Court of Appeal for Ontario

Date: 2019-03-08 Docket: C63208

Judges: Juriansz, Pepall and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Couture Appellant

Counsel

Robert Sheppard, for the appellant Sarah Shaikh, for the respondent

Heard: March 5, 2019

On Appeal

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

Reasons for Decision

1The appellant appeals from his conviction for theft over $5,000 and seeks leave to appeal his sentence.

2On 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.

3We disagree.

4In cross-examination of witnesses of the Diocese, the defence raised the issue of the basis for the appellant's 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.

5In the Crown's 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.

6In 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.

7We dismiss the appeal against conviction.

Sentence Appeal

Sentence Appeal

8The appellant also seeks leave to appeal sentence and specifically, the restitution order made in favour of St. Anne's 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.

9Again, we disagree.

10The appellant's 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.

11As 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 appellant's personal bank account or to pay his personal visa account. There was more than ample evidence to support the trial judge's findings based on the record before him. Resort to a civil proceeding was unnecessary.

12Contrary to the appellant's submission, the trial judge considered the appellant's 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.

13We see no reason to interfere.

14For 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.