



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Couture, 2019 ONCA 187

DATE: 20190308

DOCKET: C63208

Juriansz, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Robert Couture

Appellant

Robert Sheppard, for the appellant

Sarah Shaikh, for the respondent

Heard: March 5, 2019

On appeal from the conviction entered on December 10,
    2015 and the sentence imposed on October 3, 2016 by Justice Scott K. Campbell
    of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

The appellant appeals from his conviction for theft over $5000 and seeks
    leave to appeal his sentence.

[2]

On the conviction appeal he advances a single ground arguing that the
    trial judge erred in failing to caution the jury against speculating on the
    reason why he had been placed on administrative leave.  He submits that the
    other reason for being placed on administrative leave that was mentioned in
    the evidence raised a suggestion of bad character in the mind of the jury.

[3]

We disagree.

[4]

In cross-examination of witnesses of the Diocese, the defence raised the
    issue of the basis for the appellants administrative leave.  The trial judge
    then excused the jury, told defence counsel to avoid examination on the reasons
    for the administrative leave, and cautioned the witness.  Defence counsel did
    not request any mid-trial instruction to the jury at that time.

[5]

In the Crowns closing submissions, counsel told the jury that the
    reason for the administrative leave was irrelevant and should not be
    considered.  The defence then asked the trial judge to give a specific
    instruction on speculation and bad character evidence. The trial judge declined
    to do so.

[6]

In his charge to the jury, the trial judge did instruct the jury generally
    not to speculate about what evidence there might have been.  The danger of
    speculation was addressed.  Arguably any further instruction would have only
    served to highlight an irrelevant line of inquiry. We would not give effect to
    this ground of appeal.

[7]

We dismiss the appeal against conviction.

[8]

The appellant also seeks leave to appeal sentence and specifically, the
    restitution order made in favour of St. Annes Church.  He maintains that the
    issue of compensation ought to have been the subject matter of civil
    proceedings and further, there was an inadequate factual basis to support the
    restitution ordered by the trial judge.

[9]

Again, we disagree.

[10]

The
    appellants crime involved breach of trust.  The appellant used his position as
    a priest to misappropriate donations intended for the Church for his own
    benefit.  A sentence that included a $75,000 restitution order properly
    reflected the need for denunciation and deterrence.

[11]

As
    for the factual underpinnings of the order, the jury had implicitly rejected
    the evidence of the expert called by the appellant.  The trial judge held that
    over the course of approximately eight years, the appellant had stolen at least
    $75,000.  In making that order, he found that $140,000 had been paid directly into
    the appellants personal bank account or to pay his personal visa account. 
    There was more than ample evidence to support the trial judges findings based
    on the record before him.  Resort to a civil proceeding was unnecessary.

[12]

Contrary
    to the appellants submission, the trial judge considered the appellants
    ability to pay but, referencing the breach of trust, he correctly noted that
    this was not a determinative factor.  Furthermore, he concluded that it was
    likely the appellant had capital assets that could be liquidated.

[13]

We
    see no reason to interfere.

[14]

For
    these reasons, the appeal is dismissed, leave to appeal sentence is granted,
    but the sentence appeal is dismissed.

R.G. Juriansz J.A.

S.E. Pepall J.A.

Gary Trotter J.A.


