CITATION: R v. Bhullar, 2026 ONSC 3119
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
Paul Renwick, for the Respondent
Respondent
- and -
DILBAG BHULLAR
Kuldip Pannu, for the Appellant
Appellant
HEARD: April 15, 2026
REASONS FOR JUDGMENT
[On appeal from the judgments of K. Slate J. dated April 15, 2025 and July 11, 2025]
PUBLICATION BAN
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast, or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Fowler Byrne J.
1Following a trial before Justice K. Slate of the Ontario Court of Justice, on April 15, 2025, the Appellant was found guilty of sexual assault and unlawful confinement. On July 11, 2025, the Appellant was sentenced to 12 months in custody followed by 2 years of probation. A number of ancillary orders were also made.
2The Appellant appeals both his conviction and his sentence. The first grounds of appeal raised were that the trial judge erred in law and misapprehended the evidence. Despite this, no time was spent on these grounds at the hearing, nor were they explored in the Appellant’s factum. The focus of this appeal was on a subsequently raised ground, namely whether there was a miscarriage of justice due to incompetent or ineffective counsel at trial. The Appellant also seeks the admission of fresh evidence in support of this subsequent ground of appeal. If I find no errors or miscarriage of justice, the Appellant argues that his sentence is demonstrably unfit.
3It is the Crown’s position that the fresh evidence can be considered but there was no error or miscarriage of justice. The Crown also maintains that the sentence is appropriate.
4For the foregoing reasons, the appeal is dismissed.
I. Admission of Fresh Evidence
5An appellate court may receive fresh evidence where it considers it in the interests of justice to do so: s. 683(1)(d) of the Criminal Code of Canada (“the Code”).
6The test set out in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, is generally applied when fresh evidence is tendered upon appeal. However, in cases where incompetence or ineffective assistance of counsel or a miscarriage of justice is asserted by the Appellant, a modified test is used. In such cases, admissibility is approached by receiving the fresh evidence for the limited purpose of evaluating the alleged miscarriage of justice claim: R. v. Dansereau, 2023 ONSC 1853, at paras. 84-85; R. v. Archer (2005), 2005 36444 (ON CA), 202 C.C.C. (3d) 60 (Ont. C.A.), at para. 118.
7The Appellant seeks to admit as fresh evidence the statement of trial counsel dated August 31, 2025, regarding his representation of the Appellant, and the police statement of the complainant dated July 29, 2023. I am satisfied that this evidence is relevant to the issue of the alleged ineffective assistance of counsel and thus should be admitted for this appeal. The affidavit of counsel addresses his representation of the Appellant. The statement of the complainant is the statement that the Appellant argues should have been used by trial counsel for the purposes of cross-examination and impeachment.
II. Standard of Review and Basic Legal Principles
8There are three bases of an appeal to this court: (i) the verdict is unreasonable or cannot be supported by the evidence; (ii) there was an error in law; or (iii) there was a miscarriage of justice: s. 686(1)(a) of the Code. If I find that any of these grounds have been made out, I can direct a judgment or verdict of acquittal, or I can order a new trial: s. 686(2) of the Code.
III. Ineffective Assistance of Counsel
9Tthe Appellant argues that a miscarriage of justice took place by reason of trial counsel’s ineffective representation. In particular, the Appellant maintains that trial counsel was ineffective because he failed to cross-examine the complainant on material inconsistencies in her evidence as compared to her police statement given in the early hours of May 29, 2023, shortly after the incident took place.
10Trial counsel filed an affidavit, but he was not cross-examined on it.
a. Law
11In order for me to accept that the Appellant had ineffective counsel at trial, the Appellant must satisfy me of the following, on a balance of probabilities:
a) if the claim is based on contested material facts, that those material facts are established;
b) that counsel’s acts or omissions amounted to incompetence; and
c) that counsel’s ineffective representation caused a miscarriage of justice.
R. v. Zheng, 2014 ONCA 345, 317 O.A.C. 353, at para. 22; Archer, at paras. 119-20.
12I should first establish whether the alleged incompetence resulted in a miscarriage of justice. If I find that no such miscarriage occurred, that the Appellant was not prejudiced by the conduct of trial counsel, this would dispose of the appeal and I need not assess trial counsel’s performance: Archer, at para. 121; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 29.
13In this case, the material facts are not in dispute. It is clear that trial counsel did not cross-examine the complainant on certain inconsistencies or omissions. So, if I find there was a miscarriage of justice, I then must also be satisfied that the trial counsel’s acts or omissions amounted to incompetence in order to grant this appeal.
14A miscarriage of justice occurs if the appellate court is satisfied that counsel’s ineffective representation undermined the appearance of the fairness of the trial or the reliability of the verdict. A verdict is rendered unreliable where the appellant demonstrates that had counsel performed in a competent fashion, there is a reasonable possibility that the verdict could have been different: Archer, at para. 120; G.D.B., at para. 28; R. v. Joanisse (1995), 1995 3507 (ON CA), 102 C.C.C. (3d) 35, at pp. 62-64, leave to appeal refused, [1996] S.C.C.A. No. 347.
15A miscarriage of justice can take many forms. It may be that counsel’s performance resulted in procedural unfairness. In other situations, the reliability of the trial’s result may have been compromised. A miscarriage of justice is established if there is a reasonable probability that the appellant would not have been convicted if defence counsel had performed in a competent manner. The question is whether the accused was prejudiced by the incompetence of counsel in that the reliability of the trial’s result may have been compromised: G.D.B., at para. 28; R. v. Hagras, 2021 ONSC 6993, at para. 8.
16To establish that trial counsel’s ineffectiveness resulted in an unreliable verdict, the appellant must establish a reasonable probability that the result would have been different. A reasonable probability is established when I am satisfied that because of the incompetence, the verdict cannot be taken as a reliable assessment of the appellant’s culpability: R. v. S.T., 2024 ONCA 572, at para. 43, citing R. v. Al-Shammari, 2016 ONCA 614, at para. 75.
IV. Analysis
17The only error alleged by the Appellant with respect to his trial counsel’s representation was that he conducted an inadequate cross-examination. He did not allege procedural unfairness or any other errors by trial counsel. The Appellant argues that his trial counsel did not cross-examine the complainant on certain inconsistencies in her evidence, vis-à-vis her statement to the police. He further argues that without addressing these inconsistencies, which go to the complainant’s credibility, the third part of the W.D. test could not be adequately addressed. The Appellant argues that the result at trial was compromised, resulting in a miscarriage of justice.
18It should be noted that trial counsel did cross-examine the complainant on one inconsistency, namely, about whether she believed the Appellant was drunk. So, it is clear that trial counsel understood that the police statement of the complainant could be used in that manner.
19After reviewing the inconsistencies and omissions, I do not believe that the failure to put them to the complainant in cross-examination amounted to a miscarriage of justice. In particular, the inconsistencies and omissions, if they were in fact inconsistent, are not with respect to material facts which grounded the trial judge’s reasons.
20The trial judge was alive to the fact that inconsistencies and omissions could impact her assessment of a witness’s credibility. She relied on R. v. Collier, 2024 ONCA 368, which states that in assessing credibility, a trial judge can consider material inconsistencies between trial testimony and a police statement. She also stated that if a witness leaves out important details, it could be considered inconsistent (emphasis mine).
21The Appellant provided me with cases where the failure to cross-examine on inconsistencies, when credibility was a significant issue, was sufficient to find a miscarriage of justice. In S.T., trial counsel did not use a recording that was provided by his client in order to undermine the complainant’s evidence in two areas that the trial judge specifically relied on in her reasons. As will be seen in my analysis, this is not the case here.
22In R. v. M.B., 2009 ONCA 524, 251 O.A.C. 81, the court found that the trial counsel’s failure to cross-examine on inconsistencies was one aspect of trial counsel’s ineffective representation. At para. 63, the court indicated that it was difficult to determine the impact that the cross-examination, such as it was, had on the trial judge’s assessment of the complainant’s credibility. The court stated though, that the identified omissions were significant when viewed in the context of the trial judge’s assessment of the complainant’s claim of sexual assault.
23In this case though, the inconsistencies and omissions were not material when viewed in the context of the trial judge’s assessment of the complainant’s credibility.
24The trial judge first assessed the Appellant’s evidence, which she rejected as not credible. She laid out her reasons as to why she did not believe him. She then stated that the Appellant’s evidence, considered with other evidence, still did not leave her with a reasonable doubt at the second stage of the W.D. analysis.
25In assessing the credibility of the Appellant, the trial judge did consider the inconsistencies in the Appellant’s evidence at trial, vis-à-vis his police statement. These inconsistencies though, were with respect to material facts, as directed in Collier, M.B. and S.T. For example:
a) In his trial evidence, the Appellant omitted to mention that he grabbed the complainant’s arm and put her into the car. No evidence was presented that would explain why he did this. The Appellant forcing the complainant into the car is a key element of the offence of forcible confinement.
b) In his evidence at trial, the Appellant testified that his touching of the complainant’s thigh was accidental, when he drove over a pothole. In his police statement, he said he accidentally touched her thigh when he tried to see her phone, and he did not mention anything about the pothole. He told the police that he accidentally touched the complainant’s breast when he got in the car, or she got out, which was not said at trial. How, when and where the Appellant touched the complainant are all material to the issue of whether a sexual assault occurred.
c) At trial, the Appellant indicated that the allegations occurred because the complainant could not pay for the ride, something that was never mentioned to the police. This would be important to support a claim that the complainant fabricated the allegations.
26With respect to the third stage of the W.D. analysis, the trial judge then examined the evidence of the complainant, who she found credible. In her examination of the complainant’s evidence, she focused solely on the evidence surrounding the essential elements of the offences. She did not consider or rely on how the complainant happened to be in the car with the Appellant, other than to say that there was a work opportunity that did not happen. The complainant’s evidence about what happened on that drive and why they were at Tim Horton’s played no part in the trial judge’s analysis. Her analysis was focused on what touching occurred. She found that the complainant’s evidence of the pertinent details of her interaction with the Appellant did not waiver in cross-examination. While she acknowledged that the complainant was uncertain about peripheral details, the trial judge found these details to not be material.
27Upon reviewing the trial judge’s reasons, in the context of her assessment of both the Appellant’s and complainant’s credibility, I find that the purported omissions and inconsistencies would not change the trial judge’s conclusions.
28The omissions alleged were peripheral and inconsequential to the essential elements of the offences charged. For example, whether the complainant returned to her home to get her hoodie at the start of the ride, whether that the Appellant offered to pay her for a missed shift before they stopped, whether he told her that he had a sore back, or whether he told her that he wanted to park the car a further bit up the country road so he could urinate, have nothing to do with the essential elements of the offences. The complainant’s failure to mention these details at trial are peripheral, and inconsequential to the essential elements of the offence.
29With respect to the complainant’s injury, the fact that she did not follow up with the police in the days following the attack to report that her face was swollen would have no impact on the verdict. The trial judge did not rely on the presence or absence of evidence of an injury.
30The Appellant also relied on the fact that the complainant testified at trial that she said “no, no, no” during the attack, but did not tell the police that she said “no”. While this omission goes to the assault itself, at no time did the Appellant raise consent as a defence. His position at trial was that if he did touch the Appellant, it was accidental. The rest of the complainant’s evidence, both at trial and in her statement to police, made it clear that the complainant was consistent in her lack of consent to the Appellant’s touching. The trial judge’s reasons reflected that.
31The inconsistencies highlighted by the Appellant are also with respect to peripheral items and not material facts.
32The first inconsistency was in relation to where the Appellant decided to drive when he learned that there was no work. In her police statement, the complainant said that after the Appellant learned there would be no work, he still wanted to drive to the workplace. At trial, the complainant said that when he learned that there was no work, he decided to drive her back home. This was not a material fact. In fact, the trial judge started her in depth analysis of the facts when they stopped at the side of the road, after they realized there was no work opportunity.
33The Appellant also points to the inconsistency of the complainant’s evidence as to when he asked her to drive. At trial, the complainant said it was when they were on Mississauga Road. In her statement to the police, she said it was when they parked. Again, this is peripheral and has no bearing on the essential elements of the offences.
34The Appellant also argued that the complainant was inconsistent in that at trial, she testified that the Appellant tried to kiss her and tried to touch her, whereas in her statement to the police, she said he did touch her and did kiss her.
35Upon review of the entirety of the trial evidence, no inconsistency is found. Throughout both her statement to the police and in her trial testimony, she said both, that he tried to touch her and kiss her and that he did succeed in touching her and kissing her.
36The Appellant also points out that at trial, the complainant testified that after the assault, she told the Appellant she wanted to get her bag and phone from the car and leave. In her statement to the police, she said she took her bag with her when she got out of the car, not her phone. The trial judge found that both the phone and the bag were in the car.
37I find that this inconsistency is peripheral. The complainant’s evidence is that she wanted her phone to call an uber, and he withheld it from her until he forced her back into the car and her boyfriend called. It was her phone that was withheld from her, which would have given her another way to leave the scene. There is no inconsistency that the phone remained in the car.
38Finally, the Appellant argues that in the complainant’s trial testimony, she said she couldn’t ask for help while in the car, because he was driving in the right-hand lane of the road, and that he was speeding. He argues that she was on her phone with her boyfriend the whole way back, so she could have asked for help. This is not an inconsistency as the complainant was clear that she told her boyfriend what was happening at that time and that he and the Appellant were arguing. She had already sent her roommate her location.
39Accordingly, even if trial counsel had cross-examined the complainant on these omissions or inconsistencies, they were peripheral in nature and not relevant to the material facts at issue. Viewing the trial judge’s reasons, she focused on the material facts and any inconsistencies she found in the Appellant’s evidence on these material facts. She acknowledged some omissions of the complainant’s evidence on peripheral issues but did not find that they affected her analysis. Accordingly, had these omissions and inconsistencies been brought to her attention, and if the complainant was not able to adequately address them or repair them on cross-examination, they would not have impacted the judgment.
40Accordingly, I find that there was no miscarriage of justice in this decision. As a result, I do not need to consider whether trial counsel was incompetent.
V. Error of Law or Misapprehension of the Facts
41While these were grounds of appeal, no argument was advanced at the hearing. No mention was made of these grounds in the Appellant’s factum. There are no submissions before the court as to how the trial judge erred in law or misapprehended the evidence. I am therefore not satisfied that the Appellant has show any such errors and these grounds of appeal are also dismissed.
VI. Sentence Appeal
42The Appellant received a sentence of 12 months in custody followed by 2 years probation and various ancillary orders. The Appellant submits that the sentence he received was unreasonable and demonstrably unfit. In support of his argument, he provides a number of other cases where the sentences imposed were less than what the trial judge imposed here. There was no effort made to show why in this case, on these facts, and with this offender, the sentence imposed was unreasonable or demonstrably unfit.
43A trial judge has broad discretion to impose a sentence that they consider appropriate and an appellate court may not intervene lightly: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 39.
44I should not modify a sentence simply because I believe another sentence should have been imposed. I have not presided over the trial, and I have not seen and heard all the witnesses. Sentencing is very subjective: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46.
45In this case, the trial judge outlined the facts, the circumstances of the offender, the proper sentencing principles , and other cases with similar facts to determine a proportionate sentence. She highlighted cases where the accused was a taxi or uber driver, which involve a breach of trust. The range of sentences for these types of cases is from 6 to 18 months (see R. v. Einollahi 2021 ONSC 6048; R. v. Halabi [2025] O.J. No. 1475; R. v. Kullab 2024 ONCJ 548; R. v. Ukumu 2020 ONSC 3645).
46In his submissions, the Appellant did not challenge the trial judge’s analysis, nor the conclusion that she should view the Appellant as a taxi or uber driver. He simply relied on the cases cited by the trial judge that were in the lower end of the range but did not address the cases cited by the judge in the higher end of the range.
47Accordingly, I do not find that the Appellant has satisfied me that the sentence was demonstrably unfit or unreasonable.
VII. Conclusion
48For the foregoing reasons, the conviction and the sentence appeals are dismissed.
Fowler Byrne J.
Released: June 9, 2026
CITATION: R v. Bhullar, 2026 ONSC 3119
COURT FILE NO.: CR-25-00000640-00AP
DATE: 2026 06 09
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
- and -
DILBAG BHULLAR
REASONS FOR JUDGMENT
Fowler Byrne J.
Released: June 9, 2026