W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2)

of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

CITATION: R. v. Coulombe, 2008 ONCA 315

DATE: 20080425

DOCKET: C46686

COURT OF APPEAL FOR ONTARIO

LASKIN, SIMMONS AND LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

KRISTIAN KYLE COULOMBE

Appellant

Howard C. Rubel for the appellant

Deborah Calderwood for the respondent

Heard: April 21, 2008

On appeal from the convictions entered by Justice James R.H. Turnbull of the Superior Court of Justice on December 21, 2006 and from the sentenced imposed by Justice Turnbull on February 21, 2007.

ENDORSEMENT

[1] The appellant appeals from his convictions for sexual offences involving five complainants who were either former students of the appellant or former students at the grade school or high school at which he taught.

[2] The appellant advanced two grounds of appeal in oral argument. First, he submitted that the trial judge erred by reversing the burden of proof. He made three arguments in relation to this issue.

[3] The appellant claimed that, whenever there was evidence confirming a complainant's allegations, the trial judge rejected the appellant's evidence without considering whether it raised a reasonable doubt. In addition, the appellant contended that when faced with improbabilities concerning the likelihood that he would have engaged in sexual activity in the circumstances described by a complainant, the trial judge approached the issue presuming guilt. Finally, the appellant argued that in rejecting his evidence based on the totality of the evidence, the trial judge erred by approaching the credibility issue as a contest rather than considering whether the appellant's evidence raised a reasonable doubt.

[4] In support of these arguments, the appellant relied primarily on the following passages from the trial judge's reasons. In the first of these passages, the trial judge said:

I must say I have some difficulty in accepting, first of all, that this activity on the bus occurred, and secondly, how physically it could have occurred. The defendant denied its occurrence. In considering whether this incident did occur, I am not satisfied beyond a reasonable doubt that the accused did it. It is his word against the word of the complainant, and absent any confirming evidence I am prepared to give the benefit of the doubt to [the appellant]. [Emphasis added.]

According to the appellant, this passage demonstrates that the trial judge was only prepared to give the benefit of any doubt to the appellant where there was no evidence confirming the complainants' version of events.

[5] In a second passage, the trial judge stated:

While there was no evidence led on whether the English room door could be locked from the inside, there is no doubt that [the appellant], based on the evidence before this court, was quite willing to take extraordinary risks to enjoy sexual activity with his students.

The appellant submits that this passage demonstrates that the trial judge approached his evidence presuming guilt.

[6] In the third passage, the trial judge said:

[The appellant] simply denied this sexual act occurred in the bedroom or at all. On the totality of the evidence, I disbelieve him. [Emphasis added.]

According to the appellant, this passage indicates that the trial judge set up a credibility contest between the complainants and the appellant, and that the trial judge simply chose the complainants' evidence without assessing whether the appellant's evidence created a reasonable doubt.

[7] We reject these arguments. Although perhaps the trial judge's language in the impugned passages might have been clearer, particularly when read in the context of the whole of his reasons, we are not persuaded that the trial judge erred by reversing the burden of proof. Concerning the first passage relied on by the appellant, read fairly, in our view, the trial judge was not saying that he would give the benefit of the doubt to the appellant only where there was no confirming evidence. Rather, he was stating his finding in relation to this specific incident that there was no confirming evidence and his conclusion that he had a reasonable doubt concerning whether the particular incident occurred.

[8] In relation to the second passage relied on by the appellant, in our opinion, it does not demonstrate that the trial judge began his analysis presuming guilt. Rather, the trial judge was expressing the conclusion he reached after reviewing the whole of the evidence. The trial judge gave lengthy reasons in which he set out in detail the relevant principles relating to the burden of proof. As with the third passage relied on by the appellant, absent clear error, the trial judge is presumed to have applied those principles correctly. Considered in this light, we are not persuaded that these isolated extracts from lengthy reasons that otherwise correctly describe the burden of proof demonstrate that the trial judge failed to consider whether the appellant's evidence raised a reasonable doubt.

[9] Accordingly, we would not give effect to this ground of appeal.

[10] In his second ground of appeal, the appellant submitted that the trial judge erred by applying a different standard of scrutiny to Crown witnesses as compared to defence witnesses and by failing to give adequate reasons for his conclusions on credibility. In support of this ground of appeal, the appellant argued that the trial judge ignored various pieces of evidence that undermined the credibility of the complainants and failed to give adequate reasons for rejecting the appellant's evidence.

[11] We do not accept these submissions. In our opinion, the trial judge's reasons demonstrate that he was alive to the alleged inconsistencies and improbabilities in the complainants' evidence relied on by the defence. The trial judge considered and resolved many of the defence arguments concerning these issues in his reasons. For example, he noted that some of the alleged inconsistencies could be attributed to the passage of time since the events and the age of the girls when the events occurred. Particularly where there was a basis in the record for resolving some of the alleged inconsistencies, the trial judge was not required to address every alleged inconsistency and improbability raised by the defence.

[12] One such alleged inconsistency was the evidence that two of the complainants both visited the appellant's office for sexual purposes during part of the same school term without seeing each other. However, on the record before him, it was open to the trial judge to find that the period during which these complainants' visits may have overlapped was brief and that one of the complainants attended at the appellant's office primarily at lunch while the other attended primarily after school. In these circumstances, the trial judge did not commit reversible error by failing to refer further to this issue.

[13] Although the trial judge may arguably have relied improperly on a teacher's observations of the demeanour of one of the complainant's at the time she disclosed the sexual assaults, as well as on that teacher's opinion that the complainant was credible, on our review of his reasons, his reliance on this teacher's testimony was not central to his core determinations.

[14] Further, we are not persuaded that the trial judge's reasons for rejecting the appellant's denials of the sexual offences were inadequate. He enumerated some concerns about the appellant's testimony, including his evasiveness when confronted about propositioning another teacher. In addition, the trial judge took into consideration the appellant's inappropriate discussion about pornography with a grade eight student. Most importantly, in our opinion, this was a case in which it was appropriate for the trial judge to rely on the totality of the complainants' evidence as a basis for rejecting the appellant's evidence.

[15] Much of the strength of the Crown's case derived from the similar fact evidence. That evidence included details given by the five complainants describing the events surrounding their various levels of sexual intimacy with the appellant. Significantly, three of the complainants provided details of the interior of the appellant's house, of the appellant's bedroom, of 4 x 6 photographs of the appellant and his wife in their bedroom, and about the presence of her birth control pills. As well, some of the complainants provided details that the appellant had given them regarding his wife, information that would not normally be exchanged between a teacher and a student.

[16] The trial judge was satisfied that the complainants had no motive to bring the allegations forward. Indeed, several of them were reluctant to do so. Although the appellant argued collusion at trial, most of the complainants had disclosed the sexual activity with the appellant years before the investigation commenced. In addition, the appellant did not challenge on appeal the trial judge's finding of no collusion nor did he appeal the trial judge's ruling that the evidence of the various complainants could be used as similar fact evidence.

[17] Finally, the trial judge referred to other evidence at trial that supported the complainant's allegations, including the evidence of one witness who reported seeing and hearing apparently sexual behaviour and conversation between the appellant and one of the complainants.

[18] We would not give effect to this ground of appeal.

[19] In his factum, the appellant submitted that that the trial judge erred in his use of the evidence of prior consistent statements. He did not pursue this ground of appeal in oral argument. Although we agree that some of the trial judge's language when addressing this issue might have been improved, given the allegations of collusion, the trial judge was entitled to refer to this evidence. When considered as a whole, we are not satisfied that the trial judge's reasons on this issue disclose any error. For these reasons, we see no basis to interfere with the appellant's convictions. The appeal is therefore dismissed.

"John Laskin J.A."

"Janet Simmons J.A."

"S. E. Lang J.A."