



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    that could identify the victim or a witness shall not be published in any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(iii)     REPEALED: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    shall not be published in any document or broadcast or transmitted in any way.

(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. Lueth, 2018 ONCA 522

DATE: 20180611

DOCKET: C64399

Lauwers, Pardu and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gabriel Lueth

Appellant

Gabriel Lueth, acting in person

Gerald Chan, appearing as duty counsel

Hannah Freeman, for the respondent

Heard and released orally: June 4, 2018

On appeal from the conviction entered by Justice Joseph
    M. W. Donohue of the Superior Court of Justice on May 26, 2017, and from the
    sentence imposed on September 6, 2017.

REASONS FOR DECISION

[1]

We do not accept the argument that the trial judge applied uneven
    scrutiny to the evidence of the appellant and the complainant.  The reasons
    must be construed as a whole and not in an excessively granular manner.  The
    reasons are framed around the evidence, which was clearly accepted by the trial
    judge, that the Crowns case had great strength given the eye witness and
    technical evidence.

[2]

First, the blood alcohol content of the complainant corroborated the eye
    witness evidence that she was passed out at the time of the sexual assault. 
    Second, two other women present were both sober, both observed the sexual
    activity and confirmed the complainants evidence that she was passed out or
    asleep at the time of the assault. Finally, the police officers gave evidence
    that when they arrived they discovered the complainant unconscious with her
    buttocks exposed, and gave evidence that it was difficult to wake her up.

[3]

The trial judge found that any discrepancies between the testimony of
    the officers, the eye witnesses and the complainant to be insignificant, and
    not critical on the main issue, which was the complainants capacity to
    consent.  The evidence belied the appellants testimony as to the complainants
    consent.  The trial judges rejection of the appellants evidence does not
    amount to uneven scrutiny. The conviction appeal is dismissed.

[4]

As to the sentence appeal, although the reasons for sentence are sparse,
    we are unable to conclude that the sentence is unfit and see no reason to
    reduce the sentence given the gravity of the offence. Leave to appeal sentence
    is granted but the sentence appeal is dismissed.

P.
    Lauwers J.A.

G.
    Pardu J.A.

Grant
    Huscroft J.A.


