WARNING

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, R.S.C. 1985, c. C-46 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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Saliba, 2013 ONCA 661

DATE: 20131101

DOCKET: C55791

Doherty, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Brian Saliba

Respondent

Greg Skerkowski, for the appellant

Michael Webster, for the respondent

Heard: October 16, 2013

On appeal from the acquittals entered by Justice D.K. Gray of the Superior Court of Justice on June 29, 2012.

Doherty J.A.:

I

overview

[1] Brian Saliba was charged with three offences arising out of his sexual activity with H., a 14 year old girl (counts 1-3). He was also charged with several offences arising out of his sexual activity with A., a 15 year old girl (counts 5-11) as well as a count of Internet luring that involved A. (count 4). In addition to the charges involving H. and A., Mr. Saliba was charged with a count of possession of child pornography (count 12) and a count of violating a non-communication provision in his bail order (count 13).

[2] At trial, Mr. Saliba pled guilty to the possession of child pornography charge. He was acquitted on the bail violation charge. Mr. Saliba was convicted on the charges relating to H. and acquitted on the charges relating to A.

[3] The trial judge imposed concurrent two year sentences on the charges arising out of the sexual activity with H, and a two and one-half year consecutive sentence on the possession of child pornography charge, resulting in a total sentence of four and one-half years. The trial judge gave Mr. Saliba credit for 265 days of pre-trial custody, leaving a net sentence of about three years and nine months.

[4] The Crown appeals the acquittals on the charges relating to A. (counts 4-13). Mr. Saliba, with the assistance of duty counsel, appeals the convictions on the charges relating to the sexual activity with H. (counts 1-3) and seeks leave to appeal the sentence imposed by the trial judge.

[5] These reasons address the Crown appeal. I would allow that appeal and order a new trial on the counts relating to A. Mr. Saliba’s appeals are the subject of a separate endorsement. Those appeals are dismissed.

II

the facts

(a) The Relationship with H.

[6] Mr. Saliba, who was 38 years old, met H. through a website called Mocospace in December 2008. That website was limited to persons who stated their ages as 18 or over in their website profiles. In her profile, H. indicated that she was 18. She also provided a picture in which she tried to make herself look older than she actually was. H. was 14.

[7] Mr. Saliba and H. met very shortly after they connected through the Mocospace website. Mr. Saliba, at H.’s invitation, went to H.’s home when her parents were not there. They had sexual intercourse. H. was a willing participant in the sexual activity. H.’s father arrived home while Mr. Saliba was still in the house. A physical confrontation occurred and Mr. Saliba left. There was evidence that H.’s father made it clear to Mr. Saliba that H. was “underage”. Mr. Saliba denied being told by H.’s father that she was underage.

[8] Mr. Saliba testified that he believed H. was 18 years of age. He based this belief on her stated age in her Mocospace profile and on her appearance, both in her profile picture and when he met her.

[9] H. and Mr. Saliba carried on a sexual relationship for about nine months until September 2009. According to Mr. Saliba, H. acted as if she were in her twenties.

[10] H. testified that shortly after she began her relationship with Mr. Saliba, she told him that she was 14. She did this because she thought her father had told Mr. Saliba her real age when he found Mr. Saliba and H. in H.’s home at the time of their first sexual encounter. Mr. Saliba denied that H. told him she was 14, although he conceded that she eventually “dropped her age” from 18 to 17.

(b) The Relationship with A.

[11] Mr. Saliba met A. on the Mocospace website in February 2010, about five or six months after he terminated his relationship with H. A. was 15 years of age but stated she was 18 in her profile.

[12] During their initial online communication, A. told Mr. Saliba she was 18. She said she was in high school. According to Mr. Saliba, she explained that she had failed twice. A. also told Mr. Saliba that she lived at home and did not have a driver’s licence. According to Mr. Saliba, there was no discussion about her age in their online conversations. He accepted the age that A. stated in her profile.

[13] A. and Mr. Saliba met shortly after they first communicated online. They began a relationship that lasted for about two months. That relationship involved sexual activity almost from the outset. That activity eventually included vaginal intercourse.

[14] Mr. Saliba testified that he never asked A. about her age after they met. When confronted with statements to the police in which he said that A. looked “young” and that he had asked her about her age on several occasions and that she had given answers ranging from 17 to 19, Mr. Saliba refused to adopt those statements. In the same statements, he indicated that he had eventually found out that A. was “15 turning 16”. It is fair to say that Mr. Saliba’s evidence, considered as a whole, is unclear as to exactly what A. told him about her age.

[15] A. and Mr. Saliba visited Mr. Saliba’s friends. One of those friends testified at trial. This friend testified that, when she first saw A., she thought A. was about 13 and was perhaps Mr. Saliba’s niece. Mr. Saliba introduced A. as his girlfriend. This witness spoke with A. and eventually came to the view that because A. was in grade 12 she was “probably about seventeen”.

[16] Mr. Saliba told A. that he wanted to meet her mother. A. told Mr. Saliba that her mother was aware of, and had no problems with, her relationship with Mr. Saliba. A. indicated a willingness to have Mr. Saliba meet her mother. In fact, A. had not told her mother about the relationship and did not arrange for Mr. Saliba to meet her mother.

[17] Mr. Saliba did meet A.’s mother during his relationship with A. He went to A.’s house to deliver a phone card to A. A.’s mother answered the door. Mr. Saliba gave her the card and said it was for A. When A.’s mother asked who she should say the card was from, Mr. Saliba replied only “Brian”. He did not identify himself as A.’s boyfriend and did not ask A.’s mother anything about A.’s age or background.

III

the issue at trial

[18] H. and A. were both willing participants in the sexual activity. However, since both were under sixteen years of age at the relevant time, they could not consent to sexual activity: see Criminal Code, R.S.C. 1985, c. C-46, s. 150.1(1). Mr. Saliba claimed he believed that both H. and A. were over sixteen. That belief, or, more accurately, a reasonable doubt as to the existence of that belief, combined with the complainants’ willing participation in the sexual activity, could afford a defence to the charges only if “the accused took all reasonable steps to ascertain the age of the complainant”: Criminal Code, s. 150.1(4).[^1]

[19] The trial judge outlined the principles governing the application of s. 150.1(4). He correctly noted that Mr. Saliba was entitled to be acquitted on the charges unless the Crown could show beyond a reasonable doubt that he had not taken all reasonable steps to ascertain the true ages of H. and A. The trial judge recognized that a determination of what constituted “all reasonable steps” depended on the circumstances of the particular case and had to be determined from the perspective of the reasonable person and not solely by reference to the accused’s subjective perception: R. v. Duran, 2013 ONCA 343, at paras. 51-55.

[20] After setting out the principles, the trial judge applied those principles to the evidence as it related to the activity with H. He concluded that the Crown had proved beyond a reasonable doubt that Mr. Saliba had not taken all reasonable steps to ascertain H.’s true age before engaging in sexual activity with her.

[21] The trial judge then turned to the application of s. 150.1(4) to the evidence as it related to the steps taken by Mr. Saliba to ascertain A.’s age:

Mr. Saliba never directly asked A. her age. As was the case with respect to H., the age difference, considerable age difference, between these parties required a higher level of inquiry than would otherwise be the case. Having said that, in the final analysis, there is a reasonable doubt, in my mind, as to whether all reasonable steps were taken in the circumstances.

In this case, in addition to the computer profile and the picture, it is of some significance in my view that Mr. Saliba had made it clear that he wanted to meet A.’s mother and that she agreed and encouraged him to believe that they would meet. In fact, they did meet by chance, and there’s no evidence of any adverse reaction from the person he did meet. Once he was told that meeting A.’s mother was all right and that, in fact, A.’s mother was aware of the relationship, it seems to me that it would be highly unlikely that Mr. Saliba would have considered it acceptable if he actually thought A. was underage.

There was no other real inquiry. This is a borderline case, but, in the final analysis, there is a reasonable doubt as to whether all reasonable steps were taken in the circumstances. [Emphasis added.]

IV

the argument on appeal

[22] On an appeal from an acquittal, the Crown can raise only questions of law alone: Criminal Code, s. 676(1)(a). Mr. Skerkowski, counsel for the Crown, argues that, on the facts, either undisputed or as found by the trial judge, there could be no doubt that the appellant did not take “all reasonable steps” required by s. 150.1(4). He submits that the trial judge erred in law in concluding that the undisputed facts and the facts as found by the trial judge could leave him with a doubt as to whether the Crown had proved that Mr. Saliba did not take all reasonable steps to ascertain A.’s true age. Mr. Skerkowski analogizes this case to a case where the trial judge makes all of the findings of fact necessary to convict but nonetheless acquits. In those circumstances, the failure to convict constitutes an error in law: see R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 S.C.R. 286 at 294; and R. v. Davis (1973), 1973 CanLII 1556 (ON CA), 14 C.C.C. (2d) 517, at pp. 519-20 (Ont. C.A.).

[23] Crown counsel asks that the court quash the acquittals relating to A., enter convictions, and remit the matter to the trial judge for sentencing.

[24] Mr. Webster, for Mr. Saliba, submits that the Crown’s appeal does not raise a question of law alone. He submits that the trial judge properly outlined the relevant legal principles. He further contends that the trial judge’s ultimate determination that the Crown had failed to prove beyond a reasonable doubt that Mr. Saliba had not taken all reasonable steps to determine A.’s age is not a question of law alone, but rather a determination that the Crown had failed to meet its burden on that issue: see R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at paras. 25-27.

V

analysis

[25] I agree with the Crown that the trial judge erred in law in his application of s. 150.1(4). I characterize that error differently than the Crown does. I do not see this as a case of failing to draw the only available legal conclusion from a set of facts, but rather as a case where the trial judge failed to make the legal inquiry mandated by s. 150.1(4). With respect, the trial judge looked to and relied on evidence which, while relevant to Mr. Saliba’s belief as to A.’s age, could not assist in determining whether he took “all reasonable steps to ascertain” A.’s age.

[26] Section 150.1(4) is not concerned with the accused’s belief as to a complainant’s age. Indeed, the section assumes that the accused believes that the complainant is old enough to give legal consent and requires an inquiry into the basis for that belief. The trial judge did not make that inquiry.

[27] Under generally applicable criminal law principles, a belief that a person is old enough to consent, or, more accurately, a reasonable doubt as to the existence of that belief, would be enough to lead to an acquittal, assuming the complainant had been a willing participant in the sexual activity. Parliament, however, by enacting s. 150.1(4), has limited the availability of the “honest belief” defence to cases where the accused has taken “all reasonable steps” to ascertain the age of the complainant.

[28] As explained in R. v. Dragos (2012), 2012 ONCA 538, 291 C.C.C. (3d) 350, at paras. 29-33 (Ont. C.A.), s. 150.1(4) mandates an inquiry akin to a due diligence inquiry. The trier of fact must compare the steps, if any, taken by an accused to determine the true age of a complainant with the steps that a reasonable person would have taken in those circumstances. Of course, unlike the more familiar due diligence inquiry, the s. 150.1(4) analysis does not place any onus on the accused. The onus is on the Crown to prove beyond a reasonable doubt that all reasonable steps were not taken: Duran, at para. 54.

[29] I have set out the entirety of the relevant part of the trial judge’s reasons above at para. 21. The trial judge was heavily influenced by the evidence that Mr. Saliba wanted to meet A.’s mother, was told by A. that her mother was aware of and approved of their relationship, and was told by A. that he could meet her mother. The trial judge also relied on the evidence that there was no “adverse reaction” from A.’s mother when she eventually met Mr. Saliba. In the trial judge’s view, all of this evidence was inconsistent with the claim that Mr. Saliba “actually thought A. was underage”.

[30] I can accept that most of the evidence referred to by the trial judge was relevant to Mr. Saliba’s belief as to A.’s age. However, none of that evidence had any relevance to what steps, if any, Mr. Saliba had taken to ascertain A.’s age. Nor is the evidence relevant to the steps that a reasonable person would have taken in those circumstances. With respect, the trial judge’s analysis stopped with a finding of Mr. Saliba’s state of mind. The s. 150.1(4) analysis begins at that point and looks to the steps taken to confirm the accuracy of the accused’s belief as to the complainant’s age.

[31] I must also disagree with the trial judge’s finding that the absence of any “adverse reaction” from A.’s mother when she met Mr. Saliba was of assistance in the s. 150.1(4) inquiry. Mr. Saliba did not tell A.’s mother anything about himself other than his first name and certainly made no reference to his relationship with A. when he was speaking to A.’s mother. In that circumstance, the absence of any “adverse reaction” from A.’s mother had no evidentiary value either as it related to Mr. Saliba’s state of mind or to the steps that a reasonable person would have taken to ascertain A.’s age.

[32] Because the trial judge focused on evidence that was relevant to Mr. Saliba’s belief rather than on the steps he had taken to confirm that belief and the steps that a reasonable person would have taken to confirm that belief, the trial judge erred in law in his s. 150.1(4) analysis. While I agree that the evidence suggests that Mr. Saliba had taken precious few, if any, steps to determine A.’s age, this is not a case where the court can substitute convictions. I would order new trials on the counts relating to the sexual activity with A. and the count alleging Internet luring (counts 4-11).

VI

The Evidentiary Point

[33] The Crown also challenges an evidentiary ruling made by the trial judge. Although it is not necessary to address this issue given my conclusion on the first ground of appeal, I will do so as it may arise on the retrial.

[34] At trial, the Crown argued that, in determining whether Mr. Saliba took all reasonable steps to ascertain A.’s age before engaging in sexual activity with her, it was relevant that Mr. Saliba knew that he had been previously lied to by H. about her age on the same website. As I understand the argument, the Crown contends that knowledge that a source of information had previously proved unreliable as to a person’s age is relevant to the steps that a reasonable person would take in confirming information subsequently received from the same source about another person’s age.

[35] This issue was raised and argued at trial as an application to introduce similar fact evidence. This characterization was unfortunate. In my view, the admissibility of the evidence does not engage the complexities of the similar fact analysis. The relevance is the product of the common sense proposition that if a person knows that information obtained from a source was inaccurate in the past, that knowledge may affect the steps that a reasonable person would take to confirm similar information received from the same source on a subsequent occasion. The evidence was admissible for the limited purpose advanced by the Crown.

[36] In holding that Mr. Saliba’s knowledge that H. had lied to him about her age in her Mocospace profile was relevant to the reasonable steps necessary to confirm the same information provided by A., I do not suggest that this knowledge was determinative or even necessarily entitled to significant weight. The weight of the evidence is for the trial judge. These reasons also should not be taken as any comment on the possible admissibility on the charges involving A. of other conversations involving H. and Mr. Saliba.

VII

conclusion

[37] I would allow the appeal, quash the acquittals on counts 4 to 11, and direct a new trial.

RELEASED: “DD” “NOV 01 2013”

“Doherty J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”

[^1]: The defence to the Internet luring charge relating to A. (count 4) is found in s. 172.1(4) and refers to “reasonable steps” rather than “all reasonable steps”. The distinction is immaterial for the purposes of this appeal.