Court of Appeal for Ontario

Date: 2025-07-23
Docket: M56138 (COA-25-CR-0576)
Judge: Peter Lauwers
Heard: 2025-07-18

Between:
His Majesty the King (Respondent/Responding Party)
and
Deepak Chhabra (Appellant/Applicant)

Appearances:
Lakhwinder Sandhu, for the appellant/applicant
Deepa Negandhi, for the respondent/responding party

Endorsement

Background

[1] Deepak Chhabra was found guilty of one count of sexual assault after a trial by judge alone in the Ontario Court of Justice on April 21, 2023. He was sentenced on May 29, 2025 to 13 months and is now incarcerated in Lindsay, Ontario. Mr. Chhabra’s trial counsel sought a conditional sentence. The Crown sought a sentence in the range of 12-18 months in jail. Mr. Chhabra appeals his conviction and is now seeking bail pending appeal.

[2] The Crown summarized the evidence leading to conviction:

The Applicant was the complainant’s Uber driver one very late night in Kingston. The complainant alleged that during the ride, the Applicant drove off the direct route and sexually assaulted her by kissing her, groping her breasts and putting his hands down into her underwear and touching her vagina. She persuaded him to continue driving her home. He then sexually assaulted her again by kissing her and groping her. The complainant eventually called one of her roommates to stay on the phone with her while she got home and out of the Applicant’s car. Two of the complainant’s roommates testified and corroborated key aspects of the complainant’s allegations. The complainant testified the ride ought to have been short, but the Applicant drove her for 20-25 minutes. The Applicant testified he picked up and dropped off the complainant without any incident which took 4 minutes, as corroborated by the complainant’s ride receipt. The complainant testified the ride receipt was only a suggested route, not the actual route.

[3] The applicant sought to reopen the trial before sentencing to adduce GPS data from Uber, but his application was denied based on the test in Palmer v. The Queen, [1980] 1 S.C.R. 759. The applicant argues that the trial judge erred in the application of the Palmer test, and asserts several other errors including unresolved inconsistencies in evidence said to be corroborative and the prospect of collusion among witnesses.

A. The Governing Principles

[4] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code, RSC 1985, c C-46: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.

[5] For the purposes of this application, the Crown accepts that the applicant’s grounds of appeal related to the application to re-open meet the very low bar of not being frivolous.

[6] The Crown resists the application on the second and third prongs of the test, asserting that the applicant is a flight risk and that “there are lingering flight risk concerns that impact the public confidence in the administration of justice.”

[7] The Supreme Court set out the principles in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250. I am obliged to weigh the factors of public safety, reviewability, and enforceability. The Crown does not assert that public safety plays a role in the analysis of this application.

[8] In striking the balance between enforceability and reviewability, “appellate judges should keep in mind that public confidence is to be measured through the eyes of a reasonable member of the public”, being “someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values”: Oland, at para. 47.

[9] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: R. v. Farinacci, 86 C.C.C. (3d) 32 (Ont. C.A.), [1993] O.J. No. 2627, at para. 43. As noted in Oland, at para. 37, the seriousness of the crime figures in the assessment of the enforceability interest. The applicant’s offence is serious but not at the very serious end of the offence spectrum.

[10] Reviewability acknowledges that the “justice system is not infallible” in its results, such that “persons who challenge the legality of their convictions should be entitled to a meaningful review process” that does not “require them to serve all or a significant part of a custodial sentence only to find out on appeal that the conviction upon which it was based was unlawful”: Oland, at para. 25. Given the applicant’s relatively short sentence, there is a risk that he will have served most of his sentence by the time the appeal is decided if bail is not granted.

B. The Governing Principles Applied

[11] This application turns on whether the applicant is a flight risk. The Crown asserts that this risk is strong, in view of the fact that he attempted to flee the day before sentencing:

The Applicant is a flight risk. His assertion in his affidavit dated July 4, 2025 and application record that he was going to India on May 28, 2025 to see his family is incredible.… [H]e booked two separate flights, one to Mexico City from Toronto, and one from Montreal to Dubai both leaving on May 28, 2025. He attempted to board the flight to Mexico City when he was arrested. He knew he was going to be sentenced on May 29, 2025. He knew the Crown was seeking a term of imprisonment which was at least a possibility. He also knew that he had to be present and may have to step into custody, which is demonstrated by the fact that he had earlier filed an application for bail pending appeal the day of his sentencing.

The facts asserted by the Crown are not seriously contested by the applicant.

[12] The applicant asserts that he is not a flight risk despite the record. He cannot flee because his passport has been seized. He proposes two sureties in the total amount of $30,000, to wear a GPS monitoring device, to be subject to GPS monitoring by the government-funded GPS monitoring program, and to abide by all of its rules and protocols. He proposes to reside with Amanpreet Kaur, one of his proposed sureties, who will stand surety for $5,000 or $10,000 if the court requires. She completed her studies and now works in a restaurant and has applied for Permanent Resident status. The other surety is Jagdeep Singh Walia, who is a physician-scientist at Queen’s University, who pledges $25,000. Both sureties are fully aware of the events set out in these reasons. The applicant swears that his sureties “both placed great trust in me and I will never jeopardise their financial interest or reputation by breaching my release order.” He will need to find a job and be able to work.

[13] The Crown argues that neither surety can adequately supervise the applicant because both work. The Crown points out that GPS would not sufficiently enhance the release plan to mitigate the real flight concerns.

C. Disposition

[14] This is a case in which the reviewability interest transcends the enforceability interest in light of the short sentence. As conceded by the Crown, the applicant is not a risk to public safety. In my view the elements of the release plan do constrain him sufficiently to mitigate the flight risk. Unlike the conditions of the applicant’s pre-sentence bail, the applicant no longer has possession of his passport and will be monitored by GPS.

[15] The bail order filed may be issued, except that the amount to be pledged by Amandeep Kaur is to be increased from $5,000 to $10,000, and the condition is to be added: “Do not drive passengers for a ride share service (i.e. Uber, Lyft, etc.) or a taxi company.” A reasonable member of the public “who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values” would not object to bail for the applicant with these conditions.

“P. Lauwers J.A.”

[1] This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, RSC 1985, c C-46.