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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

486.4(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 victim of the right to make an application for the order; and

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

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(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.

486.4(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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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.

486.6(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 Information

Court of Appeal for Ontario

Date: 2019-01-16

Docket: C61326

Panel: MacPherson, Roberts and Paciocco JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Brian Saliba Appellant

Counsel

Alexander Ostroff, for the appellant

Megan Petrie, for the respondent

Hearing and Appeal Information

Heard: January 9, 2019

On appeal from: The convictions entered by Justice Gisele M. Miller of the Superior Court of Justice, sitting with a jury, on March 18, 2015, and from the sentence entered on June 24, 2015, with reasons reported at 2015 ONSC 4079.

Reasons for Decision

Introduction

[1] The appellant appeals from his convictions for internet luring, sexual assault, sexual interference, and invitation to sexual touching involving a 15-year-old complainant. He seeks leave to appeal his global sentence of five and one half years.

[2] This was the second trial of the appellant on these charges. At the first trial before a judge alone, the appellant pleaded guilty to possession of child pornography and was convicted of offences arising from sexual activity with another complainant, for which he received a global sentence of four and one half years. He was acquitted of the offences involving the 15-year-old complainant. The appellant's appeal from his convictions involving the first complainant was dismissed. The Crown appeal from the appellant's acquittal was allowed, and a new trial was ordered on the charges respecting the 15-year-old complainant.

[3] The appellant admittedly engaged in sexual activity first with one complainant and then with the 15-year-old complainant following the end of his relationship with the first complainant. He met them both on MocoSpace, an 18+ chat site. The complainants' profiles listed their respective ages as 18. However, at the time of their relations with the appellant, the first complainant was 14 and the 15-year-old complainant was 15 years old. The appellant was 38 years old. He testified at both trials that he honestly believed them to be between 16 and 18 years old. On retrial, the jury convicted him of all offences involving the 15-year-old complainant.

[4] The appellant submits several grounds of appeal in relation to his convictions and sentence for the offences involving the 15-year-old complainant. For the following reasons, we dismiss the appeal.

A. Conviction Appeal

(1) The Trial Judge Did Not Err at the Second Trial in Permitting the Crown to Lead Evidence Relating to the First Complainant by Way of an Agreed Statement of Fact, Nor Was a Limiting Instruction Required

[5] The Crown brought a similar fact application for leave to lead detailed evidence concerning the appellant's sexual relationship with the first complainant. The trial judge was concerned about the possibility of propensity prejudice and that the evidence would distract the jury from the essential issues that it was required to consider. As a result, she curtailed the permissible evidence to a short, agreed statement of fact relevant to the appellant's knowledge, before he met the 15-year-old complainant, that the first complainant had lied about her age and he made no inquiries about her age on meeting her. The appellant submits that the trial judge erred in including in the agreed statement of fact the appellant's failure to make inquiries about the first complainant's age. The appellant submits that, particularly without a limiting instruction, there was a risk that the jury would misuse this evidence to conclude that the appellant had a specific propensity not to make these inquiries in these circumstances and did not do so in relation to the 15-year-old complainant.

[6] We are not persuaded by these submissions. As this court noted in the appeal from the first trial, this evidence was relevant to the reasonable steps necessary for the appellant to take to confirm the 15-year-old complainant's age, given his knowledge that the first complainant had lied to him about her age in her MocoSpace profile before he had met the 15-year-old complainant: see R. v. Saliba, 2013 ONCA 661, 311 O.A.C. 196, at paras. 34 to 36. The trial judge neutralized the risk of prejudice arising from the agreed statement of fact by omitting reference to the first complainant's age of 14 years, and to the appellant's sexual activity with the first complainant. She also directed the jury to decide the case on the evidence and not to speculate. We would not interfere with the trial judge's discretion to control and admit the evidence as she did. Her decision was appropriate and considered.

[7] Nor did the trial judge err by not giving a limiting instruction. At the pre-charge conference, the trial judge expressly raised with counsel whether a limiting instruction should be given. Defence counsel was content with the charge without a limiting instruction and did not request that one be given. In the circumstances, the lack of a request by defence counsel to ask for the limiting instruction at trial reflects that its absence was not prejudicial. We see no error in the trial judge's decision to admit the agreed statement of fact nor any trial unfairness or prejudice to the appellant that resulted from its admission.

(2) The Trial Judge Did Not Err in Deciding to Leave the 15-Year-Old Complainant's New Allegations Concerning Non-Consensual Acts to the Jury

[8] For the first time at the second trial, the 15-year-old complainant testified that the appellant required her to engage, without her consent, in acts of oral sex and the insertion of a dildo into her vagina. No objection to the admission of this evidence was made by the appellant's trial counsel who had elicited the evidence about the non-consensual oral sex during the complainant's cross-examination. Rather, defence counsel used these new allegations to attack the complainant's credibility. Defence counsel did not ask for a mistrial or an adjournment of the trial to consider these new allegations and did not indicate they would prejudice the calling of defence evidence. The appellant was examined and cross-examined on these allegations; he admitted the oral sex but said it was consensual and denied the dildo allegation. It was not until the pre-charge conference that defence counsel asked the trial judge to remove the new allegations from the jury's consideration, which she refused to do. The trial judge held that the allegations fell squarely within the count of sexual assault and there was no prejudice to the appellant. We do not see any error in the trial judge's exercise of her discretion to leave these allegations to the jury.

[9] Nor is there any basis for the appellant to argue that his fair trial rights were in any way affected by this. The appellant had the opportunity to respond to the allegations by way of cross-examination of the complainant and through his own evidence. Moreover, the sexual assault count was not particularized and fairly captured the allegations.

(3) The Trial Judge Did Not Err by Entering Convictions for the Same Offence

[10] The appellant argues that the two sexual interference counts should have been stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729 because they involved the same acts as, and are subsumed under, the sexual assault count. In support of this submission, he points to the trial judge's jury charge that referenced the same particularized acts for the two sexual interference counts and the sexual assault count.

[11] We do not accept these submissions.

[12] The application of the well-established governing principles from Kienapple guards against multiple convictions for the same offence, where there is both a factual and a legal nexus connecting the offences. However, the decision in Kienapple does not prohibit a multiplicity of convictions, each in respect of a different factual incident: R. v. Adjei, 2013 ONCA 512, 309 O.A.C. 328 at para. 70, leave to appeal refused, [2014] S.C.C.A. No. 74, citing to R. v. Prince, [1986] 2 S.C.R. 480, at p. 491.

[13] While there was a factual overlap in the nature of some of the uncontroverted sexual activities in which the appellant engaged with the 15-year-old complainant, in our view, the evidence established clear and distinct factual and temporal instances of unconnected sexual activities occurring discretely over different periods of time. This evidence firmly and separately grounded the two sexual interference counts as well as the sexual assault count.

[14] The sexual assault and two sexual interference counts were particularized as occurring between February 1 and March 21, 2010. The sexual interference counts were further particularized: count 3 alleged that the appellant "touched the complainant directly with an object, a vibrator on her vagina" and count 4 alleged that "he touched the complainant's vagina" with a part of his body.

[15] The complainant and the appellant testified with respect to the various sexual activities they engaged in over the different and separate occasions on which they met: on March 6, 2010, the appellant kissed the complainant on the lips in his truck; on March 11, 2010, they engaged in kissing and touching, and the complainant testified at the retrial that the appellant performed oral sex on her; on March 13, 2010, they engaged in kissing, oral sex, and the complainant testified that the appellant touched her vagina with a vibrator, which the appellant denied; and, during the March break, starting March 16, 2010, they engaged in all manner of sexual acts, including sexual intercourse and oral sex.

[16] The trial judge declined to stay the sexual interference counts because she found, at para. 39 in her Reasons for Sentence, a factual distinction between them and the sexual assault count:

I am satisfied beyond a reasonable doubt that there were acts of sexual touching – licking and touching of the complainant's body in places other than her vagina, the act of fellatio – that occurred which provide a factual distinction between the particularized counts of Sexual Interference and the all-encompassing count of Sexual Assault. I find there is a sufficient factual distinction that a conviction may be entered on all counts.

[17] We see no basis to interfere with the trial judge's conclusion not to stay the sexual interference counts.

B. Sentence Appeal

(1) The Trial Judge Did Not Err in Finding That Some of the Sexual Acts Were Non-Consensual

[18] The appellant urges that the trial judge's finding that some of the sexual acts were non-consensual is unreasonable, given the state of the evidence.

[19] We disagree. There was ample support in the record for the trial judge's conclusion, which is entitled to deference.

[20] The appellant also reiterates his complaint that the trial judge should have excluded the complainant's evidence about the new non-consensual acts and not considered them for the purpose of sentencing. For the reasons already stated, we are of the view that the trial judge properly admitted evidence of the new non-consensual allegations. As a result, she was entitled to consider them, and it was open to her to find that the non-consensual nature of those acts was an aggravating factor on sentencing.

(2) The Trial Judge Did Not Consider Aggravating Factors Not Proven Beyond a Reasonable Doubt

[21] The appellant submits that the trial judge erred by holding the appellant's "calculated grooming of the complainant is a seriously aggravating factor" without finding grooming beyond a reasonable doubt.

[22] We disagree. The trial judge clearly found that the appellant groomed the complainant and her finding was firmly rooted in the ample evidence of the weeks of communications, gifts, and expressions of love and devotion in which the appellant engaged to obtain the complainant's trust and prepare her for sexual activity with him. This included the dozens of communications which Crown counsel highlighted during her submissions that demonstrated how the appellant instigated all sexualized communications with the complainant and expressly and explicitly urged the complainant to prepare herself to receive and instigate sexual contact with the appellant.

[23] The appellant also argues that grooming cannot be an aggravating factor in this case because it is possible the jury accepted that the appellant honestly believed the complainant to be of legal age, but convicted him because he had not taken reasonable steps to confirm that belief.

[24] We do not agree. Even assuming that the appellant honestly believed that the complainant was between 16 and 18 years of age, the uncontroverted evidence establishes that she was a vulnerable, abused child whom he deliberately exploited, both emotionally and sexually. Moreover, if the basis of the appellant's convictions was that he failed to take reasonable steps, it is nevertheless aggravating that he would fail to do so after exploiting a complainant's vulnerability for sexual purposes. The trial judge was entitled to treat these circumstances as an aggravating factor on sentence.

[25] The appellant argues further that the trial judge erred in treating the complainant's willing participation in most of the sexual activity with the appellant as a breach of trust and an aggravating factor. We do not read the trial judge's reasons in this way. Her point was not that the complainant's willing participation was aggravating but it was aggravating for the appellant to cause the complainant to believe that they were in a loving relationship when she was being sexually exploited. As demonstrated by the sentencing submissions made by the appellant's trial counsel, it was understood that the aggravating factor advanced by the Crown was the grooming behaviour through which the appellant attempted to gain the complainant's trust in order to engage in sexual activity with her.

(3) The Trial Judge Did Not Treat Weak Mitigating Factors as Aggravating

[26] The appellant submits that the trial judge erred in considering his late expression of remorse and weak rehabilitative prospects as aggravating factors. We disagree. Reading the trial judge's reasons as a whole, she properly considered these factors as indicating a lack of insight into the crimes that the appellant had committed and their effect on the complainant, which was highly relevant to the appellant's potential for future dangerousness: see R. v. Shah, 2017 ONCA 872, at paras. 6-10.

(4) The Sentence Was Fit

[27] There is no basis to interfere with the five-and-one-half-year global sentence imposed by the trial judge. The trial judge properly considered the principles of parity and totality. The appellant was convicted of multiple offences, including internet luring, which justified a consecutive sentence: see R. v. Rayo, 2018 QCCA 824, at paras. 130-156. The aggravating features of these offences are considerable and more serious than those involving the first complainant: the appellant spent several weeks in deliberately grooming a particularly vulnerable 15-year-old child, who stated she had already been sexually abused and on whom the impact of the appellant's calculated offences was significant and life-altering. As already noted, the appellant's expression of remorse was late-breaking and his rehabilitative efforts and prospects weak.

C. Disposition

[28] Accordingly, we dismiss the appeal as to conviction and sentence.

J.C. MacPherson J.A.

L.B. Roberts J.A.

David M. Paciocco J.A.