RULING #1 - CROWN APPLICATION TO ADDUCE EVIDENCE OF PRIOR DISCREDITABLE CONDUCT

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] David Obregon Castro and Sarai Lopez-Iglesias stand accused of committing the first degree murder of Abbegail Elliott. The Crown alleges that on 23 May 2018 Mr. Obregon Castro and Ms. Lopez-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] The Crown applies to adduce evidence of (1) Mr. Obregon Castro’s prior possession and use of a gun and (2) Mr. Obregon Castro’s utterance of threats against the deceased overheard by her sister.

[3] At the end of the argument, I ruled this evidence to be admissible. These are my reasons for doing so.

The Crown’s Allegations

[4] Abbegail Elliott was killed on 23 May 2018. In the weeks before her death, she was romantically involved with Mr. Obregon Castro who, on occasion, would stay overnight at her apartment. Around this time, Mr. Obregon Castro was also seeing Ms. Lopez-Iglesias, believed to be carrying Mr. Obregon Castro’s child.

[5] Shortly before 23 May 2018, Mr. Obregon Castro became enraged with the deceased for refusing to allow him to stay at her apartment when being sought by the police. Mr. Obregon Castro was later heard to make threatening comments about the deceased which included a warning that “she should watch her back”.

[6] Ms. Lopez-Iglesias became involved in a fractious exchange with the deceased after discovering the deceased’s sexual relationship with Mr. Obregon Castro. On 21 May 2018, the two women agreed to meet and fight in the parking lot of Ms. Elliott’s apartment building. The Crown contends that Mr. Obregon Castro was present during this encounter, and later that day, fired shots at Ms. Elliott’s balcony targeting the deceased and her boyfriend, Noble Selby.

[7] In the two days following the fight, Ms. Lopez-Iglesias and the deceased continued to exchange barbs over social media.

[8] Shortly before Ms. Elliott’s murder, Mr. Obregon Castro came into possession of her apartment key.

[9] On 23 May 2018, Mr. Obregon Castro went to the deceased’s residence with Ms. Lopez-Iglesias, opening the locked entrance door with the key. The deceased was inside the apartment with Noble Selby, and Michael Grant, another friend.

[10] Mr. Obregon Castro pointed a gun at Mr. Grant ordering him to remain seated on a mattress in the apartment. He then fired in the direction of the deceased and Mr. Selby who fled to the apartment balcony with Mr. Obregon Castro firing a second shot in their direction.

[11] The deceased was stabbed in the chest.

[12] The question of who killed the deceased is the subject of dispute between the two co-accused. Witnesses called by the Crown at the preliminary inquiry indicated that Ms. Lopez-Iglesias was the perpetrator. However, Ms. Lopez-Iglesias points to evidence from other potential witnesses who indicate that it was Mr. Obregon Castro who was the perpetrator.

[13] The Crown advances first degree murder against the two accused on a principal and party basis. The Crown alleges that the murder was planned and deliberate and that the deceased was forcibly confined when she was killed.

The Application

[14] In her factum, Ms. Leggett, on behalf of the Crown, itemises the three elements of extrinsic misconduct that the Crown seeks to tender under the following headings:

Evidence regarding Mr. Obregon Castro’s possession of a firearm
The shooting incident of 21 May 2018
Mr. Obregon Castro’s utterances to harm Ms. Elliott overheard by Bryn Elliott

[15] In making the application, Ms. Leggett points out that Mr. Obregon Castro contests the identity of the man that accompanied Ms. Lopez-Iglesias into Ms. Elliott’s apartment on 23 May 2018. Accordingly, the Crown seeks the admission of the evidence on the following bases:

• Proof of identity

• Establishing animus towards Ms. Elliott

• Demonstrating motive to commit the planned and deliberate murder of Ms. Elliott

[16] Ms. Page, on behalf of Mr. Obregon Castro, opposes the admission of the evidence. She confirms that identity is very much a live issue but submits that the prejudicial effect of the evidence outweighs its probative value.

LEGAL PRINCIPLES

[17] There is little controversy regarding the applicable legal principles in this case.

[18] Evidence of prior discreditable conduct is presumptively inadmissible. However, any party seeking to adduce this kind of evidence must demonstrate, on a balance of probabilities, that it is relevant to an issue beyond disposition or character and that its probative value outweighs its prejudicial effect: R. v. B.L. (1997), 1997 CanLII 3187 (ON CA), 35 O.R.(3d) 35 (C.A.), at para. 8; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at paras. 41-42 and 49-55.

[19] Prejudice is not measured by its incriminating impact but by its improper use by the trier of fact: B.L., at para. 22. The real danger of prior discreditable conduct is that an accused is convicted not of the offences with which he is charged but of the past bad acts: Handy, at para. 139.

[20] In R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, the Court of Appeal for Ontario, at para. 227, set out the following series of questions to be asked before balancing probative value and prejudicial effect:

• Is the conduct that of the accused?

• Is the evidence relevant?

• Is the evidence material?

• Is the conduct discreditable to the accused?

[21] The threshold for relevance and materiality is not high and is met when the evidence “as a matter of logic and human experience to make the proposition for which it is advanced more likely that that proposition would appear to be in the absence of that evidence”: R. v. McDonald (2000), 2000 CanLII 16871 (ON CA), 148 C.C.C. (3d) 273, 135 O.A.C. 365 (C.A.), at para. 24.

[22] Prior discreditable conduct is especially important in the context of identity and motive, as well as providing essential details to the unfolding of the offence that allow the jury to understand matters in a fashion that properly allows them to render a true verdict: R. v. Skeete, 2017 ONCA 926, 357 C.C.C. (3d) 159, at para. 82; R. v. Brissard, 2017 ONCA 891, 356 C.C.C. (3d) 494, at para. 17; R. v. Cudjoe, 2009 ONCA 543, 251 O.A.C. 163, at para. 64.

IS THE PRIOR DISCREDITABLE CONDUCT ADMISSIBLE?

The Proposed Evidence

[23] The Crown’s prospective prior discreditable conduct arises out of observations made by different witnesses.

The Evidence Relating to Mr. Obregon Castro’s Prior Possession of a Firearm

• Bryn Elliott, the deceased’s sister, provides evidence that she saw Mr. Obregon Castro with a handgun on a number of occasions. On one of those occasions, Mr. Obregon Castro asked her to accompany him when he went to speak to friends outside 70 Spadina Road. Bryn Elliott claims that she saw Mr. Obregon Castro pull out a small revolver and wipe it off. When Bryn told Mr. Obregon Castro that she thought he was seeing friends, he responded that “they might not be friends in 5 minutes”.

• Sonia Baldi is a friend of Ms. Lopez-Iglesias who faces charges of accessory after-the-fact to Ms. Elliott’s murder. She met Mr. Obregon Castro on a number of occasions in Ms. Lopez-Iglesias’s company and, on one of those occasions, saw Mr. Obregon Castro with a black gun in his waist band.

The Evidence of the Threats

• Bryn Elliott was also friends with Wolfgang Genereux, who knew both Mr. Obregon Castro and Ms. Lopez-Iglesias. A few days prior to 21 May 2018, Bryn witnessed a phone conversation between Mr. Genereux and Mr. Obregon Castro which took place after the deceased had refused Mr. Obregon Castro entry into her apartment. She heard Mr. Obregon Castro tell Mr. Genereux that he would have let the deceased into his apartment if she was “running from the police” and that she would “be alone” and “fuck her”. Bryn heard Mr. Obregon Castro call the deceased a “bitch” and said that “she’d better fucking watch her back”.

The Evidence of Mr. Obregon Castro’s Participation in the Shooting of 21 May 2020

• John Davidson, the deceased’s neighbour, was on his balcony when he heard shots fired. Within minutes, he saw two black males, one of whom was wearing a black baseball cap and a grey hoody, running east on Kendal Avenue from Spadina Road. The second male, wearing a white t-shirt, entered a white car in the 70 Spadina Road parking lot which drove off at a high speed on Kendal Avenue nearly striking a car on its way out.

• Josue Gutierrez, who lived in the building opposite the deceased’s, was cooking food on his balcony which faced 70 Spadina Road. He saw a male with a gun cross Kendal Avenue to 70 Spadina Road and fire two to three shots at one of the balconies. The male ran north on Spadina Road and then was seen to run southbound. Mr. Gutierrez thought that the male was Latino. The shooter was picked up by a tall black male in a white Volkswagen. A woman who was bleeding from her face came out of 70 Spadina Road, briefly re-entered the building with the black male, and then returned to the car which drove down Kendal Avenue collecting the shooter before heading towards Dupont Avenue.

• Noble Selby was with the deceased on her balcony following the fist fight with Ms. Lopez-Iglesias. He saw the shooter, whose eyes and face were covered, and believed him to be Mr. Obregon Castro because of the earlier hostilities. Mr. Selby observed the shooter emerge from the passenger side of a white car parked beside the deceased’s building, at 66 Spadina Road. Mr. Selby described the shooter as masked and said that he shot approximately three times at the deceased’s balcony.

• When Ms. Lopez-Iglesias and Mr. Obregon Castro were arrested on 25 May 2018, they were in a white vehicle. Also in the car was Sonia Baldi and Davonte Allen, a tall black male. The vehicle belonged to Mr. Allen’s girlfriend.

Ruling on Admissibility

[24] Applying the principles set out in the above paragraphs, I find that the prior discreditable conduct is admissible.

[25] With respect to the possession of the gun and threats made towards the deceased, there is no dispute that the conduct alleged is that of Mr. Obregon Castro. Nor is there any question that the evidence is discreditable.

[26] I find that the evidence is both relevant and material to the issues sought to be proven by the Crown.

Prior Possession of the Firearm

[27] Since the identity of the man who accompanied Ms. Lopez-Iglesias to the deceased’s apartment on 23 May 2018 is in issue, Mr. Obregon Castro’s prior possession of a gun is both relevant and material. This evidence can be used to show that he owned or had access to a weapon similar to that used by the man who entered the deceased’s apartment: R. v. Cain, 2015 ONCA 815, 330 C.C.C. (3d) 478, at para. 67; R. v. Kinkead (2003), 2003 CanLII 52177 (ON CA), 67 O.R. (3d) 57 (C.A.), at para. 76.

[28] Ms. Page submits that the evidence sought to be admitted is deficient as the gun seen by Bryn Elliott and Sonia Baldi was never fired. Ms. Page argues that only possession of an operable gun could have any probative value. I disagree with this characterisation of the law. It is clear that the prior discreditable conduct sought to be led by the Crown need not be identical to be a pre-requisite for admissibility: Cain, at para. 66; R. v. P.S., 2007 ONCA 299, 221 C.C.C. (3d) 45, at para. 37. For the aforementioned reasons, I find Mr. Obregon Castro’s prior possession of a firearm to be of significant probative value.

The Threats

[29] The threats overheard by Bryn Elliott demonstrate the nature of the relationship between Mr. Obregon Castro and the deceased; animus towards her; and an intention to inflict harm. It is trite law that evidence that reveals the true nature of the background between an accused and the victim, and provides a basis for motive is “highly probative”: R. v. Johnson, 2010 ONCA 646, 262 C.C.C. (3d) 404, at para. 101; Cain, at paras. 66-67; R. v. D.S.F. (1999), 1999 CanLII 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at para. 20; R. v. Cudjoe, 2009 ONCA 543, 68 C.R. (6th) 86, at para. 64.

The Shooting

[30] The 21 May 2018 shooting satisfies the last three criteria set out in Luciano. The evidence is discreditable, and if a trier of fact found that the shooting was in some way committed by Mr. Obregon Castro, it would go a long way in confirming animus, motive and Mr. Obregon Castro’s willingness to carry out his threat to kill the deceased.

[31] As Ms. Page points out, however, no witness definitively identifies Mr. Obregon Castro as being either the shooter on 21 May 2018 or assisting in that incident. As noted, whilst Mr. Selby initially described the man who fired the shots as Mr. Obregon Castro at the preliminary inquiry, he later changed his evidence explaining that he assumed it was Mr. Obregon Castro because of the fight between Ms. Lopez-Iglesias and the deceased which had taken place earlier that day.

[32] I do not take the governing authorities to be saying that the Crown must prove that the prior discreditable conduct was that of the accused beyond a reasonable doubt in order to lead it at trial. In my view, there must be some evidence that a trier of fact could find the extrinsic misconduct was committed by the accused.

[33] Ms. Page further submits that I cannot take into account any evidence extraneous to the incident in determining whether Mr. Obregon Castro was involved in the balcony shooting. In other words, I can only consider the evidence of that shooting in isolation.

[34] I do not agree. All evidence of prior discreditable conduct must be viewed in the context of and connection to other evidence. The cumulative effect of significant similar instances affects the admission of the evidence and its probative value: R. v. MacCormack, 2009 ONCA 72, 241 C.C.C. (3d) 516, at para. 61.

[35] Viewed in isolation, the evidence of identity in the balcony shooting may well be described as weak notwithstanding some similarities between the participants and the vehicle observed at the scene, and the white car in which Mr. Obregon Castro, Ms. Lopez-Iglesias and Davonte Allen were discovered on 25 May 2018.

[36] However, when one takes into account: the surrounding evidence, Mr. Obregon Castro’s possession of what appeared to be a firearm, his animus and threats towards the deceased close in time to the shooting, his presence at the fight between Ms. Lopez-Iglesias and the deceased, and the proximity of the shooting to that fight, there is a strong circumstantial case that the shooter was Mr. Obregon Castro.

[37] As noted earlier, prejudice does not amount to incriminating effect but to the potential misuse of the evidence made by the trier of fact if admitted. I find that the probative value of the evidence sought to be tendered by the Crown far outweighs its prejudicial effect. Any prejudice will be diminished by limiting instructions to the jury explaining how the evidence is to be used: R. v. S.G.G., 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716 at para. 69.

[38] For the reasons set out above, I find that the evidence sought to be led by the Crown is admissible, subject to the caveat that any evidence adduced through Bryn Elliott concerning the gun is limited only to the observations of the firearm. Her evidence of the alleged comments made by Mr. Obregon Castro regarding his “friends” and seeing him “wiping” down the gun are not admissible. Similarly, Bryn’s evidence of Mr. Obregon Castro’s threats to the deceased must be edited to remove any reference to Mr. Obregon Castro’s being wanted by the police.

[39] I thank both counsel for their helpful submissions and their very efficient presentation of the materials.

S.A.Q. Akhtar J.

Released: 28 October 2020

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

DATE: 20201028

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID OBREGON CASTRO AND SARAI LOPEZ-IGLESIAS

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.

R. v. Obregon-Castro, 2020 ONSC 6595

Case Summary

RULING #1 - CROWN APPLICATION TO ADDUCE EVIDENCE OF PRIOR DISCREDITABLE CONDUCT

FACTUAL BACKGROUND AND OVERVIEW

Introduction

The Crown’s Allegations

The Application

LEGAL PRINCIPLES

IS THE PRIOR DISCREDITABLE CONDUCT ADMISSIBLE?

The Proposed Evidence

The Evidence Relating to Mr. Obregon Castro’s Prior Possession of a Firearm

The Evidence of the Threats

The Evidence of Mr. Obregon Castro’s Participation in the Shooting of 21 May 2020

Ruling on Admissibility

Prior Possession of the Firearm

The Threats

The Shooting

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2