CITATION: R. v. Dhillon, 2017 ONSC 900

COURT FILE NO.: 32/14

DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Fraser Kelly, for the Crown

• and -

NARANKAR DHILLON and JASKARN JOHAL

Michael Caroline and Rami Sandhu, Counsel for Narankar Dhillon

Philip Klumak, Counsel for Jaskarn Johal

HEARD: April 25, September 12, 13, 14, 15, 16, 19, 20, 21, 27, 28, 29, 30, October 4, 5, 6, 7, 11, 12, 13, 18, 19, 20, 26, November 9, and 10, 2016

REASONS FOR JUDGMENT

Sproat J.

Contents

INTRODUCTION. 2

THE EVIDENCE. 7

Direct Evidence. 7

Evidence of Nito Bhandal – Ante-mortem Statements of Mr. Bhandal 15

Evidence of Mr. Dhillon’s Motive. 17

Other Circumstantial Evidence. 19

Evidence Confirming the Evidence of Vetrovec Witnesses. 21

The Physical Treatment and Condition of Mr. Bhandal 22

Expert Evidence - Causation. 24

THE LAW.. 29

Manslaughter - Causation. 30

ANALYSIS. 33

Unsavoury Witnesses – Absence of Evidence. 33

Kidnapping – Role of Mr. Dhillon. 35

Manslaughter - Causation. 40

Interfering with – Offering an Indignity to - the Body of Mr. Bhandal 47

Accessory After the Fact – Mr. Johal 49

CONCLUSION. 53

INTRODUCTION

[1] Mr. Bhandal went missing the afternoon of Friday, August 23, 2013. His body was found in his burning vehicle beside a country road in the early morning hours of Sunday, August 25, 2013.

[2] Mr. Dhillon is charged with the kidnapping, unlawful confinement and manslaughter of Mr. Bhandal as well as interfering with or offering an indignity to his dead body. Mr. Johal is charged with being an accessory after the fact. It is alleged that he was a party to moving and burning the body, knowing that manslaughter had been committed, to enable Mr. Dhillon to escape detection.

[3] I begin with an overview of the Crown theory and certain evidence that is not in dispute. This will serve to put my more detailed review of the evidence in context. Out of respect for the victim, and the presumption of the innocence of accused persons, I refer to the victim and the accused as “Mr.” and others only by their surname.

[4] The Crown alleges that Mr. Dhillon was a heroin dealer and addict. Mr. Bhandal, also a drug addict, had been a trusted friend and employee of Mr. Dhillon. There was a falling out in the summer of 2013 because Mr. Dhillon believed that Mr. Bhandal had stolen from him.

[5] Mr. Dhillon wanted Mr. Bhandal kidnapped. He recruited two Iraqi men who made a failed kidnap attempt in late July or early August, 2013. Mr. Dhillon also recruited Resham Gidhay to kidnap Mr. Bhandal. Gidhay then recruited Jagjeet Singh, Charnjit Boughan, Kulbir Kullar and Jagdeep Jassar to assist in the kidnapping.

[6] On the afternoon of Friday, August 23, Mr. Bhandal was lured to the basement apartment of Kullar with the promise of drugs. Singh and Jassar hid in a bedroom waiting to receive a text message to come out. Gidhay, Boughan and Kullar conversed and did drugs with Mr. Bhandal. When Mr. Bhandal indicated an intention to leave a signal was sent by text. Singh and Jassar came out of the bedroom and all five men were involved in beating and subduing Mr. Bhandal. They bound his hands and feet and taped his mouth.

[7] Mr. Dhillon was contacted but indicated he did not intend to come to Kullar’s apartment and instructed that Mr. Bhandal should be taken to a garage that Mr. Dhillon operated in Bolton. Mr. Bhandal was wrapped in a sheet and transported to the garage. On arrival the garage was locked but a short time later Mr. Johal arrived with a key and opened it. Gidhay and Boughan then went to Mr. Dhillon’s house and he paid Gidhay $500. Gidhay and Boughan returned to the garage. Gidhay, Singh, Kullar, Jassar and Boughan all consumed more drugs.

[8] In the early morning hours of Saturday, August 24 Mr. Johal, in the company of an Iraqi man, woke Gidhay up and told him that Mr. Bhandal had died. Kullar and Singh were still there. Jassar and Boughan had left.

[9] Gidhay, Singh and Kullar met Boughan and they went to Mr. Dhillon’s house. The Crown theory is that Gidhay spoke to Mr. Dhillon in Mr. Johal’s presence and was told to move the body and burn it. Gidhay, Singh, Kullar and Boughan then left in one vehicle and followed Mr. Johal’s vehicle. The vehicles stopped at the roadside and Mr. Johal provided Kullar or Singh with the keys to Mr. Bhandal’s vehicle.

[10] The van used earlier to move Mr. Bhandal from Kullar’s apartment to the garage broke down. Kullar and Jassar, therefore, rented a U-Haul truck. Early on Sunday morning Gidhay drove with Jassar in the U-Haul truck carrying Mr. Bhandal’s body, and Kullar and Singh drove Mr. Bhandal’s vehicle, and travelled north. They found an isolated area, placed Mr. Bhandal’s body in his vehicle, doused it in gasoline and set it ablaze. Motorists saw the fire and called 911 and the body was discovered.

[11] Gidhay, Singh and Boughan all pleaded guilty to manslaughter and testified at the trial. In opening, the Crown indicated that Kullar and Jassar were potential witnesses who had also pleaded guilty. They were not called to testify. There was, therefore, no evidence at trial as to their pleas so I disregard the references to them.

[12] Video from locations such as gas stations and motels as well as cellphone records support the Crown theory as to the movements of the various individuals from Friday afternoon to Sunday. DNA and fingerprint evidence clearly connect Gidhay, Kullar, Boughan, and Jassar to various items found in the vehicle used to transport Mr. Bhandal to Mr. Dhillon’s garage or at the garage.

[13] There is a further causation issue, which was the subject of expert Crown and defence evidence, concerning whether Mr. Bhandal’s use of methamphetamine caused his death such that Mr. Dhillon should be found not guilty of manslaughter.

[14] Mr. Dhillon and Mr. Johal did not testify or present any additional evidence. In argument Mr. Caroline, counsel for Mr. Dhillon, did not take issue with the fact that Mr Bhandal was kidnapped and confined by Gidhay, Boughan, Singh, Kullar and Jassar. Mr. Caroline’s position was that, while he was not admitting that Mr. Dhillon was guilty as a party to kidnapping and unlawful confinement, he conceded that there was evidence upon which I could be satisfied beyond a reasonable doubt that Mr. Dhillon was guilty of those offences. In response to a question I put during closing argument, Mr. Caroline agreed that it was fair to say that he was not making any submissions directed to identifying evidence, or an absence of evidence, that would result in a reasonable doubt as to Mr Dhillon’s guilt of these offences. Mr. Caroline focused his submissions on the manslaughter causation issue, which he characterized as the “crux” of the case.

[15] Mr. Klumak submitted that the evidence that Mr. Johal had Mr. Bhandal’s keys, and handed them over for the purpose of helping Mr. Dhillon and others to avoid detection, depended on the evidence of unsavoury witnesses, who gave inconsistent evidence, and who should not be believed.

THE EVIDENCE

Direct Evidence

[16] Gidhay testified that as of August, 2013 he had known Mr. Dhillon for two and a half to three years. He bought heroin from Mr. Dhillon and they would use heroin together. Mr. Dhillon told him that he imported heroin at the kilo level but the most heroin that Gidhay observed at Mr. Dhillon’s residence was a few grams. Prior to August, 2013 Gidhay had never met Mr. Bhandal.

[17] In summary, Gidhay’s evidence that implicated Mr. Dhillon was as follows:

(a) in or about June, 2013 while Gidhay, Kullar, Mr. Dhillon and Mr. Johal were doing drugs in Mr. Dhillon’s basement, Mr. Dhillon told Gidhay that Mr. Bhandal had stolen cash from what was described as a warehouse location near Highway 27 and Carrier Dr. as well as additional items. (Mr. Dhillon’s daughter Dilpreet testified, and documentary evidence confirmed, that Mr. Dhillon had a storage locker located in this area.)

(b) Mr. Dhillon asked Gidhay to help get his money back by kidnapping Mr. Bhandal. Gidhay agreed after repeated requests. Mr. Dhillon called him prior to August 23, 2013 and indicated he had sent Iraqi guys to Mr. Bhandal’s house so that if Gidhay had any men in the vicinity they should leave.

(c) Gidhay recruited Kullar, Boughan, Singh and Jassar to assist in the kidnapping. Gidhay learned that Mr. Bhandal was going to visit Kullar and advised Mr. Dhillon who stated that they should call him when Mr. Bhandal was at Kullar’s apartment. Mr. Bhandal arrived, Gidhay went out to call Mr. Dhillon, but Mr. Dhillon indicated that he could not come over and by the time that Gidhay returned Mr. Bhandal had left.

(d) on Friday August 23, 2013 Mr. Bhandal came to Kullar’s apartment. Telephone records indicate that the text message which caused Jassar and Singh to emerge from the bedroom to assist Gidhay, Boughan and Kullar to overpower and restrain Mr. Bhandal was sent at 3:30 p.m. The five men beat and bound Mr. Bhandal.

(e) at 3:40 p.m. Gidhay use Kullar’s phone and called Mr. Dhillon who instructed that Mr. Bhandal should be moved to Mr. Dhillon’s garage. The garage was locked when they arrived but Mr. Johal arrived with a key.

(f) Gidhay and Boughan went to Mr. Dhillon’s house and he gave Gidhay $500.

(g) after he discovered that Mr. Bhandal was dead he went to Mr. Dhillon’s house to try to find out how Mr. Bhandal had died. Mr. Dhillon and Mr. Johal were standing in the driveway. Mr. Dhillon did not provide any answer but, with Mr. Johal standing next to him, instructed that the body be moved from his garage and that Gidhay should burn it if he wanted to.

(h) Gidhay then returned to the car and there was a discussion with Boughan, Singh and Kullar as to whether they were prepared to assist in disposing of the body.

(i) Mr. Johal then told them to follow him. Mr. Johal drove into a secluded area and this prompted Gidhay to tell Boughan to turn around. Mr. Johal then also turned and followed them. Both cars stopped. Mr. Johal handed over the key for Mr. Bhandal’s SUV to Kullar and said that he had parked Mr. Bhandal’s SUV in the casino parking near Kullar’s apartment.

[18] In cross-examination, Gidhay testified that:

(a) Mr. Dhillon’s instruction was to hold Mr. Bhandal so Mr. Dhillon could ask him questions;

(b) he did not call Mr. Dhillon on August 22, 2013 to tell him that Mr. Bhandal was expected to arrive at Kullar’s apartment. He did call him that evening;

(c) after being directed to his evidence at the preliminary hearing, he agreed that the plan was to trick Mr. Bhandal into staying at Kullar’s apartment long enough for Mr. Dhillon to arrive and that there was no prior discussion of the use of force;

(d) after they subdued Mr. Bhandal, Kullar took keys from his pocket;

(e) in his April 30, 2014 interview with the police he said that Mr. Dhillon had told him to move Mr. Bhandal’s body from the garage and that he did not speak with Mr. Dhillon about burning the body. In that statement he referred to Singh, and later Kullar, as having said that the body was to be burned;

(f) contrary to what he said in examination-in-chief he did not actually remember Mr. Johal making the statement, when providing keys to Kullar, that they were Mr. Bhandal’s keys.

[19] In re-examination, Gidhay was directed to his October 3, 2013 statement to police in which he did say that in their driveway conversation, Mr. Dhillon told him to take Mr. Bhandal’s keys from Mr. Johal and move the body from the garage and burn it.

[20] Gidhay was an unsavoury witness. As of August, 2013 he was a heroin addict and dealer. He pleaded guilty to the manslaughter of Mr. Bhandal. He lied to the police in his first two statements to try to save himself. When he gave his third statement he said he told the truth hoping that might help him get released earlier. He acknowledged that consuming large amounts of heroin caused him to forget things.

[21] In summary, Boughan’s evidence that implicated Mr. Dhillon and Mr. Johal was as follows:

(a) on August 22, 2013 he went to Mr. Dhillon’s house with Gidhay. Gidhay told Mr. Dhillon that they would be meeting Mr. Bhandal the following day. Mr. Dhillon told Gidhay to hold Mr. Bhandal so he would come and talk to him.

(b) after Mr. Bhandal was taken to Mr. Dhillon’s garage, he went with Gidhay to Mr. Dhillon’s house. They told Mr. Dhillon that Mr. Bhandal was at the garage but Mr. Dhillon said he would not go to talk to Mr. Bhandal but that someone else would.

(c) after Mr. Bhandal died he went with Gidhay, Singh and Kullar to Mr. Dhillon’s house. Boughan testified that both he and Gidhay got out of the vehicle. A black SUV was parked outside with an unidentified driver in it. Mr. Johal, Gidhay and Boughan were there. There was some conversation about Mr. Bhandal but he does not recall details. He does remember Mr. Dhillon said to move Mr. Bhandal from the garage. Boughan returned to the vehicle. When Gidhay returned to the vehicle he said that they should put Mr. Bhandal’s body in his car and set it on fire to look like an accident.

(d) Boughan drove away with Gidhay, Kullar and Singh in the vehicle. Mr. Johal drove into an industrial area which scared them and on Gidhay’s instruction he did a U-turn. Someone in the vehicle spoke to Mr. Johal. As a result of that conversation he stopped the vehicle. Mr. Johal came over and gave the keys to Mr. Bhandal’s SUV to Kullar or Singh. Mr. Johal said that Mr. Bhandal’s car was parked at the casino.

[22] In cross-examination by Mr. Caroline, Boughan testified that:

(a) his memory of events while he was high is worse than normal and that he has some memory gaps after Mr. Bhandal was tied up.

(b) he has been ordered deported. When he was interviewed by the Crown prior to trial he asked what the Crown could do for him. He was told the Crown could write a letter about the fact he testified but could not make any promises. He wanted to have a record of his testimony for parole and immigration purposes.

(c) prior to testifying he reviewed Gidhay’s statement to police.

(d) the conversation with Mr. Dhillon in the driveway after Mr. Bhandal died was rushed. He said he was present with Mr. Dhillon and Gidhay but did not remember the conversation.

(e) he doesn’t actually recall seeing the keys that Mr. Johal handed over.

[23] In cross-examination by Mr. Klumak, Boughan testified that:

(a) it was a rushed conversation with Mr. Dhillon in the driveway;

(b) he doesn’t actually recall seeing Mr. Johal hand over keys.

[24] Boughan was an unsavoury witness. As of August, 2013 he was a heroin addict and dealer. He admitted to breaking the law to support his habit. He pleaded guilty to the manslaughter of Mr. Bhandal. He has lied to the police in the past to help himself and was convicted of obstructing police in 2011 and 2014. He is subject to a deportation order. Prior to testifying he asked the Crown what could be done for him. He was told the Crown could write a letter confirming he had testified at trial. He wanted a record of his co-operation for parole and immigration purposes.

[25] Singh testified that he was Gidhay’s cousin and bought heroin from him. He was separated and living at a shelter. He went to Mr. Dhillon’s home a few times with Gidhay but did not go in or speak to Mr. Dhillon. About one to one and a half months prior to the kidnapping he went with Gidhay to Mr. Dhillon’s house and Mr. Johal was there.

[26] Singh’s evidence concerning kidnapping Mr. Bhandal, transporting him to Mr. Dhillon’s garage and learning that he was dead was generally consistent with the evidence of Gidhay and Boughan.

[27] After they discovered that Mr. Bhandal was dead he went with Gidhay, Boughan and Kullar to Mr. Dhillon’s house. Mr. Dhillon came outside alone. Gidhay, Boughan and Kullar got out of the car. Singh remained in the front passenger seat with the window open. From 15 feet away Singh heard Mr. Dhillon say to put Mr. Bhandal’s body in his vehicle and set it on fire. The conversation with Mr. Dhillon only lasted about one minute.

[28] They drove away intending to get more drugs. On route a call was received. Kullar indicated it was Mr. Johal calling. This resulted in their vehicle stopping. Mr. Johal stopped his vehicle nearby and got out and handed keys to Kullar.

[29] Singh was an unsavoury witness. While he did not have a criminal record he was a heroin addict. He will soon be eligible for parole and he hoped that testifying at trial would help him in gaining parole. He pleaded guilty to the manslaughter of Mr. Bhandal.

[30] Odishou Israel, originally from Iraq, testified that he met Mr. Dhillon through his friend Steve who was also from Iraq. He was a frequent visitor at the Dhillon home. Israel testified that Mr. Dhillon told him that he had an argument with Mr. Bhandal which had to do with Mr. Bhandal changing the lock on Mr. Dhillon’s storage unit. Israel testified that he and Steve went looking for Mr. Bhandal with a view to getting Mr. Dhillon and Mr. Bhandal back together as friends.

[31] A video shows Mr. Johal and Israel arriving at the Storage Mart where Mr. Dhillon had a storage locker at 11:37 p.m. on Friday, August 23 and leaving approximately 30 minutes later. Israel testified that Mr. Johal told him that he had found keys which might open a storage unit there. The key only opened one unit that was full of garbage.

[32] Israel denied that he had ever been to Mr. Dhillon’s garage even though his DNA was found on a coke bottle there. Israel claimed to have no recollection of why he and Steve were in communication with Kullar 14 times on August 8 between 1:30 p.m. and 3:48 p.m. (which I find to be the day Mr. Dhillon told Gidhay he had sent out two Iraqi guys to get Mr. Bhandal). Israel testified that although Steve had been his friend since 2000 he did not know his last name and had not seen him since August 23, 2013.

[33] Israel obviously lied about not being at Mr. Dhillon’s garage, not recollecting why he was communicating with Kullar on August 8, 2013 and not knowing Steve’s surname. I regard him as an unsavoury witness.

Evidence of Nito Bhandal – Ante-mortem Statements of Mr. Bhandal

[34] Mr. Bhandal’s wife Nito testified at trial. The defence conceded the admissibility of her evidence concerning statements made to her by Mr. Bhandal but not the weight to be attached to that evidence.

[35] Nito Bhandal testified that in late 2012, and continuing into 2013, she and Mr. Bhandal had a difficult relationship due to his drug use. In December, 2012 Mr. Bhandal was charged in relation to what she described as a domestic offence.

[36] Mr. Dhillon was Mr. Bhandal’s surety and for a time he lived with Mr. Dhillon. On May 27, 2013, Nito Bhandal was having an argument with Mr. Bhandal on the phone and he sent her a text message with two photographs of a hand holding a large amount of cash. She could tell it was Mr. Bhandal’s hand due to the rings on the fingers. In the text message, which she did not keep, Mr. Bhandal said that he was making lots of money and had Mr. Dhillon’s cash.

[37] In June, 2013 Mr. Johal, Mr. Dhillon’s son Paven and another man came to the Bhandal home and said they were there to pick up supplies for Mr. Dhillon’s basement renovation. They looked inside small items in the garage like her son’s toy car which made no sense to her. Later that day Mr. Johal brought Mr. Bhandal home. He was wearing someone else’s shirt, his pants were ripped and his face was scratched. Mr. Bhandal told her that he was being blamed by Mr. Dhillon for something he did not do and that he got into an altercation.

[38] On approximately August 12 or 13, 2013 Kullar called Mr. Bhandal. Nito drove with Mr. Bhandal to Kullar’s apartment and stayed in the car while he went in. Mr. Bhandal came running back to the car and said that two Iraqi men tried to grab him and that he was being blamed by Mr. Dhillon for something that he did not do.

[39] I find Nito Bhandal to be a generally credible and reliable witness. She has no criminal record and is employed in a responsible position. Her cross-examination did not give me any reason to doubt her evidence. Her evidence concerning the text message was supported by the photographs on her phone that were entered as exhibits. I will address the significance of this evidence when I come to my analysis of the totality of the evidence.

Evidence of Mr. Dhillon’s Motive

[40] The motive suggested by the Crown was that Mr. Dhillon was a drug dealer who believed that Mr. Bhandal had stolen from him. As a drug dealer he was more likely to take justice into his own hands as calling for police assistance was not an option.

[41] The evidence that Mr. Dhillon was a drug dealer includes:

(a) the evidence of Gidhay that Mr. Dhillon said that he was a drug dealer, and that Mr. Dhillon supplied him with heroin;

(b) the Dhillon family owned a large detached home and four vehicles including two BMWs and a Mercedes, while Mr. Dhillon was reporting nominal income to the Canada Revenue Agency. For example, in the years 2005-2012 he reported less than $10,000 per year in income from business or employment. Further, no additional business income was reported under business names that he used.

(c) the police found opium in Mr. Dhillon’s bedside table, and drug paraphernalia in the garage;

(d) approximately $13,000 of cash was found in the Dhillon home. Some of the cash was concealed in cans of shaving cream and Ajax cleaner which had been cut at the bottom so that cash could be inserted; and

(e) it was an admitted fact that Mr. Dhillon’s cell phone was registered in the name of Paul Wick.

[42] The evidence that Mr. Dhillon had a falling out with Mr. Bhandal and believed that Mr. Bhandal had stolen from him includes:

(a) statements by Mr. Bhandal to his wife that Mr. Dhillon was blaming him for something that he didn’t do;

(b) the May 27, 2013 text message which Mr. Bhandal sent his wife with a photograph showing him holding a large amount of what he indicated was Mr. Dhillon’s cash;

(c) Gidhay’s testimony that Mr. Dhillon told him that Mr. Bhandal had stolen from him;

(d) Gidhay’s testimony that Mr. Dhillon and Mr. Johal told him they had beaten up Mr. Bhandal. This was supported by Nito Bhandal testifying that one day Mr. Johal drove Mr. Bhandal home and he had scratches to his face, his pants were ripped and he was wearing someone else’s shirt;

(e) Odishou Israel, testified that he had become friendly with Mr. Dhillon through his friend Steve. Mr. Dhillon told him that he had an argument with Mr. Bhandal, and that Mr. Bhandal was no longer coming to his house. More specifically, he testified that Mr. Dhillon told him that Mr. Bhandal had changed the lock on Mr. Dhillon’s storage unit and that Mr. Bhandal denied having taken anything;

(f) it was an agreed fact that:

On April 22, 2013, Dilpreet Dhillon (Mr. Dhillon’s daughter) rented a storage unit at Storage Mart, located at 110 Guided Court, Etobicoke. It was the only unit she rented. On July 24, 2013, Dilpreet approached Storage Mart to discuss a theft from the unit. On August 9, 2013 Dilpreet Dhillon told Storage Mart that the unit had been vacated. She removed the lock on August 12, 2013;

(g) Mr. Dhillon’s daughter Jaskiran testified that she doesn’t recall if Mr. Bhandal came to the Dhillon home in August, 2013 but prior to that was he treated like family by Mr. Dhillon in that he would visit their home with his family and they would eat meals together;

(h) Herrera-Trinidad, who worked for Mr. Dhillon at his garage, testified that in the month prior to August 24, 2013 Mr. Bhandal stopped coming to the garage whereas previously he would come to the garage every day;

(i) records showed that there was no cell phone contact between Mr. Bhandal and Mr. Dhillon in August, 2013; and

(j) in his statement to the police Mr. Dhillon indicated that Mr. Bhandal used to work for him but had not come for approximately four weeks.

Other Circumstantial Evidence

[43] There is abundant, mostly incontrovertible, evidence that supports the testimony of Gidhay, Boughan and Singh that:

(a) Mr. Bhandal was confronted and restrained in Kullar’s apartment, taken in a van to Mr. Dhillon’s garage and confined there; and

(b) Gidhay, Boughan, Singh, Kullar and Jassar were the kidnappers.

[44] This evidence includes the following:

(a) blue tape and plastic zip ties found in the Kullar apartment matched blue tape and zip ties found at Mr. Dhillon’s garage. Gidhay’s palm impression was on a cut off hockey stick.

(b) it was an agreed fact that a neighbour saw Mr. Bhandal’s black vehicle parked in Kullar’s driveway after 3:20 p.m. on Friday, August 23. A man drove Mr. Bhandal’s vehicle away to allow a second man to back a white commercial van labelled AAA into the garage. A further agreed fact was that the defence did not dispute that the van was actually labelled “AAA Accurate Plumbing and Heating” bearing license plate BKVN 335 (the “AAA” van).

(c) the AAA van contained a sock with Mr. Bhandal’s DNA, a sock and water bottle with Gidhay’s DNA, a Gatorade and water bottle with Boughan’s DNA, a sock with Singh’s DNA, and a finger impression of Jassar’s on the gas cap.

(d) at Mr. Dhillon’s garage a garbage bag was found which contained blue tape, a towel and jeans with Mr. Bhandal’s DNA as well as items with the DNA of Gidhay, Singh and Kullar.

(e) the second floor sitting area at Mr. Dhillon’s garage contained items bearing Kullar and Singh’s finger impressions, Jassar’s DNA, Gidhay’s DNA, Mr. Johal’s DNA and finger impressions and Israel’s DNA and finger impressions.

(f) sheets had been put up over the garage windows.

Evidence Confirming the Evidence of Vetrovec Witnesses

[45] While the position of the Crown was that there was abundant additional confirmatory evidence, Mr. Kelly provided the following examples of what he submitted, and I agree, was confirmatory evidence.

[46] Gidhay testified that Mr. Dhillon told him he had sent “Iraqi guys” to kidnap Mr. Bhandal. – This is supported by the evidence of Israel, originally from Iraq, who said that Mr. Dhillon sent him out with another Iraqi man Steve, to look for Mr. Bhandal. This is also supported by the evidence of Nito Bhandal as to the day that she was waiting in the car while Mr. Bhandal went to Kullar’s apartment and he came back running indicating that there had been an attempt to kidnap him.

[47] The evidence of Gidhay, Boughan and Singh that Mr. Bhandal was transported from Kullar’s apartment to Mr. Dhillon’s garage in a white van. - I have already reviewed the evidence that confirms this.

[48] Gidhay testified that work was being done on Mr. Dhillon’s basement by a black man. – Photographs confirmed that the basement was under construction and Hererra-Trinidad, a black man, testified that he was doing work on the basement.

[49] Gidhay testified that Mr. Dhillon was a drug dealer. – I have already reviewed the evidence that confirms this.

[50] Gidhay testified that the men came out of the bedroom to grab Mr. Bhandal just after he had used his phone. – The phone records show that Mr. Bhandal used his phone at 3:29:49 p.m. and the message signalling the men to come out if the bedroom was sent ten seconds later.

[51] Gidhay testified that Mr. Dhillon had a storage locker in the vicinity of Highway 27 and Carrier Dr. – It was an admitted fact that Dilpreet Dhillon rented a storage locker in this area.

[52] When I come to my analysis I will discuss additional confirmatory evidence.

The Physical Treatment and Condition of Mr. Bhandal

[53] Gidhay, Boughan and Singh all described the initial attack on Mr. Bhandal as violent and resulting in Mr. Bhandal’s mouth being covered with tape and his hands and feet tied. They gave somewhat different descriptions:

(a) Gidhay testified Jassar put Mr. Bhandal in a bear hug, and all five men were involved in restraining him. Gidhay slapped and punched Mr. Bhandal. Boughan hit him many times with the cut off shaft of a hockey stick.

(b) Boughan testified he hit Mr. Bhandal two to three times with the hockey stick, lifting it over his head and hitting down as hard as he could. The stick was then used to pin Mr. Bhandal down.

(c) Singh testified that Boughan hit Mr. Bhandal ten to fifteen times with the hockey stick.

[54] Gidhay, Boughan and Singh gave inconsistent descriptions of Mr. Bhandal’s state during his confinement:

(a) Gidhay testified that whenever he saw Mr. Bhandal he was conscious;

(b) Singh testified that after Mr. Bhandal was initially tied up he appeared unconscious in the sense his eyes were open and fixed but that he later observed him moving, blinking and crying. Mr. Bhandal was fine when Singh went to sleep;

(c) Boughan testified that Mr. Bhandal appeared unconscious, and he never saw any sign of life, after Mr. Bhandal was initially tied up.

[55] Mr. Bhandal was placed on the floor of the AAA van and transported to Mr. Dhillon’s garage. At the garage, Gidhay, Singh and Boughan testified Mr. Bhandal was initially put on a wooden bench, and later they observed him lying on the floor of a room upstairs.

Expert Evidence - Causation

[56] The Crown presented evidence from Dr. Elliot, a forensic toxicologist, and Dr. Rajagopalan, a forensic pathologist. The defence presented evidence from Dr. Shkrum, a forensic pathologist. All of the experts were well qualified and there were no significant differences in their opinions. Both pathologists agreed Mr. Bhandal died prior to the fire and that, while the cause of death could not be determined, the possible causes of death were methamphetamine toxicity or asphyxiation. I do not, therefore, propose to review their qualifications in any detail.

[57] Dr. Elliot testified that Mr. Bhandal had a methamphetamine level of .52 mg/L in his post-mortem blood. It was common ground that methamphetamine can cause death even at relatively low levels.

[58] Methamphetamine stimulates the central nervous system. It increases the heart and respiratory rates and blood pressure. Death caused by methamphetamine is usually due to arrhythmia which can lead to heart attack, seizure or stroke. There is no antidote to reverse the effect of methamphetamine although the symptoms can be treated. Drugs can be administered to reduce blood pressure. A sedative can be given to calm an individual.

[59] Dr. Elliott testified that a common sign of methamphetamine use is hyperthermia. Dr. Elliott, in cross-examination, was asked if she could address how hyperthermia could lead to a cardiac event and she replied that this question would have to be addressed by a medical doctor.

[60] Dr. Rajagopalan testified that methamphetamine can cause cardiac arrhythmia. It has the effect of raising both heart rate and blood pressure. If someone is not on methamphetamine but is excited, afraid or exerting himself, his heart rate goes up. A combination of methamphetamine and stress or fear could further increase the risk of arrhythmia. Arrhythmia occurs when the demand for oxygen outstrips the supply of oxygen and the electrical current to the heart is disrupted and it cannot pump blood properly. If arrhythmia results then death is virtually instantaneous. The methamphetamine levels found in recreational users overlap significantly with the levels found in cases of methamphetamine fatalities. Arrhythmia cannot be detected at an autopsy.

[61] It is also common that methamphetamine can cause a stroke, with bleeding in the brain causing death. Dr. Rajagoapalan examined Mr. Bhandal’s brain and there was no indication of a bleed in the brain.

[62] Observing the skin is typically important at an autopsy, for example in the case of suspected asphyxiation. Normally with strangulation you can see marks around the neck and petechial hemorrhage but any such evidence would be destroyed by burning the body. In this case Dr. Rajagopalan couldn’t observe skin bruising due to the burning of the body. He did look for deep bruising but deep muscle bruising is fairly uncommon in the case of blunt trauma.

[63] There could have been blunt force to Mr. Bhandal’s neck. His hyoid was fractured which often occurs in the case of strangling or when there is blunt force to the neck. It was not, however, possible to tell if the fracture to Mr. Bhandal’s hyoid bone was before or after death, given that it could have resulted from the heat of the fire or been broken while his body was being removed from the car or as a result of autopsy procedures.

[64] Dr. Rajagopalan concluded that the cause of death was undetermined. There were two competing causes of death: asphyxiation, due to pressure on the neck or obstruction of the airways, or methamphetamine toxicity.

[65] Dr. Rajagopalan testified that in determining a cause of death it is necessary to consider the history, scene and circumstances. As such, Dr. Rajagopalan concluded that while methamphetamine toxicity could not be excluded as a cause of death it was not a reasonable cause of death given the history, scene and circumstances. In his experience, drug overdose deaths do not typically feature a burned body in a car at the side of the road.

[66] In cross-examination Dr. Rajagopalan testified that even if there was no other evidence of pressure to the neck that possibility is raised by the fracture to the hyoid bone and the fact that pressure to the neck cannot be ruled out given the state of the body.

[67] An increase in blood pressure can be an effect of methamphetamine and can also be the result of an increased heart rate.

[68] Dr. Rajagopalan was asked whether, if a person consumed a significant amount of methamphetamine, and then had a gun pointed at him, that could lead to an arrhythmia. He agreed it could. Dr. Rajagopalan added that the classic case of sudden death by arrhythmia is a person who has ingested drugs and is then engaged in a struggle with police.

[69] In re-examination Dr. Rajagopalan testified that a seizure is uncontrolled electrical activity in the brain. There is no evidence for or against Mr. Bhandal having had a seizure. Most seizures are not fatal although if prolonged they can be fatal. He said it need not be a sudden event, like the example of a gunshot, to elevate the heart rate of a person on methamphetamine leading to an arrhythmia. It could also be prolonged exertion or stress.

[70] Dr. Shkrum also agreed that methamphetamine causes the heart to beat faster and the blood pressure to rise. A toxic effect of methamphetamine could be to have a seizure. Signs of seizure might or might not show up in autopsy. For example biting inside the mouth might show up. But the lack of such evidence does not mean that Mr. Bhandal did not have a seizure.

[71] Methamphetamine can cause a rhythm disturbance so that the heart does not contract properly. That may result in a lack of blood supply to the brain. A person may faint due to a lack of oxygen. An irregular heart rhythm is the same as arrhythmia. Arrhythmia caused by methamphetamine could lead to unconsciousness and death.

[72] Apart from pressure on the neck and methamphetamine toxicity he does not see any other potential causes of death. He agrees the cause of death is undetermined.

[73] Mr. Caroline indicated that he believed he had finished his questioning, but after a break asked one further question. He asked Dr. Shkrum to comment on hyperthermia and Dr. Shkrum said “Hyperthermia or elevated body temperature is a toxic side effect of methamphetamine use.”

[74] In cross-examination Dr. Shkrum agreed he would not exclude a physical beating as a significant contributing cause to Mr. Bhandal’s death. He also agreed that a physical beating is medically dangerous. A punch to the head can cause neurological issues as well as an abnormal electrical discharge in the brain which can trigger a seizure. The brain tells the heart to beat and the body to breathe and if compromised it can stop. It is possible a punch to the head could result in arrhythmia.

[75] When subjected to violence the body responds with an increased heart rate, which increases the oxygen demand. Dr. Shkrum agreed that if a healthy man is subjected to violence his heart rate would go up, and if his heart rate went up his risk of arrhythmia would go up. Pain can cause the heart rate to go up.

[76] If a person is physically stressed adrenaline is released. Methamphetamine stimulates the nervous system to release noradrenaline. A person who is physically stressed and has taken methamphetamine is in greater danger of, in other words more vulnerable to, an arrhythmia than a person who is stressed but has not taken methamphetamine.

[77] Dr. Shkrum agreed that a person who has ingested methamphetamine may already have an elevated heart rate but if the person is then excited the heart rate would increase further.

THE LAW

[78] A number of the relevant legal principles are concisely stated in Watt’s Manual of Criminal Jury Instructions 2nd Edition (Toronto: Carswell, 2015) as “Final Instructions.” I will cite these Final Instructions by number when I come to my analysis and will not quote them at length. I will, however, cite a number of cases dealing with the essential elements of manslaughter and the principles of causation.

Manslaughter - Causation

[79] In R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505 Binnie J. explained:

Manslaughter occupies a different niche in the law of homicide. It does not require murderous intent. It requires only an objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act. Foreseeability of the risk of death is not required (R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3).

[80] R v. Maybin 2012 SCC 24, [2012] 2 S.C.R. 30 discusses the principles of causation for manslaughter. Two men in a bar viciously assaulted the victim rendering him unconscious. The bouncer then came and hit the unconscious victim in the head with some force. The medical evidence was inconclusive as to whether it was the initial blows (which rendered the victim unconscious), or the subsequent blow to the head by the bouncer, that caused death. The trial judge found all three accused not guilty on the basis that causation had not been proven.

[81] The Court of Appeal upheld the verdict acquitting the bouncer but ordered a new trial for the two initial assailants who rendered the victim unconscious. Karakatsanis J., for the court, discussed the general principles as follows:

2. General Principles of Causation for Manslaughter

[13] Section 222(1) of the Criminal Code, R.S.C. 1985, c. C-46 , provides that “[a] person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.” Subsection (5) provides that “[a] person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act”. The Criminal Code also identifies some circumstances in which the chain of causation will not be broken: a person causes the death of a human being notwithstanding (a) that death might have been prevented by resorting to proper means (s. 224 ) or (b) that the immediate cause of death is proper or improper treatment applied in good faith (s. 225 ).

[14] In Smithers, this Court pronounced the test for causation in manslaughter as “a contributing cause of death, outside the de minimis range” (p. 519). In that case, the accused punched the victim in the head and delivered a hard, fast kick to the victim’s stomach. The medical cause of the victim’s death was the aspiration of foreign materials present from vomiting; doctors testified that such aspiration rarely happens when the epiglottis functions properly. Dickson J. stated that it was “immaterial that the death was in part caused by a malfunctioning epiglottis to which malfunction the [accused] may, or may not, have contributed” (p. 519). An unlawful act may remain a legal cause of a person’s death even if the unlawful act, by itself, would not have caused that person’s death, provided it contributed beyond de minimis to that death (p. 522). The Court thus recognized that there may be a number of contributing causes of death.

[15] In Nette, this Court affirmed the validity of the de minimis causation standard expressed in Smithers for culpable homicide. Writing for the majority, Arbour J. noted that causation in homicide cases involves two aspects: factual and legal causation. Factual causation is “an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result” (Nette, at para. 44). The trier of fact usually asks: “But for” the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope.

[16] Legal causation, however, is a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility. Arbour J. noted that legal causation is “based on concepts of moral responsibility and is not a mechanical or mathematical exercise” (Nette, at para. 83). She stated, at para. 45:

Legal causation, which is also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred. It is informed by legal considerations such as the wording of the section creating the offence and principles of interpretation. These legal considerations, in turn, reflect fundamental principles of criminal justice such as the principle that the morally innocent should not be punished . . . .

[17] Further, this Court emphasized that causation issues are case-specific and fact-driven. The choice of terminology to put to a jury is discretionary in the context of the circumstances of the case (Nette, at para. 72). Implicit in Nette then, is the recognition that different approaches may be helpful in assessing legal causation, depending upon the specific factual context.

[82] Mr. Caroline cited R v. Talbot, 2007 ONCA 81, [2007] O.J. No. 427 (C.A.) on the issue of causation. Talbot testified that he initially punched the victim in self-defence during an altercation, and the victim fell backwards and struck his head on pavement. About a minute later Talbot kicked the victim in the face as he lay on the ground. The jury found Talbot not guilty on the basis of self-defence. The medical evidence indicated that:

(a) the punch and fall caused a fractured skull and internal bleeding; and

(b) the subsequent kick to the face caused “medically minor” facial injuries.

[83] The Court of Appeal upheld the acquittal. Doherty J.A. stated:

79 I would, however, go further than holding that the instruction was of no consequence. I do not think there was any evidentiary basis for a finding that the kick was a contributing cause of Mr. Shelton's death. Causation in the criminal law has a factual and legal component. The former is concerned with the physical or medical cause of death. A "but for" inquiry answers the factual causation question in most, but not all situations. If the victim would not have died when he or she died but for the act of the accused, that act is a factual cause of death: see Isabel Grant, Dorothy Chunn & Christine Boyle, The Law of Homicide (Toronto: Carswell, 1994) at 3-21 - 3-29; Glanville Williams, Textbook of Criminal Law, 2d ed. (Agincourt, Ont.: Carswell, 1983) at 380-81; Wayne R. LaFave, Substantive Criminal Law, 2d ed. (Eagan, Minn.: Thomson/West, 2003) vol. 1 at 467-68.

80 Legal causation requires a normative inquiry. It asks who among those who have factually caused a death should be held liable for causing that death in the eyes of the criminal law: see R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488 at paras. 44-45.

81 Juries are not asked to determine factual and legal causation separately. Instead, the two inquiries are joined and the jury is asked to decide whether the accused's actions significantly contributed to the victim's death: see R. v. Nette, supra, at paras. 46-73. A contributing cause can be a cause that exacerbates an existing fatal condition, thereby accelerating death: see R. v. Munro and Munro (1983), 1983 CanLII 3542 (ON CA), 8 C.C.C. (3d) 260 at 290-91 (Ont. C.A.); Criminal Code, s. 226.

82 If the Crown sought to rely on the kick as a contributing cause of death, it was incumbent on the Crown to prove beyond a reasonable doubt that the kick was a contributing cause within the meaning of R. v. Nette, supra. The evidence adduced by the Crown went no further than to suggest there was some unquantifiable possibility that was less than a likelihood that the kick exacerbated the internal head injuries. I agree with counsel for the respondent's submission that this evidence could provide a basis for a finding of a causal link between the kick and Mr. Shelton's death only if the jury was prepared to engage in the kind of speculation that Dr. Chiasson declined to engage in during his evidence. Evidence that an act was possibly a cause of death cannot provide the evidentiary basis for a finding beyond a reasonable doubt that the act significantly contributed to the death.

83 I also do not think that the jury could find a causal link between the kick and Mr. Shelton's death on the basis of the non-medical evidence. While it is true that Mr. Mitchell, Mr. Sharpe and, to a lesser extent, Mr. Gafour described a very forceful kick (a description which was at odds with the physical evidence observed by Dr. Chiasson), I think the jury would still have to look to the medical evidence for any insight as to the effect of the kick. For the reasons already given, that medical evidence was incapable of forging a causal link between the kick and Mr. Shelton's death.

ANALYSIS

Unsavoury Witnesses – Absence of Evidence

[84] In considering the evidence of Gidhay, Boughan, Singh and Israel, who are unsavoury witnesses, I instruct myself in accordance with Final 31. I also take into account that as Gidhay, Boughan and Singh were friends there is at least the possibility of collusion. In addition Boughan had disclosure materials and an opportunity at the preliminary inquiry to hear Gidhay and Singh (who only attended as witnesses) testify.

[85] I also bear in mind the evidence that makes Gidhay, Boughan and Singh unsavoury witnesses and weighs against their credibility and reliability. I also bear in mind their motive to try to gain favourable consideration in terms of parole eligibility and remaining in Canada.

[86] Gidhay, Boughan and Singh were each examined and cross-examined over several days. For the most part they exhibited patience and were responsive to the questions asked. The cross-examinations highlighted the areas that made them unsavoury, but there was little in the cross-examinations that raised additional concerns about their credibility and reliability.

[87] If Gidhay was out to get Mr. Dhillon it would have been easy for him to have testified he saw vast amounts of drugs at the house. Instead he acknowledged seeing only a few grams. If Gidhay, Boughan and Singh had colluded one would expect greater consistency on matters such as Mr. Bhandal’s physical condition and who was present during the driveway discussion at Mr. Dhillon’s house.

[88] I have considered the absence of evidence from Kullar and Jassar. While I take this into account, I place little weight on it due to the extensive confirmatory evidence that was introduced.

Kidnapping – Role of Mr. Dhillon

[89] The evidence of Gidhay, Boughan and Singh, supported by the DNA, finger impression and other circumstantial evidence which I have reviewed, satisfies me that Mr. Bhandal was confronted, restrained and transported to Mr. Dhillon’s garage as they described.

[90] Mr. Kelly submitted that I should apply the common purpose exception to the hearsay rule and decide that certain words and actions of Mr. Johal should be considered as the words and actions of Mr. Dhillon and certain of his words and actions should be considered those of Mr. Johal.

[91] As I will describe, there is overwhelming evidence (apart from Gidhay, Singh and Boughan) that Mr. Dhillon directed the kidnapping and unlawful confinement of Mr. Bhandal. There is no need to consider whether certain acts of Mr. Johal can be added to that evidence.

[92] Further, in my opinion the evidence of certain words and conduct of Mr. Dhillon would add little, if anything, to the case against Mr. Johal. It also strikes me as inappropriate to unnecessarily undertake an analysis of whether, as Mr. Kelly put it, Mr. Johal was engaged in a plan to “get” Mr. Bhandal given that Mr. Johal is not charged with kidnapping or unlawful confinement.

[93] I find as a fact that Mr. Dhillon was a drug dealer. Drugs, drug paraphernalia and large amounts of concealed cash were located in his home. His cell phone was registered in a false name. He had no significant or successful business. His reported income was nominal while his standard of living would require income in the hundreds of thousands of dollars per year. I also accept Gidhay’s evidence that Mr. Dhillon supplied him with drugs and represented himself to be a heroin importer.

[94] This bad character evidence concerning Mr. Dhillon is relevant only to motive. I recognize that I cannot reason that by virtue of bad character Mr. Dhillon is more likely to have committed the offence charged or that he should be punished for conduct not the subject of the charges before the court. I consider Mr. Dhillon’s motive, in accordance with Watt’s Manual Final 26, as one part of the totality of the evidence.

[95] Mr. Dhillon and Mr. Bhandal had enjoyed a close relationship. Jaskiran Dhillon testified that Mr. Bhandal at one time was like family. Nito Bhandal gave similar evidence. Herrera-Trinidad testified that at one time Mr. Bhandal came to the garage daily. Their evidence was not challenged. Herrera-Trinidad had no bias or interest in giving evidence. If Jaskiran Dhillon had any motive it was to protect Mr. Dhillon. This close relationship between Mr. Bhandal and Mr. Dhillon changed.

[96] On July 24, 2013 Dilpreet Dhillon reported a theft from Mr. Dhillon’s storage unit. Mr. Dhillon in his statement to the police indicated that he had no contact with Mr. Bhandal in the few weeks prior to August 24, 2013. Nito Bhandal gave evidence that Mr. Bhandal told her that Mr. Dhillon was blaming him for something and that on May 27, 2013 he sent her a photo of him holding a large amount of cash with a text indicating he had Mr. Dhillon’s cash. It is unlikely that Mr. Bhandal would lie to his wife as to who he had a dispute with or the source of the cash in the photographs. In light of the confirmatory evidence, I also accept Gidhay’s evidence that Mr. Dhillon told him that Mr. Bhandal had stolen from him and Israel’s evidence that Mr. Dhillon told him that he had an argument with Mr. Bhandal.

[97] I, therefore, find as a fact that Mr. Dhillon believed that Mr. Bhandal had stolen from him and so had a motive to kidnap and confine him.

[98] While I appreciate that there is no onus on the defence to prove anything, there is no suggestion that any of the five men who kidnapped Mr. Bhandal had any personal motive to do so.

[99] There is a strong common sense inference that Mr. Bhandal would not have been taken to Mr. Dhillon’s garage without Mr. Dhillon’s knowledge and approval. Put differently, a kidnapper would not likely confine a victim in a place where an uninvolved third party could discover the victim and call the police.

[100] There is a strong common sense inference, given their respective ages and wealth, that Mr. Dhillon was the leader and the others his followers.

[101] There is a strong common sense inference that individuals committing a kidnapping, who wind up with a dead body that has to be disposed of, would focus their attention on the task at hand and communicate only with those involved. The cell phone evidence:

(a) demonstrates a spike in the number of calls among the kidnappers and Mr. Dhillon during the period August 22 – 24, 2013.

(b) demonstrates that from 3:30 p.m. on August 23, 2013 (when the text was sent which triggered the kidnapping) until 1:49 a.m. on August 24, 2013 Mr. Dhillon and Mr. Johal communicated, or attempted to communicate, by text or telephone 25 times.

(c) demonstrates that from 4:30 p.m. until 9:42 p.m. on August 23, 2013 Mr. Johal’s phone was accessing cell towers proximate to Mr. Dhillon’s garage, which is confirmatory of the evidence of Gidhay, Boughan and Singh that he came and unlocked the garage to let them bring the van holding Mr. Bhandal in and that he remained there to socialize.

(d) demonstrates that from 1:28 a.m. to 1:40 a.m. on August 24, 2013 Mr. Johal’s phone was accessing cell towers proximate to Mr. Dhillon’s garage which is confirmatory of the evidence of Gidhay, Boughan and Singh that Mr. Johal returned to the garage and was present when it was discovered that Mr. Bhandal was dead.

(e) demonstrates that from 2:01 a.m. to 2:34 a.m. on August 24, 2013 Mr. Johal’s cell phone was accessing cell towers proximate to Mr. Dhillon’s house. From 1:14 a.m. to 1:49 a.m. Mr. Dhillon’s cell phone was accessing towers proximate to his home. This is confirmatory of the evidence of Gidhay, Boughan and Singh that they saw Mr. Dhillon and Mr. Johal at the Dhillon house in the early morning after Mr. Bhandal died.

[102] The essential elements of the offence of kidnapping are set out in Watt’s Manual, Final 279-A. As is relevant to this case, kidnapping was committed when Mr. Bhandal was unlawfully taken from the Kullar apartment to Mr. Dhillon’s garage. There is overwhelming evidence that a kidnapping took place. Further, the evidence I have just discussed and the findings I have made, satisfy me beyond a reasonable doubt that Mr. Dhillon counselled the five men to kidnap Mr. Bhandal. As such, Mr. Dhillon is a party to the offence of kidnapping as having abetted it under s.21(1)(c), and as having counselled the commission of the offence under s.22(1) of the Criminal Code.

[103] In R v. Vu 2012 SCC 40, [2012] 2 S.C.R. 411 the victim was kidnapped and held in captivity at three different houses over eight days. There was no evidence that Vu had prior knowledge of the kidnapping or that he was present at the initial taking. Vu was, however, proven to have aided and abetted in the victim being held captive at the three houses. Moldaver J. found that Vu was properly convicted of kidnapping, and not the lesser offence of unlawful confinement, stating:

60. […] kidnapping is an aggravated form of unlawful confinement, which continues until the victim is freed…

[104] Unlawful confinement is, therefore, included within the continuing offence of kidnapping. As such the charge of unlawful confinement against Mr. Dhillon should be conditionally stayed according to R. v. Kienapple 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.

Manslaughter - Causation

[105] I now turn to the charge of manslaughter. As stated in Sarrazin, manslaughter requires that the Crown establish that the accused had, “an objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act.” Setting five men to kidnap a young able-bodied man clearly meets this standard. As was readily foreseeable, it took a violent attack to subdue Mr. Bhandal.

[106] It remains then to consider whether, in light of the possibility that methamphetamine was a cause of the death of Mr. Bhandal, the Crown has proven beyond a reasonable doubt that the kidnapping of Mr. Bhandal remained a substantial contributing cause of Mr. Bhandal’s death. Watt’s Manual, Final 235 also makes the point that if the kidnapping contributed significantly to Mr. Bhandal’s death, it does not matter that the kidnapping only accelerated Mr. Bhandal’s death from methamphetamine.

[107] Gidhay and Singh testified that Mr. Johal was at Mr. Dhillon’s garage when they were awakened and advised that Mr. Bhandal was dead and that they then went to Mr. Dhillon’s house. Boughan testified that Gidhay called him to tell him that Mr. Bhandal had died and they met and went to Mr. Dhillon’s house. At 1:28 a.m. Mr. Johal’s phone was accessing towers proximate to Mr. Dhillon’s garage. At 2:31 a.m. and 2:34 a.m., however, Mr. Johal’s phone was accessing cell towers proximate to Mr. Dhillon’s home. Boughan’s phone was also accessing cell towers proximate to Mr. Dhillon’s home around 2:30 a.m. In six calls from 1:13 a.m. to 1:49 a.m. Mr. Dhillon’s phone always accessed cell towers near his home. These phone records provide strong support for the evidence of Gidhay, Boughan and Singh as to how events unfolded. I, therefore, infer and find that by approximately 1:30 a.m., at the latest, Mr. Bhandal was dead.

[108] The pathologists agreed that the cause of death was undetermined and that the possible causes of death were methamphetamine toxicity and asphyxiation. I appreciate that Dr. Rajagopalan went to say that methamphetamine was not a reasonable cause of death given the history, scene and circumstances. Dr. Shkrum testified that it was contradictory for Dr. Rajagopalan to say methamphetamine was a possible, but not a reasonable, cause of death.

[109] At its highest for the Crown, Dr. Rajagopalan’s evidence was that methamphetamine was a possible cause of death but less likely than asphyxiation. I must, however, be satisfied beyond a reasonable doubt that the Crown has proven causation. I, therefore, base my analysis on the premise most favourable to the defence, namely that methamphetamine toxicity was in fact a cause of Mr. Bhandal’s death.

[110] Dr. Rajagopalan testified that when methamphetamine causes death the mechanism is most often a cardiac arrhythmia. Methamphetamine causes the heart rate and blood pressure to increase. Arrhythmias are typically caused when the demand for oxygen, which increases when heart rate and blood pressure increase, exceeds the available supply of oxygen.

[111] Dr. Rajagopalan also testified that increased heart rate and blood pressure would result from events such as attempting to fight off five men, or from fear and stress such as would inevitably be experienced by anyone kidnapped, confined and gagged, with hands and legs bound.

[112] Dr. Rajagopalan testified that methamphetamine can also result in death by means of a stroke. The mechanism of stroke would, however, also relate to increased blood pressure and heart rate. In any event, Dr. Rajagopalan testified that if a stroke had occurred, which involves bleeding into the brain, he would have been able to detect that at autopsy. He did not.

[113] Finally, Dr. Rajagopalan said that methamphetamine can also cause a person to have a seizure but that most seizures are not fatal. Seizures can be fatal only if they are very prolonged and they affect breathing. But for his kidnapping Mr. Bhandal would have been in the company of his wife shortly after leaving Kullar’s apartment. If he suffered a seizure he could have obtained medical attention.

[114] For the sake of completeness I will address the reference by Dr. Shkrum to hyperthermia (elevated body temperature) as a toxic side effect of methamphetamine use. Dr. Shkrum addressed this in one sentence in examination-in-chief. In contrast, Dr. Shkrum addressed methamphetamine toxicity resulting in arrhythmia, stroke and seizure in considerable detail. Dr. Shkrum did not suggest that elevated body temperature results from a mechanism unrelated to increased heart rate and blood pressure. If hyperthermia resulted from a different mechanism I am sure this would have been highlighted and explained by Dr. Shkrum.

[115] Mr. Caroline placed considerable reliance on the Talbot decision. He conceded that increased heart rate and blood pressure can lead to arrhythmia. He argued, however, that “but for” causation could not be established because the extent to which Mr. Bhandal’s fear and stress increased his heart rate could not be quantified and it was speculative as to whether the fear and stress contributed to his death approximately ten hours after his kidnapping.

[116] I find that Talbot is distinguishable. In Talbot the victim suffered facial injuries that were inconsequential and skull injuries that were fatal. I can readily understand why the Crown could not establish causation based upon the facial injuries. In our case, assuming methamphetamine was a cause of death, the mechanism of death was related to increased heart rate and blood pressure. Increased heart rate and blood pressure were without doubt also caused by the kidnapping of Mr. Bhandal.

[117] Mr. Caroline argued that the effect of the kidnapping on Mr. Bhandal’s heart rate and blood pressure would be spent by the time that he died which on the evidence was, at most, ten hours after he was initially confronted and subdued. I disagree. We tell jurors that they are entitled to apply common sense and experience but are not entitled to speculate. In my view it is squarely in the realm of common sense and experience to conclude that so long as Mr. Bhandal was conscious he would have continued to be in fear, and continued to experience stress, throughout his confinement. The stress level, and the impact on his heart rate and blood pressure, might go up and down, but I am certainly satisfied that it would have been significant and continuous.

[118] The pathologists agreed that increased heart rate and blood pressure can trigger arrhythmia. Methamphetamine increases heart rate and blood pressure as does fear, stress, pain and exertion. Dr. Shkrum agreed that the already elevated heart rate of a person on methamphetamine would be elevated further if the person were then excited.

[119] To my mind there is a fair analogy between the methamphetamine and stress operating on Mr. Bhandal to cause arrhythmia and two sources of heat operating to cause a pot of water to boil. The application of two sources of heat causes the water to boil sooner than it would otherwise. As Watt’s Manual, Final 235, makes plain if something is a significant contributing cause to death, as I am satisfied the assault and kidnapping of Mr. Bhandal was, it does not matter if it only accelerated Mr. Bhandal’s death from methamphetamine. Further, to quote from Maybin, “… factual causation is not limited to the direct and immediate cause, nor is it limited to the most significant cause.”

[120] I appreciate that there was differing evidence as to Mr. Bhandal’s state of consciousness during his confinement. On Boughan’s version, Mr. Bhandal was unconscious and showing no sign of life after he was initially restrained and tied up. That version would be consistent with cardiac arrhythmia closely related to the violent struggle resulting in immediate death. On the version of Gidhay that Mr. Bhandal was conscious throughout, and on the version of Singh that he was only unconscious for a brief period after he was tied up, Mr. Bhandal would have appreciated that he had been kidnapped and was being held captive on the orders of Mr. Dhillon. In that event I am satisfied that he would have been in a state of continuous fear and stress prior to his death. As such this inconsistency in the evidence does not raise any reasonable doubt as to causation.

[121] For the sake of completeness I will add that on balance I am satisfied and so find that Mr. Bhandal was conscious and awake up until Gidhay, Boughan and Singh went to sleep with the possible exception of the brief period Singh testified to. I reach this conclusion because, in my opinion, even in their drugged state, Gidhay, Boughan and Singh would have been able to appreciate whether Mr. Bhandal was dead or alive. If he was dead on arrival at Mr. Dhillon’s garage, or by early Friday evening, they would not have continued to socialize and go to sleep. They would have been in panic mode and the trip to Mr. Dhillon’s house to obtain an explanation and direction would have occurred much earlier.

[122] As such I am satisfied beyond a reasonable doubt that the Crown has proven that the kidnapping of Mr. Bhandal, and the consequent exertion and stress which raised his heart rate and blood pressure, was a substantial contributing cause of his death. As such I find Mr. Dhillon guilty of manslaughter.

Interfering with – Offering an Indignity to - the Body of Mr. Bhandal

[123] I next consider the charge against Mr. Dhillon of interfering with or offering an indignity to Mr. Bhandal’s body. Again, I adopt the premise most favourable to the defence which is that Mr. Dhillon was surprised to learn that Mr. Bhandal had died. As a matter of common sense and experience he must have also recognized that he was most at risk. He had ordered the kidnapping and a dead body was in his garage. He had some time to think and consult with Mr. Johal and, given their relationship of trust, I infer and find that they did consult.

[124] General support for the narrative that there was a meeting at Mr. Dhillon’s house is provided by cell phone records that show that the cell phones of Mr. Dhillon, Mr. Johal, Gidhay, Boughan and Singh all accessed cell towers proximate to Mr. Dhillon’s home in the period 1:13 a.m. to 2:34 a.m.

[125] Gidhay testified that in the driveway discussion Mr. Dhillon suggested burning the body. Singh testified that he heard Mr. Dhillon direct that Mr. Bhandal’s body be put in his vehicle and set on fire. Boughan testified that in the driveway there was some conversation about Mr. Bhandal. While he did not recall the details he did remember Mr. Dhillon referred to moving his body. Boughan testified he then returned to the vehicle while Gidhay continued the discussion with Mr. Dhillon and Mr. Johal. It was only when Gidhay returned to the vehicle that he stated the plan was to put Mr. Bhandal’s body in his car and set it on fire. Clearly Gidhay did not come up with the idea of burning Mr. Bhandal’s body in his vehicle in the few seconds it took him to walk back to the vehicle. I, therefore, regard Boughan’s evidence as providing further support for the proposition that Mr. Dhillon directed that the body be burned.

[126] The fact that pathologists can ascertain the cause of death by examining a body and that the police can identify suspects by DNA, fingerprint and other trace evidence such as hair or fibers is common knowledge. Mr. Dhillon, as a drug dealer and garage owner, was clearly the most sophisticated of the group. He was also clearly in charge. He directed the kidnapping and the transportation of Mr. Bhandal to his garage. Gidhay and the others came to Mr. Dhillon for an explanation and direction after Mr. Bhandal died. I do not believe for a moment that Mr. Dhillon left it to Gidhay and his associates to decide where to take the body and what to do with it.

[127] Mr. Caroline and Mr. Klumak pointed out the discrepancies among Gidhay, Boughan and Singh as to how the driveway conversation unfolded. They pointed out that Gidhay indicated that Mr. Dhillon directed that the body be burned in his first statement to police but not in his second statement. To my mind the discrepancies cited fall within the realm of differences to be expected when witnesses recount events that occurred when they were tired and stressed or give statements to police while stressed. They do not cause me to doubt their overall credibility and reliability as to what Mr. Dhillon said.

[128] I, therefore, find as a fact that Mr. Dhillon, in the presence of Mr. Johal, told Gidhay to move the body, put it in Mr. Bhandal’s vehicle, and burn it. This was obviously done with a view to destroying evidence and making it look like an accident.

[129] I am satisfied beyond a reasonable doubt that Mr. Dhillon counselled Gidhay to have the body burned and as such I find him guilty of the offence of interfering with or offering an indignity to Mr. Bhandal’s body.

Accessory After the Fact – Mr. Johal

[130] I now turn to the charge of accessory after the fact against Mr. Johal.

[131] I caution myself that evidence of bad character on the part of Mr. Johal, such as his drug use, cannot be used to reason that he is more likely to have committed the offence charged or that he is deserving of punishment for matters not before the court.

[132] In accordance with Watt’s Manual Final 103 the Crown is obliged to prove beyond a reasonable doubt that:

(a) a person or persons committed the manslaughter of Mr. Bhandal,

(b) Mr. Johal knew that manslaughter had been committed;

(c) Mr. Johal provided assistance to those who committed manslaughter by delivering the keys to Mr. Bhandal’s vehicle to Singh or Kullar;

(d) Mr. Johal provided that assistance for the purpose of helping those who committed manslaughter to avoid detection.

[133] As to element (a) I have found Mr. Dhillon guilty, and Gidhay, Boughan and Singh have all been convicted, of the manslaughter of Mr. Bhandal.

[134] As to element (b), that Mr. Johal knew that manslaughter had been committed, I will review the evidence that Mr. Johal knew that Mr. Bhandal had been kidnapped and that he had died while confined.

[135] Hererra-Trinidad, who I have found to be credible and reliable, testified that Mr. Johal called him on Friday afternoon and was insistent that he leave the garage and go to Mr. Dhillon’s house. Phone records place this call by Mr. Johal at 3:57 p.m. As discussed Mr. Bhandal had been attacked at 3:30 p.m. and restrained. Mr. Johal’s phone accessed towers proximate to Mr. Dhillon’s garage between 4:30 p.m. and 9:42 p.m.

[136] When Herrera-Trinidad left the garage Friday afternoon the second floor area with couches and a table was clean. When he returned Saturday it was littered with food and drink containers and drug paraphernalia. Mr. Johal’s DNA was on a coke bottle and his fingerprint on a piece of tinfoil. Clearly Mr. Johal was at the garage Friday evening.

[137] While at the garage, it would be obvious to Mr. Johal that the windows were covered with sheets. All of this strongly supports, and I accept, the evidence of Gidhay, Boughan and Singh that Mr. Johal brought the keys to open the garage and was well aware that Mr. Bhandal had been kidnapped and was being held captive. Clearly Mr. Dhillon had complete confidence and trust in Mr. Johal to have him play the part he did.

[138] Mr. Johal’s phone also accessed cell towers proximate to Mr. Dhillon’s garage around 1:30 a.m. and towers proximate to Mr. Dhillon’s residence between 2:01 a.m. and 2:34 a.m. All of this strongly supports and I accept, the evidence of Gidhay and Singh, that Mr. Johal was at the garage and aware that Mr. Bhandal had died.

[139] The totality of this evidence easily satisfies me beyond a reasonable doubt that Mr. Johal knew that manslaughter had been committed.

[140] I now turn to element (c), that Mr. Johal provided assistance by delivering the keys to Mr. Bhandal’s vehicle.

[141] Video evidence proves that Mr. Johal was with Israel at Storage Mart at 11:37 p.m. on Friday, August 23. As I said before, there is a common sense inference if a person is involved in a critical situation such as a kidnapping he would not likely digress and attend to unrelated matters. The trip to Storage Mart clearly related to Mr. Bhandal who had been kidnapped that afternoon. Mr. Dhillon was trying to recover property he believed Mr. Bhandal had stolen. At least some of the property had been at Storage Mart. Mr. Dhillon’s locker at Storage Mart had been vacated and the lock removed weeks earlier.

[142] While Israel was a reluctant, defiant and unsavoury witness, given the video and the totality of the circumstances, I accept his evidence and find that Mr. Johal told him that he had keys that might open a storage locker and that Mr. Johal tried a number of locks at Storage Mart to see if the keys would work. It only makes sense that Mr. Johal was using Mr. Bhandal’s keys.

[143] Gidhay, Boughan and Singh were consistent in describing driving away from Mr. Dhillon’s house and then stopping in order to meet Mr. Johal, at which time he handed over keys. I accept this evidence and am satisfied beyond a reasonable doubt that Mr. Johal did hand over keys. In context, given the driveway discussion and the necessity to get rid of the body, I am also satisfied beyond a reasonable doubt the keys were for Mr. Bhandal’s vehicle.

[144] I am, therefore, satisfied beyond a reasonable doubt that Mr. Johal provided assistance to Mr. Dhillon and the others who committed manslaughter by delivering the keys to Mr. Bhandal’s car.

[145] I now turn to element (d) being that Mr. Johal provided that assistance for the purpose of helping those who committed manslaughter to avoid detection.

[146] I agree with the Crown that it need not prove that Mr. Johal was privy to the discussion about the body being burned. What is essential is only that he knew that the plan was to use Mr. Bhandal’s car to move his body. Obviously moving the body from Mr. Dhillon’s garage would assist him in escaping detection.

[147] Having said that, I earlier found that Mr. Johal was standing by and knew of the plan to put Mr. Bhandal’s body in the car and burn it. Mr. Johal also knew that it was Gidhay and his associates who were going to dispose of the body. I am, therefore, also satisfied beyond a reasonable doubt that he handed over the keys to Kullar and Singh intending to facilitate the removal and burning of the body with a view to assisting the perpetrators to avoid detection. As such I find Mr. Johal guilty as charged.

CONCLUSION

[148] Mr. Dhillon is found guilty and a conviction is entered on count one manslaughter, count two kidnapping, and count four interfere with or offer an indignity to the body of Mr. Bhandal. Mr. Dhillon is also guilty of count three unlawful confinement, however, I enter a conditional stay on that charge.

[149] Mr. Johal is found guilty, and a conviction is entered on count five, of being an accessory after the fact to the manslaughter of Mr. Bhandal.

Sproat J.

Released: February 13, 2017

CITATION: R. v. Dhillon, 2017 ONSC 900

COURT FILE NO.: 32/14

DATE: 20170213

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Plaintiff

• and –

NARANKAR DHILLON and JASKARN JOHAL

Defendants

REASONS FOR JUDGMENT

Sproat J.

Released: February 13, 2017