WARNING

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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 of Appeal for Ontario

Date: 2018-06-11

Docket: C64399

Judges: Lauwers, Pardu and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Gabriel Lueth Appellant

Counsel

Gabriel Lueth, acting in person

Gerald Chan, appearing as duty counsel

Hannah Freeman, for the respondent

Heard and released orally: June 4, 2018

Appeal Information

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

Reasons for Decision

1We 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 Crown's case had great strength given the eye witness and technical evidence.

2First, 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 complainant's 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.

3The 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 complainant's capacity to consent. The evidence belied the appellant's testimony as to the complainant's consent. The trial judge's rejection of the appellant's evidence does not amount to uneven scrutiny. The conviction appeal is dismissed.

4As 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.