Ontario Court of Appeal refuses to reopen child luring appeal five years after dismissing it
Because the formal order was never issued, the court still had power to reopen. It declined: the delay was largely unexplained, the proposed fresh evidence was not truly fresh, and nothing suggested a miscarriage of justice.
R. v. Chheda, 2026 ONCA 689
- Court
- Court of Appeal for Ontario
- Decided
- Oct 1, 2026
- Conviction to this result
- 8 years
- Sentence
- Not stated in the decision
Crown's motion for summary dismissal granted; application to reopen the appeal dismissed The court refused to set the conviction aside. Other routes may remain.
What happened
Mr. Chheda was convicted in May 2018 of three offences: child luring, arranging by telecommunication to commit a sexual offence against a child, and obtaining sexual services for consideration from a person under eighteen. The charges came from a York Regional Police project. Undercover officers posted fictitious escort advertisements. When someone replied by text, an officer posing as the escort said "she" was underage and arranged a paid meeting. No real child was involved. The conduct dated to March 2017. The Crown's case on identity was circumstantial. It included evidence that Mr. Chheda arrived at a specific hotel room (room 111) within minutes of the officer texting that location to the suspect phone, and evidence from a Freedom Mobile representative about communications between a phone seized from Mr. Chheda's vehicle and the suspect phone. Mr. Chheda chose not to testify at trial, on the advice of his lawyer. His appeal to the Court of Appeal was fully argued and dismissed on July 20, 2021. Apparently through an oversight, the court never issued its formal order. In September 2025 he began an application to reopen the appeal, serving supporting materials in May 2026. He relied on four areas of proposed fresh evidence: his own account of the day of his arrest, records said to come from his wife's phone, a claimed transcript error about the room number, and complaints about the performance of his trial and appeal lawyers. The Crown moved to summarily dismiss the application.
Procedural history
- Mar 2017Conduct underlying the charges: text exchanges with an undercover York Regional Police officer posing as an underage escort, and attendance at a hotel room
- May 2018Convicted of child luring, arrangement by telecommunication to commit a sexual offence against a child, and obtaining sexual services for consideration from a person under eighteen
- Jul 20, 2021Appeal against conviction dismissed, reported at 2021 ONCA 521; the formal order was never issued, apparently through oversight
- Sep 2025Appellant initiates application to reopen the appeal and serves the notice of application
- May 2026Appellant serves materials in support of the application to reopen
- Sep 21, 2026Crown's motion to summarily dismiss the application to reopen heard
- Oct 1, 2026Crown's motion granted; application to reopen the appeal dismissed
The offence and its elements
Child luring
Criminal Code (section number not cited in the decision)
What the prosecution had to prove:
- The accused communicated by a means of telecommunication with a personnot addressed
- That person was, or the accused believed that person was, under the age the statute attaches to the listed offence in question (18, 16 or 14 depending on the listed offence)not addressed
- The communication was for the purpose of facilitating the commission of a listed offence with respect to that person. The listed offences are mainly sexual offences but also include specified non-sexual offences such as child abduction. This brief limits its description to the sexual-offence allegations in this casenot addressed
- The accused was the person who sent the communications (identity)disputed
Arrangement by telecommunication to commit a sexual offence against a child
Criminal Code (section number not cited in the decision)
What the prosecution had to prove:
- The accused, by a means of telecommunication, agreed with a person, or made an arrangement with a personnot addressed
- The agreement or arrangement was to commit a listed offence with respect to another person who was, or who the accused believed was, under the age the statute attaches to that listed offence (18, 16 or 14). The statute distinguishes the person the accused communicates with from the other person who is the intended subject of the offence; the reasons do not discuss how this was satisfied in an undercover operation. The listed offences are mainly sexual offences but also include specified non-sexual offences such as child abduction. This brief limits its description to the sexual-offence allegations in this casenot addressed
- The accused was the person who made the arrangement (identity)disputed
Obtaining sexual services for consideration from a person under the age of eighteen
Criminal Code (section number not cited in the decision)
What the prosecution had to prove:
- Either (a) the accused obtained, for consideration, the sexual services of a person who was in fact under 18, or (b) the accused communicated with anyone for the purpose of obtaining, for consideration, the sexual services of a person under 18. Only the communication branch can apply where no real child existed, as in an undercover operation, and there the Crown relies on the accused's belief that the person was under 18. The reasons do not say which branch was relied onnot addressed
- The accused was the person who communicated (identity)disputed
The questions on appeal
- Did the Court of Appeal still have power to reopen an appeal it dismissed in 2021?
- Yes. Because the formal order dismissing the appeal was never issued, the court kept jurisdiction under its inherent or ancillary powers. That power is used sparingly.
- Did the principle of finality weigh against reopening?
- Strongly. The appeal had been fully argued. Four years passed before the notice to reopen was served, and the materials gave no satisfactory explanation for that period. The court said the health problems of a later lawyer could possibly explain some delay after September 2025, but gave no explanation for the earlier four years.
- Did the proposed fresh evidence give the application a reasonable prospect of success?
- No. The appellant's own account was not fresh and lacked cogency. The phone records were hearsay, could have been obtained for trial with due diligence, and could not be expected to affect the result. The room number point was raised at trial and all other officers said room 111. The counsel complaints did not show performance below the standard of reasonably competent counsel.
The law the court applied
Jurisdiction to reopen an appeal
Where no formal order dismissing the appeal has been issued, the court may permit reopening under its inherent or ancillary powers. The power is exercised sparingly.
R. v. Smithen-Davis, 2020 ONCA 759, at paras. 33-35, 37, 40, 45; R. v. Carignan, 2021 ONCA 899, at para. 3
Interests of justice test for reopening
The applicant must show a real concern, or a clear and compelling case, that a miscarriage of justice will occur if the appeal is not reopened. The court weighs five factors: finality, risk of a miscarriage of justice, cogency of the case for reopening, the nature of the alleged error or omission, and its significance to the disposition of the appeal.
Smithen-Davis, at paras. 34-35, 56-57; Carignan, at para. 3
Summary dismissal of an application to reopen
The Crown bears the burden of showing that the application to reopen has no reasonable prospect of success.
Smithen-Davis, at para. 63; R. v. Benhsaien, 2024 ONCA 487, at para. 12
Finality after a decided appeal
Once broad appellate rights have been exercised and the merits decided, then, absent an appeal to a higher court, finality concerns become paramount. The appellate process cannot become a revolving door for new grounds of appeal.
R v. E.F.H.; R. v. Rhingo (1997), 115 C.C.C. (3d) 89 (Ont. C.A.), at p. 101
Admissibility of fresh evidence
The court asked whether the evidence was truly fresh, whether it could have been obtained for trial with due diligence, whether it was in admissible form, whether it was cogent, and whether it could reasonably be expected to affect the result. The reasons apply these considerations without naming a leading case.
Reasons at paras. 19, 21, 23 and 25
Ineffective assistance of counsel
The appellant's materials had to provide a basis to conclude that trial or appeal counsel's performance and decisions fell below the standard of reasonably competent counsel.
Reasons at para. 26
What the court decided
The Court of Appeal for Ontario (Gillese, Coroza and Copeland JJ.A.) granted the Crown's motion for summary dismissal and dismissed Mr. Chheda's application to reopen his appeal. The court held that it had jurisdiction because the 2021 formal order was never issued, but that the interests of justice did not favour reopening. The public interest in finality weighed strongly against the application because of the very lengthy delay and the lack of a sufficient explanation for it. In addition, none of the four areas of proposed fresh evidence gave the application a reasonable prospect of success: the evidence was not truly fresh, was not reasonably capable of changing the outcome, and in part was not tendered in admissible form. The conviction stands. These are reasons for decision of a three-judge panel; the packet does not say they are unpublished.
Analysis
This is our commentary, separate from the court’s reasons.
A door left open, but only just
This case turned on a clerical gap. The court's power to reopen rested on one fact: the formal order dismissing the 2021 appeal was never issued. The reasons state that where no formal order has been issued the court has jurisdiction, and they go no further. They do not decide what the position would have been had the order issued, and they do not discuss other remedies. What the reasons do show is that jurisdiction and willingness are different things. The court treated the missing order as a technicality that preserved its power, not as a reason to relax the test. The real question remained whether there was a clear and compelling case of a miscarriage of justice, weighed against finality five years after the appeal was decided.
Why the fresh evidence failed as a package
The court sorted the four proposed items into three recurring faults: not fresh, not capable of changing the result, and not in admissible form. The appellant's own account of events was the weakest. He had chosen not to testify on legal advice and did not attack that advice. Offering his version now, after seeing the verdict, is the classic second chance that appellate courts refuse. The court also tested the story for cogency and found it implausible on its own terms, given the minutes between the last text and the arrival at the hotel door. The phone records failed on form (hearsay from a non-custodian rather than a business record), on diligence, and on potential effect. The room number point was never really new: trial Crown counsel had already flagged one officer's reference to room 101, and the trial judge found the room was 111 on the evidence of every other officer. Each item might have looked promising in isolation; none survived the structured questions a court actually asks.
Ineffective assistance needs more than a list of unmet requests
The appellant said he had asked trial counsel to pursue other investigations and Charter arguments, and then raised these with appeal counsel. The court's response is instructive. A claim of ineffective assistance is not made out by showing that a lawyer declined to do what a client wanted. The materials must show that the lawyer's performance fell below the standard of reasonably competent counsel and that this raises a concern of a miscarriage of justice. The absence of that showing, together with a four-year interval before the notice to reopen was served and no satisfactory explanation for it, meant finality prevailed. The decision illustrates how delay and merit interact: the court said the two issues are interrelated, and here a long and largely unexplained delay met material that was weak on its own terms.
Related briefs
First Circuit upholds coram nobis relief where lawyer wrongly assured client she could fix her immigration status after plea
A divided court holds that telling a noncitizen she can stay in the country, when the plea in fact makes removal mandatory, is constitutionally deficient advice, and that corroborated testimony plus a plausible trial defense can show prejudice even without contemporaneous evidence.
Manitoba Court of Appeal upholds conviction resting on one witness with a long criminal record
The accused argued the trial judge mishandled a witness who needed special caution, that new bail documents showed a motive to lie, and that the verdict was unreasonable. The court rejected all three, and left open whether the Vetrovec caution applies in sexual offence cases at all.
Ontario Court of Appeal acquits mother convicted in 2002 on discredited shaken baby evidence
Twenty-four years after a jury convicted Jennifer Gaskin of manslaughter in the death of her newborn son, fresh expert reports undermined the pathology evidence that shaking caused the death. With the Crown's consent, the court found the conviction unsustainable because of flawed pathological evidence, set it aside, entered an acquittal and called her the victim of a miscarriage of justice.
Citations
- R. v. Chheda, 2026 ONCA 689
- 2021 ONCA 521
- R. v. Smithen-Davis, 2020 ONCA 759
- R. v. Carignan, 2021 ONCA 899
- R. v. Benhsaien, 2024 ONCA 487
- R v. E.F.H.; R. v. Rhingo (1997), 115 C.C.C. (3d) 89 (Ont. C.A.)
- [1997] S.C.C.A. No. 256
- [1997] S.C.C.A. No. 274
- Charter
Sources
This brief is general information about one case. It is not legal advice, and it may not reflect later developments. Read the full reasons and speak to a lawyer about your own situation.