r v. EDGAR SALAS CRUZ, 2019 QCCQ 17320

R. c. Salas Cruz 2019 QCCQ 17320 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal and Penal Division No: 500-01-177112-189 DATE: December 19, 2019 ______________________________________________________________________ BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v. EDGAR SALAS CRUZ Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ WARNING: Restriction on publication By Court order pursuant to

section 486.4 of the Criminal Code , any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way. Introduction [ 1 ] Mr. Salas Cruz is charged with 2 counts of touching a minor for a sexual purpose pursuant to

section 151 (

b) of the Criminal Code ( sexual interference ) , on April 21, 2018. More specifically Y [1] and D [2] , both 15 years old at the time, allege that Mr. Salas Cruz touched them sexually while they were out shopping. Y and D are childhood friends. On the date in question, they spent the day with Y’s aunt, Gabriella Bousquet-Chacin (Gabby) and Gabby’s boyfriend, the accused, Mr. Salas Cruz. Both girls testified for the Crown. [ 2 ] Mr. Salas Cruz denies the allegations.

Gabby also testified but was not able to confirm or deny the allegations. [ 3 ] In addition to the testimonial evidence, the Court viewed videotaped footage taken from the closed-circuit camera system of the store where the foursome were shopping (Exhibit P-1). A review of the evidence The testimony of Y [ 4 ] Y explained that the main purpose of the shopping outing on April 21, 2018, was to buy a birthday gift for her mother. There was a surprise party planned for her that evening. Y, D, Gabby and Mr.

Salas Cruz drove to Montreal and made a first stop at Adrenaline, a piercing store, in order for Y to change her navel ring piercing. Mr. Salas Cruz wanted to see the new jewel and commented that it was large. From there, they drove to a store that Gabby knew on Greene Avenue. As they were walking toward the store, Mr. Salas Cruz put his hands around Y’s waist and said he wanted to see if she was petite. He told Y she was thin and pretty. These words were spoken in Spanish, the language they usually used to communicate. Once they arrived at the store, Mr.

Salas Cruz put his hand on Y’s back to gesture her forward. As she was walking up the steps to the store entrance, he fondled her buttocks. At the time, they were walking single file and she couldn’t get out of the way. She felt scared. [ 5 ] Inside the store, Mr. Salas Cruz grabbed and fondled her buttocks.

She moved his hand away and said: “What are you doing?” but she can’t be sure he heard her. [ 6 ] At first, Y thought it was an accident, but he repeated this gesture several times, also grabbing her buttocks and, at one point, using a circular motion to rub her buttocks for about three to four minutes. [ 7 ] Y felt scared and she wanted to tell her friend D about it. She wrote a text on her phone about what had happened and showed it to D in the store. D told her that Mr. Salas Cruz had done the same thing to her. D was also stressed about this. [ 8 ] Y believes that Mr.

Salas Cruz knew that she and D were talking about him and what he had done, based on the way he was looking over at them. [ 9 ] While on the stand, Y was shown excerpts from the video footage of the four of them in the store. She had not known that such footage existed and had never seen it before. Seeing Mr. Salas Cruz touching her buttocks and her reaction, pushing his hand away (at

14:58 on the video [3] ), she states that that was the second time it happened. [ 10 ] Later that day, they went to some other stores to buy party decorations. Y called her aunt R. and told her what had happened. After the party, D slept over at Y’s house and the two girls discussed what had happened. They told their parents that night and the next day they went to meet with the police. The testimony of D [ 11 ] D related a similar version of the shopping outing on April 21, 2018, with her friend Y, Y’s aunt Gabby and Gabby’s boyfriend, Mr. Salas Cruz.

D and Y have been friends since childhood, and D had met Gabby and Mr. Salas Cruz a few times. She described how Mr. Salas Cruz, standing behind her in the store, rubbed his hand down her back and rubbed her buttocks. It lasted about three seconds. While testifying, she made a circular motion to describe how he rubbed her buttocks. She abruptly moved away from him. She was very surprised that he did this. In cross-examination, she states that she can’t remember exactly how he rubbed her. [ 12 ] D and Y went to a separate part of the store where Y told her that Mr. Salas Cruz had touched her buttocks.

D told Y that the same thing had happened to her. They were both panic-stricken by this. They told Y’s aunt R. about it over the phone and she told them to stay away from him. They did not tell anyone else at that time because they didn’t want to ruin the surprise party for Y’s mother. In the car on the way home from the party, they told Y’s mother what had happened. They then told D’s parents and went to the police station the next day. [ 13 ] D believes that in her case, the touching was less serious than what she understood happened to Y, based on what her friend told her.

She had never seen the video footage before watching part of it on the stand. When she was shown the footage of Mr. Salas Cruz touching Y’s buttocks at 14:58, she stated that what happened to her was less significant than what she saw on the video (“il m’a touchée moins que ça”). [ 14 ] The two girls discussed the incidents of that day several times: in the store; that evening; when they went to see the police the next day; when they returned to meet with the police to record a videotaped statement in July; and closer to the trial date as well. The testimony of Mr. Salas Cruz [ 15 ] Mr.

Salas Cruz is 44 years old. In April 2018 he was engaged to Y’s aunt Gabby. He had known Y since she was about eight years old and considered her to be like a niece to him. He remembers the day they went shopping together with Y and D. They started out at a store where Gabby was looking for a wedding dress. [ 16 ] From there, they went to Adrenaline in order for Y to change her piercing. He asked Y to see her piercing, as they were walking to the jewelry store. He told Y her new diamond stud was too large.

He made a joke, telling her that she was too thin, because as she lifted her shirt to show him her piercing, she sucked in her tummy. [ 17 ] On the way into the jewelry store he tripped on the doormat, which was right at the entrance. As he missed his footing, his left forearm touched Y. He can’t remember where he might have touched her at that point but it was definitely not her buttocks. She did not react. [ 18 ] Once in the store he placed his hand on Y’s lower back at the level of her waist. It was a gesture meant to encourage her to hurry up.

They were in a rush at that point and he wanted them all to move quickly because they had many things to do for the surprise party. He also needed to get home because he had left his dog alone and the dog needed medicine. He had no improper motive or ill intentions whatsoever when he touched Y’s back. It was a totally anodyne gesture. [ 19 ] When shown the video footage at 14:58, he confirms that this is the gesture he is talking about when he states that he put his hand on Y’s back.

He claims that his hand never touched Y’s buttocks, and that this is the only time he touched her in the store. [ 20 ] He firmly denies ever touching Y’s buttocks and ever touching D in any way. [ 21 ] When shown the video footage where he seems to be looking around, while the girls are at the other end of the store, he states that he was looking at a lamp, and not at the girls. [ 22 ] Mr.

Salas Cruz denies having any idea that the girls were discussing something about him in the store and was only made aware of their allegations against him the next day. [ 23 ] These allegations created tensions between him and Gabby and led to their break-up. However, they have since reconciled. They have discussed these incidents a few times together. The testimony of Gabriella Bousquet- Chacin [ 24 ] Ms. Bousquet-Chacin, (Gabby), was a good friend of Y’s mother and was like an aunt to Y. In April 2018 she was engaged to Mr. Salas Cruz and they had been together for about 13 years.

She confirms the shopping outing on April 21, going to Adrenaline for Y’s new piercing, and then to a store called Marie Dumas on Greene Ave., to buy a birthday present for Y’s mother. She recognizes the storefront in a photo (exhibit D-1), noting that there are no steps leading up to the front door. [ 25 ] Gabby states that they were running late to get home on time to take care of the dog and so they were trying to hurry. She did not notice anything untoward that day and did not see any inappropriate touching. She did not hear either of the girls say “stop” nor did she notice anything odd about their behaviour.

Following the girls’ complaint, she broke up with Mr. Salas Cruz but they have since reunited. She had never seen the video footage of them in the store before testifying. The video evidence

[ 26 ] The video footage (P-1) shows the inside of Marie Dumas, at the time the foursome were in the store. It does not provide continuous filming of their actions during the full 15 minutes of their visit, but there is some footage of them captured by several cameras in the store, showing them from different angles. Various display cases block the view of the people in the store, depending on the camera angle and where they are standing.

It may be noted that although the four witnesses described this as a “jewelry store” (they were shopping for jewelry as a gift for Y’s mother), in fact, it is a gift shop filled with various decorative household items, knickknacks as well as jewelry. [ 27 ] The Court observes the following from the video footage. Gabby enters the store first, followed by D and then Y and lastly, by Mr. Salas Cruz. They are all walking fairly close together and at 14:58:37 [4] , as Gabby stops, seemingly to look at something in the store, they all stop walking. At that moment, (at 14:58:42), Mr.

Salas Cruz, standing behind Y, touches her buttocks. Y does not turn around, but with Mr. Salas Cruz still behind her, she gestures brusquely with her elbow to move his hand away. Despite the fact that both of these gestures happen quickly, they can be seen clearly and are unequivocal. [ 28 ] No other touching as described by the two girls can be seen in the video footage. At 15:04:55 [5] , Y shows her telephone to D and they are talking to each other. At 15:05:25 [6] the two girls have walked to a separate part of the store. Y looks over the display toward the part of the store they just came from.

D points in that direction and then taps Y on the buttocks. The girls are seen talking to each other. D covers her face with both her hands. Y mimics several gestures of tapping and grabbing D’s buttocks, and then makes a circular motion with her hand near her own buttocks. Analysis [ 29 ] The following are the essential elements of the offence of sexual interference that the Crown must establish beyond reasonable doubt: 1. that the complainant was under 16 years old; 2. that the accused touched the complainant ; and 3. that the touching was for a sexual purpose. [ 30 ] Mr.

Salas Cruz does not contest the first element, that is, that both Y and D were under 16 years old at the time. In the case of D, he denies ever touching her at all. In the case of Y, he denies touching her for a sexual purpose. [ 31 ] Before analyzing the evidence heard and assessing the credibility and reliability of each witness, the Court emphasizes that Mr. Salas Cruz, just as every accused in a criminal trial is presumed innocent. The burden remains at all times on the Crown to prove the essential elements of both charges beyond reasonable doubt.

The evaluation of the evidence does not involve a credibility contest, pitting one version against another. Rather, the Court will examine the evidence as a whole in order to decide if the allegations have been proved beyond reasonable doubt. [ 32 ] If the Court believes Mr. Salas Cruz and his denial of ever touching the buttocks of either complainant, he will be acquitted. Even if the Court does not believe the accused, if his testimony raises a reasonable doubt, he will be acquitted. A conclusion that the accused is probably or likely guilty will similarly lead to an acquittal.

The accused may only be found guilty if, after careful and reasoned consideration of all of the evidence, the Court is convinced beyond reasonable doubt that the Crown has proved all of the essential elements of the charge. [ 33 ] Beginning with the evaluation of the testimony of the accused himself, the Court concludes that his version of the facts is not credible. Here is why. [ 34 ] It is unlikely that Mr. Salas Cruz would remember an anodyne misstep that led him to trip as they entered the store. He states that his arm brushed against Y at that point.

Perhaps this is meant to explain some accidental touching caused by him losing his balance. Clearly, this is not the contact that Y complained to the police about. [ 35 ] Mr. Salas Cruz contradicts himself when testifying about Y’s piercing. He testified that when Y showed him her new piercing, he told her that it was too large. When asked why he said that, he stated that it was because the diamond piercing was larger than the last one she had. Yet, he also testified that he had never seen the original (or smaller) piercing. He also denied ever making a comment about Y’s waist.

But he does admit that he said she was too skinny, as a joke, as she lifted her shirt. [ 36 ] Despite what both the accused and his girlfriend Gabby state about being in a hurry, the video footage shows, quite to the contrary, that Mr. Salas Cruz is unhurriedly wandering around the store, examining various knickknacks unrelated to the birthday gift for Y's mother. In any event, the gesture seen at 14:58 has nothing to do with hurrying someone along. [ 37 ] Most importantly, when confronted with the video footage which clearly shows him touching Y’s buttocks, Mr.

Salas Cruz maintains that he only touched her back and thus denies the obvious. [ 38 ] Mr. Salas Cruz is not believed, and his testimony does not raise a reasonable doubt. Nevertheless, the Court must scrutinize all of the evidence to determine if the charges have been proved beyond reasonable doubt. [ 39 ] The testimony of Y was straightforward and sincere. She explains with appropriate detail the way Mr. Salas Cruz put his hands around her waist and told her she was thin and pretty when she showed him her piercing. She clearly describes how he touched her buttocks more than once while they were in the store.

It must be remembered that she is testifying some 18 months after the fact. It is not surprising that some details are lacking. She is obviously mistaken when she states that he first touched her buttocks as she climbed the stairs to enter the store. Exhibit D-1 shows that there are no stairs going into the store. Thus, it is false that she was touched on the stairs , however, this detail does not lead the Court to disbelieve the remainder of her testimony.

[ 40 ] The Court must also question whether her testimony is accurate when she estimates that she was touched for “three to four minutes”. The Court sees this as a clumsy assessment of how long it lasted, as opposed to a desire to exaggerate her version of facts. [ 41 ] It is important to remember that Y had never seen the video footage nor did she know that she and the others were being filmed in the store. Yet, an important part of her testimony is confirmed by this footage. For example, the video captures Mr. Salas Cruz touching Y’s buttocks; Y elbowing Mr.

Salas Cruz in order for him to remove his hand; Y texting a message to D while in the store; Y and D moving to a more secluded area of the store to talk; and Y immediately mimicking the gestures that she is complaining about. [ 42 ] The video footage also confirms her testimony to the effect that the girls suspected that Mr. Salas Cruz knew that they were talking about him and what he had done. At 15:07 on the video [7] , Mr. Salas Cruz is seen twice turning to look toward the area of the store where the girls had gone.

Simply looking toward the girls is not evidence of his guilty conscience, but it does confirm Y’s testimony when she states that she noticed Mr. Salas Cruz looking over at them. [ 43 ] The Court notes that here is nothing in Y’s testimony that suggests exaggeration, ill will toward the accused, or any underlying reason to fabricate [8] . Her testimony is clear when she describes the repeated gestures of Mr. Salas Cruz and explains that she was shocked and stressed-out by his behaviour.

This too is perfectly credible. [ 44 ] The Defence argues that because there is no gap in time between the video footage from the different camera angles, the fact that no other touching by Mr. Salas Cruz is caught on film is a clear indication that he had no other opportunity to touch either of the girls in any way. The Court disagrees. As previously noted, the different camera angles capture part of what happened in that store. There is no continuous footage of everything that went on. At several points during their 15-minute visit in the store, it is impossible to see some or any of the four people concerned.

It should be noted that the video footage serves to bolster the witnesses’ credibility but the evidence is not limited to what is captured on the video. [ 45 ] The Court is convinced beyond reasonable doubt that Mr. Salas Cruz touched Y in the way that she describes. [ 46 ] The Crown suggests that an application of similar fact evidence would allow the credibility of both witnesses to be bolstered because of the very similar nature of what they describe, the proximity in time of the alleged events, and the similar ages of the girls. [ 47 ] The Court recognizes that the incidents described are extremely similar.

But the very real possibility of tainting or collusion renders recourse to the similar fact doctrine hazardous on these facts. As both witnesses candidly admitted, they discussed the details of what happened on that day while in the store, and numerous times since then, including that very evening, before going to the police station the next day, before returning to provide the police with a videotaped statement and at various other times when they were together. [ 48 ] The Court finds no fault with the girls wanting to discuss this incident with each other. Nothing could be more natural.

But the danger that the facts described by Y may have affected the version of D cannot be disregarded. As such, the doctrine of similar fact evidence will not be applied. [ 49 ] Regarding D, there is no video footage to confirm her testimony. Of course, corroboration is not required, but certain aspects of D’s testimony leave the Court with a reasonable doubt regarding the touching in her case. D contradicts herself when describing the actual touching. In examination in chief, she describes Mr. Salas Cruz rubbing her buttocks in a circular motion for three to four seconds.

Yet when questioned again about this in cross-examination, she states that she cannot exactly remember how he touched her and then adds that it was likely more of a right to left movement than a circular motion. [ 50 ] As well, when testifying about the fact that what happened to her was less important than what happened to her friend Y, D explains that she forms this view, not only because of what Y told her, but also based on the video footage that she saw in court. As previously noted, the video footage seen at 14:58 is unequivocal, but it is also extremely brief.

It stands to reason that had D been fondled or rubbed, whether in a circular motion or right-to-left, this could not be properly described as less than what is seen at 14:58. This contradiction is troubling. [ 51 ] Although the Crown properly points out that D is seen on the video tapping her friend’s buttocks as if mimicking what had happened, it must be noted that this occurs after Y has texted something to her about what Mr. Salas Cruz had just done in the store.

The Court cannot be sure that D’s mimic did not refer to what Y had told her. [ 52 ] The Court does not disbelieve D, but her testimony does not convince me beyond reasonable doubt. [ 53 ] The Court must pursue its analysis in order to determine whether the touching that Y describes was “for a sexual purpose”. As stated above, Mr. Salas Cruz’s denial of touching Y’s buttocks does not raise a reasonable doubt. Still, the Court is mindful of his version that the gesture at 14:58 was made in order to usher Y along. An innocent touching that is not done for a sexual purpose will not attract criminal liability under

section 151 the Criminal Code . [ 54 ]

Section 151 of the Criminal Code sets out a specific intent crime requiring not only that the touching be deliberate, but also that it be done with the purpose of seeking sexual gratification or of violating the victim’s sexual integrity. [ 55 ] As explained by the Alberta Court of Appeal in R. v . Morrissey [9] : Touching is done for a sexual purpose, if it is done for one's sexual gratification or to violate a person's sexual integrity.

In determining whether touching takes place in circumstances of a sexual purpose, we are of the view that a trial judge can in assessing the mens rea of the accused, consider whether the sexual context of the touching would be apparent to any reasonable observer. The "sexual purpose" may be proven either by direct evidence, or it may be inferred from circumstantial evidence or from the nature of the touching itself (i.e. the only reasonable inference to be drawn from the circumstantial evidence or from the nature of the touching itself is that the accused committed the touching for a sexual purpose).

[ 56 ] The Court concludes that the sexual context of the touching at 14:58 would be apparent to any reasonable observer. Moreover, the Court believes the testimony of Y who described not only one episode of touching (seen at 14:58) but several repeated gestures, which are not caught on film, of Mr. Salas Cruz rubbing, grabbing and touching her buttocks. The very part of the body that is touched here allows for an inference that this was done for a sexual purpose. The sexual purpose of the contact can also be gleaned from the overall context, beginning with Mr.

Salas Cruz asking to see Y’s navel piercing and telling her that she was pretty and thin while putting his hands around her waist. [ 57 ] The Court concludes that Y was touched for Mr. Salas Cruz’s sexual gratification. In addition, Y’s reaction to being fondled establishes that her sexual integrity was violated. [ 58 ] Mr. Salas Cruz submits, in the alternative, that the maxim of de minimis non curat lex should apply here. This defence allows a Court to avoid the criminalization of conduct which is harmless or trifling. Referring to the decision of Vauclair J.C.S. (as he then was) in R. v.

Freedman [10] , the Defence suggests that the touching of the victim’s buttocks in the present case was so trifling and so insignificant that it amounts to a technical violation of

section 151 of the Criminal Code . He argues that the conduct of the accused is not sufficiently serious to be stigmatized as criminal. [ 59 ] The Court disagrees. Firstly, the evidence has established beyond a reasonable doubt that Y was fondled as she describes, and not only as seen in the few seconds that were caught on video. Secondly, it can hardly be stated that the offence committed was trifling or harmless, considering Y’s testimony about the incident and her description of feeling shocked and scared. She was 15 years old at the time and had every reason to expect that Mr.

Salas Cruz, 27 years her senior, who was like an uncle to her, would not touch her in a sexual way. This is not an appropriate case for the application of the de minimis principle. FOR THESE REASONS, THE COURT : Declares Mr. Salas Cruz guilty of sexual touching of Y (count 2); Acquits Mr. Salas Cruz of sexual touching of D (count 1). __________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Anne-Marie Omann Attorney for the Prosecution M e Louis-Nicholas Coupal M e Farah Nantel-Hamud Attorneys for the accused Dates of hearing: November 25 and 26, 2019