R. v. Diaz, 2017 ONCJ 373

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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 subpara​- graph (

i) if it occurred on or after that day; or (

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) MANDATORY ORDER ON APPLICATION — 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 complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(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. ONTARIO COURT OF JUSTICE CITATION: R. v. Diaz , 2017 ONCJ 373 DATE: June 7, 2017 BETWEEN HER MAJESTY THE QUEEN — AND — CESAR DIAZ Before Justice H. Borenstein Heard on April 12 and May 5, 2017 Reasons for Judgment released on June 7, 2017 Ms. R. Law................................................................................................. counsel for the Crown Mr. Lopes.................................................................................................. counsel for Cesar Diaz

BORENSTEIN J.: [ 1 ] Cesar Diaz is charged with sexual assault and sexual interference. The alleged victim is three year old M. [ 2 ] The alleged offence occurred in a park and was witnessed by M.’s mother J.G.R.. J.G.R. then told her husband M.G. who confronted the accused. The accused denied committing the offence when confronted. J.G.R. and M.G. were the only Crown witnesses. No defence was called. [ 3 ] J.G.R. and M.G. live in the same apartment building as the accused. They all come from Columbia. The accused has lived in Canada the longest and is a citizen. The others are not.

There was ill will between the accused and J.G.R. and M.G. prior to this incident. [ 4 ] I turn now to the evidence. J.G.R. [ 5 ] J.G.R. and her husband came to Canada as refugee claimants from Columbia about two and a half years prior to the trial. They were introduced to the accused by a family member. The accused went by the nickname “Pacho”. [ 6 ] At around 2:30 or 3:00 in the afternoon on the date in question, J.G.R. was in the park with her three year old son M. The accused entered the park riding his “E-bike”. [ 7 ] M. ran up to the accused saying “Pacho, Pacho, Pacho”.

The accused stopped his bike but did not dismount. He replied “Capito, how are you” or “hi sweetie” and hugged M. while still standing over his bike. While hugging M., he is alleged to have placed his left hand on M.’s behind and his right hand on the front of M.’s pants over his genitals. [ 8 ] J.G.R. testified that, as soon as she saw that, the accused removed his hands. She also testified that, before he removed his hands, she told him he was a pig and should respect the child who was just a baby. [ 9 ] She was asked if her son reacted and replied; “of course’ and that he was scared.

She testified that her son said nothing but she knew he was scared because anyone would be scared if they were manhandled. She was asked about whether he demonstrated fear in his face and replied that his eyes opened like he had seen a ghost. [ 10 ] She testified that the accused said nothing was going on and that it was no big deal, nothing happened. He offered her $50.00 which she refused. She testified her showed her $50.00. She believed he offered the money so he could touch M. [ 11 ] She testified that the accused seemed depraved, happy and excited.

The accused then left the park. [ 12 ] Her husband eventually came to the park to pick her and M. up. She told him what the accused had done. There was cross examination about how she telephoned her husband and where she was located in the park when her husband arrived. That cross examination was irrelevant. [ 13 ] Upon learning of the allegation, J.G.R.’s husband put M. into his vehicle and drove to confront the accused. J.G.R. went home alone.

Her husband eventually came home as well. [ 14 ] Later that day, sometime around 7 or 7:30, she and her husband called the police. [ 15 ] In chief, she testified that her relationship with the accused was fine. She considered him a friend but this incident ended their friendship. [ 16 ] In cross examination, she testified that her husband painted the accused’s e-bike but the accused never paid him for that work. Moreover, the accused began calling her husband a thief and other insulting comments. She testified that she stopped talking to the accused before this incident.

When asked why, she could not remember but imagined with was about the lack of payment for the e-bike. She was cross examined on her statement to the police where she told the police that she stopped talking to the accused because she heard rumours he was a child molester. She said he was a child molester.

She then added that she saw him offer boys money to allow him to touch them and that the accused told her he had “relations” with ten year olds and had sex with animals. [ 17 ] In cross examination, there were numerous suggestions put to J.G.R. alleging that she and her husband were thieves, or that the accused babysat her son among others. She steadfastly denied those suggestions and there was no evidence to support any of those suggestions. She denied the defence suggestion that she called the police because the accused said he would have her and her husband deported or allege they stole property.

M.G. [ 18 ] M.G. testified that, when he arrived at the park, J.G.R. told him what happened including the fact that the accused touched M.’s behind with his left hand and grabbed his genital area with his right hand. He drove to confront the accused but, before he could say anything, the accused called him a criminal, a Mafioso, and other epithets and threatened to call the police on M.G.. He agreed the accused never paid him for painting his bike but he did consider that significant. He wanted to punch the accused but a woman on the street told him not to.

He asked the accused why he would do such a thing to a little boy but the accused said nothing happened and how

would he prove it. The accused said he was investigating M.G. who was a criminal and that he should leave Canada. [ 19 ] M.G. did not realize he could call the police until a friend told him they had Spanish speaking officers. [ 20 ] Later that day, the accused sent M.G. a text alleging that M.G. was a criminal and a gutter rat and makes all Columbians looks bad. [ 21 ] That was the evidence. No defence was called. [ 22 ] The Crown submits that the case has been proved beyond a reasonable doubt.

The touching as described would amount to a sexual assault. [ 23 ] The defence points out that J.G.R. is the only witness to the alleged offence. He submits there is evidence of prior animus toward the accused. Further, he submits there are inconsistencies in her evidence such as whether J.G.R. did or did not have a phone to call her husband to pick her up and where she and her husband were located in the park when he arrived. Respectfully, any such inconsistencies are irrelevant. Findings [ 24 ] As always, the onus is on the Crown to prove the case beyond a reasonable doubt.

Probable guilt is not sufficient. [ 25 ] I am not satisfied beyond a reasonable doubt that he committed a sexual assault as alleged. [ 26 ] It is a little curious that someone who commit such an incident in broad daylight in a park in front of the mother. It is certainly possible. [ 27 ] The entire incident took place in the context of a hug. It took a matter of seconds at most. The accused never got off his e- bike and allegedly remained standing when he hugged M. He did not even pick M. up. Further, J.G.R. and her husband certainly have ill will toward the accused, apart from this allegation.

And for good reason. The accused harasses them. He is rude. Insulting. Arrogant. Offensive. They have good reason to dislike him. Yet J.G.R at first testified that they were friends until this incident. Then, they stopped talking before the incident because of the e-bike affair. Then, because of the rumours of child molestation.

Then, she testified that he told her he had relations with children and sex with animals. [ 28 ] In view of the fleeting nature of the alleged assault, the unlikelihood it would occur in broad daylight in front of the mother, the ill will toward the accused and the evolving nature of the reason they stopped speaking, I am simply not sure whether this assault occurred. I have a doubt. I do not disbelieve J.G.R. but I have a doubt. [ 29 ] That said, I have heard enough evidence to satisfy me that the accused should be placed on a peace bond to have no contact with J.G.R., M. or M.G..

Let me know if he wishes to show cause. Released: June 7, 2017 Signed: “Justice H. Borenstein”