Court File and Parties

Court File No.: CR-19-10000694-0000 Date: 2022-02-22 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 Renewed Severance Application

[1] David Obregon Castro and Sarai Lopez-Iglesias are charged with the First Degree Murder of Abbegail Elliott in May 2018.

[2] The Crown alleges that both accused planned to kill Ms. Elliott and entered her apartment without warning on 23 May 2018, using a key that Mr. Obregon Castro had previously copied. As Mr. Obregon Castro used a firearm to hold off two of the occupants in the apartment, Michael Grant and Noble Selby, Ms. Lopez-Iglesias stabbed Ms. Elliott. After Mr. Obregon Castro robbed Mr. Selby of a gold chain, both accused fled the apartment.

[3] Counsel for both accused have made it clear that, as part of their defence, they will allege that the other was responsible for Ms. Elliott’s death.

[4] Ms. Lopez-Iglesias filed an application to admit prior discreditable conduct, including prior violent acts, committed by Mr. Obregon Castro as part of the pre-trial motions in this case. She argued the evidence was necessary to answer one of the critical questions posed by the Crown’s case: why did she accompany Mr. Obregon Castro to Ms. Elliott’s apartment?

[5] She claims she did so at Mr. Obregon Castro’s behest because she feared the consequences if she refused. Ms. Lopez-Iglesias also argues that the evidence is admissible to demonstrate that, as between the two accused, Mr. Obregon Castro was the more likely to have murdered Ms. Elliott.

[6] My ruling on this issue is contained in the decision of R. v. Obregon Castro.

[7] Mr. Obregon Castro opposed the admission of the majority of the proposed evidence and brings an application for severance.

[8] A similar pre-trial application was dismissed by Garton J. on 10 November 2020: see R. v. Obregon Castro, 2020 ONSC 6720. However, Mr. Obregon Castro submits a material change in circumstances: Garton J.’s ruling was argued when the issue of Mr. Obregon Castro’s prior discreditable conduct had yet to be decided.

[9] Now that it has, Mr. Obregon Castro argues the evidence to be adduced by Ms. Lopez-Iglesias creates an unfair trial which can only be remedied by holding a separate trial.

[10] At the conclusion of submissions, I informed counsel that the severance application was dismissed with reasons to follow.

Legal Principles

[11] Section 591(3) of the Criminal Code provides that:

(3) The court may, where it is satisfied that the interests of justice so require, order

(a) that the accused or defendant be tried separately on one or more of the counts; and

(b) where there is more than one accused or defendant, that one or more of them be tried separately on one or more of the counts.

[12] In R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16, the Supreme Court of Canada described the balancing exercise to be conducted by the court when determining whether severance is justified:

The ultimate question faced by a trial judge in deciding whether to grant a severance application is whether severance is required in the interests of justice, as per s. 591(3) of the Code. The interests of justice encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner. The obvious risk when counts are tried together is that the evidence admissible on one count will influence the verdict on an unrelated count.

[13] The analysis of “interests of justice” does not equate with “the interests of the accused” but balances the accused’s fair trial rights against society’s interest that justice be done in a reasonably cost-effective manner: R. v. Moore, 2020 ONCA 827, 153 O.R. (3d) 698, at para. 11; R. v. Jeanvenne, 2010 ONCA 706, 261 C.C.C. (3d) 462, at para. 28.

[14] In Last, the Court, at para. 18, identified the following list of factors that govern the analysis on a severance application:

1. General prejudice to the accused
2. Legal and factual nexus between the counts sought to be severed
3. Complexity of the evidence
4. Whether the accused intends to testify on one count but not another
5. The possibility of inconsistent verdicts
6. Use of similar fact evidence at trial
7. Length of trial having regard to the evidence to be called
8. The potential prejudice regarding the right to be tried within a reasonable time
9. The existence of antagonistic defence between co-accused

[15] See also: Jeanvenne, at para. 29; R. v. E.(L.) (1994), 94 C.C.C. (3d) 228 (Ont. C.A.), at p. 238; R. v. Cross (1996), 112 C.C.C. (3d) 410 (Que. C.A.), at p. 419.

[16] The Court made clear that none of these factors on their own was dispositive of the issue of severance.

[17] There is a presumption that jointly charged accused should be tried together and that this presumption “applies with particular force where the co-accused are each alleging that the other is the guilty party”: R. v. Suzack (2000), 141 C.C.C. (3d) 449 (Ont. C.A.), at para. 87, leave to appeal refused, [2000] S.C.C.A. No. 583; R. v. Crawford, [1995] 1 S.C.R. 858, at para. 30. That principle has particular force in this case.

Should Severance Be Granted?

[18] In making her ruling on the first application, Garton J. decided that severance would result in the vast majority of witnesses testifying in both trials leading to significant cost and inefficiencies. Moreover, she found the delay between the two trials would impact the witnesses’ memories of the events.

[19] Garton J. also held two trials carried a significant risk of inconsistent verdicts: potentially two acquittals based on contradictory positions and evidence.

[20] Ultimately, Garton J. concluded severance would not foster the truth seeking function of the trial or engender respect for the trial process.

[21] I agree with Garton J.’s conclusions and add the following observations.

Efficiency and Cost Favour a Single Trial

[22] As pointed out in Moore and Jeanvenne, when determining the question of severance the court is required to balance between an accused’s fair trial right and the need in ensuring that the justice system is run in an efficient and cost effective manner.

[23] As noted by Garton J., if severance was granted the trials of each accused would effectively be the same with most, if not all, of the witnesses required to testify, if not for the Crown, then for the defence.

[24] This is a complex trial which requires the jury to receive the full evidentiary picture. That includes not only what happened on the date of the offence but also separate preceding events pertaining to each accused.

[25] For example, the motivation of the parties to commit the offence is a key issue which would require the evidence relating to the relationship between Ms. Lopez-Iglesias and Mr. Obregon Castro to be adduced before the jury as well as the fight that took place between Ms. Elliott and Ms. Lopez-Iglesias on 21 May 2018. In short, in order to fully understand who killed Ms. Elliott and why, the Crown would have to call the evidence that implicates both accused in both trials. Any evidence that was not called by the Crown would almost inevitably be called by the defence in each case in order to demonstrate the other accused committed the offence.

[26] Scarce judicial resources would be unnecessarily stretched; scheduling the trial would cause delay affecting each accused’s right to be tried within a reasonable time; the ability of witnesses to recall events might suffer; and forcing them to testify twice in a highly emotional homicide trial is understandably undesirable.

The Truth Seeking Function of the Trial Would Be Impaired

[27] As already described, the jurisprudence presumes that jointly charged co-accused alleged to be acting in concert should be tried together: R. v. McLeod, Pinnock and Farquharson (1983), 6 C.C.C. (3d) 29 (Ont. C.A.), aff'd, [1986] 1 S.C.R. 703; R. v. Zvolensky, 2017 ONCA 273, at paras. 24-33, leave to appeal refused, 2018 CarswellOnt 7520 (S.C.C.).

[28] In Suzack, at para. 88, the court held:

Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial. It is axiomatic that the truth of an allegation is best tested through a process which requires the accuser to confront the accused with the allegation and gives the accused a chance to respond to the allegation. If co-accused who are blaming each other for a crime are allowed to do so in separate trials, neither jury will have the benefit of that process. If the accused are tried separately, it is highly unlikely that either jury will hear the complete story.

[29] Here, both Ms. Lopez-Iglesias and Mr. Obregon Castro are expected to testify and blame the other for Ms. Elliott’s death. The same jury is entitled to hear both sides of the account so they can reach a just verdict. Severance would deprive them of that opportunity.

Severance Risks Inconsistent Verdicts

[30] In Crawford, at paras. 30-31, the Court observed:

There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is graphically labelled a "cut-throat defence". Separate trials in these situations create a risk of inconsistent verdicts.

Although the trial judge has a discretion to order separate trials, that discretion must be exercised on the basis of principles of law which include the instruction that severance is not to be ordered unless it is established that a joint trial will work an injustice to the accused. The mere fact that a co-accused is waging a "cut-throat" defence is not in itself sufficient.

[31] See also: R. v. Gayle, 2017 ONCA 297, at para. 37.

[32] Here two separate trials runs the very real risk of two acquittals where both accused claim the other is guilty.

[33] The Crown’s case is that Ms. Elliott died as a result of a pre-meditated plan hatched by Mr. Obregon Castro and Ms. Lopez-Iglesias as revenge for perceived wrongs and insults. The Crown witnesses appear to indicate that both accused entered the apartment unwanted and wearing face coverings. Michael Grant, Ms. Elliott’s friend, and Noble Selby, her boyfriend, were both present in the apartment. They will testify that Ms. Lopez-Iglesias stabbed Ms. Elliott whilst Mr. Obregon Castro held them at gunpoint.

[34] Even though both parties successfully secured admission of prior discreditable conduct against their co-accused, this does not make severance mandatory. The question is whether appropriate limiting instructions will be sufficient to ensure the evidence is used only for the purpose for which it is admitted: Suzack, at para. 99.

[35] In Mr. Obregon Castro’s case, his prior discreditable conduct is limited in its use to (a) Ms. Lopez-Iglesias’ state of mind, (b) which of the two committed the offence, and (c) credibility. It cannot be used to prove guilt but is admissible for either party to use when raising reasonable doubt.

[36] By the same token, Ms. Lopez-Iglesias’s prior discreditable conduct is admissible only to (a) rebut her claims that she was fearful of Mr. Obregon Castro, (b) show that she had the propensity to kill Ms. Elliott, and (c) assess her credibility.

[37] I am satisfied that the jury will understand and follow the detailed instructions on how this evidence can be used. I am equally satisfied that the jury will understand that they cannot use the evidence as proof of the Crown’s case to establish guilt beyond a reasonable doubt. As is trite law - juries are presumed to follow instructions set out by the trial judge: R. v. Corbett, [1988] 1 S.C.R. 670, at p. 692.

[38] I also note this is not a case where a significant imbalance of evidence exists against one accused over the other. Both are implicated by the Crown’s evidence and the jury instructions will be fashioned to ensure that each is dealt with separately and subject to the evidence only admissible against them: R. v. Welsh, 2013 ONCA 190, 115 O.R. (3d) 81, at para. 184, leave to appeal refused, [2013] S.C.C.A. No. 383.

[39] For these reasons the severance application is dismissed.

S.A.Q. Akhtar J. Released: 22 February 2022