RULING #3 - ADMISSIBILITY OF ANTE MORTEM STATEMENTS

MADE BY ABBEGAIL ELLIOTT

FACTUAL BACKGROUND AND OVERVIEW

[1] Mr. Obregon Castro and Ms. Lopez-Iglesias are charged with first degree murder of Abbegail Elliott.

[2] The Crown alleges that shortly before her death, Ms. Elliott was romantically involved with Mr. Obregon Castro, a situation that caused acrimony with his girlfriend, Ms. Lopez-Iglesias, leading to a physical fight on 21 May 2018. The Crown further posits that Ms. Elliott had also angered Mr. Obregon Castro by refusing him refuge at her apartment when the police were looking for him.

[3] On 23 May 2018, both accused are alleged to have entered Ms. Elliott’s locked apartment through the use of a stolen key, ordered out Ms. Elliott’s friends and stabbed her to death.

As part of the Crown case, Ms. Simone wishes to lead a series of utterances made by Ms. Elliott prior to her death under the principled exception to the hearsay rule. After hearing the argument, I allowed the Crown’s application in part giving brief oral reasons. This judgment outlines my reasons for doing so.

LEGAL PRINCIPLES

[4] In R. v. Starr, 2000 SCC 40, [2000] 2 SCR 144, the Supreme Court of Canada reviewed the jurisprudence on the admission of hearsay in criminal cases and identified two potential routes of admissibility.

[5] First, the Court confirmed the “traditional” exceptions of hearsay such as res gestae, dying declarations, and “state of mind” as continuing exceptions to the admission of out of court statements tendered for their truth. Secondly, the Court clarified the approach in applying the principled exception to the hearsay rule which required the out of court utterance to be both necessary and reliable in order to be admissible.

[6] The Court described the interaction between the two types of hearsay with the traditional exceptions being subject to the principled approach in “rare” cases with the onus on the party challenging admission to justify exclusion: Starr, at para. 214; R. v. Kler, 2017 ONCA 64, 345 C.C.C. (3d) 467, at para. 75; R. v. Nurse, 2019 ONCA 260, 145 O.R. (3d) 241, at para. 110.

[7] In R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, the Court redefined the approach to hearsay utterances, prescribing a “functional approach” to determine whether out of court statements tendered for their truth should be accepted into evidence. Re-affirming the presumptive admissibility of the traditional exceptions, the Court provided guidance on the factors to be used in applying the principled approach. Necessity and reliability remained the twin pillars of the test.

[8] The Court in Khelawon, at paras. 62-63, indicated that one way of determining threshold reliability was to examine the circumstances in which it was made. If those circumstances supported the statement’s trustworthiness there could be little objection to admission. Another way was to show that a hearsay statement’s truth could be sufficiently tested in court, for example through cross-examination. The Court re-iterated that the ultimate reliability of the statement was a matter left to the trier of fact.

[9] The Court also overruled Starr in one significant aspect: corroborative evidence could be used to assist in deciding whether the proposed hearsay utterance was sufficiently reliable to warrant admission.

[10] In R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, the Supreme Court of Canada placed stringent limits on the use of corroborative evidence. The Court described two strands of reliability which would justify admissibility: (1) procedural reliability (where adequate substitutes for testing the evidence exist such as a video recording, the presence of an oath, and a warning about lying); and (2) substantive reliability (where the statement is inherently trustworthy).

[11] As explained by Karakatsanis J., at para. 30, where substantive reliability is in dispute, “the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement”. At para. 31, Karakatsanis J. described the substantive reliability standard in the following way:

While the standard for substantive reliability is high, guarantee "as the word is used in the phrase 'circumstantial guarantee of trustworthiness', does not require that reliability be established with absolute certainty" (Smith, at p. 930). Rather, the trial judge must be satisfied that the statement is "so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process" (Khelawon, at para. 49). The level of certainty required has been articulated in different ways throughout this Court's jurisprudence. Substantive reliability is established when the statement "is made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken" (Smith, at p. 933); “under such circumstances that even a sceptical caution would look upon it as trustworthy” (Khelawon, at para. 62, citing Wigmore, at p. 154); when the statement is so reliable that it is “unlikely to change under cross-examination" (Khelawon, at para. 107; Smith, at p. 937); when "there is no real concern about whether the statement is true or not because of the circumstances in which it came about" (Khelawon, at para. 62); when the only likely explanation is that the statement is true (U. (F.J.), at para. 40).

[12] At para. 40, Karakatsanis J. added that “substantive reliability is concerned with whether the circumstances, and any corroborative evidence, provide a rational basis to reject alternative explanations for the statement, other than the declarant’s truthfulness or accuracy”.

[13] Turning to the use of corroborative evidence, Karakatsanis J., at para. 57, directed that in deciding whether corroborative evidence was of assistance in the substantive reliability analysis, a trial judge should:

Identify the material aspects of the hearsay statement that are tendered for their truth;
Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case;
Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; and
Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.

[14] Finally, in R. v. Larue, 2018 YKCA 9, 47 C.R. (7th) 133, aff’d 2019 SCC 25, a majority of the Yukon Territory Court of Appeal held that the Khelawon principles continued to govern the principled approach, post-Bradshaw. On appeal to the Supreme Court of Canada, the majority verdict was upheld in a brief endorsement.

THE STATEMENTS

[15] Here, Ms. Simone submits that since the proposed utterances are those of the deceased, necessity should not be an issue. She asserts that threshold reliability is met through a combination of the circumstances surrounding the making of the statements and confirmatory evidence.

[16] Ms. McCabe-Lokos, on behalf of Mr. Obregon Castro, accepts that the necessity requirement of the hearsay test is met. However, she argues that the hearsay utterances are not sufficiently reliable to be admitted for their truth.

[17] I deal with each of the utterances individually.

1. Bryn Elliott - Mr. Obregon Castro’s Anger Towards the Deceased

The Utterances

[18] Two or three days before her death, the deceased told Bryn Elliott, her sister, that Mr. Obregon Castro had come to her apartment demanding to charge his phone. She denied his request because there was another man inside the apartment. The deceased told Bryn that Mr. Obregon Castro was trying to hide from the police and that when she refused him entry he “got really mad at her”.

[19] From Bryn’s evidence, the two sisters had always been close. According to Bryn, even though the deceased was “going through a harder time” their relationship did not change, and the deceased was always there for her.

The Admissibility of the Utterances

[20] Ms. Simone seeks to tender this evidence under the traditional exception of “state of mind” as well as under the principled exception. I agree with McCabe-Lokos that the “state of mind” exception is inapplicable as the statement sought to be admitted is a description of facts rather than any mental element displayed by the deceased.

[21] However, I find this utterance to be reliable under the principled exception. The relationship between Bryn and the deceased was, as Bryn described it, “really good and close”. There is no evidence that the deceased had lied on prior occasions to Bryn. Although Ms. McCabe-Lokos points out that there that the deceased concealed matters from Bryn which were later discovered, that is a different matter from informing her of facts that were untrue. Moreover, there was no motive for the deceased to fabricate this account.

[22] None of the information sought to be led appears to be initiated or provoked by Bryn and there was no reason for the deceased to invent such a story.

[23] Nor do I find there to be any conflicting evidence. The gist of the utterance, and the reason that the Crown wishes to lead the evidence, is to demonstrate Mr. Obregon Castro’s animus towards the deceased shortly before her death.

[24] Ms. Simone also relies on the corroborative evidence of Mr. Obregon Castro’s phone conversation with Wolfgang Genereux, one of Mr. Obregon Castro’s friends, who also knew the deceased and Bryn Elliott. That conversation conducted over speakerphone, was overheard by Bryn Elliott. Mr. Obregon Castro told Mr. Genereux that the deceased was a “bitch” and that if she was seeking refuge from the police, he would have hidden her. Mr. Obregon Castro also predicted that no one would ever go to the deceased’s apartment and that she was going to be “alone”, something the deceased did not enjoy. He also exclaimed “fuck her” and warned that “she’d better fucking watch her back”.

[25] Applying the Bradshaw criteria, and for the following reasons, I find that this phone conversation may be used as corroborative evidence to support substantive reliability.

[26] The material aspect of the deceased’s statement is Mr. Obregon Castro’s anger towards the deceased very close in time to her death. Obviously, as hearsay, the deceased cannot be cross-examined for the truth of its contents. However, as I have already indicated, it is hard to understand why the deceased would feel the need to fabricate to her sister much less invent a story about not letting Mr. Obregon Castro hide out at her apartment as the reason for his acrimony towards her.

[27] On the other hand, the phone conversation confirms Mr. Obregon Castro’s hostility towards the deceased. His purported reference to letting her “hide out” if she was seeking refuge from the police correlates with the account given by the deceased.

[28] I find that the phone conversation rules out any alternative scenarios which might explain the deceased’s comments to her sister and leaves as the only likely explanation that the deceased’s utterances to Bryn are accurate.

[29] For these reasons, the utterance is admissible.

2. Text Messages to Wolfgang Genereux

The Utterances

[30] The deceased sent a series of text messages to Wolfgang Genereux, who was close friends with both Mr. Obregon Castro and the deceased. Ms. Simone seeks admission of messages sent to Mr. Genereux’s mobile phone directed not only to him but also Mr. Obregon Castro using his nickname, “Nica”.

[31] These messages describe Mr. Obregon Castro showing up at her residence unannounced, demanding to charge his phone and her refusal to allow him to do so. The deceased also tells Mr. Genereux that she told Mr. Obregon Castro not to take her keys because she has a dog.

[32] The Crown seeks these messages to support their argument of Mr. Obregon Castro’s animus towards the deceased and the fact that Mr. Obregon Castro was in possession of her apartment door key on the date of her death.

[33] Ms. McCabe Lokos argues that these utterances do not fall within the traditional exceptions of state of mind or present intention. I have already ruled that the deceased’s recounting of Mr. Obregon Castro’s attendance at her apartment was a recounting of facts rather than an expression of state of mind. I take the same view of the deceased’s comments about her key. The Crown’s purpose in seeking to lead those text messages lies in demonstrating that Mr. Obregon Castro had the deceased’s key rather than the fact that the deceased believed this to be the case.

[34] However, I find that both sets of statements are reliable and admissible under the principled approach.

[35] The text messages are sent as requests and complaints to Mr. Genereux. However, certain texts are addressed directly to “Nica”: the deceased accuses Mr. Obregon Castro of attending at her apartment and taking her key without permission. There would be no reason to lie to Mr. Obregon Castro or Mr. Genereux, her close friend of 10 years, about these topics especially when the accusations are directed at them. In other words, the circumstances are such that there is little reason to doubt the truthfulness of the deceased’s messages. Nor can I think of any alternative scenarios that would rationally explain the deceased’s comments.

[36] Ms. McCabe-Lokos submits that Mr. Genereux’s failure to acknowledge receiving the texts or recalling their contents casts doubt on the circumstantial guarantees of trustworthiness. This is a red herring. It may well be that Mr. Genereux has a motive to protect Mr. Obregon Castro or that he has truly forgotten about the communications. However, the messages exist. Whatever Mr. Genereux’s motivations, his failure to identify the messages does not change the fact that the deceased wrote and sent them and had no reason to fabricate them.

[37] I have already cited the fact that I see no motive for the deceased to falsify the claims contained in the texts. It may well be that one explanation is that Mr. Obregon Castro borrowed her keys without her permission but returned them afterwards and the deceased is simply complaining after the fact.

[38] However, Ms. Simone also points to another conversation: Ms. Lopez-Iglesias’s exchange with Hailey Staffa where Ms. Lopez-Iglesias reveals that Mr. Obregon Castro had, unbeknownst to the deceased, made a key to her apartment. This, along with the deceased’s utterances to her property supervisor that someone had her key and she wanted to have her locks changed (overheard by John Davidson) and Debbie Bodhaine’s evidence that the deceased told her that she had been robbed of keys, rule out any explanation other than Mr. Obregon Castro had taken the deceased’s keys without her consent.

[39] Ms. Lopez-Iglesias’s statement to Ms. Staffa provides corroborative evidence in line with the principles in Bradshaw. Any alternative explanations for the deceased’s utterances are eliminated by Ms. Lopez-Iglesias’s conversation with Ms. Staffa.

[40] Mr. Obregon Castro’s possession of the key is highly probative evidence providing a means by which he and Ms. Lopez-Iglesias entered the apartment when the door was locked.

[41] For these reasons, I find the text messages to be admissible.

3. The Utterances to Noble Selby

[42] Mr. Selby testified at preliminary inquiry that the deceased had shown him Mr. Obregon Castro’s Instagram account and that she believed Mr. Obregon Castro might have stolen her key. Mr. Selby added that when giving him this information the deceased looked nervous.

[43] The Crown seeks to tender this statement as reflecting the deceased’s state of mind and under the principled exception. However, I find that the utterances to Mr. Selby fails to meet the threshold of either footing for admissibility.

[44] Although it is conceivable that the utterance might fall into the state of mind category it is unclear what relevance the deceased’s belief that Mr. Obregon Castro “might” have stolen her key has to the allegations against him. The utterance becomes relevant to prove Mr. Obregon Castro’s possession of the key.

[45] That being the case, if the words are being tendered for their truth, the utterances are only admissible if they satisfy the principled approach. However, as Ms. McCabe-Lokos points out, the circumstantial guarantees of trustworthiness are significantly undermined in Mr. Selby’s case: the deceased had clearly lied to him about Mr. Obregon Castro on previous occasions.

[46] For example, the deceased was untruthful about sleeping with Mr. Obregon Castro. She also lied to Mr. Selby about the truthfulness of the rumours of her infidelity, whether she was exchanging provocative comments with Ms. Lopez-Iglesias on Instagram, and whether she was trying to appease Ms. Lopez-Iglesias or confront her.

[47] There is also motive for the deceased to be less than honest with Mr. Selby: he was her boyfriend whilst she was involved with Mr. Obregon Castro. In short, there was sufficient reason for her to invent a story about the key in light of her previous falsehoods concerning Mr. Obregon Castro.

[48] Although I acknowledge Ms. Simone’s point that there is evidence that corroborates the utterances about the key, I find the circumstances surrounding the statements to Mr. Selby renders them unreliable. As I am required to look at each utterance in isolation, and acknowledging that this is a close call, I err on the side of caution and decline to admit the remarks made to Mr. Selby.

[49] I place one caveat on this ruling: if it is alleged that the utterances made to others about the key are untrue because the deceased had no such conversations with Mr. Selby, the Crown will be allowed to lead evidence to the contrary. However, if either the Crown or defence decide to pursue this avenue, they must raise it with me before doing so.

4. The Utterance Overheard by John Davidson

[50] On 21 May 2018, John Davidson, a resident of 70 Spadina Road, overheard the deceased speaking to the building superintendent saying that someone she knew and did not like had the keys to her apartment and she wanted her locks changed. This conversation took place on the same day that shots had been fired at the deceased’s balcony.

[51] Ms. McCabe-Lokos concedes that this utterance may qualify for admission under the state of mind exception. However, she argues that the statement is not relevant to any issue at trial. I disagree. The utterances show the state of relationship between the deceased and the person who took her keys, alleged to be Mr. Obregon Castro, as well as demonstrating that the deceased was fearful that this person would break into her apartment if the locks were not changed.

[52] I also find that the utterances are admissible under the principled exception to hearsay. The essence of the statement is that someone had taken the deceased’s key without her consent. There was no motive for the deceased to lie.

[53] Although the defence argue that these utterances do not constitute strong evidence that “the person” referred to was Mr. Obregon Castro, there is no requirement that the utterances directly implicate him. If the jury accepts that the person to whom the deceased is referring is Mr. Obregon Castro, the utterances form part of a body of circumstantial evidence showing Mr. Obregon Castro had obtained the deceased’s key.

[54] Although there is evidence that the deceased may have lost her keys on prior occasions, I cannot accept, as the defence suggests, that she would need to invent the account given to the building superintendent. If the defence is suggesting that the deceased was lying to provide an “acceptable” excuse for losing her keys, it is hard to understand how a further request to change her locks would somehow be more “acceptable” for the superintendent. Nor do I take much from the fact that the deceased had told her father that she had lost her keys on earlier occasions to impact on the statement overheard by Mr. Davidson.

[55] I also repeat my earlier comments regarding the corroborative value of Ms. Lopez-Iglesias’s comments to Hailey Staffa.

[56] As I have already noted, the probative value of the evidence of the missing or stolen keys is in demonstrating that someone had taken the deceased’s key without her permission and that she was fearful of that person entering the apartment. It would be open to the Crown to use this evidence as supporting its position that Mr. Obregon Castro had the key and entered the locked apartment on 23 May 2018. I see very little prejudicial effect in admitting the evidence. I find the utterance admissible.

5. The Request to Debbie Bhodaine

[57] Ms. Bhodaine was the property manager responsible for 70 Spadina Avenue. On 23 May 2018, the deceased entered her office and informed her that she had been robbed of her keys and her purse. The deceased wanted to know if Ms. Bhodaine could provide her with keys to re-enter her apartment.

[58] My comments in relation to the utterance overheard by John Davidson apply equally to this utterance. I find no reason for the deceased to lie or concoct an account of having her keys stolen from her — the material part of the utterance. I would also find corroborative evidence in the form of Ms. Lopez-Iglesias’s statement to Ms. Staffa.

[59] This evidence, as with the other utterances referencing the keys is highly probative of identity, planning and means to commit the murder and has no prejudicial effect. It is accordingly admissible.

6. The Utterance to Michael Grant

[60] The Crown seeks to lead utterances from Michael Grant, one of the deceased’s friends, about the shooting at the deceased’s balcony on 21 May 2018. However, it would appear that at the preliminary inquiry Mr. Grant confirmed that it was Mr. Selby who had told him about the shooting and not the deceased.

[61] A second utterance sought to be led by the Crown arises out of the events of the killing itself. When the intruders entered the apartment, Mr. Grant heard someone say “Nica, cut it”. However, at the preliminary inquiry he could not say whether it was the deceased or Mr. Selby who actually uttered these words.

[62] Since it is unclear who the declarant was, I find these hearsay utterances inadmissible.

S.A.Q. Akhtar J.

Released: 30 October 2020

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

DATE: 20201030

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 6645

Case Summary

RULING #3 - ADMISSIBILITY OF ANTE MORTEM STATEMENTS

MADE BY ABBEGAIL ELLIOTT

FACTUAL BACKGROUND AND OVERVIEW

LEGAL PRINCIPLES

THE STATEMENTS

1. Bryn Elliott - Mr. Obregon Castro’s Anger Towards the Deceased

The Utterances

The Admissibility of the Utterances

2. Text Messages to Wolfgang Genereux

The Utterances

3. The Utterances to Noble Selby

4. The Utterance Overheard by John Davidson

5. The Request to Debbie Bhodaine

6. The Utterance to Michael Grant

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2