Court File No.: CR-19-10000694-0000 Date: 2022-02-15 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – David Obregon Castro and Sarai Lopez-Iglesias

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

Before: S.A.Q. Akhtar J.

Ruling on Co-Accused Prior Discreditable Conduct

Introduction

[1] David Obregon Castro and Sarai Lopez-Iglesias were charged with the First Degree Murder of Abbegail Elliott.

[2] As part of the pre-trial motions, I permitted Ms. Lopez-Iglesias to adduce evidence of Mr. Obregon Castro’s bad character as part of her defence during the Crown’s case. At the conclusion of the prosecution evidence, Ms. Lopez-Iglesias brought a secondary application to adduce further evidence of Mr. Obregon Castro’s prior discreditable conduct to be adduced when she testified.

[3] At the conclusion of submissions, I provided oral reasons for the items of evidence that could be adduced, as well as those that could not. These are my detailed reasons.

Background Facts

[4] Mr. Obregon Castro and Ms. Lopez-Iglesias entered Ms. Elliott’s apartment on Spadina Road on 23 May 2018. The Crown alleged that Mr. Obregon Castro was armed with a gun and Ms. Lopez-Iglesias carried a knife. The Crown’s case was that prior to their entry both had planned and deliberated Ms. Elliott’s murder and carried out that plan when Ms. Lopez-Iglesias stabbed Ms. Elliott whilst Mr. Obregon Castro held the other occupants at gunpoint.

[5] A more fulsome review of the Crown’s allegations can be found in the following judgment: R. v. Obregon Castro, 2020 ONSC 6595, at paras. 4-13.

[6] At the outset, it quickly became apparent that both accused would mount defences which placed responsibility for Ms. Elliott’s death on the other. Accordingly, both argue for the admission of each other’s prior discreditable conduct.

Legal Principles

[7] Whilst the Crown is not permitted to call evidence of bad character unless its probative value outweighs its prejudicial effect, the situation is somewhat different when a co-accused seeks to use the same type of evidence.

[8] In R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 111, leave to appeal refused, [2000] S.C.C.A. No. 538, the Court explained this principle in the following way:

Where accused are tried jointly, each is entitled to the constitutional protections inherent in the right to a fair trial. Those protections include the right to make full answer and defence and the right to be shielded from evidence which unfairly prejudices an accused. 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: R. v. Crawford, supra, at p. 497-98; R. v. Pelletier (1986), 1986 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.). In joint trials, one accused may elicit evidence or make submissions in support of his defence that are prejudicial to the other accused and could not have been elicited or made by the Crown. In those cases, the respective rights of each accused must be balanced by the trial judge so as to preserve the overall fairness of the trial.

[9] Since evidence adduced by a co-accused carries the same risk of misuse as when adduced by the Crown, its prejudicial impact may outweigh its probative value: R. v. Pollock (2004), 2004 16082 (ON CA), 187 C.C.C. (3d) 213 (Ont. C.A.), at para. 105, leave to appeal refused, [2004] S.C.C.A. No. 405. Thus a court must apply a close scrutiny to the evidence that is the subject of such an application. The party seeking to introduce it must provide a basis for doing so, and cannot simply advance the argument that the evidence is necessary and/or relevant: Pollock, at para. 106; R. v. Sheriffe, 2015 ONCA 880, 333 C.C.C. (3d) 330, at para. 66, leave to appeal refused, [2016] S.C.C.A. No. 299.

[10] A trial judge must engage in a balancing exercise to ensure that the accused seeking the admission of the evidence does not unfairly prejudice their co-accused: Pollock, at para. 108. 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. As the evidence sought to be led is being introduced by the defence, the test for admission is whether any probative value of the evidence is substantially outweighed by its prejudicial effect: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577; Pollock, at para. 110.

[11] As well, the judge is required to properly instruct the jury on the appropriate use of the evidence and also instruct on what the evidence cannot be used for: Suzack, at paras. 127-8; Pollock, at para. 109; Sheriffe, at para. 54.

Evidence of Mr. Obregon Castro’s Prior Discreditable Conduct

The Basis for Admission

[12] Ms. Lopez-Iglesias advances the following three bases for the admission of Mr. Obregon Castro’s prior discreditable conduct:

1. To demonstrate her fear of Mr. Obregon Castro and explain why she went to Ms. Elliott’s apartment
2. As evidence of Mr. Obregon Castro’s propensity to commit the crime
3. To attack and diminish Mr. Obregon Castro’s credibility when he testifies

[13] One of the key issues in this case is Ms. Lopez-Iglesias’s presence at Ms. Elliott’s apartment some two days after the pair fought in the parking lot of Ms. Elliott’s apartment building. The Crown alleges that both accused went to the residence as part of a pre-meditated plan to kill Ms. Elliott. According to the Crown, Ms. Lopez-Iglesias was enraged not only as a result of being beaten in the fight by Ms. Elliott and her boyfriend, Noble Selby, but also because she knew that Ms. Elliott had slept with Mr. Obregon Castro whilst she was out of the country on vacation.

[14] In the wake of these events, the Crown alleges that there would be little reason for Ms. Lopez-Iglesias to go to Ms. Elliott’s apartment except to carry out the plan.

[15] Ms. Lopez-Iglesias intends to testify that she was forced to accompany Mr. Obregon Castro when he went to the apartment to retrieve his belongings and steal items from Ms. Elliott and Mr. Selby. Ms. Lopez-Iglesias will testify that she felt she had no choice but to comply with his instructions out of fear for any harmful consequences that might ensue if she refused.

[16] I agree with Ms. Lopez-Iglesias that many of the items of evidence she seeks to adduce are highly probative of her state of mind.

[17] In R. v. Earhart, 2010 ONCA 874, 272 C.C.C. (3d) 475, leave to appeal refused, [2011] S.C.C.A. No. 397, where the accused was charged with first degree murder, the trial judge admitted evidence of his bad character including assaultive behaviour, threats to others, possession of weapons and claims that he had previously killed someone. The evidence was introduced by a co-accused to explain that he acted under duress out of fear of his co-accused. The judge also held that the evidence was relevant in explaining why a scared defence witness provided contradictory statements to the police. The Court of Appeal held that the evidence was properly admitted.

[18] Here, the evidence, if believed, would provide a response to the Crown’s assertions that Ms. Lopez-Iglesias had no reason to be at Ms. Elliott’s apartment and only went as part of a pre-planned excursion to cause harm. It would also explain why she made contradictory statements to the police if cross-examined by the Crown or Mr. Obregon Castro.

[19] It is also clear that some of the evidence is admissible to show propensity. In a so called “cutthroat” defence scenario, as is the case here, either party may call evidence of prior discreditable conduct to show that the other accused was more likely to have committed the offence: Suzack, at para. 111; Earhart, at para. 73; Sheriffe, at para. 65.

[20] Both accused allege that the other was responsible for stabbing Ms. Elliott. Accordingly, Ms. Lopez-Iglesias must be allowed to adduce evidence showing that as between the two Mr. Obregon Castro was the more likely to have committed the offence.

[21] Finally, the same evidence can also be adduced to attack Mr. Obregon Castro’s credibility: Sheriffe, at paras. 78-79.

[22] I will deal with each item of evidence sought to be adduced separately.

[23] I find the following evidence, with some qualifications, to be admissible.

The Z Bar Incident

[24] On 11 May 2018, Mr. Obregon Castro became involved in a dispute at the Z Bar which culminated in his shooting a man in the leg. He contacted Ms. Lopez-Iglesias to get some of his belongings from his home and when she drove past the bar she noticed a police presence. The next day, Mr. Obregon Castro explained that he had given a man a leg warmer - a euphemism for shooting someone in the leg - because he had disrespected him.

[25] I find this evidence relevant to the issue of Ms. Lopez-Iglesias’s state of mind, her fear of Mr. Obregon Castro as well as constituting evidence that demonstrates propensity to commit the offence within the parameters described earlier.

[26] The effect of this ruling also impacts on my previous ruling that Ms. Elliott’s sister, Bryn, could not testify about overhearing comments made by Mr. Obregon Castro telling Wolfgang Genereux that he “was on the run” from police and that Ms. Elliott had refused his entry into her apartment. This utterance can be used by Ms. Lopez-Iglesias to demonstrate that Mr. Obregon Castro had a motive to kill Ms. Elliott and was the more likely culprit who caused her death.

[27] Secondly, the “on the run” comments can be used by the Crown to demonstrate Mr. Obregon Castro’s animosity and motive to harm Ms. Elliott.

[28] My previous ruling that the Crown could not use this evidence - because its probative value was outweighed by its prejudicial effect - no longer stands. During Michael Grant’s testimony, Mr. Obregon Castro’s counsel adduced evidence that in Mr. Grant’s view, Ms. Elliott and Mr. Obregon Castro were “good friends”. Fairness requires that the Crown must be allowed to rebut this suggestion by using evidence that in and around the time of Ms. Elliott’s death, Mr. Obregon Castro was angry with Ms. Elliott and was sufficiently enraged to want to harm her.

The Attack on “Chips”

[29] Shortly prior to Ms. Elliott’s death, Mr. Obregon Castro assaulted “Chips”, one of his friends, because he was jealous of his relationship with Ms. Lopez-Iglesias. On the day of the assault, Mr. Obregon Castro attended Ms. Lopez-Iglesias’s home accusing her of being unfaithful with Chips, and instructing her that she had “better go check on your little friend. He might be dead”. When Ms. Lopez-Iglesias went to her car to drive to Chips’ home, she found her tyres had been punctured.

[30] After she arrived at Chips’ home, Ms. Lopez-Iglesias found him to be badly wounded having been stabbed a number of times. She called for medical attention. When questioned by police, Ms. Lopez-Iglesias did not identify Mr. Obregon Castro as the assailant. The next day, Ms. Lopez-Iglesias was summoned to speak with Mr. Obregon Castro by one of his associates. When Ms. Lopez-Iglesias attended, Mr. Obregon Castro admitted that he had stabbed Chips and that he loved her. Ms. Lopez-Iglesias recorded this conversation.

[31] Following the Chips incident, Ms. Lopez-Iglesias anonymously reported Mr. Obregon Castro to the police using the Crime Stoppers tip line.

[32] I found this evidence to be admissible on the basis that it demonstrates Ms. Lopez-Iglesias’s state of mind and why she might have feared Mr. Obregon Castro. The Crime Stoppers tip is also evidence that would support her testimony that she wanted to end her relationship with Mr. Obregon Castro. It also is relevant on the question of propensity as described previously.

The Assaults on Ms. Lopez-Iglesias

[33] Ms. Lopez-Iglesias also wishes to testify about assaults she allegedly suffered at Mr. Obregon Castro’s hands.

[34] On one occasion, in and around October 2017, Mr. Obregon Castro found an email in Ms. Lopez-Iglesias’s phone received prior to the commencement of their relationship. He allegedly threw the phone on the ground and punched her in the head. When she tried to leave, he choked her.

[35] In January 2018, Ms. Lopez-Iglesias found messages from an escort in Mr. Obregon Castro’s mobile phone. When she confronted him about this discovery he punched her repeatedly and pinned her to a couch before picking up a butter knife and trying to stab her in the leg. After Ms. Lopez-Iglesias screamed, her mother intervened, removing the knife from Mr. Obregon Castro.

[36] Further, in May 2018, Ms. Lopez-Iglesias alleges that she and Mr. Obregon Castro became involved in an argument over her phone and he punched her, kicked her in the stomach and pointed a gun at her.

[37] I agree that this evidence is admissible as probative in demonstrating Ms. Lopez-Iglesias’s fear of Mr. Obregon Castro and his propensity for violence including the use of a knife as a weapon.

[38] After Ms. Elliott’s death, Mr. Obregon Castro instructed Ms. Lopez-Iglesias to destroy her clothing and shoes and he began hallucinating about a man with a “melting face” trying to enter their apartment. He directed Ms. Lopez-Iglesias to open the door so that he could shoot the man. When she refused, he butted her with his gun before exiting the room and calling on his imaginary attacker to fight him.

[39] Again, I find the assault on Ms. Lopez-Iglesias admissible as evidence of their relationship reflecting Ms. Lopez-Iglesias’s state of mind and fear of Mr. Obregon Castro. This evidence, if accepted, could explain why she complied with his demand that she accompany him to Ms. Elliott’s apartment.

[40] However, I find that the evidence that Mr. Obregon Castro was hallucinating about imaginary assailants after Ms. Elliott’s death to have little probative value which is substantially outweighed by its prejudicial effects. Accordingly, it cannot be adduced.

Gang Membership

[41] Ms. Lopez-Iglesias alleges that Mr. Obregon Castro told her that he belonged to the LA Boys gang and showed her a tattoo which he claimed he had obtained because of his exploits with the gang. Ms. Lopez-Iglesias also claims that she met other gang members through her relationship with Mr. Obregon Castro.

[42] I find this evidence to be admissible on the basis that it would support Ms. Lopez-Iglesias’s testimony that she was afraid of offending Mr. Obregon Castro and would comply with any of his instructions.

[43] However, this evidence is to be limited to Ms. Lopez-Iglesias’s state of mind. The only evidence to be adduced is that Mr. Obregon Castro told Ms. Lopez-Iglesias that he was a gang member and showed her a tattoo purporting to be that of a gang.

[44] Ms. Lopez-Iglesias cannot adduce actual evidence of Mr. Obregon Castro’s membership of the gang or question him of his actual membership. The only suggestion that can be put to Mr. Obregon Castro is that he told Ms. Lopez-Iglesias that he was a gang member. Nor can Ms. Lopez-Iglesias say that she met other gang members or saw Mr. Obregon Castro commit acts in furtherance of any gang activity.

[45] The truth of Mr. Obregon Castro’s gang membership is irrelevant to Ms. Lopez-Iglesias’s defence. What is important is what she knew and what she was told by Mr. Obregon Castro. He is free to deny telling her that he was a gang member.

[46] I also find that the following evidence is inadmissible:

Arson and Attempted Murder

[47] In 2010, Mr. Obregon Castro was charged with attempted murder having been accused of setting a house on fire with five people inside. He was arrested and charged but found not guilty at trial. According to Ms. Lopez-Iglesias he bragged about committing the crime. He allegedly told Ms. Lopez-Iglesias that he had escaped liability because a witness had provided false testimony.

[48] I find this evidence to be of no real probative value but also substantial prejudicial effect. It is remote in time to Ms. Elliott’s death and has little similarity. Although there is arguable probative value in the impact on Ms. Lopez-Iglesias’s state of mind, the prejudicial effect of the evidence substantially outweighs any benefit.

Torturing Snitches

[49] Ms. Lopez-Iglesias also claims that Mr. Obregon Castro told her that he tortured “snitches” as part of his gang activities, describing, on one occasion, burning, cutting and beating a victim in the basement of a tattoo parlour.

[50] I find that this evidence is inadmissible as its probative value is substantially outweighed by its prejudicial effect.

Drug Use and Sexual Assault

[51] Ms. Lopez-Iglesias also alleges that Mr. Obregon Castro pressurised her to take hard drugs and tricked her into consuming heroin by telling her it was an over the counter prescription drug. She alleges that on one occasion, after consuming drugs, she woke up and discovered that Mr. Obregon Castro had had sex with her whilst she was unconscious.

[52] The evidence that Mr. Obregon Castro pressurised Ms. Lopez-Iglesias into using drugs is admissible to show Mr. Obregon Castro’s level of control over Ms. Lopez-Iglesias and to show her state of mind in following his demands. However, the evidence that Mr. Obregon Castro had sex with Ms. Lopez-Iglesias when she was unconscious is inadmissible. I find that this evidence is inadmissible as its probative value is substantially outweighed by its prejudicial effect.

Threats Regarding Kyle Watts

[53] According to Ms. Lopez-Iglesias, Mr. Obregon Castro made threatening comments about the father of her child, Kyle Watts, threatening to kill him. Ms. Lopez-Iglesias would testify that on one occasion when Mr. Watts arrived at Ms. Lopez-Iglesias’s home, he and Mr. Obregon Castro became involved in a verbal dispute and Mr. Obregon Castro pulled out a knife after which Mr. Watts drove away.

[54] I find that this evidence is inadmissible as its probative value is substantially outweighed by its prejudicial effect.

The Plan to Shoot the Cash Man

[55] In May 2018, Mr. Obregon Castro attended a pawn shop, the Cash Man, and engaged in negotiations to buy jewellery. At one point, the owner of the pawn shop became impatient and spoke to Mr. Obregon Castro in a dismissive manner. Mr. Obregon Castro went to his vehicle to retrieve a gun telling Ms. Lopez-Iglesias he was going to shoot the owner. Ms. Lopez-Iglesias persuaded him out of this course of action.

[56] I find that this evidence is inadmissible as its probative value is substantially outweighed by its prejudicial effect.

The Observers at the Preliminary Inquiry

[57] During the course of the preliminary inquiry a number of males entered court as one of the Crown’s witnesses, Michael Grant, gave evidence. Ms. Lopez-Iglesias believes that these males showed up with the purpose of seeking to intimidate Mr. Grant who, as a result of their attendance, ended up testifying remotely.

[58] Ms. Lopez-Iglesias argues that this incident demonstrates that Mr. Obregon Castro was seeking to intimidate Mr. Grant and supports her position that Mr. Grant and Mr. Selby are withholding the truth about what happened on 23 May 2018 because they are scared of Mr. Obregon Castro.

[59] This is the second application by Ms. Lopez-Iglesias to introduce this evidence: see R. v. Obregon Castro, 2020 ONSC 6610, at paras. 53-57. I re-affirm my earlier decision to exclude this evidence on the basis that is both speculative and unhelpful. There is no direct evidence that these witnesses showed up at the behest of Mr. Obregon Castro or that they were trying to intimidate Mr. Grant or any other witness.

[60] For these reasons, I find that the probative value of this evidence is substantially outweighed by its prejudicial effect.

Evidence Sought to be Adduced by Mr. Obregon Castro

[61] As part of his response to Ms. Lopez-Iglesias’s application, Mr. Obregon Castro also seeks to adduce prior discreditable conduct committed by Ms. Lopez-Iglesias. Ms. Lopez-Iglesias agrees that if she is permitted to call evidence of prior discreditable conduct against Mr. Obregon Castro he should be allowed to do the same in his own defence.

[62] I find the following evidence to be admissible.

Evidence of Violence Towards Mr. Obregon Castro

[63] Mr. Obregon Castro wishes to adduce evidence of Ms. Lopez-Iglesias’s conduct during their relationship including her physically aggressive behaviour towards him and self-harm in the form of cutting herself when Mr. Obregon Castro evicted her from his mother’s house when they were co-habiting.

[64] I agree that this evidence is clearly relevant in light of the admissibility of Ms. Lopez-Iglesias’s allegations of violence committed by Mr. Obregon Castro. The evidence clearly goes to the credibility of Ms. Lopez-Iglesias’s allegations and can be used to refute the assertion that she was fearful of him, under his control and wanted to leave him.

Evidence of Ms. Lopez-Iglesias’s Drug Use

[65] Mr. Obregon Castro also wishes to adduce evidence that Ms. Lopez-Iglesias used heroin and sold drugs as a business.

[66] This evidence is admissible to refute Ms. Lopez-Iglesias’s allegations that she was pressurised or tricked into using drugs by Mr. Obregon Castro. Her alleged activities as a drug trafficker may also be used to impact her credibility by Mr. Obregon Castro.

Evidence to Challenge Ms. Lopez-Iglesias’s Credibility

[67] Mr. Obregon Castro seeks to adduce the following evidence;

• Evidence that Ms. Lopez-Iglesias participated in bank frauds with Sonia Baldi
• Evidence that Ms. Lopez-Iglesias sold drugs
• Evidence that Ms. Lopez-Iglesias was arrested whilst on bail on 10 March 2021

[68] I find that this evidence is admissible for challenging Ms. Lopez-Iglesias’s credibility should she testify.

[69] However, I find that evidence that Ms. Lopez-Iglesias participated in trafficking sex workers to be inadmissible as the probative value of this evidence is substantially outweighed by its prejudicial effect.

[70] Finally, I would add that as per Suzack, Pollock and Sheriffe, I will be giving detailed instructions to the jury advising them for what purposes they can and cannot use the evidence. It is worth remembering the words of the court in Suzack, at para. 128, where the court explained:

I do not pretend that there is no risk that the jury would not follow that instruction. Like any limiting instruction, there is a risk that the jury will not abide by it. As long as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to them by the trial judge: R. v. Corbett, supra, at p. 401; R. v. Eng (1999), 1999 BCCA 425, 138 C.C.C. (3d) 188 at 201-202 (B.C.C.A.). That is not to say that in a specific case a trial judge could not decide that the risk of misuse of propensity evidence offered by one co-accused could not be adequately addressed by a limiting instruction. If a trial judge reaches that conclusion, he or she will have no choice but to order severance. It would, however, be wrong for a trial judge to accept as a general proposition that a jury would not or could not abide by a limiting instruction.

[71] I am confident that when told what use it can make of the prior discreditable conduct the jury will be able to follow the limiting instructions I intend to give.

[72] For these reasons, the applications are allowed subject to the qualifications set out in these reasons.

S.A.Q. Akhtar J. Released: 15 February 2022