



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    the complainant or a witness shall not be published in any document or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 complainants 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 judges 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.


