. He told the security guard he would be back in five minutes and went to meet Mr. Aulakh at a door to the mall.
[28] Mr. Gill said Mr. Aulakh arrived at about 5:30 p.m. After a quick handshake, Mr. Aulakh went to watch the children and Mr. Gill went to his parked van. Mr. Gill was driving his friend Paul’s van that day. Mr. Gill said he unlocked the driver’s side door, someone called out his name from behind and hit him on the head. He said he was attacked by three random men. He was beaten. One of his arms slipped out of it’s joint. He said he blacked out momentarily and the men pushed him into the back seat of a vehicle.
[29] The men tied his hands, put a covering over his face and pushed down his head such that he could not see around him. He did not recognise the men’s voices at that time and the men wore masks. The men took his phone, shoes money and everything. He said there was the driver, a muscular front seat passenger and an overweight back seat passenger. The vehicle was driven out of the parking lot and stopped at a gas station. Mr. Gill estimated that this was between 5:30 p.m. and 6:00 p.m.
[30] Mr. Gill said on route, he tried to open the back-passenger door and was told that the man seated at the back told him that if he continued his efforts he would be killed. He said also on route, the front passenger called someone and said, “we got “Sonu” and then asked where they should go next.
[31] At the gas station, the front passenger, got out of the vehicle and spoke to someone on the phone. He said that he overheard the front passenger say, “Rocky, we have picked up Sonu”. He speculated that the front seat passenger was receiving instructions. Later on, in his testimony, Mr. Gill said a car window was down and he overheard the driver mention the name “Rocky” and say, “we got Sonu”. He said the driver was receiving instructions on what to do.
[32] Mr. Gill said the stop lasted 5 to 7 minutes. Mr. Gill provided two locations for the gas station. One location was provided in his statement to the police. A few weeks before trial he changed it to another location.
[33] Mr. Gill said after 5 to 7 minutes, they left the gas station and he was driven slowly to the highway. While on the highway, he tried to open his passenger door and the man in the back seat pressed a gun at his side and told him that if he tried to get away, he will be shot. He said the man in the front passenger seat told the man in the back seat to shoot Mr. Gill if he tried to run away.
[34] Mr. Gill said that later, he managed to see the front passenger’s face. He recognised him. He said he had seen this man at the accused’s shop. He said the accused is known as “Rocky”. Mr. Gill said Rocky and Mr. Gill’s friend Paul worked together selling drugs. He said Rocky will give drugs to Paul. Paul will sell the drugs and give the money to Rocky. Mr. Gill said he knew Rocky well. He said Rocky used to visit Paul at his condo to conduct the drug transactions. He said he and Paul will on occasion go to Rocky’s shop to receive the drugs. He insisted that he was just a bystander. All the drug transactions were between Paul and Rocky. He said he told Rocky that he was a trailer thief not a drug dealer.
[35] Mr. Gill said Rocky orchestrated the kidnapping because Paul stole 20 to 25 kilograms of drugs from Rocky and Rocky could not find Paul. Mr. Gill said Paul was to arrange for the drugs to be delivered to Vancouver by truck. Mr. Gill knew a truck driver, so Paul asked him to arrange the delivery of the drugs. Mr. Gill said two weeks elapsed and he could not arrange the delivery to Vancouver.
[36] Rocky thought the drugs were stolen, so Rocky and Paul came to see the drugs, so Rocky could satisfy himself that the drugs were still there. Mr. Gill said after that he was out of the deal. He would have benefited if he had been able to transport the drugs, but he was not able to do so. It was now between Rocky and Paul.
[37] Mr. Gill said Mr. Ramdeo and Paul had meetings about this dispute. On one occasion, they met at Mr. Ramdeo’s shop to discuss the issue. He said he was never involved. It was between Mr. Ramdeo and Paul, who each brought lots of guys to the meeting. He said at the meeting Paul clarified that Mr. Gill had nothing to do with the deal. He said Paul lied and said the drugs had been confiscated by the police. Mr Gill said Paul and Mr. Ramdeo had another meeting to discuss the dispute at Weston Road. Paul invited him to attend but he refused.
[38] Mr. Gill testified that, one night three weeks before he was abducted, he drove Paul’s van and parked at a gas station. Paul was in India. Mr. Ramdeo ran to him, held the steering wheel, held him, asked for Paul and threatened to call “his guys” to intimidate him. He said Mr. Ramdeo tried to remove the keys from the ignition. Mr. Gill said he managed to drive away.
[39] Mr. Gill estimated that on December 11, 2015, it took 3 to 5 minutes for his captors to drive from the gas station to the highway. He said his captors asked him “who did Paul give the 20 kilograms of drugs to? What happened to that?” He said he was questioned for about half hour to 40 minutes on route. He said he told his captors that his children were at a mall and he needed to call his wife to pick them up. He gave his captors his wife’s phone number and the front passenger driver pretended to call his wife and give her the message. He said his captors drove him to a jungle.
[40] In the jungle, he was kept in the car for about 5 to 10 minutes, with his face held down. Mr. Gill said he saw another car arrive. His captors left him alone in their vehicle and went to meet the person who came in the other vehicle. While alone, he managed to break the ties binding his hands, he began to search for a way out. He tried to open the car door and window. He searched the front seats. He found a phone in the pocket of a jacket behind the driver’s seat. He tried to activate the phone, his captors noticed and returned to the car, beat him and tied his hands.
[41] His captors threatened him that if he ran, they will kill him. His captors told him to keep his head down. After his captors left once again, he broke the ties binding his hands, he waited for 2 or 4 minutes, he began looking for the car key. The back doors were locked. He was able to open the driver side door, got out and started running into the jungle. He said he heard them say “he escaped” and someone said, “go and get him”. Mr. Gill said that was Mr. Ramdeo’s voice. The person who said those words was Mr. Ramdeo. Mr. Gill knew Rocky well. He knew Rocky’s voice well. He said over a four to five-month period he and Paul went to Rocky’s shop and spoke to him frequently.
[42] Mr. Gill said the driver, front and back passengers caught up with him, beat him, threatened him and brought him back to the vehicle, placed a cloth mask over his head, tied his hands and legs and placed him in the trunk. His captors did not close the trunk properly. It appeared to him that the car was facing a different direction.
[43] Mr. Gill said the trunk was opened, the mask was not placed over his head properly, and he saw Rocky’s face. Mr. Gill said Rocky “arrived” 10 minutes after he had been placed in the trunk. Rocky was looking down at him, he took a baseball bat from the backseat passenger, came closer and took a step back and told the backseat passenger that Mr. Gill was not wearing a mask. Mr. Gill said that Rocky hit him in the stomach with the baseball bat asking him where Paul was and where the drugs were? He said, he told Rocky that Paul was at his condo. Rocky told him that they had been watching the condo for a month and had not seen Paul.
[44] According to Mr Gill, the trunk was shut. He began to look for a way out. After 4 to 5 minutes, Rocky returned with a gun and used it to hit him in the chest and stomach. Mr. Gill said he did not see the gun clearly. He described it as the length of a water bottle about 10 to 12 inches long. He said it was the same gun the backseat passenger used to threaten and hit him.
[45] According to Mr. Gill, Rocky was screaming at him asking him “where is my stuff” and “saying you are not cooperating with me”. He said Rocky instructed that Mr. Gill be taken to the “warehouse”. The trunk was shut. After a while the car started moving. Mr. Gill testified he continued to look for a way out.
[46] Mr. Gill said he broke the ties and removed the hood from his face. He was able to pull a lever which opened the trunk. The car was travelling on the highway. He put his legs over the edge of the trunk and began waving to motorists on the highway. He described that the car pulled over to the shoulder and the front passenger came running out, pushed him back into the trunk, shut it, the car quickly returned to the highway and drove off at a high rate of speed.
[47] Mr. Gill said he opened the trunk again and this time he jumped out of the trunk. He said the ties binding his hands fell off and were found when he returned to the scene the next day, with the police. He crossed many lanes of traffic waving for help, but no one stopped.
[48] He got to the other side of the highway and waved down a bus. The bus stopped. He asked that 911 be called. He asked for water. He was given water and he lost consciousness. When he regained consciousness, he was on a stretcher. Police and nurses were present. He was sent to a hospital.
[49] In his police statement, Mr. Gill told the police he was confined in a black Dodge Charger. He said that the only thing he really remembered about the vehicle was that the windows were tinted.
[50] Mr. Gill suffered several injuries from the beating he received from his captors and some injures to his legs caused by contact with the ground when he jumped out of the vehicle.
[51] Mr. Gill said through out the ordeal, the backseat passenger hit him and threatened to kill him with a gun several times. This included pressing the gun against his neck and hitting him in the chest.
Vetrovec witness
[52] Mr. Gill’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 [2].
Areas of concern
[53] Mr. Gill’s initial recitation of what happened at the gas station initially did not include reference to the name “Rocky”, later on in-chief, he said he heard the utterance of the name Rocky and in cross-examination, he conceded that he could not really hear what his captors were saying but he insisted that he had heard the name Rocky. In cross-examination, he conceded that he did not really hear the words “Rocky we got him”.
[54] Surveillance cameras do not capture his handshake with Mr. Aulakh at the entrance to the mall or his vehicle in the parking lot.
[55] It seems unreasonable that his captors after going to the trouble to cover his face with a hood, will be very careless in leaving him alone in the car at the gas station with windows rolled down, on a cold December day. It also seems odd that they would speak about their next steps within ear shot of Mr. Gill, however, I conclude that the captors’ own actions confirm that this is simply an example of their degree of competence in running the kidnapping operation. For example, Ms. Cordic testified that she saw a man with feet hanging out of the trunk of a car waving for help. This confirms Mr. Gill’s account. Despite this, his captors pulled to the side of the road, shoved him back into the trunk, he had just managed to open and returned to the roadway without taking any further precautions. Not surprisingly Mr. Gill opened the trunk, jumped out and crossed the highway.
[56] On his own evidence, the jungle was dark. No lights around. Under those circumstances, it is difficult to conclude that he saw Rocky’s face.
[57] Mr. Gill is no stranger to dishonesty. He conceded that he was a professional thief. He had engaged in several multi million-dollar trailer heists. He has a criminal record for offences of dishonesty.
[58] Mr. Gill was initially not forthcoming when he described his outstanding charge under the Highway Traffic Act. He minimised the seriousness. It is only when he was pressed on the details that he revealed that it involved a fatality.
[59] Mr. Gill said he met Mr. Aulakh at the doors without his children who were at Kiddy Place with the security guard. Mr. Aulakh said Mr. Gill met him at the doors with his children.
[60] Mr. Gill said he and Mr. Aulakh had a quick handshake and he went to the parking lot and Mr. Aulakh went to the children. Mr. Aulakh said he and Mr. Gill had a 5 to 10-minute conversation, walked back to Kiddy Play and watched the children play and then Mr. Gill left.
[61] Mr. Gill said he was not at the mall to meet anyone. Mr. Aulakh said Mr. Gill was going to meet someone not just get food and water.
[62] Mr. Gill said he did not use drugs. Mr. Aulakh said he had used cocaine with Mr. Gill on a couple of occasions. Mr. Aulakh said he had seen Mr. Gill use cocaine and opiates on several occasions.
[63] Mr. Gill said he was never involved in drug dealing with Paul. Mr. Aulakh said he had overhead conversations between Mr. Gill and Paul and given the tenor of those conversations, he assumed that they were discussing drug transactions.
[64] Ms. Amber Cordic observed Mr. Gill sitting in the open trunk of the car on the highway waving. She described the man who had pushed Mr. Gill back into the trunk as Caucasian. Mr. Gill described him as black.
[65] Mr. Gill told police that he was worried about his children who he had left at McDonalds. In his testimony, he said he left the children at the mall. Mr Gill never mentioned Mr. Aulakh to the police either on scene or at the hospital. In his testimony, he said he left the children with Mr. Aulakh. Mr. Aulakh confirmed this.
[66] Mr. Gill told the police he was abducted by two men. In court, he said he was abducted by three men.
[67] In his police statement, he said he was blindfolded as soon as he was abducted. At the preliminary inquiry, he said he was not blindfolded until he was in the jungle. At trial, he said he could not remember when he was first blind folded.
[68] Mr. Gill told the police that his shoulder was dislocated during the altercation with his captors. Medical records show that the dislocated shoulder was a pre-existing condition.
[69] Mr. Gill told the police that he gave the front passenger his wife’s phone number who called and spoke to her. At the preliminary inquiry, he repeated this. After Mr Gill learned that his wife told police that she did not receive the phone call, Mr. Gill changed his testimony and said that the front passenger pretended to call his wife and did not actually do so.
[70] Mr. Gill said he heard Rocky’s voice saying, “he is running away”. Mr. Gill never referred to these words from “Rocky” or mention the name “Rocky” in his first statement to the police. In fact, he never made reference to these words.
[71] Mr. Gill was running away from the captors when he said he heard Mr. Ramdeo’s voice he did not refer to Mr. Ramdeo as having an accent. The defence urges the court to find that Mr. Ramdeo had an accent. I made no particular note of an accent, if one is present it is barely noticeable.
[72] Mr. Gills’ voice and physical recognition of Mr. Ramdeo has to be considered within the context that he been beaten. He made his observations in the midst of a traumatic event, it was dark, his eyes were swollen, he had a limited ability to view.
[73] In describing the events in the jungle to Constable King at the hospital, Mr. Gill made reference to the “Boss” not “Rocky”. I note however, that the parties agree that Mr. Gill specifically named Rocky several times to the police, including to Constable Deol at the scene. I am satisfied that the reference to “Rocky” was not an afterthought.
[74] In his police statement he said he had two cellphones. In his trial testimony he said he had three cell phones.
[75] In his statement to the police, he said he had no idea what Paul and Mr. Ramdeo did. At trial, he said he was not involved in drugs, but Paul and Mr. Ramdeo were involved in a drug deal.
[76] At the preliminary inquiry, he identified the location of the gas station. At trial, some five years later, he changed the location of the gas station.
[77] At the preliminary inquiry, he said he went to McDonalds because there was no food in the mall. At trial, he said there was food in the mall, he went to McDonalds because that is what the kids wanted.
[78] Mr. Gill initially said he was not conscious when he spoke to the police at the hospital. Later on, he said he was conscious. At the preliminary inquiry, Mr. Gill said that Mr. Aulakh was a student who played with his children on occasion. At trial, he said he and Mr. Aulakh have a history of working together to steal trailers.
[79] Prior to trial, he said he was abducted in a black charger. At trial, he said he may have been abducted in another vehicle other than a black charger. I am satisfied that Mr. Gill had no idea the type of vehicle he was abducted in.
[80] He attributes the same action of touching with the gun and words “do you know what this is?” to both Mr. Ramdeo and one of the abductors. He first, attributed the action and words to one of the abductors, then said it was Mr. Ramdeo and an abductor and then when pushed, he said it was Mr. Ramdeo.
Mr. Ramdeo
[81] This is one of those circumstances where aspects of Mr. Ramdeo’s testimony confirms some material aspects of Mr. Gill’s testimony. Mr. Ramdeo said he goes by the nick name Rocky. He has no criminal record. He has young children and is currently separated. In 2015, he ran an auto collision shop. The shop is no longer in business because he had to use funds to pay the outstanding drug debt.
[82] Mr. Ramdeo said he was involved in drug dealing with Mr. Gill, Paul, Ian Ali and Kasheev a.k.a. Redman, R.K. or Angel. He said he met Mr. Gill a few times at his shop when Mr. Gill came with Paul. He had also met Mr. Gill a few times at Paul’s condo when he went to deliver drugs to Paul. He said he met Mr. Gill about seven times. He had seen Mr. Gill use drugs a few times in Paul’s condo and on one occasion in Mr. Gill’s car.
[83] He said he met Paul as a customer in his shop. Paul told him that if he knew anyone with drugs for sale, he was interested in buying the drugs. Mr. Ramdeo said six months prior to December 11, 2015, Paul told him that he had a big order for drugs. Paul wanted Mr. Ramdeo to contact Kasheev to supply the drugs. Mr. Ramdeo said Kasheev agreed to provide the drugs. Mr. Gill’s brother was supposed to deliver the drugs to Vancouver as part of an ice cream shipment to Paul’s purchaser. Mr. Ramdeo said he delivered the drugs to Paul and Mr. Gill to implement this plan.
[84] Mr. Ramdeo said he was arrested on a liquor offence the Friday prior to December 11, 2015. The transport of the drugs was scheduled to occur on the Wednesday prior to his arrest. The transport of the drugs did not take place. That Wednesday he inspected the drugs. The expectation was that the drugs would be transported that Friday. He conveyed this information to Kasheev the owner of the drugs. Kasheev approved. He said the drugs went missing.
[85] Mr. Ramdeo said he was arrested for possession of stolen liquor in his auto shop. Those charges were ultimately withdrawn, however, the day after he was released after his arrest, he informed Kasheev that the drugs had gone missing. Kasheev told Mr. Ramdeo that Mr. Ramdeo, Paul and Mr. Gill owed him 1.5 million dollars and they had to pay off the debt. He said that Sunday he informed Mr. Gill of this at the Bramalea City Centre. Mr. Gill told him that Paul had been arrested and they should wait until Paul was released.
[86] The following Tuesday he met Paul and Mr. Gill at a restaurant at Queen Street and Highway 410. Paul and Gill told him to inform Kasheev that they will make payments. He conveyed the message and yet every week Kasheev came to his shop to collect payments. At some point he could not make enough payments and conveyed Kasheev’s message to Mr. Gill and Paul that they also needed to start making payments.
[87] Mr Ramdeo denied walking up to Mr. Gill in a van and threatening him. He said on that occasion he saw Mr. Gill in his neighborhood. He went up to speak to him and Mr. Gill drove off. Mr. Gill’s window was up at the time. He never touched the steering wheel or tried to take the keys out of the ignition.
[88] Mr. Ramdeo said he made payments to Kasheev until he ran into financial trouble, could not maintain the shop, had to give Kasheev his property including cars he had for sale at the shop and his own car. His marriage fell apart. He said Ian Ali was Kasheev’s “muscle”. Sometimes he would pay Kasheev directly and sometimes he would pay indirectly through Ian Ali.
[89] He said on December 11, 2015, he knew where Paul lived. Paul had two addresses and there was no need to ask Mr. Gill where Paul lived.
[90] Mr. Ramdeo denies any involvement whatsoever in the abduction of Mr. Gill. He said Ian Ali told him to rent a car for him to use, that was the Hyundai referred to in the trial. The description of the two men provided by Mr. Gill as his abductors fit the description of the two men who went with him to rent the car. One of these men was Ian Ali.
[91] He said Ian Ali and his male companions told him that they had a specific rental company in mind. Mr. Ali’s companions were called Shawn and Natty. All of these gentlemen work with Kasheev. The men followed him to the rental company, pointed out which car they wanted. He signed the necessary documentation so that they could rent the car. He left. He had no idea what the car was for. He said he owed the 1.5 million dollars and the least he could do was rent a car for them if they asked.
[92] He was never involved in returning the car and he was never in the vehicle. He had no idea that the car was to be used in a kidnapping. It was not the first time he had rented a car for a customer.
[93] Mr. Ramdeo said his home in Brampton is a few kilometers away from the address of the mall. His autobody shop was less than two minutes from the airport.
Mr. Ramdeo’s credibility
[94] Mr. Ramdeo is intricately involved in the drug deal gone bad. On his own evidence, he made extensive efforts to get the debt paid He arranged a meeting with Mr. Gill and was informed that Paul was in jail, when Paul was released, Mr. Ramdeo met Mr. Gill and Paul at Red lobster.
[95] He conceded in cross-examination that at the Red Lobster meeting, Mr. Gill made no promises. It was Paul who promised to pay off the rest of the debt from the proceeds earned from a job in India.
[96] On another occasion, he met Paul on Weston Road in an effort to get Paul to contribute to the payment to the debt. According to Mr. Ramdeo, at the end of the meeting they all changed their cellphone numbers and the only way he could get to Paul was through Mr. Gill.
[97] 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.
[98] 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.
[99] Mr. Ramdeo rented a car for use by Ian Ali, an aid of Mr. Ramdeo’s drug debtor Kasheev. The same vehicle was used to kidnap Mr. Gill, a person involved in the drug deal gone bad, with intricate knowledge of the matter and a close associate of Paul, the person Mr. Ramdeo had been pursuing for several weeks.
[100] Also, Mr. Ramdeo initially testified that he knew where Paul was and was not looking for him. In an effort to explain his encounter with Mr. Gill in Paul’s van, Mr. Ramdeo said he only knew Paul was back when he saw Mr. Gill in Paul’s van. He said Mr. Gill took off when he saw him. Mr. Ramdeo said he reported this to Kasheev. A reasonable inference is that locating Paul for payment of the outstanding debt was still in play.
[101] 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.
Conspiracy is proved beyond a reasonable doubt.
[102] It is conceded that a conspiracy to kidnap Mr. Gill has been proven beyond a reasonable doubt. The evidence in support of this conclusion also confirms aspects of Mr. Gill’s evidence.
[103] This includes evidence that Mr. Gill, Paul and Mr. Ramdeo were involved in a drug deal gone bad. This evidence was confirmed by Mr. Ramdeo. Mr. Ramdeo also confirmed Mr. Gill’s description of the role of each of the players in the transaction and all aspects of the details of the transaction.
[104] Mr. Auklah confirmed that he met Mr. Gill at the mall and Mr. Gill left him with the children. Mr. Gill said that he recognised the front seat passenger from meeting him at Mr. Ramdeo’s Auto shop. Mr. Ramdeo confirmed it. Mr. Gill described the meetings with Mr. Ramdeo to discuss Paul’s payment of the outstanding drug debt. Mr. Ramdeo confirmed this.
[105] The 400 series highway cameras show Mr. Gill walking across the highway on December 11, 2015. Mr. Kombargi, the GO Bus driver’s contact and conversation with Mr. Gill, the severe injuries Mr. Gill suffered, the police location of the plastic ties on the highway, Mr Gill’s DNA evidence found on the plastic ties used to bind his hands and in the trunk of the Hyundai, all confirm Mr. Gill’s account.
[106] Ms. Cordic said while travelling in live traffic, on the same highway and around the same time, she saw a man sitting in the trunk of a vehicle frantically waving his hands which were bound in front of him. This seems to confirm Mr. Gill’s account of the first time the car trunk opened.
[107] Ms. Cordic also confirmed Mr. Gill’s evidence that a man exited the vehicle, pushed Mr. Gill down and closed the trunk. She departs from Mr. Gill, when she describes this man as Caucasian. In the face of all of the other confirmatory evidence, this is not a significant discrepancy. I note that even without Ms. Cordic’s testimony, there is a significant amount of other confirmatory evidence.
Mr. Ramdeo’s probable membership in the conspiracy
[108] Mr. Ramdeo leased the Hyundai which was used to kidnap Mr. Gill. He was involved as a broker in the drug deal. His supplier was Kasheev. He agreed to contact Kasheev for Paul. He was responsible for the drug transaction.
[109] The drugs went missing, they were worth 1.5 million. Mr. Ramdeo made efforts to pay back the money outstanding to the extent of personal and financial ruin. He arranged meetings with Mr. Gill and Paul and obtained assurances from Paul that he will pay the remainder of the debt owed to Kasheev. He informed Kasheev when he saw Mr. Gill in Paul’s van.
[110] He rented the Hyundai to Ian Ali an aide to his debtor Kasheev. I conclude, on a balance of probabilities, that Mr. Ramdeo is a probable member of the conspiracy.
Assessment of all evidence – including the statements of co-conspirators in furtherance of the conspiracy.
[111] Mr. Gill was unexpectedly kidnapped. He was severely beaten. He was held for several hours. He had good reason to fear for his life. It is reasonable to expect these factors to affect his ability to hear, observe and his recollection. In addition, he is a witness of unsavoury character. I doubt that his recitation of the statements was verbatim. The words were paraphrased.
[112] As previously articulated, there were instances of embellishment in his testimony, two additional examples of this are when his equivocal identification of the gun, transformed into an unequivocal identification of the gun. Secondly, his insistence that he could see Rocky’s face despite pitch dark conditions in the jungle. I do not accept Mr. Gill’s testimony that he could see Mr. Ramdeo in the jungle. Another example of embellishment is when he suddenly remembered in-chief, that Mr. Ramdeo told him that he had a gun with him in the jungle.
[113] Mr. Gill has met Mr. Ramdeo several times and knows his voice well. Mr. Ramdeo estimated they had met seven times. These were not brief encounters. These encounters were usually in the presence of Paul but at least on one occasion, Mr. Gill and Mr. Ramdeo met in Paul’s absence to discuss payment of the drug debt.
[114] Mr. Gill described the statements the co-conspirators made in furtherance of the conspiracy. I conclude that the statements are not verbatim, however, in the face of the overwhelming inculpatory evidence I have described, I conclude that the statements Mr. Gill recounted, accurately represent the substance of what the co-conspirators said during the kidnapping. Thus, when the statements are considered in the context of the whole of the evidence, the only reasonable explanation for those statements, is Mr. Gill’s truthfulness about the material aspects of the statements. The statements are admissible under the co-conspirator’s exception to the hearsay rule. I reproduce some of the statements below.
[115] At the mall just before Mr Gill was attacked, he said one of his kidnappers called out his nickname “Sonu”.
[116] Prior to going to the gas station, the front passenger called somebody and told the person “we have picked up Sonu and where should we be?”; “we have grabbed him”. Mr. Gill said he overhead Rocky’s name at the gas station. The driver told “Rocky that they had picked up Sonu”; “We have grabbed Sonu”.
[117] On route to the gas station, the backseat passenger showed him a gun and said, “do you know what it is, so if you try to run away you will be shot”.
[118] At the gas station the front passenger and the driver got out of the vehicle. Before the front seat passenger got out, he said “if he tries to run away, shoot him”. As they left the gas station the kidnappers were asking him where Paul is; “and that 20K drug, who did Paul give it to?”; “What happened to that?”
[119] On route to the jungle he told his kidnappers that his children were at the mall. The front seat passenger said, “you say the number of your wife, we will call”. The front seat passenger and the backseat passenger said to him “if you try to run away, if you try to do anything, we’ll kill you.” His kidnappers were also asking him “Where’s Rocky’s stuff? You guys have robbed him”
[120] In the jungle after his first attempt to run, the front passenger was hitting him and said, “if I tried to run, they’ll kill me”. They took the phone away from him and said, “if you move now and we’ll shoot you”; “keep your head down and stay there”.
[121] The second time he escaped he heard Rocky say, “He escaped, go and get him”. He heard Rocky say “Fuck, that guy’s running”. The other kidnappers said “stop, stop”. He was captured and placed in the trunk of the car.
[122] Mr. Gill said while in the trunk he saw Rocky’s face, Rocky stepped back and said, “he’s not wearing a mask”, “put a mask on his face”, then the backseat passenger put a hood over Mr. Gill’s face.
[123] Mr. Gill said while striking him with a baseball bat in the trunk, Rocky said “Where is Paul?”; “So he said that for a month or two months we’ve been sitting outside his home, so we, we did not find him at home and you’re lying”. Mr. Gill said Rocky asked, “where is the condo?”.
[124] The trunk was closed and after a period Rocky returned with a gun in his hand. He hit him and was screaming “you’re not cooperating with us”; “where is my stuff?”. Mr. Gill said he told Rocky that the drugs were given to Paul. Rocky responded, “no, you also know about it”; “you’re not cooperating with us”. Mr. Gill said Rocky said, “he should be taken to the warehouse” and then Rocky closed the trunk.
[125] He said when Rocky returned and hit him with a gun he said “Do you know what it is? This is a gun, I can shoot you, if you do not tell the truth”.
[126] Mr. Gill said when Mr. Ramdeo saw him driving Paul’s van weeks earlier prior to the kidnapping, he said, “wait here, I’ll call my guys” and he replied, “I have nothing to do with this and you”.
[127] Patricia McIlveen testified that data from cell phone towers close to the scene of Mr. Gill’s kidnapping, 50 Kennedy Street in Brampton, indicate that Mr Ramdeo was in the vicinity of the kidnapping while it was in progress. Mr. Ramdeo submits that he works and lives close to the mall and he could have been on route to work or home at that time. This explanation, when considered alone seems plausible, but when considered in the context of all of the other evidence, must be rejected. I conclude that the cellphone towers show that Mr. Ramdeo was in the vicinity of the kidnapping while it was in progress.
[128] Mr. Ramdeo was present in the jungle and acted in the manner in which Mr Gill described. He used an object that was an imitation of a gun. Mr. Gill had several minutes to listen to and recognize Mr. Ramdeo’s voice.
[129] As previously described, Mr. Gill met Mr. Ramdeo on several occasions with meaningful opportunities to listen to his voice and become exceptionally familiar with Mr. Ramdeo’s voice. He is well qualified to recognise Mr. Ramdeo’s voice: R. v. Robb (1991), 93 Cr. App. R. 161 (C.A.); R. v. Lepage (2008), 232 C.C.C. (3d) 401 (B.C.C.A.); leave to appeal refused (2008), 233 C.C.C. (3d) vi (S.C.C.).
[130] I conclude that Mr. Gill’s account of statements he attributes to Mr. Ramdeo are not verbatim, however, for the same reasons articulated above, I conclude that those statements accurately convey the substance of what was said to Mr. Gill during the kidnapping. This leaves the question of whether the statements attributed to Mr. Ramdeo were made by him.
[131] Recognition alone, without more, is insufficient to support an identification, however, the frailties may be overcome when considered together with other inculpatory evidence: R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C (3d) 58 (Ont. C.A.), leave to appeal refused (2009), 237 C.C.C. (3d) vi (S.C.C.). The combination of Mr. Gill’s extensive familiarity with Mr. Ramdeo’s voice, his extensive opportunity to listen to the voice during the portion of the kidnapping in the jungle, and the overwhelming inculpatory evidence, leads me to be satisfied beyond a reasonable doubt that Mr. Gill accurately identified the voice as that of Mr. Ramdeo.
[132] None of the statements attributed to Mr. Ramdeo, on December 11, 2015, include a threat to cause death or bodily harm to Mr. Gill. Therefore, I have a reasonable doubt that Mr. Ramdeo made the threat. Such an inference could reasonably be made from Mr. Ramdeo’s actions towards Mr. Gill, however, in the context of my concerns about Mr Gill’s evidence, I am cautious about making such an inference in the absence of a statement with content that supports such a conclusion as the only reasonable inference.
[133] Mr. Ramdeo was frustrated with the difficulty of securing payment from Paul. The involvement of Ian Ali creates some doubt as to whether Mr. Ramdeo or Kasheev was the true mastermind, however, Mr. Ramdeo was involved in the planning and gave direction to the co-conspirators on the kidnapping of Mr. Gill on December 11, 2015.
[134] Except where I have rejected Mr. Gill’s evidence, for example, that he saw Mr. Ramdeo’s face or that Mr. Ramdeo told him he was holding a gun, I accept Mr. Gill’s description of Mr. Ramdeo’s actions on December 11, 2015.
[135] In the context of all of the evidence I accept, I conclude that the prosecution has proven all elements of the offences against Mr. Ramdeo on all charges except the charge of knowingly uttering a threat to cause death or serious bodily harm to Mr. Gill.
[136] Counts 3 and 6 were withdrawn at the request of the prosecution. Mr. Ramdeo is found guilty on all remaining counts except Count 2.
Barnes J. Released: March 9, 2021 (Amended March 11, 2021)
COURT FILE NO.: CR-17-00000463 DATE: 2021 03 09 AMENDED DATE: 2021 03 11 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - HEERALAL RAMDEO REASONS FOR JUDGMENT Barnes J. Released: March 9, 2021 (Amended March 11, 2021)
[1] Paragraphs 114 and 129 in the original reasons have been clarified.