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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 660

DATE: 20131101

DOCKET: C56071

Doherty, Blair and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Saliba

Appellant

Brian Saliba, appearing in person

Greg Skerkowski, 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.

ENDORSEMENT

[1] Duty counsel submits that the trial judge erred in concluding that the Crown had proved beyond a reasonable doubt that Mr. Saliba did not take “all reasonable steps” to ascertain H.’s age before engaging in sexual activity. According to counsel, the trial judge failed to consider, in light of H.’s stated age on her profile, her appearance, and her actions when she first met Mr. Saliba, that no further steps were necessary to meet the requirement of s. 150.1(4) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] There are circumstances in which a reasonable person would engage in sexual activity based exclusively on the appearance of the complainant without taking further steps to ascertain the complainant’s age. The circumstances of this case are, however, far from that hypothetical. As the trial judge noted, Mr. Saliba was 38 years of age. On his evidence, he believed H. was eighteen. This belief was based exclusively on her profile on the website and on her appearance. Mr. Saliba engaged in sexual intercourse with H. on the very first time he met her without taking any further steps to determine her age.

[3] The over 20-year age difference between Mr. Saliba and H., the fact that even on her stated age she was very young and close to the age of 16, combined with the circumstances in which the sexual activity occurred, would all compel a reasonable person to take significant steps to ascertain H.’s age before proceeding with sexual activity. Mr. Saliba took none.

[4] The conviction appeal is dismissed.

[5] The trial judge imposed sentences totalling two years in relation to the sexual activity with H. and two and one-half years for the possession of child pornography charge. The sentences were made consecutive. The trial judge viewed the pornography and described it as particularly vile and involving the victimization of several young children. We were not asked to examine that material. We accept the trial judge’s characterization.

[6] The offences committed against H. warranted a significant jail term. The possession of child pornography conviction equally merited a significant jail term. Consecutive sentences were entirely appropriate. The totality of the two sentences was within the range. There is no reason for this court to vary the sentences.

[7] The appeal from the convictions relating to H. is dismissed. Leave to appeal sentence is granted and the appeal is dismissed.

“Doherty J.A.”

“R.A. Blair J.A.”

“David Watt J.A.”