COURT FILE NO.: 134/14 & 327/13 (Brampton)
DATE: 2015-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KENTRELL WILLIAMS
Peter Maund, for the Crown
Mary Cremer, for Mr. Williams
HEARD: May 12, 13, 14, 15, 19 & 20, 2015
REASONS FOR JUDGMENT
gray J.
[1] Mr. Williams is charged with five offences in two indictments. On consent, the charges in both indictments were tried together, without a jury. The charges are attempted murder; possession of a loaded restricted firearm; robbery; aggravated assault; and attempted obstruction of justice.
[2] Miriam Baasit was originally charged with the robbery offence with Mr. Williams. The charge against Ms. Baasit was subsequently withdrawn.
Background
[3] The complainant, Daniel Eghobor, testified.
[4] Mr. Eghobor is forty years of age. He came from Nigeria to Canada in 2001, and became a Canadian citizen four years ago. He testified that he is a full-time student at York University, and has been so since 2010. He is married with two children, aged five and two.
[5] Mr. Eghobor testified that on September 6, 2012 he was at school in the morning. He had two lectures that day, one at 11:00 a.m. and another at approximately 1:00 p.m. He testified that his wife was at home babysitting their son. She was pregnant at the time.
[6] Mr. Eghobor testified that a woman he knew as “Mya” texted him, asking him to telephone her at 416 858 9095. Mya was, in fact, Mariam Baasit.
[7] Mr. Eghobor testified that he had met Mya for the first time on September 2, 2012. He testified that they met at a restaurant or bar near Weston Road and Finch Avenue in Toronto, in the afternoon. He testified that Mya that said his face looked familiar and asked if he attended York University, to which Mr. Eghobor said yes. He testified that they exchanged phone numbers and they went into the restaurant. He testified that he ordered some food, and Mya sat at the same table but did not order anything.
[8] Mr. Eghobor testified that he asked what Mya did, and she responded that she did some part-time work. Mr. Eghobor testified that he was rushing away to pick up his son at daycare. He testified that he saved Mya’s telephone number and her name on his phone. He said he was with her for about ten minutes.
[9] Mr. Eghobor testified that he subsequently saw Mya at a gas station on Finch Avenue. It was in the evening. He said he was buying gas and he was alone.
[10] Mr. Eghobor testified that Mya was passing by and saw him. She was walking close to the station. Mr. Eghobor said he walked towards her and they talked for about five minutes.
[11] Mr. Eghobor testified that he told Mya that he liked her. In response, Mya said he would have to pay her in order to see her. Mr. Eghobor testified that he wanted to see Mya again in order to have sex with her.
[12] Mr. Eghobor testified that there was no further communication with Mya until September 6, 2012. She texted him – “Hi”. He responded “Who is this?” to which she responded “Mya”. He said this was in the afternoon after his lectures had been completed.
[13] Mr. Eghobor testified that Mya asked if he could buy her some Red Bull and cigarettes. Mr. Eghobor said he could, but he would have to go home first. Mya texted “hurry up – I have an appointment.”
[14] Mr. Eghobor testified that he went home and ate. Mya was texting him to the effect that he should hurry. He said he would buy cigarettes and Red Bull on the way. She said she was at Dundas and Highway 427.
[15] Mr. Eghobor testified that he drove in his car. He bought cigarettes and Red Bull at a gas station at Rexdale and Kipling. He then drove to where he thought Mya would be. He texted her as to her location and she responded that she was at the Mississauga Gate Inn in Room 245.
[16] Mr. Eghobor testified that he arrived between 3:00 p.m. and 4:00 p.m. He said he had $200 in cash that he had obtained from a bank.
[17] Mr. Eghobor testified that he entered the hotel room and gave Mya the Red Bull and cigarettes, and asked if he could use the washroom, to which Mya replied in the affirmative. Mr. Eghobor said he used the washroom.
[18] Mr. Eghobor testified that Mya said that they had to hurry because she had an appointment. She asked how much money Mr. Eghobor had, to which he responded that he had $100. Mya said that that was not enough. It would cost $250. Discussion ensued, during which Mr. Eghobor said he would have to go. Mya demanded that he hand over the money because he had been wasting her time. Mr. Eghobor said no.
[19] Mr. Eghobor testified that he had taken off his running shoes when he went to the bathroom. After the discussion about the money, he put his shoes on again. He testified that Mya then jumped on him and reached into his pants pocket to take the money. He said he grabbed Mya’s hand and said “no – don’t”. He testified that she got the money.
[20] Mr. Eghobor then testified that someone came through the door into the hotel room and shot him in the head. He said the bullet hit the left side of his head. He said he had been looking in the direction of a table and had his head to the right. Mya was at the foot of the bed. Mr. Eghobor said his shoes came off in the struggle with Mya.
[21] Mr. Eghobor testified that all he heard was the gun. He was not looking at the door. It happened so fast. Blood was gushing out. The person who shot him in the head was close. He was just past the door when he got shot. He said there was no other physical contact with the person. He was hit on the left side of his head by his ear.
[22] Mr. Eghobor testified that he ran out the door. He said the man with the gun wanted to shoot him again. He ran to the hotel reception and then ran next door and called “Help – call the police – someone shot me”.
[23] Mr. Eghobor testified that he fell on the ground outside the next door building. He said his shirt was soaked with blood. The police came in about 15 or 20 minutes. An ambulance came and took him to Credit Valley Hospital. There, he had treatment for his wound. The wound on his head was stapled. About seven days later, his family doctor removed the staples. He said he had difficulty opening his jaw; he had headaches and could not sleep at night.
[24] When Mr. Eghobor was released from hospital, he attended at the police station where he made a videotaped statement.
[25] Mr. Eghobor testified that he regretted going to the hotel to meet Mya. He said he let his wife down.
[26] On cross-examination, Mr. Eghobor testified that he only knew Mya as Mya, not Miriam. He acknowledged that some portions of his statement to the police, that he gave on September 6, 2012, were inconsistent with his evidence, but he said he was not in his right mind at that point because of the wound to his head.
[27] Mr. Eghobor denied that he first met Mya at a massage parlour.
[28] Mr. Eghobor acknowledged that at the preliminary inquiry, he said he had no sexual interest in Mya, but testified that that was because he was ashamed of his conduct and his wife was in the courtroom when he testified.
[29] Mr. Eghobor testified that he did not know Mya was a prostitute, even though she asked for money for sex. He said it depends on how one interprets it. Maybe she was broke, or maybe she owed friends money.
[30] Mr. Eghobor acknowledged that in his statement to the police he made no reference to a second meeting with Mya at a gas station. He said that was because he was not happy or in a good mood when he gave his statement, and he was in pain.
[31] Mr. Eghobor insisted that he did not meet Mya at a massage parlour. He acknowledged that he had been at a massage parlour a number of times. He said that at a massage parlour one pays two separate fees: one fee for the room and another fee for the girl who does the massage. He insisted that he did not meet Mya at the massage parlour. He said he had no idea that Mya was an escort. He insisted that he did not purchase sex from Mya at the massage parlour.
[32] Mr. Eghobor testified that he did not recall taking Mya to a friend’s place to have sex, in order to save on the room fee at the massage parlour.
[33] Mr. Eghobor testified that he intended to pay for sex with Mya at the hotel. He acknowledged that at the preliminary inquiry he testified that he did not want to have sex with Mya. He said he said that because his wife was in court that day.
[34] Mr. Eghobor insisted that he took off his shoes in the hotel room when he went to the bathroom. He said he put his shoes on again after the argument about the money. However, they fell off when Mya attempted to collect the money from his pocket. He acknowledged that in a photograph, the shoes are depicted as neatly placed in front of a night stand, but he insisted that someone else must have put them there. He acknowledged that he ran out of the hotel room with his socks on.
[35] Mr. Eghobor denied that after giving Mya the Red Bull and cigarettes he offered to give her $40. He said he was not upset when Mya said that the money he had was not enough. He said he would leave, at which point Mya jumped on him and grabbed for the money, to which he said “No”. He said at that point someone came through the door and shot him.
[36] Mr. Eghobor testified that when Mya tried to get the money, he bent down and someone shot him. He denied trying to sexually assault Mya. He said he did not lunge at her, grab her dress or expose her breasts. He said he had never hit a woman. He did not choke her and did not pin her down. He denied that someone came at him and punched him in the head.
[37] Mr. Eghobor specifically denied that he pulled out a gun while he was struggling with the person who came into the room. He denied that that person grabbed his arm and the gun went off. He said the injury was not caused by any punches; rather it was caused by a bullet.
[38] Mr. Eghobor testified that he ran down the stairs and ran for his life. He said he was not running away because he had sexually assaulted Mya.
[39] On re-examination, Mr. Eghobor testified that he had never owned a handgun. He said he would not know where to get one and he has never fired one.
[40] Dr. James Tan testified. He is a physician engaged in the Emergency Department at Credit Valley Hospital. He testified that he examined Mr. Eghobor on September 6, 2012 at approximately 6:40 p.m.
[41] Dr. Tan testified that Mr. Eghobor had a wound on the left side of his head. There were two adjacent lacerations approximately three centimetres in length. There was bleeding from the wound. He said he closed the wound with six staples.
[42] Dr. Tan testified that a CT scan disclosed an open non-displaced skull fracture on Mr. Eghobor’s head, in the left temporal area between the eyes and the ear. He said Mr. Eghobor was likely to recover fully.
[43] On cross-examination, Dr. Tan confirmed that no surgery was necessary. Mr. Eghobor was conscious and lucid at all times. Dr. Tan said that the fracture consisted of a two centimetre fragment of the skull that had minimally shifted from its normal position. He said the fracture was not serious. Fractures can be caused by blunt force trauma.
[44] Dr. Tan acknowledged that a laceration of the type on Mr. Eghobor’s head can result in significant bleeding because of the many blood vessels at the surface of the skin where the laceration occurred. He confirmed that there was no damage inside Mr. Eghobor’s skull. There was no swelling of the brain or brain tissues. The staples were administered without general anesthetic, and could be removed in about seven days.
[45] Riley Meerburg, an officer with Peel Regional Police, testified that on September 6, 2012 he attended at the Mississauga Gate Hotel and the Fort York Motel, next door to Mississauga Gate, at about 5:28 p.m. The hotels are on Dundas Street near Dixie Road in Mississauga.
[46] Officer Meerburg testified that he saw a male person bleeding from one ear. He attended at the stairwell on the north side of the Mississauga Gate Hotel and saw blood. He attended at Unit 250. He remained there until the tactical unit arrived.
[47] Andrew Castelic, an officer with Peel Regional Police, testified. He is a forensic identification officer.
[48] Officer Castelic testified that he arrived at the Mississauga Gate Hotel on September 7, 2012 at approximately 7:00 p.m. He was executing a search warrant at Room 245. Officer Nauffts was working with him.
[49] Officer Castelic took photographs of the room which were tendered in evidence. Also tendered was a diagram of the room that he prepared.
[50] Officer Castelic testified that the room was searched for firearms, body fluids or anything else of relevance.
[51] He testified that they found a projectile (or bullet) lodged in the wall immediately above the head of the bed. They found no gun or shell casings. They also found no blood in the room.
[52] Photographs of the projectile and its location were tendered. They disclose two marks on the wall, one where the projectile entered the wall and another where it ended up after ricocheting off concrete below the drywall.
[53] Officer Castelic testified that they also found a number of items in a black nylon bag. It contained clothing and men’s items as well as four LottoMax lottery tickets. The names on the tickets included Troy Williams and Kurtwell Williams or Kentrell Williams.
[54] They also found some running shoes in the upper right drawer of a desk. As well, they discovered a bottle of water, a can of Pepsi, a green lighter and some cards. They also discovered some Red Bull with a straw. They found no fingerprints.
[55] On cross-examination, Officer Castelic acknowledged that there were some shoes in front of the nightstand, which were not seized. The only shoes that were seized were those found in the drawer.
[56] Officer Castelic acknowledged that they found no gunshot residue and found no blood in the room.
[57] Sean Custodio, a Peel Regional Police Officer, testified. He said that at 11:54 p.m. on September 7, 2012 he attended at the Mississauga Gate Hotel at Room 245. He said a woman who identified herself as Miriam Baasit attended at the room. She was arrested and charged with attempted murder at approximately 4:15 p.m.
[58] Two affidavits made pursuant to section 30 of the Canada Evidence Act were tendered by the Crown. The deponent in each case was Rebecca O’Grady, a Security Analyst with Telus Communications Company. The affidavits related to records for two cellphones: (289) 423-2448; and (416) 206-4181. The first number turned out to be for a cellphone used by the accused, Kentrell Williams, and the second for a cellphone used by Miriam Baasit. The records included text messages exchanged between those phones and each other, and a number of other phones, including that of Mr. Eghobor, whose number was (416) 858-9095. Some of those text messages will be discussed later.
[59] Valentine Wetzstein testified. He is 76 years of age, and is a security officer at the Mississauga Gate Inn, and has been so for about 15 years.
[60] Mr. Wetzstein testified as to the surveillance system in place at the hotel. He said there were twelve cameras active in 2012, and that they operated 24 hours per day, seven days per week.
[61] Mr. Wetzstein testified that when a customer registers at the hotel, a card is filled in by the customer. Photo ID is required. A date and time is stamped on the card by a time clock. He identified a card filled in by Miriam Baasit on August 31, 2012 at 12:33 p.m. One of the security cameras recorded the registration, which was done by Ms. Baasit. Kentrell Williams, the accused, was present when she registered.
[62] Mr. Wetzstein testified that the registrant must pay up front, by credit card, or debit or cash. The cost is $70 for one night, which covers the period 11:00 a.m. to 11:00 a.m. the next day. The registration by Ms. Baasit on August 31, 2012 was for Room 425.
[63] Video recordings of a number of other vantage points at the hotel were tendered in evidence. They related to various times on September 6, 2012.
[64] Room 245 is on the second floor, and is accessed from a corridor on the external side of the building, which runs to a stairway down to the ground level. One of the security cameras is next to Room 244 and is trained on the hallway towards Room 245. A number of scenes were captured by that video camera that are particularly relevant, and I will describe them later.
[65] Mr. Wetzstein testified that he received a call from the desk sometime after 3:00 p.m. on September 6, 2012, that there was a disturbance. He went to the East building at the second floor, and saw blood on the stairs. The blood formed a trail to Room 245.
[66] He said he encountered a lady in Room 245, who was approximately five foot 2 inches in height. She was a bit excited.
[67] Mr. Wetzstein testified that he saw blood on the carpet in Room 245, from the end of the bed to the door.
[68] Mr. Wetzstein testified that he followed the blood trail in the hall, which went down the stairwell and across the property to the hotel next door, The Fort York Motel. He said he saw a person holding his left ear and screaming. He said blood was running down his arm. He was swearing and in pain. A police cruiser arrived and an officer took over.
[69] On cross-examination, Mr. Wetzstein acknowledged that the hotel is one that is commonly frequented by prostitutes. The cost is $70 per day, but people can stay longer. There are regular females who stay there. It is also possible to pay for less than a day.
[70] Mr. Wetzstein acknowledged that at the preliminary inquiry he said nothing about seeing blood in the room.
[71] Miriam Baasit testified by video link from British Columbia, where she now lives. She is 28 years old.
[72] Ms. Baasit testified that in September, 2012 she was working in Ontario doing escorting and stripping, which included prostitution. She had done so for a few years.
[73] Ms. Baasit testified that Mr. Williams had been her “boyfriend” for about a year. She testified that “he was in a sense my protection”. She said that if anything went wrong he would be there for her to call on.
[74] Ms. Baasit testified that she had been living at the Mississauga Gate Inn for a few weeks. The room was in her name. It was paid for through what she earned.
[75] Ms. Baasit testified that she advertised on different websites. She said that Mr. Williams would sometimes arrange clients to see her. He would sometimes text for her. Sometimes the client would call or text her.
[76] Ms. Baasit testified that Mr. Williams would take the money she made. He took all of it. She said that was just the way it went.
[77] Ms. Baasit testified that she had a cellphone that was prepaid with the money she earned. Mr. Williams also had a cellphone that was paid for from the money she earned.
[78] Ms. Baasit testified that Mr. Williams had a gun. It was a black handgun with a clip. She first saw it a few months before the incident on September 6, 2012. She saw it almost every day. She said Mr. Williams kept it in his waist at his side or at his back. He had the gun for protection.
[79] Ms. Baasit identified her telephone number as (416) 206-4818. She said the number (289) 423-2448 could have been Mr. Williams’ number. I am satisfied from the balance of the evidence I heard that that number was, in fact, Mr. Williams’ number.
[80] Ms. Baasit testified that on September 6, 2012 she was at the Mississauga Gate Inn with Mr. Williams. She did not recall the room number. She said it was not a busy morning and so she began texting people to see if she could drum up business. One of the people she texted was “Danny”, or Mr. Eghobor. She said Danny texted her to the effect that he would come and see her.
[81] Ms. Baasit testified that she first met Mr. Eghobor at a spa on Finch Avenue in the west end. She said she met him months before the incident. He was a regular at the spa. Mr. Eghobor picked her out of all the other girls.
[82] Ms. Baasit testified that she provided sexual services to Mr. Eghobor, every time he came to the spa. He paid her $100 each time. She said she saw him four times.
[83] Ms. Baasit testified that there was a separate charge at the spa for the room and for the girl.
[84] On one occasion, Mr. Eghobor suggested that they go to a friend’s house to have sex, so that he could save the cost of the room.
[85] Ms. Baasit testified that Mr. Eghobor was never violent with her.
[86] On the day in question, September 6, 2012, Mr. Eghobor texted that he would come and see Ms. Baasit at the hotel. He was supposed to arrive within an hour. He did not in fact arrive until hours later.
[87] Ms. Baasit testified that she asked Mr. Eghobor to pick up some cigarettes and some Red Bull. She asked him to hurry up. She testified that Mr. Williams was with her while she was texting with Mr. Eghobor.
[88] Ms. Baasit testified that she became irritated, because Mr. Eghobor was late. She wanted the money.
[89] Ms. Baasit testified that Mr. Eghobor arrived mid to late afternoon. She testified that Mr. Williams left the room, but would remain in the area.
[90] Ms. Baasit testified that Mr. Eghobor arrived with the cigarettes and the Red Bull. After she greeted him, Mr. Eghobor gave her a receipt for the cigarettes and Red Bull and $40. She said “Where’s the rest of it?”, to which Mr. Eghobor said “That’s all I have.”
[91] Ms. Baasit testified that she was offended, and told Mr. Eghobor that that was not enough. She said Mr. Eghobor showed her his wallet, and there was no more money in it. She told Mr. Eghobor that she would not service him without the rest of the money. Mr. Eghobor tried to convince her otherwise.
[92] Ms. Baasit testified that towards the end of the dispute, she began texting Mr. Williams. She texted “He only has $40, and he won’t leave.” Mr. Williams texted “He either pays more money or he leaves”, and “Keep the $40 and tell him to get out. He’s wasting your time.”
[93] Ms. Baasit testified that Mr. Eghobor had given her the $40, and she put it in her pocket. She said she was wearing a summery tube dress that had pockets by her waist in front.
[94] Ms. Baasit testified that she told Mr. Eghobor he had to leave. At that point he was taking off his shoes and his jacket.
[95] Ms. Baasit testified that she texted Mr. Williams “He’s not leaving”. Mr. Williams texted “Make him leave”. She texted Mr. Williams “Come to the door – pretend you’re my next client.”
[96] Ms. Baasit testified that Mr. Williams knocked on the door and pretended that he was her next client. She said to Mr. Eghobor “Leave now – my next client is here.”
[97] Ms. Baasit testified that at that point Mr. Eghobor wanted his money back. She was by the hotel room door and Mr. Eghobor was by the bed. Mr. Williams was in the hall near the door.
[98] Ms. Baasit testified that Mr. Eghobor came towards her and reached towards her pocket. He said “Give me my money back.” She said “No – you’ve wasted my time.”
[99] Ms. Baasit testified that Mr. Eghobor began getting physical with her to get the money back. He reached for her pockets that were at her waist. She was by the door. Mr. Eghobor was leaning over her. She fell to the ground and began screaming for Mr. Williams to come. She screamed loudly.
[100] Ms. Baasit testified that Mr. Williams came through the door. She heard a loud bang, but could not see where the bang came from. At that point, she could not see if Mr. Williams had anything in his hand. She said the bang came seconds after Mr. Williams came through the door.
[101] Ms. Baasit testified that Mr. Eghobor ran out the door screaming. She saw a gun in Mr. Williams’ hand. It was in his right hand. It was the same gun she had seen before. Mr. Williams did not say anything.
[102] Ms. Baasit testified that Mr. Williams then ran out of the room.
[103] Ms. Baasit testified that there was some kind of brief scuffle between Mr. Williams and Mr. Eghobor as Mr. Eghobor was trying to leave.
[104] After Mr. Eghobor and Mr. Williams had left, she looked around to see where the bullet had gone. She did not see where it went.
[105] Ms. Baasit testified that she called Mr. Williams on the phone, who asked her to come and meet him. She did so. She met him in another hotel up the street. He did not have the gun then. He told her “It’s gone – it’s safe.”
[106] Ms. Baasit testified that they went to the Islington subway station and then went to a plaza where there was a McDonald’s restaurant. His cousin picked them up and they went to his cousin’s house. They stayed there all night.
[107] Ms. Baasit testified that the next day she returned to the hotel. The room had been in her name, and she knew that the police would eventually find her.
[108] Ms. Baasit testified that she and Mr. Williams ended up quarreling. She was scared about what was going to happen to her. Mr. Williams told her “Don’t worry about – you didn’t do anything.” He told her to just tell the police what happened, but put a different person there rather than him. It could be any “Tom, Dick or Harry”.
[109] Ms. Baasit testified that she never planned on robbing Mr. Eghobor. She did not put her hands in his pockets. She had never robbed a client.
[110] Ms. Baasit testified that when she returned to the hotel, the police were there. There was an officer outside the room. She told him it had been her room. The officer made a call, and told her she was being charged with attempted murder. Another detective came and she was arrested. She was taken to the police station and interviewed. Eventually she received bail.
[111] Ms. Baasit testified that the preliminary inquiry for herself and Mr. Williams was in May, 2013. There had been another incident, and she was arrested again. She was in Vanier for about six months. She and Mr. Williams saw each other a few times during the preliminary inquiry. Both she and Mr. Williams were still in custody.
[112] Ms. Baasit testified that on the first day of the preliminary inquiry, she and Mr. Williams were in the prisoner’s box together. Mr Williams passed her a letter, that she put in her pants or her bra. She said she read it in a holding cell. It outlined the story she was to stick with. It was not a true story.
[113] In the letter, Mr. Williams instructed that she read the letter and tear it up. She did not tear it up. Rather, she showed it to her lawyer, and kept it in her bra. When she returned to Vanier, it fell out of her bra and was found by one of the guards. The guard picked it up and read it. Ms. Baasit told the guard that her lawyer asked her to keep it. The guard said she would give the letter to her supervisor who would keep it.
[114] Ms. Baasit testified that the preliminary inquiry lasted three days, after which she was released. She was discharged on the attempted murder count, and the only charge left outstanding was the robbery charge. She was released on her own recognizance.
[115] Ms. Baasit testified that after consulting her lawyer, she gave a statement to a police officer on October 11, 2013. Ultimately all the charges against her were dropped on October 31, 2013. She testified that she was not promised anything for making the statement.
[116] On cross-examination, Ms. Baasit testified that she had met Mr. Eghobor at a massage parlour and she met him as a sex trade worker. She said Mr. Eghobor never told her that he was a student at York University. As far as she was concerned, he was a customer for sexual services. They exchanged cellphone numbers and cellphones were used to set up appointments. Mr. Eghobor was a regular at the massage parlour, and he had selected her. She confirmed that there were two fees at the parlour, one for the room and one for the girl.
[117] Ms. Baasit confirmed that on one occasion she and Mr. Eghobor had sex at a friend’s place in order to save the room fee. The usual fee was $100 for the girl at the spa, and $120 outside the spa.
[118] Ms. Baasit confirmed that during the week prior to September 6, 2012, she never met Mr. Eghobor at a restaurant or at a gas station.
[119] Ms. Baasit confirmed that she texted Mr. Eghobor on September 6, 2012, because she was trying to get customers. She used the name Mya. He was a regular customer, and she was his preferred girl. Once the appointment was confirmed, she set aside about one half hour for him.
[120] As the afternoon went on, Mr. Eghobor was later and later. He was not respectful of her time.
[121] Mr. Williams was with Ms. Baasit, and he left the room when Mr. Eghobor was close to the hotel. She and Mr. Williams exchanged text messages about whether Mr. Eghobor was coming and when.
[122] Ms. Baasit testified that after the dispute arose with Mr. Eghobor, Mr. Williams knocked on the door pretending he was a client. The door did not close altogether because it was easier to run out of the room if one had to.
[123] Ms. Baasit testified that in the course of trying to get his money back, Mr. Eghobor grabbed her dress and pulled it down. It was a tube dress with no straps. He went into pockets and the dress came down somewhat. He did not reach for the top of her dress. She said he was focused on getting his money back. She denied that Mr. Eghobor grabbed her neck and tried to choke her.
[124] It was put Ms. Baasit that she was afraid Mr. Eghobor was going to rape her. She denied that that was the case. She said “The fear of rape was not there. I know the fear of rape.”
[125] Ms. Baasit testified that as far as she knew there was no intent for Mr. Williams to use a gun when he came into the room. She said Mr. Williams did not punch Mr. Eghobor.
[126] It was put to Ms. Baasit that it was Mr. Eghobor who had pulled a gun. She denied this.
[127] Ms. Baasit acknowledged that she knew Mr. Williams was on parole at the time of this incident. She knew the police would come to the room. She knew that as part of Mr. Williams’ parole terms, he was not supposed to be in Mississauga. She knew the room was registered in her name, and thus she knew the police would find her.
[128] Ms. Baasit testified that Mr. Williams told her not to worry, because she did not do anything. He never said that she should not tell her story. He did say that she should substitute someone else instead of him.
[129] Ms. Baasit acknowledged sending a text message to another prostitute, in which she stated that her “custi attacked me.” There was no mention of a gun. She said that while there was no mention of a gun in the text message, there was in fact a gun.
[130] Ms. Baasit denied that there was any deal to the effect that she would testify against Mr. Williams in exchange for the charges against her being dropped. She testified that as far as she was concerned, after she gave the statement it was still possible that she would have had to fight the charges. She had advice from her lawyer when she made the statement. She said she was not promised anything for giving the statement. She acknowledged that there was a possibility that the charges could be withdrawn. Indeed, a couple of weeks later they were withdrawn.
[131] On re-examination, Ms. Baasit testified that in text messages between prostitutes, she is smart enough to not say everything. She said it is well known that working girls’ phones are tapped and so one does not use certain words such as “gun”. She said one can be honest to an extent, but with friends who are working girls one cannot trust them as far as one can throw them.
[132] Philip Bowen, an officer with Peel Regional Police, testified. He said that on September 24, 2012, he became aware that Mr. Williams was attending a meeting with his probation officer in Toronto, and a plan was developed to arrest him. Mr. Williams was apprehended at 11:00 a.m. and advised that he was under arrest.
[133] Officer Bowen testified that he and Detective Singh drove Mr. Williams to 12 Division. During the drive, Mr. Williams said that they should not charge Ms. Baasit with attempted murder. She was a victim. He said “What would you do if someone was raping your mom or sister?” He said he would never rob anyone. He makes $100,000 per year. He said the phone records would clear things up.
[134] Officer Bowen interviewed Mr. Williams at the police station from 1:25 p.m. until 3:32 p.m. It was video and audio recorded. The video and audio recording, and a transcript, were tendered into evidence.
[135] In substance, Mr. Williams acknowledged being at the hotel with Ms. Baasit on September 6, 2012, and being aware of the appointment with Mr. Eghobor and being outside the room in the hall while an argument went on between Ms. Baasit and Mr. Eghobor. He acknowledged coming into the room but denied having a gun. He said he punched Mr. Eghobor and during a struggle Mr. Eghobor pulled a gun on him. He said the gun went off but he did not fire it.
[136] On cross-examination, Officer Bowen acknowledged that Mr. Williams was cooperative and polite when he was arrested and when he gave his statement.
[137] Officer Bowen acknowledged that some of the still photographs taken from the video surveillance do not specifically show a gun in Mr. Williams’ hand.
[138] Roy Nauffts, an officer with the Peel Regional Police, testified. He is a forensic identification officer. He was on duty on September 6, 2012.
[139] Officer Nauffts testified that he found a trail of blood and was tasked with photographing it. It started outside room 245 on the second level, and went down the hall to the stairs and eventually to the office of the next adjacent hotel, The Fort York Motel. He took photographs of the blood trail.
[140] On cross-examination, Officer Nauffts confirmed that no blood was found inside the room, either on the carpet or on the bed.
[141] Officer Nauffts confirmed that there was no damage caused to the bed’s headboard by the bullet. He testified that an instrument was used to retrieve the projectile from the hole in the wall. He testified that no blood was found on the wall or on the projectile.
[142] Pauline Horbell testified. She is a correctional officer at Vanier.
[143] Ms. Horbell testified that on May 10, 2013, she was engaged as the property officer at Vanier, and she performed a strip search on Miriam Baasit. She found a piece of paper in Ms. Baasit’s bra. It had been folded into a square. Ms. Baasit said she was given the letter at court. She got it from her co-accused, and she said her lawyer told her it would be good evidence in her case.
[144] Ms. Horbell confiscated the letter and ultimately it was forwarded to security. The letter was entered into evidence.
[145] Carlos Santos testified. His evidence was not particularly relevant.
[146] Michelle Pflug testified. She is a forensic identification officer with Peel Regional Police. Her particular responsibility is with respect to fingerprinting.
[147] Officer Pflug testified that a fingerprint of Kentrell Williams was found on the letter that had been seized from Ms. Baasit.
[148] I will outline, in summary form, some of the evidence that is of importance from some of the exhibits.
[149] First, there are some passages from the text messages.
[150] Ms. Baasit and Mr. Williams exchanged a number of text messages on September 1, 2012, the day after Ms. Baasit had registered at the Mississauga Gate Inn. It seems clear from the messages that Ms. Baasit was not in the room but Mr. Williams wanted to retrieve some items belonging to him that were in the room. He was seeking to persuade Ms. Baasit to contact the hotel and let him in. She seemed reluctant to do so.
[151] At 12:00:55:08 he texted Ms. Baasit:
How just let me grab my things. I’m here at the door and I can’t believe you would do me like this.
[152] At 12:00:58:36, he texted Ms. Baasit:
I’m out here with a fuckin pistol in an area that you know the police frequent and this is the position you leave me in after everything I’ve done for you. Really.
[153] On September 6, 2012, text messages were exchanged between Ms. Baasit and Mr. Eghobor, and Ms. Baasit and Mr. Williams, as follows:
| Time | From | To | Content |
|---|---|---|---|
| 12:42:07 | Ms. Baasit | Mr. Eghobor | Hey it’s Mya. What time are you comin? |
| 12:42:52 | Mr. Eghobor | Ms. Baasit | 2 pm |
| 12:43:09 | Ms. Baasit | Mr. Eghobor | K |
| 13:40:00 | Ms. Baasit | Mr. Eghobor | Can you pick up smokes for me on your way |
| 13:40:23 | Mr. Eghobor | Ms. Baasit | Ok |
| 13:48:23 | Ms. Baasit | Mr. Eghobor | Dumaurier large regular 2pm still |
| 13:56:17 | Mr. Eghobor | Ms. Baasit | I just left Scho now and im going home now to eat So sorry hopefully I will be there for sure 3pm and I wil get u smoke ok See u |
| 14:51:42 | Ms. Baasit | Mr. Eghobor | Are you gonna be here for 3 I need to know so I can book other appointments |
| 14:53:44 | Mr. Eghobor | Ms. Baasit | Yes 3 30 pls |
| 15:01:51 | Ms. Baasit | Mr. Eghobor | Hurry or you have to bring me food AND cigarettes Lol |
| 15:05:31 | Mr. Eghobor | Ms. Baasit | Ok np |
| 15:10:17 | Ms. Baasit | Mr. Eghobor | Get me a 4 pack of redbull too |
| 15:11:21 | Ms. Baasit | Mr. Eghobor | Lol this is your punishment for being super late |
| 15:19:36 | Mr. Eghobor | Ms. Baasit | Ten minutes |
| 15:26:10 | Mr. Eghobor | Ms. Baasit | I m on my way |
| 15:26:29 | Ms. Baasit | Mr. Eghobor | K |
| 15:44:35 | Ms. Baasit | Mr. Eghobor | How long |
| 15:45:18 | Mr. Eghobor | Ms. Baasit | 15mins on highway comin |
| 15:45:53 | Ms. Baasit | Mr. Eghobor | K don’t forget my smokes and redbulls |
| 15:47:00 | Mr. Eghobor | Ms. Baasit | Ok |
| 15:47:20 | Mr. Eghobor | Ms. Baasit | I bought them |
| 15:48:34 | Ms. Baasit | Mr. Eghobor | K |
| 16:12:40 | Ms. Baasit | Mr. Eghobor | Seriously if you re not coming tell me now I cant wait all day |
| 16:16:01 | Mr. Eghobor | Ms. Baasit | Traffic on highway almost there So sorry hun |
| 16:28:18 | Ms. Baasit | Mr. Eghobor | You need to hurry up |
| 16:56:49 | Mr. Eghobor | Ms. Baasit | So wat is d room nub |
| 16:58:48 | Ms. Baasit | Mr. Eghobor | 245 |
| 16:59:19 | Mr. Eghobor | Ms. Baasit | Okay thanks |
| 17:03:16 | Ms. Baasit | Mr. Eghobor | Where the fuck are you |
| 17:04:13 | Mr. Eghobor | Ms. Baasit | Looking for d place |
| 17:04:50 | Ms. Baasit | Mr. Eghobor | Mississauga gate inn |
| 17:05:21 | Mr. Eghobor | Ms. Baasit | Ok |
| 17:07:36 | Ms. Baasit | Mr. Williams | Hes an idiot he still isnt here |
| 17:09:19 | Mr. Williams | Ms. Baasit | Wow well what did he say last Ask for the room number |
| 17:09:52 | Ms. Baasit | Mr. Williams | I just talked to him He thinks he past it so hes turning around |
| 17:10:19 | Mr. Williams | Ms. Baasit | Ask him did he pass diamonds |
| 17:11:01 | Ms. Baasit | Mr. Williams | He said he passed Monte Carlo so I told him to turn around |
| 17:11:23 | Mr. Williams | Ms. Baasit | Yeah too far |
| 17:11:48 | Ms. Baasit | Mr. Williams | Im telling him that i have a 530 so call me right at 530 |
| 17:11:58 | Mr. Eghobor | Ms. Baasit | I found it. Comin |
| 17:12:00 | Ms. Baasit | Mr. Williams | Say you re here |
| 17:12:38 | Mr. Williams | Ms. Baasit | I can t dail out |
| 17:12:54 | Ms. Baasit | Mr. Williams | K just text |
| 17:14:11 | Mr. Williams | Ms. Baasit | Yeah turn it on You got mail Lol |
| 17:14:44 | Ms. Baasit | Mr. Williams | Lol |
| 17:16:31 | Ms. Baasit | Mr. Williams | He gave me the receipt for the smokes and i handed it back and laughed at him I said fuck off lmao idiottt |
| 17:17:20 | Mr. Williams | Ms. Baasit | Lmao are you fuckin serious |
| 17:17:32 | Mr. Williams | Ms. Baasit | Get his money first |
| 17:17:38 | Ms. Baasit | Mr. Williams | Yes |
| 17:17:52 | Ms. Baasit | Mr. Willams | Yup |
| 17:18:24 | Ms. Baasit | Mr. Williams | He said he has 40 dollars i m getting right mad |
| 17:19:37 | Mr. Williams | Ms. Baasit | Well take the 40 and tell him bye he s cost you money |
| 17:20:03 | Ms. Baasit | Mr. Williams | I told him im taking my other appointment |
| 17:21:12 | Ms. Baasit | Mr. Williams | He doesn’t wanna leave Come to door just act like a customer |
| 17:22:02 | Mr. Williams | Ms. Baasit | K |
[154] Later that day Ms. Baasit exchanged text messages with an unidentified person, as follows:
| Time | From | To | Content |
|---|---|---|---|
| 23:21:56 | Ms. Baasit | Unidentified person | I gotta go back and get my things but i m scared to go alone the police are waiting by my room |
| 23:22:14 | Unidentified person | Ms. Baasit | Omg |
| 23:22:24 | Unidentified person | Ms. Baasit | Crazy |
| 23:24:13 | Ms. Baasit | Unidentified person | o Yo my custi attacked me and i m trying to get out of the room n then dude came back right on time and they started fighting And then everyone was gone r |
| 23:24:14 | Ms. Baasit | Unidentified person | O unning So I left too i m freaking out |
| 23:24:44 | Unidentified person | Ms. Baasit | Omg |
| 23:24:49 | Unidentified person | Ms. Baasit | Where u man |
| 23:27:17 | Ms. Baasit | Unidentified person | I don t know i cant get him Like this is fucked i have to go back alone and i dont even know whats gonna happen |
[155] The security camera located beside room 244, which shows the entrance to room 245, discloses Mr. Eghobor coming down the hall and entering room 245. It was answered by a young woman. A short time later, Mr. Williams comes to the door and appears to knock on it. He goes down the corridor and waits for a short time. He returns to room 245 walking quickly. As he approaches room 245, his right hand appears to go to the back of his right hip and as he enters the room, his hand lifts and is obscured by his shirt, which itself is lifted. He is in the room for no more than 8 or 9 seconds, after which Mr. Eghobor runs out of the room holding his left ear. There is nothing in either of Mr. Eghobor’s hands. Very shortly thereafter, Mr. Williams comes out of room 245 and turns in the opposite direction from which Mr. Eghobor ran. There is nothing in either of Mr. Williams’ hands.
[156] The letter seized from Ms. Baasit, which has one of Mr. Williams’ fingerprints on it, contains a note: “Don’t read this where a camera can see you! Sit on the bullpen toilet and read it. Remember then flush it unless you know you can sneak it back to your cell.”
[157] I will not review all of the letter. I will simply mention some particularly relevant parts. They include:
a) “This is what you need to say if you’re ever questioned and have to give a statement. It’s okay for you to talk now and give a statement you just have to say the right thing. Those right things are what I’m going to tell you in this little letter right now. I’m going to tell you exactly what to say and it’s not going to be hard for you to remember because it’s the truth about what happened. I’m just going to tell you what I said to them so that our stories match and corroborate each other. After you read this and store it in your memory book rip it up and flush it!!!!”
b) “So when I got there I had to push the door open and that’s when I saw him CHOKING you and PULLING AT YOUR PANTIES BETWEEN YOUR LEGS. So me and him started fighting when I came in the room and after I was getting the better of him HE PULLED OUT A GUN ON ME!! Obviously that’s the key and that’s the main thing you have to say that’s the most important thing!! After you seen him pull the gun out you seen me grab his arms then you ducked down and hid behind the dresser that the t.v. was on between the dresser and the door. You didn’t see anything after you seen me grab his arms because you hid all you know is that a second or two later you heard a pop, something that sounded like the gun went off then you looked and seen him quickly leaving the room.”
c) “If they ask you why you didn’t run out the room when you seen the gun you say because the door was the way he was pointing it and you didn’t want to get shot, you didn’t know if he’d shoot or not so you did the first thing that made sense and hid. If they ask you why you left the hotel you say because you seen the guy pull a gun and you didn’t know if he was gonna come back to the room to hurt you or not.”
[158] In an agreed statement of facts, it is agreed that Mr. Williams does not have a valid licence or registration certificate to lawfully possess any firearm. Among other things, it also contains the following admission:
For the purposes of the aggravated assault and robbery with a firearm counts, the injury received by Daniel Eghobor on September 6, 2012, meets the legal definition of a “wound”.
[159] At the conclusion of the Crown’s case, the Crown brought an application for the admission of what it termed “prior discreditable conduct” of Mr. Williams. The evidence consisted of the text message sent by Mr. Williams to Ms. Baasit on September 1, 2012, that disclosed that he had a “pistol” on that day, and the evidence of Ms. Baasit that prior to September 6, 2012 Mr. Williams habitually carried a gun that he kept in his waist and that was used for protection.
[160] After hearing submissions, I ruled that in the circumstances it was preferable for me to reserve my decision as to the probative value of this evidence until I heard all of the evidence and submissions in the entire case. Since this is a judge alone trial, there is no issue as to any prejudice arising from so-called prior discreditable conduct evidence or similar fact evidence: see R. v. B.(T.) (2009), 2009 ONCA 177, 95 O.R. (3d) 21 (C.A.), at para. 27, and R. v. MacCormack, 2009 ONCA 72, [2009] O.J. No. 302 (C.A.), at para. 69. The only issue is whether the evidence is probative. Standing alone, it may not be possible to determine whether any individual piece of evidence is probative, unless it is considered together with all of the other admissible evidence.
[161] In this case, in my view, the evidence is probative. The most significant issue in the case is whether or not Mr. Williams had a gun when he entered room 245 on September 6, 2012, while Ms. Baasit and Mr. Eghobor were arguing about payment for her services. The evidence is not only probative of whether Mr. Williams had a propensity for carrying a gun; it is directly probative as to whether he had a gun on this particular occasion.
[162] It is to be noted that the text message from Mr. Williams to Ms. Baasit was sent the day after Ms. Baasit checked into room 245 at the Mississauga Gate Hotel, when she was in the company of Mr. Williams. The text message was sent only five days before the incident giving rise to the criminal charges. Ms. Baasit’s evidence, to the effect that Mr. Williams habitually carried a gun for her protection, is directly probative of whether he had such a gun on September 6, 2012 for her protection.
[163] When considered together with all of the other evidence in the case, it is clear that these pieces of evidence are very probative of whether Mr. Williams had a gun on the day in question and in the circumstances described in the evidence. The balance of the evidence includes, of course, the evidence of Ms. Baasit and Mr. Eghobor, about which more will be said later.
[164] Mr. Williams did not testify, and called no other evidence.
Submissions.
[165] Mr. Maund, counsel for the Crown, submits that Mr. Williams should be found guilty of all charges.
[166] Mr. Maund acknowledges that Mr. Eghobor was an unsatisfactory witness. He acknowledges that Mr. Eghobor lied repeatedly in his evidence about the way in which he met Ms. Baasit, and the extent to which he used Ms. Baasit’s services for sexual purposes. In many respects, Mr. Eghobor’s evidence simply did not make sense.
[167] However, Mr. Maund submits that on the critical issue of whether Mr. Williams used a gun to shoot Mr. Eghobor in the head, there is significant evidence that corroborates the testimony of Mr. Eghobor. There is no dispute that Mr. Eghobor did attend the hotel on September 6, 2012. There is no dispute that there was an argument between Mr. Eghobor and Ms. Baasit over the amount to be paid for her services. There is no dispute that Mr. Williams entered the room while the argument was under way. There is no dispute that a gun was discharged. There is no dispute that Mr. Eghobor was wounded and he ran out of the room.
[168] The critical issue is whether Mr. Williams had a gun on the occasion in question. There are three specific sources of evidence as to whether Mr. Williams had a gun, together with the surrounding circumstances and other objective evidence. There is the evidence of Mr. Eghobor. There is the evidence of Ms. Baasit. And there is the statement made by Mr. Williams to the police. Out of all the evidence, the only evidence that Mr. Williams did not have a gun is contained in his statement given to the police, upon which he has not been cross-examined.
[169] Mr. Maund submits that the suggestion that Mr. Eghobor had a gun is simply not credible. Apart from what is contained in Mr. Williams’ statement, there is no evidence whatsoever that Mr. Eghobor had a gun. There is no evidence that he had any motive or need to have a gun.
[170] Parts of Mr. Williams’ statement are demonstrably false. At page 39 of his statement, Mr. Williams stated that Mr. Eghobor left the hotel room with the gun. However, in the videotape of the security footage, Mr. Eghobor is clearly seen running from the room holding his left hand over his ear and there is nothing in either hand. On page 55 of his statement, Mr. Williams says Mr. Eghobor reached for a bunch of things and picked them up and left. The only thing he couldn’t grab was his shoes. Once again, however, the videotape evidence shows that Mr. Eghobor had nothing in his hands when he ran out of the room. On pages 48 and 49 of his statement, Mr. Williams insists that he did not reach for or grab anything as he entered the room. However, it is clear from the videotape evidence that he grabbed for something near his waist and his shirt was lifted by whatever he had in his hand as he entered the room. He says that what might have had in his hand was his phone. However, the videotape evidence shows clearly that he had his phone in his left pocket, and what he had in his right hand as he entered the room could not have been his phone.
[171] In his statement, Mr. Williams says he heard the fight, walked in, and saw Mr. Eghobor grabbing Ms. Baasit’s throat and her crotch. He said Mr. Eghobor pushed her to the ground. He says there was a fight between himself and Mr. Eghobor. Mr. Williams was winning the fight, at which point Mr. Eghobor pulled a gun. Mr. Williams reacted by pushing his arms up and the gun went off. However, the videotape evidence shows that from the time Mr. Williams entered the room to the time Mr. Eghobor ran out of it, between eight and nine seconds elapsed. Mr. Williams’ description of what happened could not have taken place within eight or nine seconds.
[172] Mr. Maund submits that Ms. Baasit’s evidence of what occurred is consistent with other evidence. As noted, the videotape evidence shows Mr. Williams reaching for something in his waist as he enters the room. He had had a gun while at the hotel, as evidenced by his text message to Ms. Baasit. Ms. Baasit testified that he had a gun that he kept in his waistband for protection. The video evidence shows that Mr. Eghobor had no gun in his hand when he entered the room and when he left the room.
[173] Mr. Maund submits that there are a number of text messages that Mr. Williams exchanged with a woman named “Kayla” that suggest, strongly, that Mr. Williams has a consciousness of guilt. Mr. Williams asked Kayla to delete the messages.
[174] Mr. Maund submits that Ms. Baasit was a very credible witness. She was not evasive, she admitted unflattering facts. There were no internal inconsistencies in her evidence. For what it is worth, her demeanour was very sincere.
[175] Much of Ms. Baasit’s evidence is corroborated by external evidence. There are the text messages between herself and Mr. Williams, and Mr. Eghobor. There is the video surveillance evidence. There is the clear suggestion in the letter that Mr. Williams gave her during the preliminary inquiry that she should tailor her evidence. By the letter, it is clear that Mr. Williams knows that if Ms. Baasit tells the truth, he is in jeopardy. There is clear consciousness of guilt. If he simply wanted Ms. Baasit to tell the truth, why choose this way of telling her, through a letter that he tells her to read in secret and destroy?
[176] Mr. Maund submits that on the totality of the evidence, it can only be inferred that Mr. Williams caused the injury to Mr. Eghobor and that it was caused by a gun.
[177] Mr. Maund submits that it cannot be concluded that Mr. Williams caused the injury to Mr. Eghobor because of any threat made to Ms. Baasit. According to Ms. Baasit, Mr. Eghobor did not have her by the throat. There was no sexual assault. There was no risk of bodily harm to her. Even if Mr. Williams thought there was, there were many other steps he could have taken other than firing a gun at Mr. Eghobor’s head. There was no need to resort to a firearm.
[178] Mr. Maund submits that with respect to the attempted murder charge, it should be concluded that Mr. Williams had the specific intent to kill Mr. Eghobor. He relies specifically on the decision of Cory J.A., as he then was, in R. v. Bains, [1985] O.J. No. 41 (C.A.), where he stated:
All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 caliber machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation, the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim.
[179] Mr. Maund submits that the essential elements of each offence have been made out by the Crown. The pistol used by Mr. Williams was not carried pursuant to any licence or permit. He was a party to the offence of robbery of Mr. Eghobor, since $40 was taken from him. Whether or not Mr. Eghobor’s wound was caused by a gun or through some other means, there is little dispute that Mr. Williams caused the wound. Accordingly, he has committed the offence of aggravated assault.
[180] Through the letter Mr. Williams passed to Ms. Baasit, he clearly intended to influence her testimony, and to persuade her to give false evidence. Even if she did not, or would not have testified, the offence is still made out.
[181] Ms. Cremer, counsel for Mr. Williams, submits that the key issue is whether Mr. Williams had a gun when he entered the hotel room as the argument between Ms. Baasit and Mr. Eghobor was in progress. Ms. Cremer submits that Mr. Williams’ statement that he gave to the police, being both inculpatory and exculpatory, is admissible both for and against him. To the extent that it is exculpatory, it must be used as part of the analysis that is required by R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[182] As required by W.(D.) if any of the evidence favourable to Mr. Williams is sufficient to raise a reasonable doubt, even if it is not believed, Mr. Williams is entitled to an acquittal. In this case, Mr. Williams has been consistent throughout that he did not have a gun. At the very least, there is a reasonable doubt as to whether he did or did not have a gun.
[183] Ms. Cremer submits that there is no certainty that the injury to Mr. Eghobor was caused by a gun. All that is known is that there were two lacerations on the left side of Mr. Eghobor’s head, from which there was bleeding. There was a two centimetre fragment of his skull that was minimally displaced. Neither injury was overly serious.
[184] No blood was recovered from the bullet that was ultimately found, nor was there any on the wall. No blood at all was found in the room. It is quite possible that the injury may have occurred during a scuffle rather than from a gunshot wound.
[185] Ms. Cremer submits that Ms. Baasit’s evidence must be viewed with a degree of suspicion. She gave a statement to the police only after it became clear that her charges may be withdrawn if she did so. While she says she was promised nothing, that is difficult to believe.
[186] Ms. Baasit acknowledged that her dress was pulled down during her scuffle with Mr. Eghobor. Her breasts were exposed.
[187] As acknowledged by the Crown, Mr. Eghobor was not a credible witness and little reliance should be placed on his evidence.
[188] Ms. Cremer submits that even if Mr. Williams had a gun, the evidence falls far short of showing that Mr. Williams had any intent to kill Mr. Eghobor. As noted, there is no evidence that the gun actually caused the injury to Mr. Eghobor. However it was caused, it is incumbent on the Crown to prove, beyond a reasonable doubt, that Mr. Williams had the specific intent to kill. The Crown has not done so.
[189] With respect to the robbery charge, there is no evidence that Mr. Williams’ actions were motivated by any intent to take money from Mr. Eghobor. The evidence is clear that Mr. Eghobor and Ms. Baasit were scuffling when Mr. Williams came into the hotel room. Ms. Baasit already had the money. Mr. Williams’ actions are just as consistent with an attempt to protect Ms. Baasit as they are with any intent to take $40 from Mr. Eghobor.
[190] Ms. Cremer submits that a conviction on the possession of a loaded restricted firearm charge depends entirely on whether the Crown has proven, beyond a reasonable doubt, that Mr. Williams had a gun on the day in question. For the reasons articulated already, the Crown has not done so. At the very least, there is a reasonable doubt.
[191] Ms. Cremer submits that with respect to the aggravated assault charge, there is a reasonable doubt as to whether the injury to Mr. Eghobor constitutes “wounding”. As noted earlier, the injury was not serious and it is doubtful that it constituted wounding.
[192] With respect to the obstruction of justice charge, Ms. Cremer submits that the Crown must prove that the letter written by Mr. Williams was made for an improper purpose. She submits that that was not the case here. In the letter, Mr. Williams tells Ms. Baasit to tell the truth. He does not threaten her or make any promise. There must be an intent to subvert the course of justice. At that point in time, the parties were in the course of a preliminary inquiry. There was no knowledge on the part of Mr. Williams as to whether Ms. Baasit would testify or make any statement to the police. Ms. Cremer relies on R. v. Melo, 2014 ONSC 1364, [2014] O.J. No. 1879 (S.C.J.); and R. v. Pare (2010), 2010 ONCA 563, 268 O.A.C. 118 (C.A.).
Analysis
[193] Before discussing the specific charges, I will address certain preliminary issues and comment on some of the evidence I have heard.
[194] Mr. Williams’ statement, being both inculpatory and exculpatory, is admissible both for and against him. In other words, the exculpatory parts of his statement are admissible and may be considered by me as to whether they assist in raising a reasonable doubt. On the whole of the evidence, I must be satisfied beyond a reasonable doubt of Mr. Williams’ guilt, and his statement is a piece of that evidence that I must consider in that regard.
[195] Since the evidence is favourable to Mr. Williams, I must apply the principles discussed by the Supreme Court of Canada in R. v. W.(D.), supra. Those principles require the following:
a) If I accept the evidence favourable to Mr. Williams, I must acquit him; b) Even if I do not accept that evidence, if it raises a reasonable doubt I must acquit him; c) Even if that evidence does not raise a reasonable doubt, I can only convict him if the evidence that I do accept convinces me of his guilt beyond a reasonable doubt.
[196] There is an issue as to what weight should be accorded to Mr. Williams’ statement, considering its frailties. It was not given under oath; it is self-serving; and it was not cross-examined upon.
[197] In the context of a jury trial, the issue was considered by the Supreme Court of Canada in R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111.
[198] In Rojas, the trial judge had given what is sometimes referred to as a “Duncan” instruction, which originates in the decision of the English Court of Appeal in R. v. Duncan (1981), 73 Cr. App. R. 359. In England, as contemplated in Duncan, juries are instructed that in the case of a “mixed” statement that contains both inculpatory and exculpatory parts, the jury can and should give more weight to the inculpatory parts rather than to the exculpatory parts. In Rojas itself, the charge given by the trial judge contained the following passage:
Since some of the alleged statements of each accused contain exculpatory statements or denials which tend to exonerate them, you must consider that in the ordinary course of human behaviour, it often occurs that statements of an incriminating nature such as admissions or confessions are likely to be true, otherwise why say them. On the other hand, excuses for one’s own behaviour do not necessarily carry the same persuasive weight. [Emphasis added]
[199] Charron J., for a unanimous court, noted that the Duncan instruction was later endorsed by the House of Lords in R. v. Sharp, [1988] 1 W.L.R. 7 (H.L.), and R. v. Aziz, [1995] 2 Cr. App. R. 478 (H.L.). She noted at para. 32 that Canadian courts were divided on the usefulness of the mixed statement instruction. At paras. 35-36, she noted that purely exculpatory statements are generally inadmissible as being self-serving and lacking in probative value, as well as being hearsay. At para. 37, she discussed the long-standing exception for mixed statements, that contain both inculpatory and exculpatory parts. She stated:
Of course, the general rule that excludes out-of-court exculpatory statements is not without exceptions. One such exception is relevant here – the mixed statement exception. Just as in England, it has long been established that where the Crown seeks to tender an accused’s out-of-court statement which contains both inculpatory and exculpatory parts, it must tender the entire statement and the exculpatory portions are substantively admissible in favour of the accused.
[200] At para. 38, she stated:
In recognizing both the basis for admitting inculpatory statements and the exceptional admissibility of an accused’s untested statements, the Duncan instruction, as such, accurately reflects the state of the law.
[201] In the same paragraph, she noted that the Crown urged the court to adopt the Duncan instruction in Canada. At para. 39, she rejected that submission.
[202] At para. 39, Charron J. stated that expounding the rationale for an evidentiary rule to the jury may only serve to confuse the jury unnecessarily. At para. 40 she stated “In the same way, I see little advantage in expounding for the jury the underlying rationale for the mixed statement exception.” In the same paragraph she stated that such “common sense” comments are better left to the advocacy of counsel. Thus, she concluded that the Duncan instruction should not be adopted by Canadian trial courts.
[203] In the balance of her judgement, she went on to discuss whether the specific instruction given to the jury in Rojas led to an unfair trial. She held that it did not. At para. 47 she stated that she was satisfied that the Duncan instruction could not have misled the jury. It was clear that the assessment of the reliability of the statements was left entirely with the jury.
[204] It is clear, in my view, that the Supreme Court of Canada has accepted that the Duncan instruction accurately reflects the state of the law, that is, an exculpatory part of a mixed statement is entitled to less weight. However, the court’s reluctance to allow this common-sense observation to be put to a jury, by a trial judge, is based on the possibility that confusion may result. The court has instead left open the prospect that such observations may be put to the jury by counsel.
[205] I do not read the Supreme Court of Canada’s judgment as affecting the ability of a judge sitting alone to take a common-sense view of a mixed statement. There are frailties in an exculpatory statement made by an accused that can be taken into account by a trial judge. As noted earlier, this statement was not given under oath. It is self-serving. It has not been cross-examined upon.
[206] Having said that, at the end of the day the statement is clearly something that I must take into account in deciding whether, on the whole of the evidence, there is a reasonable doubt as to Mr. Williams’ guilt.
[207] I agree with the observations of both counsel that Mr. Eghobor’s evidence is highly problematical. Large parts of his evidence are simply unbelievable. I do not accept for a moment that he first met Ms. Baasit shortly before September 6, 2012 at a restaurant, nor that he had a casual conversation with her at a gas station. It is clear that he had been a regular customer of hers as a prostitute and had been so for several months. If the Crown’s case depended solely on the evidence of Mr. Eghobor, I would have no difficulty in acquitting Mr. Williams of most of the charges.
[208] However, the Crown’s case does not depend solely on the evidence of Mr. Eghobor.
[209] Ms. Baasit’s evidence was compelling. Apart from her demeanour, she readily admitted unflattering facts. She was internally consistent. Her evidence was consistent with other evidence. She was not evasive.
[210] The text messages and the videotaped security evidence are compelling.
[211] Apart from Mr. Williams’s statement to the police, there is simply no evidence that Mr. Eghobor possessed a gun on the day in question. Ms. Baasit denied it. There is nothing in the videotape evidence that would support such a conclusion. There is simply no reason why Mr. Eghobor would possess a gun.
[212] There is evidence that Mr. Williams had a gun. In his text message to Ms. Baasit on September 1, 2012, he stated that he had a pistol. Ms. Baasit testified that he had a gun and had had one for some time. He kept it in his waist. He had it for protection. Having regard to the nature of the activities in which Mr. Williams was involved with Ms. Baasit, it is not surprising that he had a gun. Ms. Baasit testified that she saw a gun in Mr. Williams’ possession after he came into the room and the gun went off. The videotaped segment that shows Mr. Williams entering the hotel room is consistent with his having something in his right hand that he got from his waist, and it is consistent with Ms. Baasit’s evidence that he kept a gun at his waist. The videotaped segments showing Mr. Eghobor both entering and leaving the room do not show anything in his hands that could be a gun.
[213] This evidence by itself would be sufficient to convince me beyond a reasonable doubt that Mr. Williams had a gun when he entered the hotel room. However, there is the additional matter of the letter that he gave Ms. Baasit during the preliminary inquiry. He felt it necessary to tell Ms. Baasit that she should read the letter in secret and then destroy it. He felt it necessary to say in bold, capital letters “HE PULLED OUT A GUN ON ME!!” followed by “obviously that’s the key and that’s the main thing you have to say that’s the most important thing!!” It is difficult to imagine a more obvious piece of evidence that reflects consciousness of guilt.
[214] When I consider Mr. Williams’ exculpatory statements to the police, to the effect that he did not have a gun, in the context of all of the remaining evidence it does not raise a reasonable doubt.
[215] For these reasons, I am persuaded beyond a reasonable doubt that Mr. Williams had a gun with him when he entered the hotel room on September 6, 2012, while Mr. Eghobor and Ms. Baasit were engaged in an argument.
[216] Having said that, there is little evidence as to how Mr. Eghobor actually received his injury. The injury to his head is, I suppose, consistent with the left side of his head being creased by a bullet. However, it is also consistent with it being caused by blunt force trauma.
[217] There is little real evidence as to what happened after Mr. Williams entered the room. There is some conflict in the evidence as to what sort of scuffle, if any, he and Mr. Eghobor engaged in. Whatever it was, it was very quick. Between eight and nine seconds elapsed from the point at which Mr. Williams entered the room to the point at which Mr. Eghobor left it. Not much of a scuffle could have occurred in that short period.
[218] Ms. Baasit did not see how Mr. Eghobor was injured. She heard a loud bang, and she assumed the gun went off. She saw the gun in Mr. Williams’ hand after it went off. However, she could not say that the injury was caused by the gun.
[219] There was no evidence of any blood on the bullet or on the wall.
[220] In the final analysis, I am not persuaded beyond a reasonable doubt that the injury to Mr. Eghobor’s head was caused by a bullet fired by Mr. Williams. However, I am persuaded beyond a reasonable doubt that the injury, however it was caused, was caused by Mr. Williams. It was not caused by Ms. Baasit. An accident of some kind would be pure speculation, not supported by any other evidence. The injury was either caused by a bullet fired by Mr. Williams, or it was caused by blunt force trauma administered by Mr. Williams.
[221] I will now consider the specific charges.
(a) attempted murder
[222] In order to convict Mr. Williams of attempted murder, the Crown must satisfy me beyond a reasonable doubt that Mr. Williams had the specific intent to kill Mr. Eghobor. I am not so satisfied.
[223] As noted earlier, there is no compelling evidence as to how Mr. Eghobor’s injury was caused. It may have been caused by a bullet, or it may have been caused by blunt force trauma. If it was caused by a bullet, there is no evidence (other than Mr. Eghobor’s evidence, which is problematical) that Mr. Williams aimed the gun at Mr. Eghobor’s head. It could have gone off in a brief scuffle. It could have gone off and the bullet missed Mr. Eghobor’s head altogether, and the injury was caused by a blow.
[224] In any event, there is simply insufficient evidence to persuade me, beyond a reasonable doubt, that Mr. Williams had the specific intent to kill Mr. Eghobor. Accordingly, he must be acquitted on that count.
(b) possession of loaded restricted firearm
[225] I am persuaded beyond a reasonable doubt that Mr. Williams possessed a loaded restricted firearm. I have canvassed the evidence earlier and I need not repeat it. Mr. Williams possessed a handgun. It clearly meets the definition of “restricted firearm” in s.84(1) of the Code. It was loaded. It was fired. Mr. Williams had no licence or permit for it. When I consider his statement to the police in the context of all of the other evidence, it does not raise a reasonable doubt. The evidence as a whole, including Mr. Williams’ statement, convinces me of his guilt of this charge beyond a reasonable doubt.
(c) robbery
[226] I am not satisfied beyond a reasonable doubt that Mr. Williams is guilty of the offence of robbery. While it is true that Ms. Baasit had taken $40 from Mr. Eghobor, it is conceivable that she had a colour of right in doing so. As she put it many times, Mr. Eghobor had wasted her time. In any event, at the time Mr. Williams came into the hotel room with a gun, Ms. Baasit already had the $40 and any theft, if that is what it was, was complete.
[227] If there was a theft, Mr. Williams was a party to it. He clearly encouraged Ms. Baasit to take and keep the $40. However, in order to be convicted of robbery, violence must be used by the perpetrator immediately before, during, or immediately after the theft. In this case, the theft (assuming, once again, that that is what it was) had taken place before Mr. Williams entered the hotel room. The force he administered to Mr. Eghobor was entirely unconnected to any theft; rather, it was for the purpose of assisting Ms. Baasit in her struggle with Mr. Eghobor. The force was administered some time after the theft had occurred. In my view, the force or violence was not administered “immediately after” the theft: see R. v. Jean (2012), 2012 BCCA 448, 293 C.C.C. (3d) 66 (B.C.C.A.), distinguishing R. v. Downer (1978), 1978 CanLII 2340 (ON CA), 40 C.C.C. (2d) 532 (Ont. C.A.).
[228] Accordingly, Mr. Williams is acquitted of the charge of robbery.
(d) aggravated assault
[229] Mr. Williams is clearly guilty of aggravated assault. As noted earlier, the injury to Mr. Eghobor was caused either by a bullet or by blunt force trauma administered, in either case, by Mr. Williams. He applied considerable force to Mr. Eghobor without his consent.
[230] I am satisfied beyond a reasonable doubt that Mr. Williams’ use of force was not justified by virtue of s.34 of the Criminal Code. Assuming he applied force to Mr. Eghobor as a means of defending or protecting Ms. Baasit, it was not reasonable in the circumstances to use the degree of force that he did. Mr. Eghobor did not have a weapon. It was unnecessary to wound him, either by discharging a gun or using blunt force.
[231] Ms. Cremer sought to retreat from the concession to the effect that the injury meets the legal definition of “wound”. I think the concession was proper. The extent of the injury, including the fractured skull and the bleeding, were sufficient to constitute “wounding”.
[232] I am persuaded beyond a reasonable doubt that Mr. Williams assaulted Mr. Eghobor and caused the wounding. He is guilty of this offence.
(e) attempted obstruction of justice
[233] With respect to the offence of attempting to obstruct the course of justice, I am satisfied beyond a reasonable doubt that Mr. Williams is guilty of this offence.
[234] Quite clearly, Mr. Williams wrote the letter and gave it to Ms. Baasit with the intention of persuading her to tell the police, or testify if it came to that, that he did not have a gun when he entered the hotel room. This was false. His conduct would clearly tend to obstruct, pervert and defeat the course of justice, and he intended to do so. He is guilty of this offence.
[235] In the result, the verdicts are as follows:
a) attempted murder – not guilty; b) possession of a loaded restricted firearm – guilty; c) robbery – not guilty; d) aggravated assault – guilty; e) attempted obstruction of justice – guilty.
Gray J.
Released: August 5, 2015
COURT FILE NO.: 134/14 & 327/13
DATE: 2015-08-05
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
KENTRELL WILLIAMS
REASONS FOR JUDGMENT
GRAY J.
Released: August 5, 2015