COURT FILE NO.: CR-19-10000694-0000 DATE: 20210219

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DAVID OBREGON CASTRO AND SARAI LOPEZ-IGLESIAS

Counsel: K. Simone and A. Leggett, for the Crown A. Page and D. McCabe-Lokos, for Mr. Obregon Castro N. Gorham and B. Vandebeek, for Ms. Lopez-Iglesias

HEARD: 5 February 2021

S.A.Q. Akhtar J.

RULING #6 - APPLICATION BY OBREGON-CASTRO TO DELIVER AN OPENING ADDRESS AFTER THE CROWN

BACKGROUND

[1] David Obregon Castro and Sarai Lopes-Iglesias stand accused of committing the first degree murder of Abbegail Elliott. The Crown alleges that on 3 May 2018 Mr. Obregon Castro and Ms. Lopes-Iglesias entered Ms. Elliott’s residence at 70 Spadina Road, an apartment block in Toronto, armed with a firearm and a knife, and stabbed her to death.

[2] Mr. Obregon Castro applies to address the jury with opening comments immediately after the Crown. Ms. Lopes-Iglesias does not make a similar freestanding application but asks to make a similarly timed address only if Mr. Obregon Castro’s application is granted.

[3] For the following reasons, Mr. Obregon Castro’s application is dismissed. It follows that Ms. Lopes-Iglesias’ application is moot.

LEGAL PRINCIPLES

The Statutory Section

[4] Section 651(2) of the Criminal Code states:

(2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.

[5] There is no statutory right permitting the defence to make an opening address before the Crown calls its case. However, the jurisprudence allows for the possibility of doing so.

[6] In the leading case of R. v. A.D. (2003), 2003 ONSC 43624, 180 C.C.C. (3d) 319, (Ont. S.C.J.), Dambrot J. held that there was a judicial discretion to permit an accused to address the jury immediately following the Crown. Dambrot J. added, however, that this discretion should only be exercised in special or unusual circumstances.

[7] On the other hand, in R. v. G.L., [2004] O.J. No. 5677 (S.C.J.), Trafford J. agreed that there was no statutory right permitting an immediate defence opening address. In Trafford J.’s view, an accused seeking to make such an address had to demonstrate that their ss. 7 and 11(d) Charter rights would be violated if not permitted.

[8] With respect, I prefer Dambrot J.’s conclusion that this question is a matter of judicial discretion rather than constitutional infringement. I also note, in reviewing the subsequent jurisprudence, G.L. is the only case that mandates a need to demonstrate a Charter violation.

[9] In A.D., at para. 17, Dambrot J. outlined a number of pitfalls identified in cases dealing with the issue of defence openings immediately after the Crown’s address:

(1) An opening statement is a review of the evidence that is proposed to be called by a party. The accused is not called upon to decide whether evidence will be called in defence until after the close of the Crown's case. Accordingly, a right to open cannot arise immediately after the Crown opening. This problem was addressed by Barr J. in R. v. Edwards and Edwards (1986), 2 W.C.B. (2d) 220 (Ont. H.C.J.), by permitting the defence to open early only upon undertaking to call evidence. But such an undertaking was considered to be unnecessary by Donnelly J. in R. v. Sood, [1997] O.J. No. 5385 (QL) (Gen. Div.), and by trial judges in several subsequent cases.

(2) On the assumption that the review of the evidence for the defence permitted in the defence opening might include evidence expected to be elicited in cross-examination of Crown witnesses (see R. v. Barrow (1989), 1989 NSSC 7148, 48 C.C.C. (3d) 308 (N.S.S.C.)), the risk that the defence will not produce the evidence promised is high, and the likelihood that the opening will slip into argument is significant.

(3) It would be unfair for the defence to have the opportunity to open twice, but despite making an opening immediately after the Crown opens, the defence retains the statutory right to open at the end of the Crown's case if a defence is called. This problem was addressed by D. Ferguson J. in R. v. S.S., [1997] O.J. No. 143 (QL) (Gen. Div.), by securing the agreement of counsel for the accused that he would not exercise his right to open a second time as a prerequisite to permitting him to open early.

[10] At para. 19, Dambrot J. also conducted a review of the law to determine what might amount to special circumstances and cited the following examples where an immediate opening address might be permitted:

(1) In a retrial, there was thought to be relative certainty about what the witnesses would say (R. v. Barrow (1989), 1989 NSSC 7148, 48 C.C.C. (3d) 308 (N.S.S.C.); R. v. Sood, [1997] O.J. No. 5385 (QL) (Gen. Div.)).

(2) The trial was expected to be a lengthy one or one with complex factual issues (R. v. Barrow, supra; R. v. S.S., [1997] O.J. No. 143 (QL) (Gen. Div.); R. v. Morgan (1997) 1997 ONSC 12444, 125 C.C.C. (3d) 478 (Ont. Ct. (Gen. Div.)); R. v. Sood, supra; R. v. Roby, [1998] O.J. No. 5518 (QL) (Gen. Div.)).

(3) The defence was not expected to be apparent to the jury during the Crown's lengthy evidence (R. v. S.S., supra).

(4) There existed competing and significant expert evidence (R. v. Turner, [2000] N.J. No. 379 (QL) (Nfld. S.C.); R. v. J.C., [2002] O.J. No. 4042 (QL) (S.C.)).

(5) The Crown had one central witness whose testimony was the focus of the case, and from whom: (i) in cross-examination, the defence hoped to raise a defence of self-defence (R. v. Slager, [1996] O.J. No. 1407 (QL) (Gen. Div.)); or (ii) the defence could bring out significant inconsistencies, admitted perjury and a serious potential for self-interest (R. v. Sood, supra).

[11] Since A.D., there have been a number of cases that have permitted the defence to open immediately after the Crown: R. v. White, 2006 ABQB 883, 408 A.R. 13; R. v. Keene, 2015 ONSC 4052. Similarly, there have also been cases where the defence request was denied: R. v. Fazekas, 2010 ONSC 6644; R. v. Hillis, 2016 ONSC 450, at paras. 126-129.

Should the Defence be Allowed to Open after the Crown?

[12] Many of the factors set out by Dambrot J. in A.D. have no application in this case.

[13] The Crown does not seek to tender expert evidence. Nor, contrary to the submissions of the defence, do I find this case to be a particularly lengthy or complex matter. Whilst the pre-trial motion rulings allow the Crown to adduce evidence of prior discreditable conduct and ante-mortem statements, the subject matter is not complicated and does not require an immediate defence opening to explain its contents or context. Any evidence of admissible bad character is limited and will be the subject of mid-trial and final instructions.

[14] The Crown’s case will not take an unusually great amount of time. The Crown alleges Mr. Obregon Castro to be the man who entered Ms. Elliott’s apartment and committed the offence as either a joint principal or aider and abettor. Irrespective of the exact particulars of the defence, it is clear from the pre-trial motions that it will be apparent to the jury this is a cutthroat defence, where both accused will seek to blame the other for Ms. Elliott’s death. The cutthroat nature of a defence is not an appropriate subject for a defence opening address that takes place immediately after the Crown’s.

[15] My greatest concerns arise with the reasons advanced by the defence in their justification for seeking to open immediately after the Crown. Ms. McCabe-Lokos argued that an immediate opening address was required to highlight the issues the jury will need to grapple with in this case. Ms. McCabe-Lokos cited examples such as whether Mr. Obregon Castro’s knowledge was sufficient to satisfy the “planned and deliberate” component of first degree murder; and whether his actions sufficiently contributed to Ms. Elliott’s death to establish guilt.

[16] I was not given a copy of the opening address which I was told had not yet been written. Nor were any specific details provided.

[17] Seeking to “highlight” the issues immediately after the Crown’s opening address is straying dangerously into the area of argument, something clearly forbidden when making an opening address. Even though I have no doubt that the defence would not deliberately seek to inject argument into their opening, there is a real risk that it may occur. In such a situation the Crown and/or Ms. Lopes-Iglesias might have legitimate grounds for a mistrial.

[18] There is also the risk that even though Mr. Obregon Castro might outline his defence at the outset of the trial, the defence may change depending on how the Crown’s case unfolds. That might become the subject of comment by both the Crown and co-accused and lead to instructions unfavourable to Mr. Obregon Castro. It is noteworthy that, at the pre-trial motion stage, Mr. Obregon Castro’s reported defence was “identity”. In submissions on this application, I was informed that this defence position has now changed. This illustrates the fluid nature of any defence strategy and how it can legitimately morph to respond to deficiencies in the Crown’s case - deficiencies that might only become apparent once the witnesses have testified.

[19] This leads to another problem. I have already described the primary purpose of an opening address: to outline evidence that the Crown or defence intend to call. As the defence has the right to wait until the end of the Crown’s case to decide whether it actually wishes to call evidence, there is a risk that the defence may not call the evidence that it said it would. This would create the serious risk that the jury would be questioning why the defence had failed to call the case that it had previously told them it would. Moreover, the Crown might have a legitimate grievance in claiming that the defence had told the jury about exculpatory evidence that they had never seen and could not consider.

[20] An undertaking to call evidence - as has been made by Mr. Obregon Castro in this case - carries little weight as it is clear that no one can force an accused to testify or call evidence if, at the end of the Crown’s case, they decide not to do so.

[21] For these reasons, the application is dismissed.

S.A.Q. Akhtar J.

Released: 19 February 2021