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

DATE: 20201029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAVID OBREGON CASTRO AND SARAI LOPEZ-IGLESIAS

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: 8 and 9 September 2020

s.a.Q. akhtar j.

RULING #2 - APPLICATION BY MS. LOPEZ-IGLESIAS TO ADDUCE EVIDENCE OF PRIOR DISCREDITABLE CONDUCT OF MR. OBREGON CASTRO

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Mr. Obregon Castro and Ms. Lopez-Iglesias are charged with the first degree murder of Abbegail Elliott on 23 May 2018 at her apartment building in Toronto.

[2] In a pre-trial motion, Ms. Lopez-Iglesias brought an application to adduce evidence of Mr. Obregon Castro’s prior discreditable conduct through the mouths of witnesses due to be called by the Crown.

[3] At the conclusion of submissions I identified various items of evidence that could be adduced by Ms. Lopez-Iglesias and excluded others. These are my reasons for doing so.

The Crown’s Case

[4] The following is a brief summary of the Crown’s allegations.

[5] 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.

[6] Shortly before 23 May 2018, Mr. Obregon Castro became enraged with Ms. Elliott 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 Ms. Elliott which included a warning that “she should watch her back”.

[7] Ms. Lopez-Iglesias became involved in a fractious exchange with Ms. Elliott after discovering her 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 Ms. Elliott and her boyfriend Noble Selby.

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

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

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

[11] 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 Ms. Elliott and Mr. Selby who fled to the apartment balcony with Mr. Obregon Castro firing a second shot in their direction.

[12] Ms. Elliott was stabbed in the chest.

[13] The question of who killed Ms. Elliott 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.

[14] 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, Ms. Elliott, was forcibly confined when she was killed.

LEGAL PRINCIPLES

[15] In joint trials an accused may elicit evidence of bad character against another accused which could not have been adduced by the Crown: R. v. Suzack (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449, 128 O.A.C. 140 (C.A.), at para. 111. However, since that evidence carries the same risk of misuse its prejudicial impact may outweigh its probative value, become a distraction or surprise the accused who is the evidentiary subject: R. v. Pollock (2004), 2004 CanLII 16082 (ON CA), 187 C.C.C. (3d) 213, 188 O.A.C. 37 (C.A.), at para. 105.

[16] In order to ensure a fair trial, the law requires close scrutiny of the evidence sought to be led. As well, the party seeing to lead the bad character evidence must provide an evidentiary foundation for its introduction. The mere assertion by counsel that it is necessary or relevant is insufficient for admissibility purposes: Pollock, at para. 106; R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 66.

[17] In the final analysis, the judge’s role is to ensure a fair trial for both accused. This was made clear in Pollock, at para. 107, where the court explained:

In deciding whether to admit evidence on behalf of one accused of the co-accused's disposition, the trial judge is required to balance the fair trial-rights of the two accused. In some cases, the trial judge will conclude that a fair balance cannot be struck within the confines of a single trial and the judge will grant severance. In most cases, however, it should be possible to balance the fair trial rights of both accused.

[18] It is also clear that “an accused's right to a fair trial does not, however, entitle that accused to exactly the same trial when tried jointly as the accused would have had had he been tried alone”; Suzack, at para. 111; Pollock, at para. 108.

[19] As part of the trial fairness process, the judge must instruct the jury in the precise manner in which the evidence can be used along with the limits of that use. Significantly, the jury must be told that the evidence is available to decide whether a reasonable doubt exists in the case of the accused who has adduced the evidence. The jury must be told that it is not permitted for use to decide guilt: Suzack, at paras. 127-8; Pollock, at para. 109.

[20] The test for admission is different when adduced by a co-accused. In these cases, the evidence is admissible unless its prejudicial effect substantially outweighs its probative value: R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577; Pollock, at para. 110.

[21] In a case like this, where the parties advance a “cutthroat defence” alleging the co-accused committed the crime, prior propensity for violence becomes relevant in advancing the position that the co-accused was more likely to have committed the offence: Sheriffe, at para. 65. In addition, bad character evidence may also be adduced by an accused when their co-accused testifies to undermine their credibility.

Positions of the Parties

[22] Mr. Gorham, on behalf of Ms. Lopez-Iglesias, seeks admission of the evidence when cross-examining witnesses called by the Crown. He concedes that since Mr. Obregon Castro’s defence is currently unknown, it is premature for this court to decide whether Ms. Lopez-Iglesias may use prior discreditable conduct as disposition evidence to show Mr. Obregon Castro was the more likely candidate to have committed the murder. He also acknowledges that, at the outset of the trial, there is no basis to adduce prior discreditable conduct evidence that undermines Mr. Obregon Castro’s credibility.

[23] However, he submits that the relationship between Ms. Lopez-Iglesias and Mr. Obregon Castro is of great significance in Ms. Lopez-Iglesias’s defence. More specifically, Mr. Gorham asserts that Mr. Obregon Castro’s prior acts of violence and reputation for violence informs a number of relevant issues including: Ms. Lopez-Iglesias’s state of mind, the reason for attending the deceased’s apartment, her actions after the killing, and her statement to the police following her arrest.

[24] In addition, Mr. Gorham contends that Mr. Obregon Castro’s reputation for violence is probative of Noble Selby and Michael Grant’s reluctance to implicate Mr. Obregon Castro as they were fearful of repercussions.

[25] Ms. Page, on behalf of Mr. Obregon Castro, responds that the evidence’s prejudicial effect substantially outweighs its probative value. She submits that much of the evidence does not relate to any live issue at trial and is not necessary for Ms. Lopez-Iglesias to make full answer and defence. According to Ms. Page, the prior discreditable conduct would be so prejudicial that even a limiting instruction would make it impossible to avoid misuse of the evidence when deciding guilt.

IS THE PRIOR DISCREDITABLE CONDUCT EVIDENCE ADMISSIBLE?

[26] I agree with Mr. Gorman that it is premature, at this stage, to determine whether prior discreditable conduct can be used as disposition evidence or to undermine credibility. However, I also agree that Ms. Lopez-Iglesias should, in a limited way, be able to adduce evidence of the nature of her relationship with Mr. Obregon Castro through the witnesses that the Crown will call.

[27] In evaluating the admissibility of the prior discreditable conduct I will use the list very helpfully set out by counsel for Mr. Obregon Castro in their factum.

The List of Items in Dispute

1. Drug Use and Trafficking - Not Admissible

[28] There is some evidence that when the police attended the deceased’s apartment after her death they became aware of the smell of marihuana. Witnesses also informed them that both they and the deceased were drug users.

[29] In addition, when police arrested Mr. Obregon Castro and Ms. Lopez-Iglesias they found substances believed to be narcotics inside their car.

[30] Finally, other witnesses informed the police that Mr. Obregon Castro was a drug dealer cooking crack cocaine and using heroin.

[31] Evidence of Mr. Obregon Castro’s involvement in drugs is not relevant to any live issue in this trial and has no probative value. It is therefore inadmissible.

2. Mr. Obregon Castro’s Possession of a Firearm - Admissible

[32] Bryn Elliott, Sonia Baldi and Michael Grant claim to have seen Mr. Obregon Castro in possession of a firearm shortly prior to 23 May 2018.

[33] I have already ruled this evidence to be admissible (subject to specific caveats) at the behest of the Crown: R. v. Obregon Castro, 2020 ONSC 6595.

3. Mr. Obregon Castro Acting Disrespectfully Towards Ms. Lopez-Iglesias - Not Admissible

[34] Sonia Baldi testified at the preliminary inquiry that some weeks prior to 23 May 2018, Ms. Lopez-Iglesias had told her that Mr. Obregon Castro had been verbally and emotionally abusive towards her, behaviour that made her feel belittled.

[35] This evidence, an out of court statement made by Ms. Lopez-Iglesias, is inadmissible unless specifically led by the Crown.

4. Mr. Obregon Castro’s Infidelity - Admissible in Part

[36] Bryn Elliott testified at the preliminary inquiry that Mr. Obregon Castro was involved with other women whilst also sexually intimate with the deceased. On one occasion, she also saw Mr. Obregon Castro with another woman who was not his girlfriend.

[37] Ms. Page does not object to this evidence being adduced through the Crown witnesses and it is therefore admissible.

[38] Sonia Baldi testified that some weeks prior to 23 May 2018, Ms. Lopez-Iglesias told her that Mr. Obregon Castro was being unfaithful to her and felt that he was going to continue to “cheat” on her irrespective of her actions.

[39] This evidence is inadmissible as it is an out of court statement made by Ms. Lopez-Iglesias.

5. Mr. Obregon Castro’s Questioning of Ms. Lopez-Iglesias’s Loyalty – Not Admissible

[40] On 23 May 2018, Ms. Lopez-Iglesias sent Ms. Baldi a text asking her to tell Mr. Obregon Castro of her loyalty to him because Mr. Obregon Castro had questioned it.

[41] This evidence is inadmissible as it is an out of court statement made by Ms. Lopez-Iglesias.

6. Mr. Obregon Castro’s Violence Towards Ms. Lopez-Iglesias - Admissible in Part

[42] This item has two elements.

[43] First, Sonia Baldi testified at the preliminary inquiry that Ms. Lopez-Iglesias had told her that Mr. Obregon Castro had been physically abusive and pulled a gun on her “to hit her with it or something”.

[44] As with the previous ruling, this evidence is inadmissible as it is an out of court statement made by Ms. Lopez-Iglesias.

[45] Ms. Baldi also testified to incidents where Mr. Obregon Castro was physically violent towards Ms. Lopez-Iglesias. First, she saw Mr. Obregon Castro pull Ms. Lopez-Iglesias’s hair during the course of an argument. Secondly, she testified that she recalled an incident where Mr. Obregon Castro pulled out a gun and motioned as if he was going to hit Ms. Lopez-Iglesias with it.

[46] This evidence is admissible. It is probative of the relationship between Ms. Lopez-Iglesias and Mr. Obregon Castro and is relevant to Ms. Lopez-Iglesias’s defence that her actions on 23 May 2018 were subject to Mr. Obregon Castro’s compulsion and control.

7. Intimidation – Not Admissible

[47] Sonia Baldi testified at the preliminary inquiry that Ms. Lopez-Iglesias had described situations where Mr. Obregon Castro had threatened to shoot several people.

[48] Ms. Lopez-Iglesias also told the police that Mr. Obregon Castro was a “pretty hard core guy” with a “reputation” and told the questioning officer that witnesses at the scene had blamed her rather than Mr. Obregon Castro because they were probably terrified of Mr. Obregon Castro.

[49] This evidence is inadmissible as it is an out of court statement made by Ms. Lopez-Iglesias, and in the case of the statement to the police, an opinion rather than a fact.

[50] At the preliminary inquiry Noble Selby was asked whether he found Mr. Obregon Castro to be “an intimidating guy” or a “scary person”. Mr. Gorham argues that it is a fundamental part of Ms. Lopez-Iglesias’ defence that witnesses to the murder were reluctant to name Mr. Obregon Castro as the killer because they feared him and any consequences that might follow.

[51] This type of questioning is impermissible insofar as it constitutes Mr. Selby’s opinion of Mr. Obregon Castro and, further, may lead to speculation as to its basis. That said, it is open to counsel for Ms. Lopez-Iglesias to suggest that Mr. Selby is scared of Mr. Obregon Castro and not being truthful as a result.

[52] I take the same view with respect to Mr. Grant’s evidence. The defence may ask if he is scared of Mr. Obregon Castro insofar as it relates to his reluctance to incriminate him. However, counsel for Ms. Lopez-Iglesias cannot elicit an opinion or ask questions about his moving to another home after his address had been inadvertently disclosed. This approach permits Ms. Lopez-Iglesias to advance her defence without raising speculation as to why Mr. Grant would be so fearful of Mr. Obregon Castro.

8. Spectators at the Preliminary Inquiry- Not Admissible

[53] During the course of Michael’s Grant’s examination-in-chief at the preliminary inquiry, several individuals entered the courtroom to watch the proceedings. Crown counsel asked for a recess, after which these individuals left the courtroom and sat on the benches outside. When approached by police, the individuals declared that they were there to support Mr. Obregon Castro.

[54] When matters resumed, the Crown advised the court that it was not in a position to continue because of these individuals. As a consequence, the hearing was adjourned.

[55] Two months later, Mr. Grant returned to testify by video link. Counsel for Ms. Lopez-Iglesias suggested that he was giving evidence remotely because he felt unsafe attending the courthouse. Mr. Grant agreed, claiming that he was afraid of the people who had entered the courtroom on his first day of testimony and later, when re-examined by the Crown, testified that he was intimidated by them.

[56] Mr. Gorham wishes to cross-examine Mr. Grant on this incident on the basis it is proof that Mr. Obregon Castro attempted to intimidate Mr. Grant when testifying.

[57] I disagree and find any evidence of this incident to be inadmissible. There is no basis to find that Mr. Obregon Castro engineered the presence of these observers or that he did so with the intention of instilling fear into any of the witnesses so that they would minimise their evidence against him. Any such suggestion is speculative and extremely prejudicial.

9. Animus between Mr. Obregon Castro and the Deceased - Admissible

[58] This item deals with the alleged threats made by Mr. Obregon Castro in a phone conversation with Wolfgang Genereux and overheard by Bryn Elliott.

[59] I have already ruled this evidence to be admissible at the behest of the Crown: R. v. Obregon Castro, 2020 ONSC 6595.

10. Bad Character Evidence Assessment by Others – Not Admissible

[60] On 24 May 2018, Sonia Baldi texted Ms. Lopez-Iglesias saying that “you’re sleeping with the devil who caused this and it makes me sick…Not just in disgust, but sick with worry and sadness for you, and anger at that fucking poison you’re sipping on”.

[61] On 24 May 2018, police interviewed Bryn Elliott and asked if she had any idea who might responsible for her sister’s death. Bryn replied “Junior”, a reference to Mr. Obregon Castro.

[62] Both these items of evidence are inadmissible as they are simply opinion evidence.

11. Mr. Obregon Castro was Wanted by the Police – Not Admissible

[63] Bryn Elliott testified at preliminary inquiry that her sister told her that she had refused Mr. Obregon Castro’s request to stay at her apartment because he was wanted by the police and needed a place to hide.

[64] This evidence is inadmissible as it is irrelevant and highly prejudicial.

CONCLUSION

[65] This ruling applies to the evidence called by the Crown. If, Ms. Lopez-Iglesias chooses to testify and wishes to adduce additional evidence of Mr. Obregon Castro’s prior discreditable conduct, she must bring a new application to do so before that evidence is adduced.

S.A.Q. Akhtar J.

Released: 29 October 2020

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

DATE: 20201029

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.