



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Yong, 2020 ONCA 215

DATE: 20200316

DOCKET: C67719

Watt, Fairburn and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darryl Anthony Yong

Appellant

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 appellants 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 appellants clothes and lasted, by the
    complainants 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 complainants 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 complainants 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 complainants core
    allegations and the credibility of her testimony about them;

ii.

that the trial judge erred in her treatment of evidence of the
    appellants 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 complainants evidence about:

i.

whether she could leave the apartment;

ii.

whether she entered the appellants 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 complainants testimony, and explained why she did not consider them to
    impact adversely on the complainants 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 appellants 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
    offenders daughters;

ii.

paragraph (b), by adding the words unless the position of trust relates
    solely to one of the offenders 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.


