ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
MOHAMMED KHANDWALLA
Appellant
Darren Hogan, for the Crown
Appellant, self-represented1
HEARD: April 8, 2025
rEASONS FOR DECISION
Summary conviction appeal
SPIES J.
In the court below, an order was made pursuant to s. 486.4(1) of the Criminal Code restricting the publication of any information that could identify the complainant or a witness in these proceedings.
Overview
1The trial of this matter was conducted from December 12 to 15, 2022 before the Honourable Justice L.A. Thomas in the Ontario Court of Justice (“OCJ”). On January 25, 2023, Justice Thomas gave lengthy oral reasons acquitting the appellant on the charge of sexual assault and found him guilty of one count of criminal harassment pursuant to s. 264 of the Criminal Code.
2On April 4, 2023, the Appellant was sentenced (in light of three days’ pretrial custody) to a suspended sentence with three years of probation. Additional orders were made for the appellant’s DNA and a weapons prohibition – s. 109 order, for ten years.
THE GROUNDS OF APPEAL AND DISCHARGE OF APPEAL COUNSEL
3The original notice of appeal against conviction was filed by Allan Rouben on behalf of Mr. Khandwalla on April 11, 2023. On November 2, 2023, Mr. Rouben filed a supplementary notice of appeal. Because it alleged for the first time that Mr. Khandwalla had received ineffective assistance from his trial counsel, Christopher Nagel, and in particular that Mr. Nagel had failed to advise Mr. Khandwalla about a potential s. 11(b) Charter claim, the protocol for dealing with these types of allegations was initiated. As a result, Mr. Nagel filed an affidavit, as did Mr. Khandwalla.
4Before the cross examinations on those affidavits could take place, Mr. Khandwalla changed counsel and retained Geoff Haskell who filed a second supplementary notice of appeal on June 4, 2024. This notice of appeal added the ground that trial counsel had failed to call a material defence witness, namely Brian Ramdial, the complainant’s boss, and had failed to cross-examine the complainant on an alleged inconsistency between her trial evidence and her previous police statement. Cross-examinations on the affidavits did not occur until October 2024.
5The factum filed by Mr. Haskell states that Mr. Khandwalla is appealing his conviction on the basis that either the trial judge erred by not relying on cogent evidence that the complainant was lying to the court, or in the alternative, on the basis that the appellant’s trial counsel was ineffective by failing to call relevant evidence that would have confirmed that the complainant had lied to the court, namely Mr. Ramdial as a witness.
6At the commencement of the hearing of the appeal, Mr. Haskell advised me that Mr. Khandwalla, who was also in attendance, wished to discharge him as counsel of record. Mr. Khandwalla confirmed that this was the case. Mr. Hogan, on behalf of the Crown, advised that he would object to any adjournment of the matter. He advised me that he did not find out until the evening before the hearing of the appeal that Mr. Khandwalla was going to discharge his counsel and request an adjournment.
7Mr. Hogan pointed out that even though this was the first time that the appeal was to be heard, the incident which forms the basis of the conviction occurred in February 2020, over five years ago and the conviction is now over two years old. He submitted that if I were to grant the adjournment, Mr. Khandwalla not only intended to seek the assistance of a third lawyer on the appeal but would also likely file a new supplementary notice of appeal and there was the potential for further affidavits to come from both him and Mr. Nagel as well as further cross-examinations. This raised the prospect, should a new trial be ordered, that the complainant would have to testify again about these events some six and a half years after they occurred.
8It became apparent to me during the course of the discussion about the adjournment request that the breakdown in Mr. Khandwalla’s relationship with Mr. Haskell was because Mr. Khandwalla wanted to raise a factual argument based on the cross-examination of the complainant that Mr. Haskell had not advanced in his factum. The possibility of Mr. Haskell advancing this additional argument was canvassed but ultimately, I granted Mr. Haskell's request to be removed from the record.
9After giving Mr. Khandwalla an opportunity to respond to Mr. Hogan’s position that the adjournment should not be granted, I dismissed the application for an adjournment. I found that Mr. Khandwalla would be able to advise me of the additional argument that he wanted to advance and as I advised him, I was prepared consider that additional factual argument along with the factum filed in dealing with the merits of the appeal. In my view, in these circumstances an adjournment was neither needed nor appropriate.
THE ISSUES ON THIS APPEAL
10In the factum prepared by Mr. Haskell, he states that the appellant now appeals his conviction on the basis that either the trial judge erred by not relying on cogent evidence that the complainant was lying to the court, or in the alternative, on the basis that the appellant’s trial counsel was ineffective by failing to call relevant evidence that would have confirmed that the complainant had lied to the court.
11At trial, the defence theory was that the complainant fabricated the allegations of sexual assault and exaggerated her subjective fear of the appellant as a means to protect her and her manager’s reputation and employment at the bank where they worked.
12In her evidence at trial, the complainant vehemently denied that she had had an affair with her manager, Brian Ramdial. The appellant testified at trial and adduced text messages between himself and Mr. Ramdial that showed that Mr. Ramdial admitted that an affair had occurred. The position on appeal is that these text messages were crucial in undermining the complainant’s credibility. It is argued that the trial judge declined to rely on those text messages because Mr. Ramdial had not been called as a witness to authenticate them. It is the position of the appellant that either the trial judge erred by not considering those text messages as probative, or the appellant’s trial counsel was ineffective by not calling Mr. Ramdial as a witness.
13In addition to these issues, Mr. Khandwalla argued that his trial counsel was ineffective because he failed to draw to the trial judge’s attention that the complainant’s evidence in cross-examination on the issue of when she was on the phone with Mr. Ramdial at the time she alleges she was sexually assaulted, was inconsistent with her evidence in chief, and that had that been drawn to the attention of the trial judge, the trial judge would not have relied on the complainant’s evidence at all in convicting Mr. Khandwalla of criminal harassment.
14The Respondent’s position is that the trial judge, after admitting the text messages as an exhibit, was entitled to give such weight to that evidence as Her Honour found was appropriate based on the evidence before her, including the extent to which the text messages had been appropriately authenticated and whether the accuracy of the contents of the message as produced had been established.
15With respect to the allegation of ineffective assistance of counsel, the respondent’s position is that the appellant has not met the test for establishing that there was ineffective assistance based on a tactical decision made by counsel, the reasonableness of which was fully explained by counsel in his affidavit and in his cross-examination on that affidavit. Additionally, it is submitted that the appellant has failed to establish that the impugned actions of his trial counsel resulted in a miscarriage of justice.
The reasons of the trial judge
16The appellant and complainant, whom I will refer to as Ms. Z., carried on a romantic relationship in February 2020 that lasted less than two weeks. That relationship fell apart after the appellant learned of the complainant’s supposed affair with her manager, Brian Ramdial.
17The appellant was acquitted of one count of sexual assault. There was no dispute that the complainant and the appellant had engaged in intercourse and oral sex at the time in question, but the trial judge had a reasonable doubt as to whether the complainant only did so because she was afraid that the appellant would go to her workplace and embarrass her or that her fear was so all-consuming that she had no autonomy in her choices.
18The criminal harassment conviction was based on dozens of text messages and voicemails from the appellant to the complainant that were sent between February 18 to 26 of 2020 after the two were no longer seeing each other. The appellant testified and acknowledged that he sent the complainant these text messages, and that he called her and left numerous voicemails in the latter half of February.
19The trial judge assessed the evidence in accordance with the essential elements of criminal harassment, as set out in the Court of Appeal for Ontario’s decision in R. v. Kosikar, 138 CCC (3d) 217, 1999 CanLII 3775 (ON CA) at para. 19, where the Court held that the Crown must establish that:
i. the accused has engaged in the conduct set out in s. 264(2)(a), (b), (c), or (d) of the Criminal Code;
ii. the complainant was harassed;
iii. the accused who engaged in such conduct knew that the complainant was harassed or was reckless or wilfully blind as to whether the complainant was harassed;
iv. the conduct caused the complainant to fear for her safety or the safety of anyone known to her (the subjective element); and
v. the complainant's fear was, in all of the circumstances, reasonable (the objective element).
20With respect to the first three elements, the trial judge concluded that the appellant “unrelentingly and repetitively contacted the complainant” and that he ignored her request to cease contact. She held that although the complainant had unblocked him during the period in question, she did so only to see if he was still contacting her. She further held that the appellant knew that his text messages and voicemails were excessive and “out of control”, or that he was willfully blind to her desire to cease contact.
21With respect to the fourth element, the trial judge found that the complainant had a subjective fear of the appellant. This fear was in part due to her testimony that the appellant had displayed so much frustration despite a short relationship, and that he alluded to owning a shotgun. She also expressed that it was like a “nightmare” that kept repeating.
22With respect to the final element, the trial judge concluded that a reasonable person would have felt fear in those circumstances. The trial judge noted that, although the messages do not allude to violence or specific threats, the “anger in his voice is disturbing”, and that it is “evidence his anger and obsessiveness were out of control” and that in one message “his voice is full of vitriol and anger.” The trial judge went on to consider other voicemail messages that she describes as aggressive with “troubling comments” and she concludes that:
The amount of anger, along with the vague threats, would cause any reasonable person to fear for their safety. Ms. Z. had further reason to fear because of the mention of shotguns. Whether he had guns or not, that fear was reasonable given that statement. The Crown has met their onus on this, and there will be a finding of guilt on the criminal harassment [charge].
ANALYSIS
Did the trial judge err with respect to the text messages between the appellant and Mr. Ramdial?
23The text messages were marked as an exhibit at trial. The appellant relies on R. v. C.B., 2019 ONCA 380 at paras. 57-68 as to the authentication of electronic documents. The submission that the trial judge concluded that the text messages in question had not been properly authenticated is not correct and mistakes authentication of an electronic document as being the equivalent of proving the contents of the document are true. They are not the same.
24The trial judge clearly found that the messages in question had been authenticated as being text messages between Mr. Khandwalla and Brian Ramdial. She stated as follows in her reasons for judgement:
While the Crown did not concede that the receiver of Mr. Khandwalla’s text messages was Brian, based on the evidence of both witnesses and the responses of the recipient, I accept that this was Brian, Ms. Z.’s manager. The receiver knew Ms. Z.’s nickname, and did not contradict the assertions that he was a senior manager at the specified bank they worked in. There is no alternate person that the Crown submitted could have received these messages. [Emphasis added]
25As for how the trial judge relied on these text messages, the following passage from her reasons for judgement is relevant:
When confronted by Mr. Khandwalla about the affair with Ms. Z., Brian texted, “We ended it last year. I don’t know man. When did you start dating?” And later, “It was on and off for a year. I still don’t know who you are.” Based on the evidence, Ms. Z. was still present during this text exchange. Given there was no evidence from Brian, I cannot accept those utterances as accurate or a basis to contradict Ms. Z.’s testimony of the status of her relationship with Brian. However, Mr. Khandwalla’s messages to Brian seem to indicate that Mr. Khandwalla thought the affair was ongoing, which underlined the reason for the harassing calls and messages in the weeks to follow. [Emphasis added]
26In my view, the trial judge was correct in finding that she could not find the contents of Mr. Ramdial’s messages to be true without his evidence, as those messages were hearsay. However, she did rely on the text messages appropriately in considering Mr. Khandwalla’s belief that the content of those messages was true and as his reasons for the calls and messages that followed.
27In the factum, the appellant submits that had the trial judge relied on those text messages, she would have “necessarily found” that Ms. Z.’s credibility was seriously undermined and as such, she could not rely on the complainant’s subjective fear of the appellant, in the context of assessing the fourth element of the offence. In the factum, the appellant submits that “the complainant’s evidence that she feared the appellant was contrived as a means to support her claim that she did not fear the alleged affair being exposed, and that she only feared him.”
28The problem with this submission is that even if the trial judge accepted the contents of the messages from Mr. Ramdial for their truth, that would not automatically result in a finding that there had been an affair, and that the complainant had lied about it. She would have had no way of knowing if Mr. Ramdial was being truthful. I will deal with this issue further as I consider the other arguments on the appeal.
Was trial counsel ineffective by not calling Brian Ramdial as a witness?
29With respect to the allegation of ineffective assistance of counsel, both the appellant and his counsel at trial filed affidavits and were subject to cross-examination. That evidence was filed on the appeal as fresh evidence and the respondent agreed that this evidence is admissible in order to allow this court to assess the appellant’s claim of ineffective assistance of counsel.
30The appellant argues that his trial counsel was ineffective by not calling Mr. Ramdial as a witness to contradict the evidence of the complainant, on the issue of whether or not the complainant and Mr. Ramdial had had an affair. I note this is despite the fact that when cross-examined on his affidavit Mr. Khandwalla admitted that Mr. Nagel discussed the potential benefits and risks of calling Mr. Ramdial and that he either agreed to, or at least deferred to trial counsel’s professional judgment not to call him as a witness.
31In order to succeed on this ground, the appellant must demonstrate, on a balance of probabilities, either that the decision made by his trial counsel not to call Mr. Ramdial was the result of incompetence, or that it would have affected the outcome of his trial such that it resulted in a miscarriage of justice.
32Pursuant to the decision of the Ontario Court of Appeal in R. v. J.B., 2011 ONCA 404 at para. 2, this appellate court ought not to engage in an examination of the performance of counsel unless the appellant can first show, on a balance of probabilities, that the results of the trial would have been different but for the impugned actions of counsel. Even if the results might have been different, the appellate court must then assess whether the actions of counsel were incompetent as opposed to a “reasonable professional judgement”, made “in good faith and in the best interest of his client.” Only where both are established will there be a miscarriage of justice justifying appellate intervention in the trial verdict, see also R. v. G.D.B., 2000 SCC 22, at para. 27 and 34.
33In my view, the issue of the alleged affair was clearly a collateral fact, a point that was not raised in either factum. To explain this to Mr. Khandwalla, I advised him of the facts in R. v. Riley (1992), 1992 CanLII 7448 (ON CA), 11 O.R. (3d) 151 (C.A.) leave to appeal to S.C.C. refused (1993), 13 O.R. (3d) xvi, where defence counsel wanted to cross-examine the complainant about an allegation of sexual assault the complainant made against another man that the defendant alleged was false. The Court of Appeal agreed with the trial judge that this line of questioning and the proposed evidence was collateral and ought not to be allowed.
34I will go on to consider, however, what might have happened had the trial judge permitted Mr. Ramdial to be called as a witness for the defence at trial. Had that occurred, I assume Mr. Ramdial would have admitted that his text to Mr. Khandwalla that he had had an affair with the complainant that ended the prior year was true. This might have impacted the complainant’s credibility on this point, if the trial judge preferred his evidence to that of the complainant, but similarly, as the respondent points out, would have further affirmed the unreasonableness of the appellant’s response, as what the complainant did a year before their relationship was none of the appellant’s business. As I will come to, however, on the issue Mr. Khandwalla raised on his own behalf, Mr. Ramdial’s evidence would have bolstered the credibility of the complainant.
35More importantly, based on the evidence of Mr. Nagel filed on this appeal, in my view, he made a well-reasoned and professional decision not to call Brian Ramdial as a witness that was in the appellant’s best interest. I will not set out here all of the detailed evidence of Mr. Nagel summarized in the respondent’s factum at paras. 19-21, but in my view, on the issue of the affair, the trial judge would not necessarily, as suggested by the appellant, find that the complainant had not been truthful in her evidence. There was also the distinction of whether or not there had ever been an affair or whether or not it was ongoing at the time the complainant was dating Mr. Khandwalla. The evidence of Mr. Ramdial, based on his text, would have been that it ended the year before.
36In my view, whatever negative impact on the complainant’s credibility calling Mr. Ramdial might have had, overall, his evidence would likely have negatively affected the appellant’s position at trial. On the issue I will come to that Mr. Khandwalla raised on this appeal, in his statement to police Mr. Ramdial said that when he spoke to the complainant in the early morning of February 14, 2020, she told him that she was “in trouble” and he could hear Mr. Khandwalla screaming “very loud” at the complainant in the background. In Mr. Nagel’s view, calling Mr. Ramdial could have impacted Mr. Khandwalla’s credibility because he testified that he was never yelling at the complainant and was not upset with her that morning. It could also have bolstered the complainant’s credibility and/or reliability. I agree.
37Furthermore, Mr. Ramdial told the police that after February 14, 2020, he noticed the complainant’s phone was “buzzing” at work continuously. With the consent of the complainant a safety plan was put in place at his workplace in case Mr. Khandwalla showed up to her place of employment. Mr. Ramdial also told police that he saw the complainant break down in front of another employee. In my view, Mr. Nagel was reasonably concerned that if he called Mr. Ramdial to testify, that this information would have come out either in examination-in-chief and/or cross-examination and that it would have supported the Crown’s position that Mr. Khandwalla was repeatedly communicating with the complainant and causing her to fear for her own safety.
38In addition to all of this, Mr. Nagel was concerned about the fact that Mr. Ramdial told police that Mr. Khandwalla called his house, spoke to his wife, and left two voicemails on his home phone which caused him to have safety concerns for his family and his children because his children heard the voicemails and one of his son’s was scared and his wife was in tears. Since Mr. Khandwalla admitted to Mr. Nagel that he did talk to Mr. Ramdial’s wife, clearly in my view this evidence would have used by the Crown to argue that the complainant reasonably feared for the safety of not only herself but Mr. Ramdial and his family.
39Finally, and perhaps most importantly, as the respondent submits, the findings of the trial judge acquitting the appellant of sexual assault largely rested on reasonable doubt that the appellant had coerced the complainant into sexual assault through fear. Mr. Ramdial’s evidence may have negatively impacted the appellant on that charge. On February 14, 2020, the day of the alleged sexual assault, while the complainant was still at the appellant’s residence, the complainant called Mr. Ramdial, and his evidence was that the complainant on the phone told him that she was “in trouble” and that he could “hear Mr. Khandwalla screaming very loud at the complainant in the background.” This evidence would have corroborated the complainant’s evidence that she was in a state of fear and potentially led to a different result on the charge the appellant was acquitted of.
40For these reasons I find that Mr. Nagel acted in a completely professional and reasonable manner in deciding not to call Mr. Ramdial as a witness. Had he done so, as argued by the appellant, I find that it would not have had a positive impact on the finding of guilt by the trial judge of criminal harassment, as I will explain, and it might have even resulted in a finding of guilt on the sexual assault charge. There is no basis to consider that Mr. Nagel was ineffective as trial counsel in any way by not calling Mr. Ramdial as a witness.
Was trial counsel ineffective by not drawing an internal inconsistency in the evidence of the complainant to the attention of the trial judge?
41The additional argument Mr. Khandwalla wanted to advance was that he could establish, based on the cross-examination of the complainant, that she had lied about the phone call that she had made to Mr. Ramdial in the early morning of February 14, 2020.
42Mr. Khandwalla argued that in her evidence in chief, the complainant testified that this phone call early on February 14, 2020, took place in his apartment and that Mr. Ramdial could hear him yelling at her in the background. Mr. Khandwalla submitted that in cross-examination the complainant testified that the phone call with Mr. Ramdial took place after she left Mr. Khandwalla’s apartment and went downstairs and so it would not have been possible that he could be heard yelling at the complainant. As I have already pointed out, had Mr. Ramdial been called, he would have corroborated the complainant’s evidence on this point.
43The position of Mr. Hogan was that there was, in fact, no clear inconsistency in the evidence of the complainant and that her evidence was consistent with the fact that she made the call to Mr. Ramdial while she was still in Mr. Khandwalla’s apartment and then while she was still on the phone with Mr. Ramdial, she left the apartment and went downstairs. Mr. Khandwalla submitted that this makes no sense as the complainant would have woken up other residents, but that is pure speculation.
44Furthermore, as Mr. Hogan submitted, even if this had been argued before the trial judge and she found that the complainant lied on this particular point, it would not have impacted the complainant’s credibility to such an extent that the trial judge would have made a different finding with respect to her subjective fear of the messages sent to her by Mr. Khandwalla. This was an overwhelming case of criminal harassment based largely on 15 recorded phone messages of an indisputably harassing and menacing nature combined with a lengthy text exchange which further supported the elements of the offence. In addition, the complainant testified that there had been an additional 30 to 40 calls from the appellant.
45I have already set out an excerpt from the trial judge’s reasons in convicting Mr. Khandwalla of criminal harassment. In addition, when she discussed sentencing, the trial judge added, for the benefit of Mr. Khandwalla, that she found the criminal harassment to be “extremely concerning” and a very serious offence. She stated:
It is not one or two calls. It’s repetitive, and to be quite honest, I can see why Ms. Z. was as terrified as she was. So, the fact you [Mr. Khandwalla] stepped it up made it worse.
46In my view, there is no way any further challenge to the credibility of the complainant, would have changed the trial judge’s view that the Crown had met its onus on the fourth and fifth essential elements of the offence of criminal harassment in light of the uncontested evidence that Mr. Khandwalla had left these messages. No actions by Mr. Nagel could have redeemed the damage done by the appellant’s own recorded words and written messages. Mr. Nagel did as much as could be expected by any competent counsel in the circumstances and succeeded in securing an acquittal on the sexual assault charge. In my view, Mr. Nagel more than met the expected standard of performance. The appellant has not met the test for establishing that there was ineffective assistance of counsel.
Other issues raised by Mr. Khandwalla
47Mr. Khandwalla made an additional argument about a perceived police conflict. He understood that the police officer who was the officer-in-charge at trial knew Mr. Ramdial. He agreed that this did not have an impact on the trial, but it was part of his overall concern that he did not know the “whole story.” Mr. Hogan advised that in Mr. Khandwalla’s application to admit fresh evidence, the affidavit of Mr. Nagel references a police affidavit that explains that Mr. Ramdial was the friend of the officer’s wife, whom he had not seen in five years. Because of this tenuous connection, this officer asked another officer to take the complainant’s statement. He still remained an officer-in-charge of the matter.
48Mr. Khandwalla also mentioned that in the statement to police given by Mr. Ramdial that he referred to the complainant as his “subordinate” and that based on his experience when he worked for the TD Bank, a bank manager would never use that term and would rather use the term “direct report.” He raised this issue in support of his suggestion there was a conflict of interest, as he was of the view that a police officer would use that term, implying that there had been some contact between the officer and Mr. Ramdial.
49In my view, not only did this alleged conflict not impact on the fairness of Mr. Khandwalla’s file, but it was also appropriately dealt with by the officer and should not have caused Mr. Khandwalla any concern. That is why, no doubt, it was not something raised by his counsel at trial.
50Mr. Khandwalla also repeatedly stated that it made no sense for Mr. Ramdial to tell the complainant to go back upstairs if she was afraid of him. Mr. Khandwalla argued that since Mr. Ramdial had a “police connection” it would have made more sense for him to call police rather than advise the complainant to go back up to his apartment.
51In my view, had Mr. Ramdial been called as a witness he could have been asked about his reasons, although as he would have been a defence witness his evidence could not have been really challenged on this point. In any event, overall, his evidence would not have assisted and may well have hurt the appellant’s case.
52Finally, Mr. Khandwalla also suggested that the complainant may have been coerced into a sexual relationship with Mr. Ramdial because he was her boss. This allegation came out of the blue and is clearly not something that would have been relevant at his trial. Furthermore, it would have undermined the defence theory that the complainant fabricated the allegations and exaggerated her subjective fear as a means to protect her and Mr. Ramdial’s reputation and employment at the bank where they worked.
Disposition
53For these reasons the appeal is dismissed.
Spies J.
SPIES J.
Released: April 17, 2025
CITATION: R. v. Khandwalla, 2025 ONSC 2210
COURT FILE NO.: CR-23-40000019-00AP
DATE: 20250417
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
MOHAMMED KHANDWALLA
Appellant
REASONS FOR DECISION
summary conviction appeal
SPIES J.
Released: April 17, 2025