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

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 #4 - DEFENCE APPLICATION TO EXCLUDE MS. LOPEZ-IGLESIAS’ UTTERANCES & RULING #5 - ADMISSIBILITY OF TEXT MESSAGES

Introduction

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

[2] The Crown alleges that on 23 May 2018, both accused entered the deceased’s apartment and stabbed her to death as a result of vendetta that had, as one of its origins, Mr. Obregon Castro’s romantic entanglement with the deceased and Ms. Lopez-Iglesias.

[3] The Crown intends to lead conversations between Ms. Lopez-Iglesias and one of her friends, Hailey Staffa, describing events leading up to the murder. In addition, the Crown seeks to adduce text messages between Ms. Lopez-Iglesias and two of her friends, Davonte Allen and Wolfgang Genereux.

[4] Ms. McCabe-Lokos, on behalf of Mr. Obregon Castro, objects to the admission of the evidence. She argues that Ms. Lopez-Iglesias’ utterances to Ms. Staffa are prejudicial because they are out-of-court statements that have the effect of incriminating him. Ms. McCabe-Lokos further argues that the text messages which are purportedly between Ms. Lopez-Iglesias, Mr. Allen and Mr. Genereux have not been authenticated and therefore fall foul of the requirements of s. 31 of the Canada Evidence Act.

[5] At the conclusion of argument, I ruled that the utterances and the text messages were admissible, with reasons to follow.

RULING #4 - DEFENCE APPLICATION TO EXCLUDE MS. LOPEZ-IGLESIAS’ UTTERANCES

The Utterances to Ms. Staffa

[6] The controversial evidence arises out of the contents of a 17 minute phone call where Ms. Lopez-Iglesias told Ms. Staffa:

• Details of the fight that occurred between Ms. Lopez-Iglesias and Ms. Elliott
• Made comments that Ms. Elliott had slept with the father of Ms. Lopez-Iglesias’ child
• Discussed a robbery of Ms. Elliott’s apartment

[7] At the preliminary inquiry, Ms. Staffa testified that Ms. Lopez-Iglesias had told her:

• “[H]er man had made a key to Abbe’s apartment, because he had been there so many times, and that it was like a trap house”.
• “[H]er man” had not told Ms. Elliott that he had made a key, that she was not aware
• “They” were going to wait and go into the apartment and that SLI wanted Elliott’s MacBook.
• It was going to be “her and her boys” who would go back to the apartment.
• “They” would fuck Elliott up one last time.
• “Other people” would assist them breaking and entering the apartment.
• “They” would beat up or “fuck up” Abbe badly, and that Mr. Wonderful was also going to get beat up as well.
• “He” [her man] would be partaking in the break in
• “They” would break in when “she” least expects it

The Common Enterprise Rule

[8] At the outset of the argument, I dealt with a preliminary issue raised by counsel: whether these utterances could qualify as statements admissible under the common enterprise rule set out in R. v. Carter, 1982 CanLII 35 (SCC), [1982] 1 S.C.R. 938 and R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358.

[9] In my view, there was no need to deal with this issue because if Ms. McCabe-Lokos is correct and Ms. Lopez-Iglesias’ utterances are more prejudicial than probative, it is irrelevant that they might qualify as statements made in the further of a common unlawful enterprise. I also agree with Ms. Simone, Crown counsel, that this matter is more appropriately dealt with at the conclusion of the evidence so that all the circumstances emerging from the evidence may be considered: R. v. Chang (2003), 2003 CanLII 29135 (ON CA), 173 C.C.C. (3d) 397, 170 O.A.C. 37 (C.A.), at para. 132.

Are the Statements Admissible?

[10] There is no doubt that these statements are admissible against Ms. Lopez-Iglesias as their maker. Moreover, counsel for Ms. Lopez-Iglesias have indicated their support for the Crown’s introduction of these statements in their case. The question for the court is whether their probative value outweighs their prejudicial effect taking into account the potential impact on Mr. Obregon Castro.

[11] The probative value of the evidence is clear: the statements show that Ms. Lopez-Iglesias and “her man” — whom the Crown alleges to be Mr. Obregon Castro — had pre-planned the entry into Ms. Elliott’s apartment on 23 May 2018, and were going there to inflict harm. These utterances are directly relevant to the question of identity, motive and planning.

[12] The potential prejudice arises from the jury’s potential use of the statements — admissible only against Ms. Lopez-Iglesias — as evidence that Mr. Obregon Castro committed the crime. However, the jury will be given mid-trial and final instructions in relation to the use they can make of the evidence. As noted in the leading case of R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 SCR 670, at pp. 694-695:

In the joint trial of the co-accused, the confession of one accused is admissible against that accused only, and the jury must be instructed that such evidence cannot be taken into account in determining the guilt of the co-accused. See, e.g., Schmidt v. The King, 1945 CanLII 4 (SCC), [1945] S.C.R. 438, at p. 439; R. v. Rudd (1948), 32 Cr. App. R. 138 (C.C.A.); and R. v. Lane and Ross (1969), 1969 CanLII 545 (ON SC), 6 C.R.N.S. 273 (Ont. S.C.), where Addy J. stated as follows, at p. 279:

I feel that it is quite possible, as has been done in many cases in the past, to explain clearly to the jury, in such a way that they will govern themselves in accordance with the directions of the Judge, that the confession of one accused in a joint trial is not evidence against his co-accused. The danger of a miscarriage of justice clearly exists and must be taken into account but, on the other hand, I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completely devoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it. If such were the case there would be no justification at all for the existence of juries, and what has been regarded for centuries as a bulwark of our democratic system and a guarantee of our basic freedoms under the law would in fact be nothing less than a delusion.

[13] Thus, juries are presumed to follow instructions. Those instructions will eliminate any misuse by the jury of the utterances. (See also: R. v. Abdulle, 2020 ONCA 106, at para. 118; R. v. Suzack, (2000), 2000 CanLII 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.) at para. 114.)

[14] I would also add that exclusion of the evidence from the Crown’s case might potentially cause other problems. For example, if the utterances are declared inadmissible, and Ms. Lopez-Iglesias chooses to testify in her own defence, it is more than likely she will repeat the utterances the Crown seeks to lead. Counsel for Ms. Lopez-Iglesias have indicated that if that happens, they will apply to have the excluded utterances admitted to potentially rebut any allegation that Ms. Lopez-Iglesias is fabricating her evidence on the witness stand. If successful, the re-introduction of the statements will prove far more damaging to Mr. Obregon Castro and might lead to speculation in the minds of the jury as to why the utterances had been concealed from them.

[15] For these reasons, the utterances are admissible.

RULING #5 - ADMISSIBILITY OF TEXT MESSAGES

The Substance of the Text Messages

[16] On 25 May 2018, police seized Ms. Lopez-Iglesias’s mobile phone and extracted a number of text messages sent to phones belonging to Wolfgang Genereux and Davonte Allen, both of whom were close friends of Mr. Obregon Castro and Ms. Lopez-Iglesias.

[17] Ms. Simone alleges that some of the messages sent by Ms. Lopez-Iglesias to these phones were directed to Mr. Obregon Castro using his nickname of “Nica” and were sent before and after the deceased was killed. The Crown further alleges that some of these messages refer to Abbegail Elliott’s murder. For example, on 24 May 2018, at 2:23 a.m., Ms. Lopez-Iglesias texted Mr. Allen’s mobile phone writing to “Nica” demanding that he not leave her after “everything that went down today” and promises not to “set him up”. She added that she did not want to be “alone” and they were “supposed to be a team”.

[18] There is evidence that after the killing Ms. Lopez-Iglesias contacted Mr. Allen about getting a SIM card or phone for Mr. Obregon Castro because he did not want to put his chip in her phone “for obvious reasons”.

[19] At preliminary inquiry, Mr. Genereux and Mr. Allen acknowledged ownership of the mobile numbers used in the May 2018 text messages. However, neither of them recognised or recalled the texts. They also testified that they had not lent their phones to anyone.

[20] The Crown’s position is that both Mr. Genereux and Mr. Allen are not being truthful about the text messages and protecting Mr. Obregon Castro.

[21] Ms. Simone argues that the text messages are admissible against Ms. Lopez-Iglesias as utterances which are admissions against interest. She also contends that circumstantial evidence demonstrates that the messages were written to Mr. Obregon Castro and he responded to them.

[22] Ms. McCabe-Lokos, on the other hand, argues that even though there may be evidence that Mr. Obregon Castro wrote some of the texts, it is impossible to determine, with any specificity, which texts were written by him, and where his texts begin and end. She further submits that, notwithstanding these difficulties, the text messages are inadmissible because they have not been authenticated as neither Mr. Allen nor Mr. Genereux identified themselves as the authors.

The Decision in C.B.

[23] The question of authentication of electronic communication arose in R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, where two appellants had been convicted of assault, sexual assault and unlawful confinement. The substance of the allegations was that two young girls were invited to the appellants’ home, offered alcohol and marihuana, tied down, and sexually assaulted.

[24] At trial, the defence confronted one of the complainants with text messages sent from her phone and extracted by a private investigator. The texts were sent contemporaneously with the alleged assaults and belied any wrongdoing. The messages contained jokes about sex and significantly undermined the complainant’s allegations of assault. Even though the complainant agreed that the mobile number used to send the texts was hers, she could not recall sending the messages and denied doing so because the style in which the texts were written did not reflect the way she would converse with others. The trial judge held that the text messages had no probative value because they had not been authenticated.

[25] The Court of Appeal for Ontario held that to be an error and ordered a new trial. The court found that the admissibility of text messages as electronic communications is governed by s. 31.1 of the Canada Evidence Act which placed an onus on the party seeking to adduce the documents to prove their authenticity.

[26] The court found the threshold of proof to be low and could be met through direct and circumstantial evidence. One example given was the “reply letter” doctrine: authentication could take place by showing that a party replied to a text sent to them or linking the phones to sender and recipient: C.B., at paras. 68-9.

[27] In C.B. authentication was established when the complainant agreed that the number used to send the messages belonged to her and when she explained the meaning of one of the texts sent from that phone.

The Text Messages are Authenticated

[28] Applying C.B. in this case, I find that the Crown has the following direct and circumstantial evidence available to it:

• The phone used to send the messages was seized from Ms. Lopez-Iglesias by the police
• The numbers to which she sends the messages belong to Mr. Allen and Mr. Genereux
• Ms. Lopez-Iglesias addresses her messages to her recipients by using their nicknames including “Nica” and “Wolf” and receives responses
• The recipients of Ms. Lopez-Iglesias’ messages refer to events pertaining to the recipients, for example Mr. Allen’s losing his job and Mr. Genereux’s mother having moved. These events were confirmed by Mr. Allen and Mr. Genereux at the preliminary inquiry

[29] Contrary to Mr. Obregon Castro’s assertion, C.B. does not stand for the proposition that authentication only occurs when the recipient agrees the sending or receipt of some of the messages contained in the phone. As made clear by the court in para. 68:

To satisfy this modest threshold for authentication, whether at common law or under s. 31.1 of the CEA, the proponent may adduce and rely upon direct and circumstantial evidence. Section 31.1 does not limit how or by what means the threshold may be met. Its only requirement is that the evidence be capable of supporting a finding that the electronic document “is that which it is purported to be.”

[30] The evidence outlined above is more than sufficient to overcome the modest threshold required for authentication.

[31] The texts are obviously probative of several issues in this case including identity. The question of the texts’ reliability including the question of who was engaged in the conversation initiated and continued by Ms. Lopez-Iglesias is a matter for the jury.

[32] For these reasons, the texts are admissible.

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.