COURT FILE NO.: CR-20-352
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHURAMAN RAMGADOO
Ms. K. Holmes & Ms. E. Norman, for the Crown
Mr. E. Brown & Ms. L Nithiananthan for the Accused
HEARD: November 10, 12, 15, 16, 17, 19 and 22, 2021
REASONS FOR JUDGMENT
STRIBOPOULOS J.
Introduction
[1] In July 2019, Churaman Ramgadoo and Ajay Chibber were each renting separate small offices in an industrial unit in Brampton, where both men were living. Each had recently fallen on hard times, and their landlord, Mr. Poonai, who had known both men for years, had agreed to this unusual living arrangement.
[2] On the afternoon of July 2, 2019, Mr. Ramgadoo, Mr. Chibber and Mr. Poonai went out for lunch together. After lunch, they dropped Mr. Poonai off at his home. Mr. Poonai never saw Mr. Chibber again. After not hearing from him over the next couple of days, which was unusual, Mr. Poonai became concerned.
[3] As a result, on July 5, 2019, Mr. Poonai attended the industrial unit to check on Mr. Chibber. When he did not answer to knocks on his door and having found the door locked, Mr. Poonai called the police.
[4] When police attended, they forced entry into Mr. Chibber's room. Inside, they found his lifeless body, lying partly on a small mattress and covered with a blanket. There were obvious signs of trauma. A post-mortem examination determined that Mr. Chibber had died from blunt head trauma.
[5] Mr. Ramgadoo faces a charge that he, "on or about the 2nd day of July, 2019, at the City of Brampton, in the Central West Region, did commit second degree murder on the person of Ajay Chibber, contrary to section 235(1) of the Criminal Code of Canada."
[6] Mr. Ramgadoo's trial commenced before me with a jury. However, on the second day of trial, the court granted Mr. Ramgadoo's application for a mistrial. After that, Mr. Ramgadoo agreed, as did the Attorney General through his designate, that the trial should continue before me without a jury.
[7] The Crown’s case against Mr. Ramgadoo consists of direct and circumstantial evidence. The direct evidence came from his ex-wife, who testified that Mr. Ramgadoo, during telephone conversations with her, admitted to killing Mr. Chibber. The circumstantial evidence, the Crown contends, establishes that Mr. Ramgadoo had a motive and the opportunity to commit the crime – and that his actions after the fact are consistent with him being the killer. Based on all the evidence, the Crown submits that it has proven beyond a reasonable doubt that Mr. Ramgadoo murdered Mr. Chibber.
[8] Defence counsel responds that the court should have a reasonable doubt as to whether Mr. Ramgadoo is the person who killed Mr. Chibber because his ex-wife is not a credible witness. Alternatively, should the court find that Mr. Ramgadoo killed Mr. Chibber, defence counsel submits that the court should have a reasonable doubt concerning the mens rea for murder because Mr. Ramgadoo was very drunk on the night of the homicide.
[9] These reasons will proceed in three main parts. The first part provides a summary of the evidence at trial. The second part canvasses the law concerning the essential elements the Crown must prove to secure a conviction for second degree murder. Finally, these reasons will turn to consider whether the Crown, given the evidence, the law, and the court's findings, has proven beyond a reasonable doubt that Mr. Ramgadoo is criminally culpable for the death of Mr. Chibber.
Part I - The Evidence
[10] Various agreed statements of fact formed much of the evidentiary record in this case, and only a handful of witnesses testified at the trial. What follows is only a summary of the relevant evidence.
The relationship between Mr. Ramgadoo and Mr. Chibber
[11] Mr. Poonai owns an industrial unit located at 173 Advance Boulevard in Brampton. In July 2019, he was renting the front portion of that unit to an employment agency. Mr. Poonai used the remainder of the space as the home base for his trucking business.
[12] Mr. Poonai had known Mr. Ramgadoo and Mr. Chibber separately for years. In 2019, each had fallen on hard times and needed somewhere to live. To help them out, Mr. Poonai rented small offices in his industrial unit to each man. In the months preceding July 2019, both were using their respective small offices as their residences.
[13] Mr. Poonai testified that Mr. Chibber and Mr. Ramgadoo became friends while living at the industrial unit. They cooked and shared meals, socialized and drank together. When he happened to be at the industrial unit, Mr. Poonai testified that he would often socialize and drink with the two of them.
[14] According to Mr. Poonai, when he spent time with them, Mr. Ramgadoo often drank to excess. On those occasions, Mr. Poonai testified that he never personally witnessed any problems between Mr. Ramgadoo and Mr. Chibber. However, Mr. Poonai also testified that on a couple of occasions, shortly before the homicide, Mr. Chibber told him about concerns he had for his safety when he was drinking with Mr. Ramgadoo.[^1]
[15] Mr. Poonai testified that Mr. Chibber said, referring to Mr. Ramgadoo, "when this guy is high or drunk, I'm scared of him." Mr. Chibber told him that Mr. Ramgadoo attempted to choke him a couple of times when he was drunk and then apologized for doing so afterward, telling him he was "only joking" and reassuring him that they were "buddies." He said that when Mr. Ramgadoo was drunk, he would demand the keys for his car to go and get more beer. He also said that if he refused, Mr. Ramgadoo would forcefully take the keys from him. Mr. Poonai responded by advising Mr. Chibber that when Mr. Ramgadoo behaved like that, he should go inside his room and lock his door.
[16] Despite Mr. Chibber's concerns about Mr. Ramgadoo's erratic and violent behaviour when he was drunk, the relationship between the two men was otherwise amicable. For example, Mr. Poonai testified that before the homicide, Mr. Ramgadoo and Mr. Chibber were planning on moving out of his industrial unit and looking to rent a place to live together.
The afternoon of July 2, 2019
[17] Early on the afternoon of July 2, 2019, Mr. Chibber, Mr. Ramgadoo and Mr. Poonai went out for lunch together in Brampton. Mr. Ramgadoo paid. According to Mr. Poonai, Mr. Ramgadoo had just received his welfare cheque and had not paid him his rent for July, as he was planning on moving out, so he had money and was spending it freely. Afterwards, Mr. Poonai testified that Mr. Ramgadoo and Mr. Chibber drove him home. That was the last time Mr. Poonai saw Mr. Chibber alive.
[18] Later that afternoon, Mr. Ramgadoo attended 21 Division of the Peel Regional Police. At the time, he was subject to a recognizance that required him to sign in weekly; he did so at 4:08 p.m. that day.
[19] After that, Mr. Ramgadoo and Mr. Chibber went to an LCBO store. Video surveillance shows them entering the store at 4:26 p.m. At that time, Mr. Ramgadoo wore a dark-coloured button-up collared short-sleeve shirt and light-coloured pants. A receipt that police later located in Mr. Ramgadoo's room reveals that, at the LCBO store, he purchased seven 473 ml cans of Lowenbraw, his preferred beer (according to Mr. Poonai).
The surveillance recordings from the late afternoon and evening of July 2, 2019, and the morning of July 3, 2019
[20] In July 2019, there were surveillance cameras in the vicinity of Mr. Poonai's industrial unit. At trial, the Crown introduced surveillance recordings from these cameras from July 2 and July 3, 2019.
[21] At approximately 4:50 p.m., on July 2, 2019, one of the surveillance cameras captured two men, who appear to be Mr. Ramgadoo and Mr. Chibber, given their stature, skin colour, and clothing (which matches what each man was wearing shortly before on the surveillance recording from the LCBO store). They were outside in the area immediately behind Mr. Poonai's industrial unit and appeared to open the rear hatch of an SUV parked there. They are outside together for a couple of minutes.
[22] After that, between 5:00 p.m. and 7:46 p.m., surveillance cameras record Mr. Ramgadoo outside at the back of Mr. Poonai's industrial unit at various points in time. Throughout, he appears to be wearing the same clothing he had on at the LCBO store. After that, there was no activity behind the industrial unit for quite some time.
[23] Shortly after midnight on July 3, 2019, the surveillance cameras captured someone moving around in the area immediately behind Mr. Poonai's industrial unit. The person appears similar in stature to Mr. Ramgadoo and is wearing a dark top and light-coloured pants (matching Mr. Ramgadoo's clothing at the LCBO store). Shortly after midnight, the person is observed walking away from and then back to the unit.
[24] At 2:08 a.m., the person, who appears to be Mr. Ramgadoo, walks away from the unit. Another surveillance camera, some distance from Mr. Poonai's unit but in the same complex, records Mr. Ramgadoo walking past at 2:10 a.m. He is in close proximity to the camera as he passes by it. He is readily identifiable on the recording. He is still wearing the same clothes he had on at the LCBO store. Mr. Ramgadoo raises his hands in the air as he walks by, and he holds something in each hand. Less than two minutes later, he walks back past the same camera and towards Mr. Poonai's industrial unit. At that point, he is only carrying something in his left hand.
[25] Importantly, it is apparent from this recording, which captures Mr. Ramgadoo from a much closer distance than the others, that he is intoxicated. That is evident from his manner and the difficulty he appears to have while walking. In short, he is stumbling badly, walking like a drunk person.
[26] Mr. Ramgadoo returns to the area at the rear of Mr. Poonai's unit at approximately 2:28 a.m. The lights inside and at the back of Mr. Poonai's unit turn on at 2:31 a.m., before finally turning off at 3:30 a.m.
[27] At 5:01 a.m., a man wearing dark-coloured pants is visible walking in the area behind Mr. Poonai's industrial unit. By 5:15 a.m., it is dawn, and the man is much more visible in the video recordings. It appears to be Mr. Ramgadoo. At this point, he has changed and is wearing dark pants with a pink plaid short-sleeved top.
[28] Over the next hour, Mr. Ramgadoo appears at the rear of Mr. Poonai's industrial unit on a couple of occasions. At one point (7:21 a.m.), it looks as if he is speaking on his cellphone. (Mr. Ramgadoo's cellphone records reveal that he made a phone call that lasted five minutes, commencing at 7:17 a.m.) The final surveillance recordings, from 7:42 a.m., show Mr. Ramgadoo walking in the area behind the unit and carrying a black backpack.
The cellular tower evidence
[29] The Crown, on consent, introduced into evidence records relating to the cellular towers that Mr. Ramgadoo's cellular phone connected to between June 28, 2019, and July 16, 2019.
[30] Before July 3, 2019, the records show calls on Mr. Ramgadoo's cell phone regularly connecting to a tower at 111 Advance Boulevard, not far from Mr. Poonai's industrial unit at 173 Advance Boulevard. That includes frequent connections between Mr. Ramgadoo's cellular phone and that tower on the morning, late afternoon, and evening of July 2, 2019. In addition, his phone continued to regularly connect to that tower throughout the early morning of July 3, 2019, with the last connection occurring at 8:32 a.m. that day.
[31] After that, for the period covered by the records, which ends on July 16, 2019, Mr. Ramgadoo's cell phone never again connects to the cellular tower on Advance Boulevard.
The discovery of Mr. Chibber's body
[32] Mr. Poonai testified that he would ordinarily see or speak to Mr. Chibber every day. However, although he attended his industrial unit on July 3, 2019, Mr. Poonai neither saw nor heard from Mr. Chibber that day.
[33] Mr. Poonai did not attend the unit on Thursday, July 4, 2019. However, because he had not heard from Mr. Chibber since their lunch with Mr. Ramgadoo on July 2, he asked another man, who rented a desk at the unit, to check in on him, but without success.
[34] On July 5, 2019, Mr. Poonai attended his industrial unit. While there, he decided to check in on Mr. Chibber personally. He found the door to the office Mr. Chibber rented locked, which he thought strange. After knocking on the door but receiving no answer, he decided to look for a key but could not find one. At that point, he decided to call the police.
[35] Constable Zeniga responded to the call for a "premises check" at 1:04 p.m. on July 5, 2019. After Mr. Poonai explained his concerns to him, the officer told him to wait in a different area of the industrial unit before he forced open the door to the small office that Mr. Chibber had been renting.
[36] Inside Mr. Chibber's room, Constable Zeniga discovered his lifeless body. He was lying on his back, partially on a mattress. There was a blanket covering his body. Mr. Chibber was clothed. The officer noticed blood on his face and neck, and on the mattress and other items in the small room. Constable Zeniga searched the room for a knife or a similar sharp object but did not find anything of that nature. After that, Constable Zeniga decided to evacuate the industrial unit; he did not let anybody look inside the room.
[37] Mr. Poonai testified that after explaining the situation to him, the officer told him to wait in a different area while he went to Mr. Chibber's room. When the officer returned, he said something like "he's gone" or "he's dead." But, according to Mr. Poonai, the officer did not tell him anything more about what he found inside the room.
[38] Mr. Poonai testified that the officer then told him to exit the building from the rear, and he also directed everyone at the employment agency to leave the building from the front entrance.
Mr. Chibber's Injuries and Death
[39] Dr. Pickup conducted a post-mortem examination of Mr. Chibber's body. On consent, Dr. Pickup was qualified to give expert opinion evidence in the field of forensic pathology. The autopsy revealed extensive injuries to Mr. Chibber's head, torso, arms, and hands, as well as some injuries to his neck.
[40] In terms of Mr. Chibber's head injuries, Dr. Pickup documented seventeen distinct areas of trauma. There were abrasions and bruises on Mr. Chibber's face, eyes, and head. He had a broken nose, which caused most of the blood loss observed at the scene. There were lacerations on his lips and inside his mouth. In addition, he noted areas of bleeding beneath the scalp and bleeding on the surface of the brain. Additionally, neuropathological findings revealed diffuse axonal injuries, a sheering of the axons in the brain, consistent with brain trauma. Dr. Pickup testified that, in his opinion, the injuries to Mr. Chibber's brain would have required a considerable amount of force to cause.
[41] Dr. Pickup also observed petechial hemorrhages inside Mr. Chibber's eyelids. According to Dr. Pickup, that finding is consistent with an application of pressure to the neck or chest or both, which increases blood pressure to the head and causes petechial hemorrhages. Within Mr. Chibber's neck, there was damage to his thyroid cartilage on the left side. That injury, according to Dr. Pickup, could be caused by choking. However, there was an absence of other injuries often seen with choking, like trauma to the skin or muscles of the neck. In Dr. Pickup's opinion, a forceful punch could have caused the damage he observed to Mr. Chibber's thyroid cartilage. Dr. Pickup also agreed that someone standing on Mr. Chibber's chest for a sustained period could have caused the petechial hemorrhages. (It is noteworthy that the shirt worn by Mr. Chibber had what appeared to be a bloody footwear impression on it.)
[42] In terms of the injuries to Mr. Chibber's torso, they too were extensive. They included subcutaneous and intramuscular hemorrhages on the left and right sides of Mr. Chibber's chest, on his back, and abdomen. Finally, he also had two broken ribs at his back.
[43] In terms of injuries to Mr. Chibber's extremities, Dr. Pickup observed bruising and abrasions on his hands and forearms, equally consistent with defensive or offensive injuries.
[44] Finally, Dr. Pickup noted a single incised 12 centimetre wound on the front of Mr. Chibber's neck. In his opinion, a sharp instrument caused that wound, which he described as a "superficial cut" because it did not damage the airway or any of the large arteries in the neck. As a result, a wound of that nature would require stitches, not surgery. That said, it is noteworthy that, to a layperson, that cut appears far more severe than Dr. Pickup's evidence suggests it was from a medical standpoint.
[45] Given the appearance of the neck wound, with very little blood at its edges, Mr. Chibber had low to no blood pressure when it was inflicted. For this reason, in Dr. Pickup's opinion, it was likely inflicted either after or very close to death. In his opinion, the infliction of the neck wound occurred up to several hours after Mr. Chibber was rendered unconscious by the blunt head trauma and did not play a role in causing his death.
[46] Ultimately, in Dr. Pickup's opinion, Mr. Chibber died due to blunt head trauma. None of the other injuries to Mr. Chibber's body were significant enough to cause his death.
[47] In Dr. Pickup's opinion, the trauma to Mr. Chibber's head would have rendered him unconscious. Further, based on the neuropathological findings, in Dr. Pickup's opinion, Mr. Chibber died between one hour and three hours after sustaining his head injuries, and most probably in the realm of two to three hours.
[48] Mr. Chibber's blood was collected during the autopsy and sent for toxicological analysis. At the time of death, Mr. Chibber had a blood alcohol concentration of 213 milligrams of alcohol per 100 milliliters of blood. However, his blood alcohol concentration was likely higher when he sustained his injuries because his body continued eliminating alcohol as he lay unconscious before dying.
Bloodstain Pattern Analysis
[49] Detective Hackenbrook was qualified as an expert witness in bloodstain pattern analysis. She attended the scene on July 8, 2019, and she also examined photos of the scene taken by other police officers.
[50] Detective Hackenbrook documented extensive blood spatter and transfer on various surfaces inside Mr. Chibber's room, including the walls, the mattress, and the floor. That includes a footwear transfer impression in blood on Mr. Chibber's shirt at his chest.
[51] The bloodstain pattern analysis confirms multiple impacts on Mr. Chibber, which caused his blood to spatter onto various surfaces within his room. Additionally, the location of the blood spatter indicates that the impacts occurred at different locations and different heights within his room.
[52] In short, based on Detective Hackenbrook's findings, it is apparent that Mr. Chibber was assaulted inside his room, that the assault involved multiple blows, and at least with some, he was not on the floor when he was struck.
Bibi Ramgadoo's Evidence
[53] Mr. Ramgadoo and Bibi Ramgadoo were married in 2005. They had two children together before divorcing in 2015. According to Ms. Ramgadoo, the marriage ended because Mr. Ramgadoo's drinking became progressively worse over the years they were together. And, because when he was drunk, Mr. Ramgadoo was physically and verbally abusive towards her. Ms. Ramgadoo testified concerning various incidents of abuse by Mr. Ramgadoo during and after their marriage. Defence counsel elicited much of that evidence during cross-examination.[^2]
[54] Over the years, Mr. Ramgadoo was subject to various court orders prohibiting him from contacting Ms. Ramgadoo. Nevertheless, she testified that he continued to regularly call her on the telephone. She described an incident when she had her phone off while at a christening, and when she did not answer, Mr. Ramgadoo became angry and left her a voicemail message threatening to kill her and their children. The next day, he attended at her residence, and fearing that he would act on his threats, she called the police, who attended and arrested him. She testified that after that, she decided the best way to ensure the safety of her and their children was to placate Mr. Ramgadoo by taking his calls.
[55] Ms. Ramgadoo testified that Mr. Ramgadoo had routinely called her since their divorce, often when he had been drinking. Although by July 2019, Ms. Ramgadoo testified that she had not seen Mr. Ramgadoo in years, she continued to frequently receive phone calls from him, answering them when she could.
[56] A record of the telephone calls to and from Mr. Ramgadoo's cellular phone between June 28, 2019, and July 16, 2019, became an exhibit at trial. Those records document regular telephone calls to Ms. Ramgadoo from Mr. Ramgadoo's cellular phone number between June 28 and July 7. That includes 11 separate phone calls of varying duration on July 2, 2019, between 10:31 p.m. and 11:20 p.m., and further calls on July 3, 2019, at 8:32 a.m., 1:29 p.m., and three calls between 4:09 p.m. and 4:20 p.m.
[57] Ms. Ramgadoo testified concerning the telephone calls she received from Mr. Ramgadoo late on the evening of July 2, 2019. According to her, he was drunk and said, "a lot of random things." At one point, during those calls, Mr. Ramgadoo said he had to leave where he was staying because of an argument and physical altercation with the man he was living with there. He said something about not liking it when people touched his stuff and that the man took some of his documents. Ms. Ramgadoo testified that she could not recall whether Mr. Ramgadoo told her more about the argument and altercation that evening or during their telephone conversations the next day.
[58] During one of these calls, she remembers Mr. Ramgadoo mentioning that he was walking to the Beer Store and said he had to go back to get his things. She testified that "he was very, very intoxicated" during that call, and that he eventually said that he would get a ride or an Uber to go and pick up his things.
[59] Ms. Ramgadoo testified that during her telephone calls with Mr. Ramgadoo, either on July 2 or July 3, 2019, he told her that he "did something really bad." When she asked him what, he said, "he killed a guy." When she asked him what he was talking about, he kept repeating, "I don't like people taking my stuff." He also said, "we were drinking, and he took my stuff and did not want to give it back, and we got into a fight; I slit his throat and burst his chest open." She testified that the "burst his chest open" comment was the kind of unusual phraseology that Mr. Ramgadoo would sometimes use.
[60] At the time, Ms. Ramgadoo testified that she was unsure if Mr. Ramgadoo realized what he was saying, and she was trying to figure out if he was serious. She recalled him saying either that he was going back to clean up or that was why he had to go back and clean up. She responded by asking him, "what are you going to clean up?" And telling him, “People know you were living there; your fingerprints and DNA are going to be there." She testified that he responded that "he had to get his things out of there" and said, "he did not want his things there" and that "he's just going to say he does not know anything." And "that the guy always has arguments with his son and will say it was his son." Ms. Ramgadoo testified that Mr. Ramgadoo was intoxicated when he made these comments.
[61] According to Ms. Ramgadoo, she was shocked by what Mr. Ramgadoo said and was unsure whether he was telling her the truth. He had never said anything like that before during his other drunken phone calls.
[62] In the days that followed, Mr. Ramgadoo kept calling her, and Ms. Ramgadoo continued to try and obtain more information from him. During one of the calls on July 3, 2019, she asked Mr. Ramgadoo whether "the guy" was still there when he went back to clean up and get his things and if he saw him. She testified he responded that the "guy was still on the bed, on the floor," she understood that the man slept on a mattress on the floor. When she said to Mr. Ramgadoo, "maybe the guy is sleeping?" he responded, "no, he moved him around, and he was dead." During a telephone call after July 3, she testified to asking him if he used a knife. He said he did. She inquired if he got rid of it, and he said "yes," and he told her not to worry because he also got rid of his clothes and shoes.
[63] Ms. Ramgadoo testified that she worried about her safety after Mr. Ramgadoo told her what he had done. She wondered whether someone who had done such a thing would want anyone to know about it. As a result, she decided to continue to take Mr. Ramgadoo's calls but to act as though she was on his side and helping to guide him in how not to get caught. In reality, she testified that she was biding time to try and figure out what to do with the information he'd shared.
[64] Ms. Ramgadoo testified that Mr. Ramgadoo told her of his plans to avoid arrest. He said he would keep moving and avoid people he used to hang around. He talked about going back to Guyana, but he did not have a passport. According to Ms. Ramgadoo, at one point, he said that someone told him to stop using his cell phone as it could be used to track his whereabouts. (Despite Mr. Ramgadoo regularly using his cell phone between June 28 and July 8, 2019, his phone records show him essentially not using it after that.) Ms. Ramgadoo testified that Mr. Ramgadoo eventually started calling her from other phone numbers.
[65] At some point, Ms. Ramgadoo testified that Mr. Ramgadoo asked her if she had seen anything on the news about the person. She told him no, and that she did not know the man's name. He then gave her the name (Chibber) and asked her to look it up and determine what the police knew and whether the news had reported about it. Ms. Ramgadoo testified that she then used the name to search for information and discovered that the man had died, and that the location was Steeles Avenue and Advance Boulevard, the same area where she knew Mr. Ramgadoo had been living.
[66] The Peel Regional Police issued a press release on July 6, 2019, concerning Mr. Chibber's homicide. It disclosed that the victim was living "in the area Advance Boulevard and Dixie Road." And that police had "located a single victim inside the premise with obvious signs of trauma" and reported Mr. Chibber's name and age. However, the press release did not disclose anything else concerning the circumstances of the homicide. Nor did the police release any further information about the homicide to the media at any point in time.
[67] After reading the information that she found online, Ms. Ramgadoo testified that she realized that what Mr. Ramgadoo had been telling her was true, and she was terrified. She worried because she did not know what Mr. Ramgadoo might do if he realized the effect of telling her what he had done. She was also concerned that he might come to her residence to hide from the police. As a result, she decided to move to a friend's residence with her children for a couple of weeks.
[68] Ms. Ramgadoo testified that she hoped police would arrest Mr. Ramgadoo. However, as time passed, he just seemed to be going on with his life. That did not sit well with her, given what he had done. As a result, on July 19, 2019, Ms. Ramgadoo called CrimeStoppers to share a confidential tip with them, hoping that police would use the information she shared to arrest Mr. Ramgadoo. Ms. Ramgadoo testified that she hoped police would solve the case without needing her to become more involved. However, after she made the CrimeStoppers tip, nothing happened.
[69] Eventually, on August 20, 2019, police officers from the Homicide Squad visited Ms. Ramgadoo. They wanted to ask her about the phone calls she received from Mr. Ramgadoo. Ms. Ramgadoo testified that initially, during her formal police interview, she did not tell the truth because she did not want to get involved. However, during a break in the formal interview, she told police that they had a CrimeStoppers tip and wondered why that was not enough. The police advised her that they needed a witness who was not anonymous. After that, she agreed to continue the interview, waived informer privilege, and told the police what she knew.
[70] During cross-examination, Ms. Ramgadoo was questioned extensively about her relationship with Mr. Ramgadoo. She testified in detail concerning numerous acts of physical and verbal abuse by Mr. Ramgadoo during their relationship. Additionally, she described his many other shortcomings, including when it came to providing for the family, caring for their children, and as a husband more generally. During her testimony, it became rather apparent that Ms. Ramgadoo harbours a great deal of ill-will towards Mr. Ramgadoo. She rarely missed an opportunity to say something negative about him when given a chance.[^3]
[71] Despite this, Ms. Ramgadoo categorically denied fabricating her evidence implicating Mr. Ramgadoo in the homicide to be rid of him once and for all. She disagreed with the suggestion that she made up a story to implicate Mr. Ramgadoo in the homicide based on information she gleaned from the media. In that regard, she maintained Mr. Ramgadoo told her what he did before she even looked up information about the case at his request. She testified that she never wanted to get involved and explained that was the reason why she initially called CrimeStoppers instead of going to the police.
Mr. Ramgadoo's conduct after the homicide
[72] The cellular tower evidence strongly supports an inference that Mr. Ramgadoo was in the vicinity of 173 Advance Boulevard on the evening of July 2, 2019, and into the morning of July 3 but that he then left the area after that and did not return there (at least before July 16).
[73] Mr. Poonai testified that he either received or returned a call from Mr. Ramgadoo on the afternoon of July 5, 2019. When they spoke, Mr. Poonai was at the police station providing his initial statement to the police. During that call, Mr. Ramgadoo asked him where he was. Mr. Poonai told him he was at the police station because Mr. Chibber had been found dead. Mr. Poonai testified that Mr. Ramgadoo did not sound surprised by this news. Instead of inquiring about Mr. Chibber, Mr. Poonai testified that Mr. Ramgadoo asked him a couple of times not to mention him to the police.
[74] Mr. Poonai testified that he gave a further statement to the police on July 6, 2019. At the time, he was acting as Mr. Ramgadoo's surety on his outstanding charges. Because of his discussions with the police, Mr. Poonai testified that he soon afterwards attended the courthouse and had himself removed as Mr. Ramgadoo's surety. At some point (he could not remember when), Mr. Poonai had a further telephone conversation with Mr. Ramgadoo, during which he told him he had withdrawn as his surety and advised him to turn himself in to the police.
[75] Mr. Poonai testified that while he attended Mr. Chibber's funeral, Mr. Ramgadoo did not.
[76] At the time, Mr. Ramgadoo was subject to a recognizance that required him to report to the police weekly. He was supposed to sign in on July 9, 2019, but failed to do so. He also missed an appointment to meet with his probation officer that day. According to his probation officer, that was out of character for Mr. Ramgadoo, who ordinarily attended their scheduled appointments and did so on time.
[77] On July 26, 2019, the police arrested Mr. Ramgadoo on the authority of a surety warrant and for breaching probation.
Part II - The Law - Manslaughter and Murder
[78] Mr. Ramgadoo faces a charge of second degree murder, contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46. The Criminal Code provisions, which define the essential elements of that offence in the circumstances of this case, provide:
222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.
(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.
234 Culpable homicide that is not murder or infanticide is manslaughter.
[79] In the circumstances of this case, absent some excuse or justification,[^4] whoever caused Mr. Chibber's death is unquestionably guilty, at the very least, of manslaughter. After all, based on the post-mortem examination and the bloodstain pattern analysis, there can be no reasonable doubt that someone beat Mr. Chibber to death. In legal terms, Mr. Chibber's death resulted from an "unlawful act"; a brutal assault: Criminal Code, s. 265(1)(a). Moreover, that assault, involving multiple forceful blows to the head and blows to the body with sufficient force to break two ribs and the pressing of a foot onto Mr. Chibber's chest, would by its very nature give rise to an objectively foreseeable risk of bodily harm that was more than trivial or transitory: see R. v. Creighton, 1993 CanLII 61 (SCC), [1993] 3 S.C.R. 3, at pp. 44-45. Therefore, whoever killed Mr. Chibber is at a very minimum guilty of manslaughter.
[80] To secure a conviction for manslaughter, the Crown must prove beyond a reasonable doubt that Mr. Ramgadoo was the person who carried out the assault that caused Mr. Chibber's death. If the Crown establishes that, then Mr. Ramgadoo is guilty, at the very least, of manslaughter: see Criminal Code, ss. 222(5)(a), 234.
[81] To establish that Mr. Ramgadoo is guilty of murder, a more aggravated form of homicide, the Crown would also need to prove that he possessed the mens rea for murder while committing the assault that caused Mr. Chibber's death. That requires the Crown to prove, beyond a reasonable doubt, that Mr. Ramgadoo either: (1) meant to cause Mr. Chibber's death (Criminal Code, s. 229(a)(i)); or (2) meant to cause Mr. Chibber bodily harm that he knew was likely to cause his death and was reckless whether death ensued (Criminal Code, s. 229(a)(ii)).
[82] The difference between the mens rea for murder under sections 229(a)(i) and 229(a)(ii) is "slight": R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, at p. 645. Under section 229(a)(i), "means to cause" death requires that an accused "have actual subjective foresight of the likelihood of causing the death coupled with the intention to cause that death": Vaillancourt, at p. 645; see also R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1088. Section 229(a)(ii) only "modestly expands the 'pure' definition of murder set out in s. 229(a)(i)": R. v. Watkins (2003), 2003 CanLII 3874 (ON CA), 181 C.C.C. (3d) 78 (Ont. C.A.), at para. 58. It has two aspects. First, there must be "subjective intent to cause bodily harm" and, second, "subjective knowledge that the bodily harm is of such a nature that it is likely to result in death": R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 155-56.
[83] In short, to secure a conviction for second degree murder, the Crown must establish beyond a reasonable doubt that Mr. Ramgadoo committed the assault that caused Mr. Chibber's death and that while doing so, he subjectively foresaw that death was a likely consequence of that assault: Vaillancourt, at p. 645.
III - Analysis and Findings
[84] Having summarized what the Crown must prove to establish that Mr. Ramgadoo is guilty of manslaughter, and building on that, that he is guilty of murder, these reasons turn next to consider the evidence to decide whether Mr. Ramgadoo is criminally culpable for the death of Mr. Chibber. However, before analyzing Mr. Ramgadoo's potential culpability, an important caveat is necessary.
The "Bad Character" Evidence and its Limits
[85] During the trial, the parties elicited extensive evidence which reflected rather negatively on Mr. Ramgadoo's character. There was evidence that Mr. Ramgadoo is an alcoholic who, at least when drunk, had behaved erratically and violently towards Mr. Chibber. Additionally, there was evidence that Mr. Ramgadoo had subjected Ms. Ramgadoo to repeated acts of violence and threats of violence over the years. More generally, much of Ms. Ramgadoo's evidence portrayed Mr. Ramgadoo as a bad husband and father. Finally, there was evidence that Mr. Ramgadoo was on probation and facing criminal charges when he allegedly killed Mr. Chibber.
[86] Most of the "bad character" evidence was admitted because its probative value concerning specific material issues outweighed its potential prejudicial effect. However, some of it seeped in through Ms. Ramgadoo's testimony when she veered away from directly responding to the questions asked during her testimony. Of course, I recognize how important it is to remain mindful of the narrow issues for which the bad character evidence was admissible and not use it for any improper purpose: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 70; R. v. Rulli (1999), 1999 CanLII 3712 (ON CA), 172 D.L.R. (4th) 668 (Ont. C.A.), at para. 15.
[87] Some of the evidence was relevant to motive. For example, the court admitted Mr. Chibber's statements to Mr. Poonai regarding his experiences with Mr. Ramgadoo when they were drinking because it was probative of Mr. Ramgadoo's potential motive to harm Mr. Chibber.
[88] Similarly, the history of abuse alleged by Ms. Ramgadoo was admissible because it was essential to both the Crown and defence cases. The Crown maintains that it helps explain Ms. Ramgadoo's actions after Mr. Ramgadoo allegedly confessed to her, including her decision not to go to the police immediately, her eventual decision to call CrimeStoppers, and why she lied to the police during her initial questioning. In contrast, the defence points to that very same history as supplying Ms. Ramgadoo with a motive to implicate Mr. Ramgadoo falsely in the killing.
[89] Lastly, the fact that Mr. Ramgadoo was on probation and facing charges around the time of the homicide was unavoidably part of the narrative in this case. For example, there were the events of July 2, 2019, with Mr. Ramgadoo signing in for his bail at the police division that afternoon, and evidence of his after-the-fact conduct, including him not signing in on his bail or reporting to his probation officer following the homicide.
[90] I mention the discreditable conduct evidence at this preliminary stage of my analysis to confirm my appreciation of the limited use I can make of it. Similarly, I am mindful of the potential for prejudice that such evidence can occasion and the need to guard against it improperly influencing my judgment. In short, I cannot allow that evidence to result in a conviction for the wrong reasons. For example, to punish Mr. Ramgadoo for uncharged acts of misconduct or to infer that he committed the offence charged because that evidence shows him to be "the sort of person" who would: see R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 735; R. v. D. (L.E.), 1989 CanLII 74 (SCC), [1989] 2 S.C.R. 111, at pp. 127-128; R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, at p. 380; R. v. C.B. (2003), 2003 CanLII 32894 (ON CA), 167 O.A.C. 264 (C.A.), at para. 35. Allowing the bad character evidence to influence my assessment of the case against Mr. Ramgadoo in these impermissible ways would represent a serious error and undermine Mr. Ramgadoo's right to a fair trial.
[91] With that self-direction, I turn next to consider the evidence in this case. It makes sense to begin with the only evidence that was contested during the trial, the testimony of Ms. Ramgadoo.
Bibi Ramgadoo's Testimony Concerning Mr. Ramgadoo's Confession
[92] There are good reasons to approach Ms. Ramgadoo's testimony with a fair degree of caution. First, according to her, Mr. Ramgadoo subjected her to violence and threats of violence throughout their relationship. More generally, her evidence served to portray Mr. Ramgadoo as a bad husband and father. Ms. Ramgadoo further maintained that Mr. Ramgadoo has continued to intrude into her life since their divorce through his persistent and unwanted telephone calls. Finally, according to Ms. Ramgadoo, she eventually resigned herself to taking his calls because she feared how he could potentially respond if she failed to do so.
[93] Given all of this, not surprisingly, Ms. Ramgadoo has a fair amount of ill-will towards Mr. Ramgadoo, which was evident throughout much of her testimony. Ms. Ramgadoo's readily apparent hostility towards Mr. Ramgadoo provides her with an obvious motive to implicate him falsely in the killing of Mr. Chibber.
[94] Second, Ms. Ramgadoo conceded that she lied to the police when they initially questioned her. Her willingness to be less than forthright with the police during a homicide investigation, however short-lived, reflects negatively on her credibility as a witness. After all, if she lied to the police, why would it not be equally possible that she could lie to this court during her testimony?
[95] Despite the need to approach Ms. Ramgadoo's testimony with caution, ultimately, I accept her evidence that Mr. Ramgadoo told her that he killed Mr. Chibber. There are three principal reasons why I believe her evidence regarding Mr. Ramgadoo's confession.
[96] First, the telephone records corroborate that she received telephone calls from Mr. Ramgadoo on the evening of July 2 and on the morning and afternoon of July 3, 2019. As a result, the phone records support her claim that they spoke during that period. Therefore, she had the opportunity to receive the confession she claims Mr. Ramgadoo made to her during their conversations on July 2 and 3, 2019.
[97] Second, those records also show that although Mr. Ramgadoo constantly used his cell phone between June 28 and July 8, he essentially stopped using it after that. That serves to corroborate a material aspect of Ms. Ramgadoo's testimony concerning the substance of their conversations in the aftermath of the homicide. Specifically, during one of their calls, she testified that Mr. Ramgadoo said that someone told him to stop using his cell phone as it could be used to track his whereabouts as he attempted to evade police because of his role in the killing.
[98] Finally, and most critically, unless Mr. Ramgadoo confessed to her, as she claims, given the evidence at trial, there is no other plausible way Ms. Ramgadoo could have known details concerning the homicide that were not publicly available. Including that Mr. Chibber's throat was cut, that police would not find the knife used to inflict that wound, and that his body was on a mattress on the floor. These are material details concerning the homicide that the police never released to the public, facts that only the police and the killer could possibly have known. It follows that Ms. Ramgadoo could only be aware of these details because Mr. Ramgadoo shared them with her, as she alleges.
[99] As a result, for all these reasons, despite the obvious reasons for questioning her credibility, I believe Ms. Ramgadoo's testimony that during telephone conversations with Mr. Ramgadoo on July 2 and 3, 2019, he confessed to her that he killed Mr. Chibber.
Has the Crown proven beyond a reasonable doubt that Mr. Ramgadoo is the person who assaulted Mr. Chibber and caused his death?
[100] Ultimately, I am satisfied beyond a reasonable doubt that Mr. Ramgadoo is the person who assaulted Mr. Chibber and caused his death. I am sure that Mr. Ramgadoo is the person who killed Mr. Chibber mainly because I believe Ms. Ramgadoo's evidence regarding his confession. Additionally, I am fortified in that belief because much of the circumstantial evidence points towards Mr. Ramgadoo as the person responsible.
[101] First, the circumstantial evidence establishes that Mr. Ramgadoo had the opportunity to commit the crime. Mr. Ramgadoo was with Mr. Chibber on the afternoon of July 2, 2019. After having lunch with Mr. Poonai, they visited the LCBO store. Later that afternoon, video surveillance shows them together just behind Mr. Poonai's industrial unit. Mr. Chibber was never seen alive again after that. Video surveillance captures Mr. Ramgadoo walking away from the unit in the middle of the night carrying items in both his hands before returning with something only in one of his hands. That was when he likely disposed of at least some of the evidence of the crime. After all, given the hour, it was an especially unusual time to go for a stroll. Further, the cellular tower records demonstrate that Mr. Ramgadoo was in the vicinity of the industrial unit on the evening of July 2 and throughout the morning of July 3, up until 8:32 a.m.
[102] Second, there is evidence that Mr. Ramgadoo had a motive to harm Mr. Chibber, at least when the two men were drinking together, which appears to have been the case on the evening of July 2, 2019. Here, I am referring to Mr. Poonai's testimony concerning the fears Mr. Chibber expressed to him about Mr. Ramgadoo's behaviour when he was drunk. The circumstantial evidence unquestionably supports an inference that the men were drinking together on the evening of July 2. That includes them attending the LCBO store late that afternoon before returning to the industrial unit, where video surveillance again shows them together. It also includes Ms. Ramgadoo's evidence that when he called her on the evening of July 2, Mr. Ramgadoo was drunk. Further, the video surveillance from early July 3 shows Mr. Ramgadoo stumbling as he walked, consistent with being drunk. Finally, Mr. Chibber's blood alcohol concentration at the time of his death suggests a night of heavy drinking. Based on this collection of evidence, I am satisfied that once they returned from the LCBO store, Mr. Chibber and Mr. Ramgadoo were drinking together, as they had done routinely in the past.
[103] Once the two men were drunk, Mr. Ramgadoo must have perceived some slight by Mr. Chibber that precipitated a drunken confrontation. It could have been an argument over Mr. Ramgadoo wanting to use Mr. Chibber's car to get more alcohol, as had happened in the recent past. Alternatively, it could have been Mr. Ramgadoo concluding that Mr. Chibber had taken something that belonged to him, which was what he told Ms. Ramgadoo. Whatever the precise trigger, I am satisfied that Mr. Ramgadoo's intoxication likely played some role in sparking a drunken confrontation between the two men. And that Mr. Chibber, heeding Mr. Poonai's advice, retreated to his room for refuge.
[104] Third, Mr. Ramgadoo had the means to commit the fatal assault. Mr. Ramgadoo is 6'1" and weighs 209 pounds, whereas Mr. Chibber was just 5'7" and weighed 137 pounds. Moreover, in terms of their respective builds, Mr. Ramgadoo is muscular, while Mr. Chibber had only an average build. As a result, in any physical confrontation between the two men, it is apparent that Mr. Ramgadoo would have enjoyed a considerable advantage. Given the physical differences between them, Mr. Ramgadoo undoubtedly could have killed Mr. Chibber by beating him to death.
[105] Finally, I am satisfied that at least some, but far from all, of Mr. Ramgadoo's conduct after the homicide is consistent with him being the person responsible for the killing. To be sure, much of the evidence concerning Mr. Ramgadoo's after-the-fact conduct deserves little weight. For example, his failure to attend Mr. Chibber's funeral is sufficiently ambiguous that it has no probative value. Further, Mr. Ramgadoo not returning to the area after the homicide is in keeping with his stated intention of moving out of the industrial unit and finding somewhere else to live. Finally, Mr. Ramgadoo's failure to sign in as required by the terms of his bail or to report to his probation officer are both equally consistent with him wanting to avoid arrest after learning that Mr. Poonai had withdrawn as his surety. Therefore, I am reluctant to place any incriminating weight on these aspects of Mr. Ramgadoo's conduct after the homicide.
[106] In contrast, I am of the view that the telephone conversation between Mr. Poonai and Mr. Ramgadoo on the afternoon of July 5, 2019, strongly supports an inference that Mr. Ramgadoo was the person responsible for killing Mr. Chibber. Recall that the two men spoke by telephone shortly after police discovered Mr. Chibber's body. Mr. Poonai told Mr. Ramgadoo that he was with the police and that Mr. Chibber was dead. Notably, after being told that, Mr. Ramgadoo did not sound surprised, and, much more importantly, he did not ask where or how Mr. Chibber – his friend – had died. Instead, Mr. Ramgadoo responded to the news by asking Mr. Poonai twice not to mention him to the police. What Mr. Ramgadoo said and did not say during that conversation is consistent with him already knowing where and how Mr. Chibber died and not wanting police attention to focus on him because he was the person responsible. In short, that evidence further supports an inference that Mr. Ramgadoo killed Mr. Chibber.
[107] Based on the entirety of the evidence, including Ms. Ramgadoo's testimony and the circumstantial evidence, I am satisfied beyond a reasonable doubt that Mr. Ramgadoo is the person who beat Mr. Chibber to death. It follows that, at a minimum, Mr. Ramgadoo is guilty of manslaughter.
Has the Crown proven beyond a reasonable doubt that Mr. Ramgadoo had the mens rea for murder?
[108] There is no direct evidence that Mr. Ramgadoo intended to kill Mr. Chibber or cause him serious bodily harm that he knew would likely cause his death. Although Mr. Ramgadoo confessed to Ms. Ramgadoo that he killed Mr. Chibber, his statements to her do not provide direct insight into his actual state of mind when he carried out the assault that caused Mr. Chibber's death. Instead, the Crown relies on circumstantial evidence to prove the subjective mens rea required for murder.
[109] In that regard, the nature and extent of Mr. Chibber's injuries are undoubtedly a key consideration. There were 17 areas of trauma to the top and back of Mr. Chibber’s head and his face, including a broken nose. A significant amount of force was necessary to cause the brain injuries that resulted in Mr. Chibber's death. He also had injuries to the left and right sides of his chest, abdomen and back, including two broken ribs. In addition, there was damage to his thyroid cartilage likely caused by a forceful blow and a 12 cm laceration to his neck caused by a sharp instrument. Further, he had abrasions and bruises on his hands and forearms. Finally, petechial hemorrhages inside Mr. Chibber's eyelids are consistent with a sustained application of pressure to his chest.
[110] Taken together, the results of the post-mortem examination and bloodstain pattern analysis support a finding that the assault that caused Mr. Chibber's death was especially brutal. Mr. Ramgadoo, who was far bigger and stronger than Mr. Chibber, repeatedly and forcefully struck him on his head and torso. During what was undoubtedly an unrelenting assault, Mr. Ramgadoo stood on Mr. Chibber's chest with at least one foot long enough to cause the petechial hemorrhages observed inside his eyelids. In addition, given the considerable differences in their size and strength, I have no difficulty finding that Mr. Chibber suffered the injuries observed on his hands and forearms when he unsuccessfully attempted to defend himself against the onslaught of Mr. Ramgadoo’s blows. Finally, either very close to or after death, Mr. Ramgadoo cut Mr. Chibber's throat with a knife.
[111] Given the number and force of the blows, with a great many directed at Mr. Chibber's head, combined with the cutting of his throat, common sense supports an inference that Mr. Ramgadoo either intended to kill Mr. Chibber or to cause him serious bodily harm that he knew likely to cause death. After all, "a person usually knows what the predictable consequences of his or her actions are, and means to bring them about": Canadian Judicial Council, Model Jury Instructions, Part D Offences, Offence 229(a) Second Degree Murder (online); see also R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at pp. 262-263.
[112] However, the common sense inference is permissive, not obligatory. Ultimately, the court must consider all the evidence, including any evidence of intoxication, in deciding whether the Crown has proven beyond a reasonable doubt that Mr. Ramgadoo possessed the subjective mens rea required for murder: Seymour, at pp. 263-264; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at para. 63; Daley, at para. 104; R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at pp. 710-711.
[113] As already mentioned, there is a substantial body of evidence to support a finding that Mr. Ramgadoo was drunk the night he killed Mr. Chibber. For convenience, I summarize that evidence again here; it includes:
• Mr. Ramgadoo and Mr. Chibber visited the LCBO store late on the afternoon of July 2, 2019, where Mr. Ramgadoo purchased seven large cans of his preferred beer.
• The only history of Mr. Ramgadoo behaving violently towards Mr. Chibber was when he was drunk.
• When she spoke to Mr. Ramgadoo by telephone late on July 2, Ms. Ramgadoo testified that he sounded drunk.
• When captured on video surveillance at 2:10 a.m. on July 3, it is readily apparent that Mr. Ramgadoo is drunk based on his manner and his difficulty walking.
• Finally, Mr. Chibber's blood alcohol level was consistent with a night of heavy drinking, something the two men were in the habit of doing together.
[114] Based on that collection of evidence, I do not doubt that Mr. Ramgadoo was intoxicated the night he killed Mr. Chibber. That said, although he was rather drunk, Mr. Ramgadoo was far from incapacitated. For example, he was able to call Ms. Ramgadoo shortly after his attack on Mr. Chibber to tell her what he had done and coherent enough to explain his motivation. Further, he retained enough capacity for rational thought to recognize the need to remove evidence from the crime scene that could connect him to the killing. Recall that he told Ms. Ramgadoo he disposed of the knife, as well as his clothing and shoes. Based on surveillance evidence, I am sure he got rid of at least some of these items when he left Mr. Poonai's industrial unit shortly after 2:00 a.m. on July 3, 2019. (When Mr. Ramgadoo first walks past the surveillance camera, he carries something in both hands before returning soon after holding something only in one hand. Further, there is no other rational explanation for him taking a walk at that hour of the night.) Finally, by 5:00 a.m., he emerges from the industrial unit wearing different clothing and eventually leaves the area at around 8:30 a.m. In short, despite being drunk the night he killed Mr. Chibber, Mr. Ramgadoo still had the presence of mind to remove potentially incriminating evidence from the crime scene, change his clothes, and make good his escape.
[115] Based on all the evidence, although Mr. Ramgadoo was drunk, I do not doubt that when he assaulted Mr. Chibber, he could still appreciate the somewhat obvious consequences of repeatedly and forcefully striking the much smaller man on his head. Mr. Ramgadoo carried out a brutal assault on Mr. Chibber that had the unmistakable markings of an attack that would kill. That it would likely have such an effect would have been evident to Mr. Ramgadoo, despite his state of intoxication. The fact that Mr. Ramgadoo returned to Mr. Chibber's body to slit his throat with a knife leaves no possible room for doubt concerning his intentions. Based on all the evidence, I am sure that when he assaulted Mr. Chibber, Mr. Ramgadoo either intended to kill him or cause him serious bodily harm that he knew would likely cause his death.
[116] It follows that the Crown has proven beyond a reasonable doubt that Mr. Ramgadoo is guilty of second degree murder in the death of Mr. Chibber.
Conclusion
[117] Mr. Ramgadoo is found guilty of second degree murder in the death of Mr. Chibber.
“James Stribopoulos J.”
DATE: 20220124
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
CHURAMAN RAMGADOO
REASONS FOR JUDGEMENT
Stribopoulos J.
Released: January 24, 2022
[^1]: The court granted the Crown's pre-trial application to admit these hearsay statements for the truth of their contents, ruling that they were admissible under the principled exception to the hearsay rule. Further, although "bad character" evidence, the court ruled the statements admissible after concluding that their probative value (concerning Mr. Ramgadoo's potential motive to harm Mr. Chibber) outweighed their prejudicial effect.
[^2]: Despite "bad character" evidence being generally inadmissible, the parties agreed that the history of abuse was admissible because its probative value outweighed its prejudicial effect. For the Crown, that evidence was essential to explain Ms. Ramgadoo's actions after receiving Mr. Ramgadoo's confession. And, for the defence, it was crucial to demonstrate Ms. Ramgadoo's potential motive to implicate Mr. Ramgadoo falsely in the homicide.
[^3]: One of Ms. Ramgadoo's answers during cross-examination precipitated the defence's successful application for a mistrial.
[^4]: Intoxication short of that which renders an accused in a state akin to automatism or insanity affords no defence to a general intent offence like manslaughter: see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 40; see also R. v. Daviault, 1994 CanLII 61 (SCC), [1994] 3 S.C.R. 63, at pp. 99-100; see also R. v. Chan, 2020 ONCA 333, 151 O.R. (3d) 353 (declaring s. 33.1 of the Criminal Code, enacted in response to Daviault, of no force or effect because it is inconsistent with ss. 7 and 11(d) of the Charter), leave to appeal granted [2020] S.C.C.A. No. 232, appeal heard on October 12, 2021, and judgment reserved.