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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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

(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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20200316 Docket: C67719

Watt, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Darryl Anthony Yong Appellant

Counsel: Darryl Anthony Yong, acting in person Michael Fawcett, for the respondent Naomi Lutes, duty counsel

Heard and released orally: March 10, 2020

On appeal from the conviction entered on November 14, 2018 and the sentence imposed on November 14, 2019 by Justice Beth A. Allen of the Superior Court of Justice.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was found guilty of counts of administering a noxious substance; invitation to sexual touching; and trafficking cocaine. The finding of guilt of trafficking was stayed.

[2] The trial judge imposed a sentence of imprisonment for 21 months, which she reduced to 6 months after deducting credit for time spent in pre-sentence custody.

The Background Facts

[3] One day after school, the complainant, a relative who was then 11 years old, went to the appellant’s home. As they watched a movie, the appellant took out a glass tube with some white powder in it and lit it up. He told the complainant, that it was a “vape”. At his insistence, she inhaled the smoke. Twice. She felt dizzy. Her legs were shaky. Her throat burned. Her vision blurred. The white powder was cocaine, a substance later found in her system.

[4] The appellant then asked the complainant to touch an area of his body around his thigh. He told her to keep moving her hand higher until she touched his penis. The touching was over the appellant’s clothes and lasted, by the complainant’s account, about three seconds. The appellant did not touch the complainant.

[5] The appellant did not testify. He relied on a series of texts he sent and voicemail and telephone messages he left with the complainant’s mother. Among other submissions, trial counsel contended that the complainant, mimicking the behaviour of the appellant, lit up the cocaine-filled tube when the appellant was briefly absent from the apartment. Trial counsel also argued that the sexual conduct never occurred. Rather, the allegation was fabricated due to the influence, principally, of the complainant’s mother.

The Appeal from Conviction

[6] In this court, the appellant advances three grounds of appeal against conviction:

i. that the trial judge materially misapprehended the evidence adduced at trial in three respects, each of which had to do with the complainant’s core allegations and the credibility of her testimony about them;

ii. that the trial judge erred in her treatment of evidence of the appellant’s post-offence conduct; and

iii. that the trial judge erred in her description and application of the mens rea for the offence of administering a noxious substance.

[7] The misapprehensions of evidence alleged are threefold. They may be summarized as the complainant’s evidence about:

i. whether she could leave the apartment;

ii. whether she entered the appellant’s bedroom; and

iii. the timing of her disclosure about the touching by the appellant.

[8] In our view, the trial judge considered these alleged inconsistencies in the complainant’s testimony, and explained why she did not consider them to impact adversely on the complainant’s credibility, or the reliability of the core elements of her account. We defer to those findings.

[9] Second, we see no error in the manner in which the trial judge dealt with the evidence of the appellant’s post-offence conduct.

[10] Third, when the reasons of the trial judge are taken as a whole, her conclusion on the mens rea required to establish guilt of the offence of administering a noxious substance, do not reflect error. In particular, we are not persuaded, as the appellant contends, that she found guilt established on the basis of recklessness.

The Appeal from Sentence

[11] On the appeal from sentence, the parties are ad idem that the s. 161 order, as executed, does not accurately reflect the reasons of the trial judge. We agree and would allow the appeal to the following extent of amending in the formal order:

i. paragraph (a), by adding the words “unless in the presence of one of the offender’s daughters”;

ii. paragraph (b), by adding the words “unless the position of trust relates solely to one of the offender’s daughters”;

iii. paragraph (c), by deleting the condition in its entirety; and

iv. by inserting 10 years as the term of the order.

Disposition

[12] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the appeal from sentence allowed to the extent of the variation of the terms of the s. 161 order. The appeal from sentence is otherwise dismissed.

“David Watt J.A.”

“Fairburn J.A.”

“B. Zarnett J.A.”