



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    that could identify the victim or a witness shall not be published in any document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 complainants 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(iii)     REPEALED: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).

(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.

(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    shall not be published in any document or broadcast or transmitted in any way.

[1]

(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.

(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); 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.

(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, 2019 ONCA 22

DATE: 20190116

DOCKET: C61326

MacPherson, Roberts and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Brian Saliba

Appellant

Alexander Ostroff, for the
    appellant

Megan Petrie, for the respondent

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

[2]

The appellant appeals from his convictions for internet luring, sexual
    assault, sexual interference, and invitation to sexual touching involving A.C.,
    when she was 15 years old. He seeks leave to appeal his global sentence of five
    and one half years.

[3]

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, H.M., for which he received a global sentence of four and
    one half years. He was acquitted of the offences involving A.C. The appellants
    appeal from his convictions involving H.M. was dismissed. The Crown appeal from
    the appellants acquittal was allowed, and a new trial was ordered on the
    charges respecting A.C.

[4]

The appellant admittedly engaged in sexual activity first with H.M. and then
    with A.C. following the end of his relationship with H.M. 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, H.M.
    was 14 and A.C. 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 A.C.

[5]

The appellant submits several grounds of appeal in relation to his
    convictions and sentence for the offences involving A.C. For the following reasons,
    we dismiss the appeal.

A.

Conviction appeal

(1)

The trial judge did not err at the
    second trial involving A.C. in permitting the Crown to lead evidence relating
    to H.M. by way of an agreed statement of fact, nor was a limiting instruction
    required

[6]

The Crown brought a similar fact application for leave to lead detailed
    evidence concerning the appellants sexual relationship with H.M. 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 appellants knowledge, before he met
    A.C., that H.M. 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 appellants failure to make inquiries about
    H.M.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 A.C.

[7]

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 A.C.s age, given his knowledge
    that H.M. had lied to him about her age in her MocoSpace profile before he had
    met A.C.: 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 H.M.s age of 14 years, and
    to the appellants sexual activity with H.M. She also directed the jury to
    decide the case on the evidence and not to speculate. We would not interfere
    with the trial judges discretion to control and admit the evidence as she did.
    Her decision was appropriate and considered.

[8]

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 judges 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 A.C.s new
    allegations concerning non-consensual acts to the jury


[9]

For the first time at the second trial, A.C. 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 appellants trial counsel who had elicited the
    evidence about the non-consensual oral sex during A.C.s cross-examination.
    Rather, defence counsel used these new allegations to attack A.C.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
    jurys 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 judges
    exercise of her discretion to leave these allegations to the jury.

[10]

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 A.C. 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


[11]

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 judges jury charge that
    referenced the same particularized acts for the two sexual interference counts and
    the sexual assault count.

[12]

We
    do not accept these submissions.

[13]

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.

[14]

While
    there was a factual overlap in the nature of some of the uncontroverted sexual
    activities in which the appellant engaged with A.C., 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.

[15]

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 A.C.
    directly with an object, a vibrator on her vagina and count 4 alleged that he
    touched A.C.s vagina with a part of his body.

[16]

A.C.
    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 A.C. on the lips in his truck; on March 11,
    2010, they engaged in kissing and touching, and A.C. testified at the retrial
    that the appellant performed oral sex on her; on March 13, 2010, they engaged
    in kissing, oral sex, and A.C. 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.

[17]

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 A.C.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.

[18]

We
    see no basis to interfere with the trial judges 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

[19]

The
    appellant urges that the trial judges finding that some of the sexual acts
    were non-consensual is unreasonable, given the state of the evidence.

[20]

We
    disagree. There was ample support in the record for the trial judges
    conclusion, which is entitled to deference.

[21]

The
    appellant also reiterates his complaint that the trial judge should have
    excluded A.C.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

[22]

The
    appellant submits that the trial judge erred by holding the appellants
    calculated grooming of A.C. is a seriously aggravating factor without finding
    grooming beyond a reasonable doubt.

[23]

We
    disagree. The trial judge clearly found that the appellant groomed A.C. 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 A.C.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 A.C. and expressly and explicitly urged A.C. to prepare
    herself to receive and instigate sexual contact with the appellant.

[24]

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 A.C. to be of legal age, but convicted him because he had not taken
    reasonable steps to confirm that belief.

[25]

We
    do not agree. Even assuming that the appellant honestly believed that A.C. 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 appellants convictions was that he
    failed to take reasonable steps, it is nevertheless aggravating that he would fail
    to do so after exploiting a complainants vulnerability for sexual purposes. The
    trial judge was entitled to treat these circumstances as an aggravating factor
    on sentence.

[26]

The
    appellant argues further that the trial judge erred in treating A.C.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 judges reasons in
    this way. Her point was not that A.C.s willing participation was aggravating
    but it was aggravating for the appellant to cause A.C. to believe that they
    were in a loving relationship when she was being sexually exploited. As
    demonstrated by the sentencing submissions made by the appellants trial
    counsel, it was understood that the aggravating factor advanced by the Crown
    was the grooming behaviour through which the appellant attempted to gain A.C.s
    trust in order to engage in sexual activity with her.

(3)

The trial
    judge did not treat weak mitigating factors as aggravating

[27]

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 judges 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 A.C., which was highly relevant to the
    appellants potential for future dangerousness: see
R. v. Shah
, 2017
    ONCA 872, at paras. 6-10.

(4)

The sentence was fit

[28]

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 H.M.: 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 appellants calculated offences was significant
    and life-altering. As already noted, the appellants expression of remorse was
    late-breaking and his rehabilitative efforts and prospects weak.

C.

Disposition

[29]

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.


