ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 134/14 & 327/13 (Brampton)
DATE: 2015-08-05

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 Baasit was subsequently withdrawn.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