Her Majesty the Queen v. Kadara Tokhi
COURT FILE NO.: 70000180/13 DATE: 2014-03-13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KADARA TOKHI Defendant
Counsel: Barbara Lynch, for the Crown John Collins, for the Defendant
HEARD: February 10, 11 and 12, 2014
REASONS FOR JUDGMENT
MOLLOY J.:
Introduction
[1] Kadara Tokhi is charged with hiring someone to commit murder. The intended target of the killing was her husband. The hit man she hired was actually an undercover police officer, D.C. Dharmendra Grewal. The case against her depends entirely on the credibility and reliability of that officer. Only two witnesses testified at trial, Mr. Ali Amad Tokhi (the intended victim) and Officer Grewal. The defence called no evidence.
[2] I found the evidence of D.C. Grewal to be both credible and reliable. I am satisfied that although Mrs. Tokhi is not fully proficient in the English language, she was able to understand what was said to her in English and the officer had no problem understanding her when she spoke to him in English. I accept his evidence as to the content of their discussions.
[3] I am fully satisfied that D.C. Grewal received clear instructions from Mrs. Tokhi that she wanted him to commit murder. She agreed on a price, provided information about her husband’s habits, gave the undercover officer a photograph to assist in his identification of the victim, and paid a deposit. The evidence is overwhelming that Mrs. Tokhi is guilty as charged.
[4] My detailed reasons for that conclusion are set out below.
May 26, 2011: Toronto Police Receive a Tip
[5] The police involvement in this matter began on May 26, 2011 with the arrest of Trevor Letlow, a repeat offender with 50 convictions on his criminal record, many for crimes of violence and dishonesty. While in custody on a completely unrelated charge, Mr. Letlow told police officers that he had been hired by a woman who was trying to have somebody murdered or severely injured. He said the woman knew him by the name “Salem” and he provided two phone numbers through which she could be contacted.
[6] Mr. Letlow was not called as a witness. The information in the preceding paragraph is part of an agreed statement of fact, which was made Exhibit 1 at trial. It is not an admitted fact that Mr. Letlow was actually hired by Mrs. Tokhi. The evidence is admitted solely as information provided to the police and based upon which the police took certain steps.
[7] Although the defence argued that Mr. Letlow’s criminal record makes his information wholly unreliable, I do not find that to have any impact on my decision. Mr. Letlow’s credibility is not at issue. He provided a cover name (Salem) and two phone numbers. Based on that information, the Toronto Police decided to send in an undercover officer to determine the intention of the person behind the phone numbers. That undercover officer was D.C. Grewal. It is his credibility and reliability that are the issue in this case.
May 27, 2011: The Undercover Officer Makes Initial Contact
[8] On Friday, May 27, 2011, Officer Grewal called the phone numbers he had been given and was able to reach a woman at one of those numbers who identified herself as “Karema.” It is clear that this was Mrs. Tokhi. The officer identified himself as “Bobby.” He said he was a friend of Salem’s and that Salem had given him this number to talk to her about a problem she was having. Mrs. Tokhi initially suggested meeting at the Moss Park Apartments at 3:15 that afternoon. When Officer Grewal said he needed more time to get there, she agreed to meet him at 3:30 at the green benches. She told him she would be wearing a white sweater and green pants.
[9] At this time, Mrs. Tokhi lived in an apartment at 42 Blevins Place with her husband and children. This is in the Regent Park area of Toronto, a short walk from the Moss Park apartments.
[10] Officer Grewal waited for Mrs. Tokhi at the appointed spot, but she did not show up. He was unable to reach her by phone. He left the area at 4:49 pm.
[11] Meanwhile, the surveillance team did make some observations of Mrs. Tokhi. A woman matching her general description in terms of age, colour, height and weight was seen leaving 42 Blevins Place at 3:37 pm. She was wearing a cream-coloured sweater, green pants, a burgundy shirt and a white hijab. Detective Lombardi took up observations of her at 4:08 pm. At that time, she was walking in a laneway in the same neighbourhood with an unidentified man, who was walking ahead of her. The two of them then walked east on Shuter Street, and surveillance was terminated. Det. Lombardi confirmed that this woman was the accused, Mrs. Tokhi.
May 30: Second Phone Contact
[12] On the afternoon of Monday, May 30, Officer Grewal, posing as Bobby, again called Mrs. Tokhi. She gave him a cell phone number to use for contacting her. He asked what had happened on Friday and she said she was sorry she was unable to come. She proposed meeting that same afternoon at 4:00. Officer Grewal said he could not do that, but could meet her the next morning at 10:30. She agreed to that and told him to call her at 10:00. Officer Grewal testified that a number of times during this conversation, Mrs. Tokhi asked him to promise that he would come.
May 31: The First Meeting – The Deal Is Made
[13] The next morning, May 31, Officer Grewal called Mrs. Tokhi’s cell phone as promised. She asked him to meet her in a park at Shuter and River Streets at 10:30. She said she would be wearing a pink scarf, a black and white shirt, and orange pants.
[14] By 10:33 am Mrs. Tokhi had not arrived. Officer Grewal called her cell again and she said her superintendent was fixing something in her apartment and she would be another five minutes. He called her again at 10:49 and she said she was coming, and that he should meet her in front of the building at 65 Dundas Street. This is also in the same general neighbourhood. When he arrived at the building, he saw a woman sitting outside wearing the clothing she had described. He said, “Karema?” and she replied, “Hi Bobby, how are you?”
[15] At Mrs. Tokhi’s suggestion, they walked south, arriving a short while later at 42 Blevins. She took him inside the building to the underground parking garage. He was not comfortable discussing anything there and said he wanted to go back outside, which they did. Mrs. Tokhi instructed him to follow her so that it would not look like they were together. She led him to a small park, with a children’s playground in it, at the corner of Sumach and Shuter. They sat on a bench and discussed what she wanted done.
[16] Officer Grewal asked what her “problem” was, and she said that it was her sister that had a problem with her husband, who beat her and her children. He asked her what she wanted done, and she stated, “You finish him.” D.C. Grewal said these were the actual words that she used. He interpreted that to mean “kill.” In order to be sure, he asked, “Do you want me to kill him?” and she said “Yes.” He then asked again if he should kill him or just hurt him and she responded, “You kill him.” Officer Grewal asked why her sister did not call the police to report being beaten, to which Mrs. Tokhi replied that when the husband got out of jail he would have her and her sister’s family killed in Afghanistan.
[17] Mrs. Tokhi complained to Officer Grewal that she had tried to have other men do this job for her, but that they had taken her money and done nothing. He was concerned that she might hire somebody else who would actually do the job. He therefore told her that she should not deal with anyone else and promised her that he would take care of her problem.
[18] He asked Mrs. Tokhi how she wanted him to carry out the job and she told him to do it however he wanted. He asked if he should stab him or shoot him. Mrs. Tokhi told Officer Grewal to shoot him. Then, she smiled.
[19] Officer Grewal asked for particulars about the target and where he would find him. As Mrs. Tokhi started to provide details, he asked if he could write them down. She agreed and he took a scrap of paper from his pocket and wrote down in point-form some of the information she was giving him. Mrs. Tokhi said her sister’s name was Shaquilla and her husband’s name was Ajee. She described him as a little taller than her, clean-shaven, with a little bit of hair on the sides of his head and nothing on top. She said he worked in construction as a painter and drove a small white Honda to work on weekdays. On weekends, she said he had his boss’s white van, and pointed to a white panel van passing in the street to illustrate the type of vehicle. On weekdays, he left home at 8:30 am, returning at between 4:45 and 5:15. She said he lived in the same building as hers, that every day he wore blue jeans, a white shirt and yellow boots to work and carried a white lunch box. She also told the officer that Ajee played soccer at Thorncliffe Park between 7:00 and 10:00 pm some nights.
[20] They discussed payment for the job. Mrs. Tokhi wanted to pay $1500, Officer Grewal told her it would have to be $2000, to which she agreed. She said she and her sister would sell some gold on Gerrard St. to raise the money.
[21] Officer Grewal then told her he would make a plan and they would meet again to discuss it. He asked her to bring a photograph of the target to the next meeting. Mrs. Tokhi had come prepared for this. She reached into a bag she had brought with her and gave him a photograph of a man. Mrs. Tokhi told Officer Grewal not to share the photograph with anyone else because she did not want to go to jail. He said he did not want to go to jail either and would keep the photograph to himself. In fact, Officer Grewal turned the photo over to Det. Lombardi and ultimately it became an exhibit at trial. The Crown called Mr. Tokhi as a witness. I am completely satisfied that this was a photograph of him.
[22] Towards the conclusion of this first meeting, Officer Grewal asked to see where Ajee parked his car. Mrs. Tokhi took him to the parking lot next to her apartment building and pointed out parking spot #412. She said that this was where he parked the Honda Civic. There was no vehicle in the spot at that time as Mr. Tokhi was at work. Mrs. Tokhi showed the officer the path that Ajee would take from the parking spot to the side door of the apartment building. Mrs. Tokhi also told the officer that when Ajee had his employer’s van on weekends, he parked it on the street.
[23] Before they parted company, Officer Grewal wrote his own cell phone number on a scrap of paper and gave it to Mrs. Tokhi. He urged her to call him if she changed her mind, telling her that once it was done that would be it. He said she continued to insist that he do it, stating “100%. You finish him.”
[24] Mrs. Tokhi made him promise he would do the job. Officer Grewal again asked why she did not come to their previously arranged meeting on Friday. She told him that she had run into somebody that she had given money to already and he wanted more. The officer told her that she should not give money to anyone else and that he would meet her the next day to finalize things. He told her he would call her at 10:30 am. She told him that if her husband or daughter answered the phone, he should say he was calling from Shopper’s Drug Mart. She also told him not to call her after 5:00 or on weekends.
June 1: The Second Meeting – The Agreement Is Confirmed
[25] The next morning Officer Grewal called Mrs. Tokhi on her cell phone and arranged to meet her at 11:00 am in the same playground/park where they had met the day before. He arrived first and sat on the same park bench. Mrs. Tokhi arrived shortly after that and sat beside him on the bench.
[26] Officer Grewal asked her if she still wanted the guy dead and she said, “Yes, for sure.” He told her he would do it either tomorrow or the next day and she told him tomorrow would be good. She said that afterwards she would be changing her phone number because there were too many guys calling her. She said one guy had taken her money and told her he had killed Ajee by pushing him off a bridge. She therefore gave him some more money and then at 5:00 Ajee came home from work as usual.
[27] Officer Grewal asked her if she wanted him to deliver a message to the target before killing him. She said “No, kill him, then call me after 10.” They discussed how he would let her know that the deed was done. She told him to do it in the parking lot beside the building and then she would see it when the police arrived. He told her it might not be possible to do it there and she said that he should take a picture of the body and then clear it after she had seen it.
[28] Mrs. Tokhi told him that she would pay him $2000 in $50 bills the day after he killed Ajee. She told him that she had the money ready, and that if she did not pay, he could shoot her. Officer Grewal told her that he would require a deposit. She left him on the park bench, walked to her apartment, and returned with a $100 bill, which she gave to him. Officer Grewal then left the park, and a few moments later, so did Mrs. Tokhi.
[29] Mrs. Tokhi was then arrested.
Reliability of the Undercover Officer’s Evidence
[30] D.C. Grewal was cross-examined about the fact that he recorded in his notes what his “mission” was when first meeting Mrs. Tokhi. It was suggested to him, and later argued before me, that the use of the word “mission” in this context demonstrated that the officer set out with a predetermined mindset to confirm the information passed on by Mr. Letlow. This, it was argued, is indicative of the officer’s lack of objectivity, which is particularly problematic given that there is no tape recording of any of his discussions with Mrs. Tokhi.
[31] D.C. Grewal testified that by “mission” he meant “objective” or “goal.” He said his objective when meeting Mrs. Tokhi was to find out three things: (1) what she wanted done (whether it be killing someone, hurting someone, or nothing at all); (2) who she wanted attacked (so that steps could be taken to protect that person); and (3) when she wanted it done (so that steps could be taken to interrupt her plan before she did anything to carry it out).
[32] In my view, those are all appropriate goals. I do not consider the use of the word “mission” to mean anything other than what the officer said it was – an objective. I found his evidence to be fair and impartial. He gave Mrs. Tokhi many opportunities to explain what it was she wanted done. He did not jump to conclusions. He even gave her chances to change her mind. It was Mrs. Tokhi who insisted that he proceed to murder her husband in exchange for money.
[33] In a similar vein, Officer Grewal was cross-examined about his interpretation of the words “finish him” as used by Mrs. Tokhi. It was suggested that he put his own interpretation on those words and determined himself that the words meant to “kill” the target. In the course of that cross-examination, the officer was repeatedly taken to portions of his testimony at the preliminary hearing. He agreed that the testimony at the preliminary was accurate. This is not surprising. There is no conflict between his testimony at the preliminary and what he said at the trial before me. None of the passages from the preliminary undermine the credibility or reliability of the testimony at trial. There is no prior inconsistent statement.
[34] Officer Grewal was clear in his evidence that the words “finish him” were first used by Mrs. Tokhi and were her exact words. He thought this meant “kill him” but took care to ensure that this was actually what Mrs. Tokhi meant. He therefore asked if that was what she meant. He also asked if she wanted the target killed or just hurt. He asked how it should be done, whether by shooting or stabbing. He cautioned her about this being final and that there could be no going back once it was done. Consistently and repeatedly she insisted she wanted the target killed, and in particular, that he should be shot. She used the word “kill” herself on a number of occasions at both meetings. Officer Grewal gave Mrs. Tokhi every opportunity to clarify what she meant. He even gave her a number to call in case she changed her mind. She never wavered. I am confident on the evidence of the officer that he was careful to ensure what Mrs. Tokhi’s instructions were and that she clearly hired him to kill the target person, who in fact turned out to be her husband.
[35] Defence counsel took issue with the officer’s ability to understand Mrs. Tokhi, given that all of their conversations were in English. Counsel relied in this regard on the evidence of Mrs. Tokhi’s husband that his wife was born in Afghanistan, never went to school, never had a job, rarely went out of the apartment except to do shopping, and spoke no English.
[36] If there is one thing that is clear from this trial, it is that Mr. Tokhi does not know all there is to know about his wife. She keeps secrets from him. It is apparent to me that one of those secrets is her facility in the English language.
[37] A number of the things Mrs. Tokhi told Officer Grewal were confirmed by other evidence. For example, Officer Grewal wrote down a number of points from their first meeting on a scrap of paper. Those details included: “white car small Honda;” “white big car cube van;” “bald top;” “little taller;” “paint construction;” “little fat;” and “Sat. Sun. No calls” (meaning not to call her on Saturday or Sunday). These are specific, tangible pieces of information, all of which were obviously passed on to Officer Grewal in the English language, because otherwise he could not have gotten them from anywhere. As it turns out, he had the physical description right, as well as Mr. Tokhi’s job and the vehicles he drove. The officer made a number of arrangements to meet Mrs. Tokhi. Each time she understood what he was talking about. She showed up at the appointed spots, wearing clothing that was exactly as she had described it. On the first occasion, the Friday upon which she did not attend the arranged meeting, she explained that she ran into a guy and had to deal with him about his wanting additional money. On that occasion, she was seen walking towards the meeting spot, wearing what she said she would be wearing, and she was with an unidentified man. That does not mean, of course, that her story was necessarily true. However, she was certainly able to pass on considerable intelligible information to the undercover officer in the English language.
[38] Mrs. Tokhi took the officer to parking spot #412 next to her apartment building and told him that this was where Ajee parked his white Honda. She said that when he went to work he wore blue jeans, a white shirt, yellow boots, and carried a white lunch pail. She showed the officer the path Ajee took into the building and said that he came and went through the side door and left for work at 8:30 am. She also told him that on weekends Ajee had his boss’s white van, which he parked on the street. All of this was conveyed to the officer in English.
[39] Surveillance evidence proves all of this to be accurate. On Monday, May 30 at 8:29 am, Mr. Tokhi emerged from 42 Blevins Avenue. This would have been the first morning back to work after the weekend. He walked across the street and got into a white construction van. D.C. Anthony Romano was watching and took a picture of Mr. Tokhi as he was approaching the van on the street. He was wearing blue jeans, a white tee-shirt, a baseball cap and tan work boots. He was carrying a lunch pail that was mostly white, with a red bottom. Mr. Tokhi identified himself in the picture.
[40] On Tuesday, June 1, again as D.C. Romano watched, Mr. Tokhi came out of the building at 8:31 am and got into the white Honda that was parked in spot #412. He was wearing exactly the same clothing as the day before and carrying what looked to be the same lunch pail.
[41] A surveillance officer recorded video footage of the meeting between Mrs. Tokhi and Officer Grewal on June 1. Mrs. Tokhi’s face can be seen clearly. She was talking smoothly and constantly throughout and appeared to be having no difficulty conversing. Towards the end, she left briefly, then returned and passed an object to Officer Grewal, which I am satisfied was the $100 down-payment.
[42] Officer Grewal did not claim that Mrs. Tokhi spoke English fluently. He said she spoke “broken English” which he described as meaning that her sentences might be missing some words and punctuation, and tenses might be wrong. He said that sometimes connecting words, like “it” or “they” that are used to properly construct a sentence, might be missing. He gave as an example Mrs. Tokhi saying “I pay don’t worry” as opposed to the correct “I will pay you, don’t worry.” Officer Grewal was adamant that he had no difficulty understanding Mrs. Tokhi and that she had no difficulty understanding him.
[43] I accept that evidence. I believe the officer, and his evidence is corroborated by the many details of their conversations that were confirmed by other evidence.
[44] Finally, defence counsel was extremely critical of the failure of the undercover officer to wear a wire so that there would be a precise audio recording of the conversation between him and Mrs. Tokhi. Obviously, an audio recording would be ideal as then there would be little debate as to what Mrs. Tokhi said and what was said to her. However, that does not mean that the failure to make a recording, whenever that is possible, means that the evidence of an officer who is party to a conversation must be rejected.
[45] Defence counsel relies on the Ontario Court of Appeal decision in R. v. Moore-MacFarlane.[^1] The issue in that case was the voluntariness of statements made by an accused person following his arrest and while in custody at the police station. Although the police in that case had recording facilities available to them, they took no steps to record their interviews with the accused. The Court of Appeal in that case was highly critical of this practice, holding that it affected not only the reliability of the statements tendered, but also the determination of whether they were truly voluntary. The Court held at para. 65:
However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police. That onus may be readily satisfied by the use of audio, or better still, video recording. Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect. In such cases, it will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.
[46] The issue before me is not one of admissibility. The statements were made to an undercover officer who was not seen by Mrs. Tokhi to be a person in authority. The issue of voluntariness does not arise.[^2] However, the failure of the police to obtain an audio recording of any of these conversations is an issue directly related to the reliability of the evidence obtained. I hasten to add that the failure of the police to obtain a recording of a conversation that occurred between an undercover officer and a suspect in a public park cannot be compared to the failure of the police to record statements of an accused in custody at a police station. The ease with which the recording can be made in the latter situation gives rise to an assumption that the recording will be made, and the need for an explanation if it is not. While it is possible from a standpoint of technology for an undercover officer to wear a hidden recording device, it may be foolhardy, indeed even dangerous, to do so in the field.
[47] Certainly, I do not fault the police for failing to audio-record the first meeting with Mrs. Tokhi. They had no idea at that point how the meeting would be conducted or whether she would come alone. Putting a wire on the undercover officer could well have been dangerous. It might have been more feasible to record the second meeting. A video-recording was taken of that meeting, which is far easier to do surreptitiously and does not require a prior judicial authorization. However, there was no audio recording. It is important to note that there is no evidence before me as to why that was not done. The police witnesses were not cross-examined as to the reasons for their decision. In the absence of such evidence, I am not prepared to draw any inference against the Crown because of the failure to audio-record any of the conversations.
[48] Even where a statement is made to police officers at a police station in circumstances where recording equipment is readily available, a failure to make the recording is not fatal to the admissibility of the statement. As stated by Doherty J.A. in R. Swanek:[^3]
It cannot be gainsaid that a proper recording of a statement is most beneficial in assessing both its voluntariness and the content of the statement. It is, however, a long step from that observation to the conclusion that any statement that is not properly recorded should be excluded if it is the only evidence relied on by the Crown. As observed by Iacobucci J. in R. v. Oickle 2000 SCC 38, (2000), 147 C.C.C. (3d) 321 at 345:
This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.
[49] The same observation applies with even more force to the failure of police to tape-record statements made by a suspect to an undercover police officer in the field. Obviously, a verbatim audio and visual recording is idea; but the failure to achieve that ideal must be seen within the context of a dynamic police investigation. This is an issue going only to the weight that can be given to the undercover officer’s evidence as to what was said in the absence of a perfect record.
[50] However, the reliability of the officer’s recollection of the conversations remains of paramount importance and the absence of a recording of Mrs. Tokhi’s actual words is an obstacle the Crown must overcome in order to prove her guilt beyond a reasonable doubt. In this case, I am satisfied the Crown has met that onus.
[51] D.C. Grewal made detailed and lengthy notes immediately following his discussions with Mrs. Tokhi. Where possible, he tried to make those notes verbatim. Obviously, his notes are not akin to a transcript of what she said. However, they are sufficiently detailed to satisfy me of their reliability. D.C. Grewal testified that where his notes are not verbatim, they record the “gist” of the conversation. There is nothing wrong with that. Completely verbatim recall of conversations is impossible, and recording the gist is the next best alternative. Further, as I have noted above, there is considerable corroboration of many of the details recalled by the officer, which enhances my assessment of the reliability of his evidence as to what was said by Mrs. Tokhi.
[52] Defence counsel criticized the officer for failing to write down key inculpatory statements allegedly made by Mrs. Tokhi on the scrap of paper on which he jotted down other details of things she told him. Under cross-examination on this point, Officer Grewal explained that he was playing a role, that of a hit man. It might be necessary for a hit man to write down details such as times, locations, descriptions and makes of vehicles. However, he considered it would have been out of character for a hit man to attempt to write down verbatim statements such as, “You kill him.” I agree. Mrs. Tokhi was sitting right next to Officer Grewal on the park bench. It would have looked very odd for him to write down instructions that were other than details he would be likely to forget without noting them. I see nothing sinister about the notes he made and I draw no inference from his failure to write down her precise words as to the manner of killing while she was looking right at him.
[53] Accordingly, I find the evidence of Officer Grewal to be both truthful and reliable. I accept his evidence that Mrs. Tokhi attempted to hire him to kill her husband. She gave him clear instructions in that regard, paid a deposit, and notwithstanding a chance to change her mind overnight, remained steadfast in that intention.
The Evidence of Ali Amad Tokhi
[54] Ali Amad Tokhi is the husband of the accused and the target of her murder for hire contract. He was called as a witness by the Crown. He did not appear to be confident of the years and dates he provided. According to his evidence, he is now 50 years old, maybe less, and has been married to his wife for 35 years. He and his wife have four children. He said the oldest is around 36 and the youngest maybe about 20. The first was born in Afghanistan, the second in Pakistan, the third in India, and the youngest in Canada. Those ages and times may be possible, I suppose, but they are not likely. Suffice to say, this couple was married in Afghanistan at least 30 years ago, have been together ever since (or at least up to the time of Mrs. Tokhi’s arrest), and have four adult children together. Mr. Tokhi testified that he believes he has a good marriage and that there has never been any domestic violence in the home. He said he would do anything to help his wife and that he has told her that.
[55] Mr. Tokhi confirmed that he drove a white Honda Civic and that on the weekends he would have his employer’s white van. However, he denied that he would take the side exit from the apartment building to go to the parking spot for his Honda. He said he would go out the front entrance and then around to the back of the building where the townhouses were because there were no parking spots available for their apartment building. He said that there were no numbers on the parking spots at his building. This evidence is contradicted by the evidence of Officer Grewal as to what Mrs. Tokhi told him, as well as by the evidence of surveillance officers who saw the Honda parked where Mrs. Tokhi said it would be and saw Mr. Tokhi coming out the side exit of the building to get to that car.
[56] Mr. Toki said when he went to work in 2011, he wore “work clothes” and black boots. However, surveillance photos of him on two separate dates show him wearing blue jeans, a white tee-shirt and tan work boots, exactly as his wife described to D.C. Grewal.
[57] Mr. Tokhi initially testified that his lunch basket was green, but then corrected himself to say it was the colour of the seats in the courtroom, which are blue. However, when shown the surveillance photographs taken of him on May 30 and June 1, he acknowledged that was him. The lunch box he was carrying was neither green nor blue; it was primarily white, as described by Mrs. Tokhi to Officer Grewal.
[58] Mr. Tokhi testified that his wife spoke no English. However, he also testified that they always spoke their native language at home, never English. It may be that Mr. Tokhi is lying about his wife’s ability to speak English; he does appear to be sympathetic to her and to be trying to help her. It may be that Mr. Tokhi is simply unaware of his wife’s ability to speak English; they do not speak English at home and he may not have been in a situation to hear her speak English. Or, it may be that Mr. Tokhi has been deceived by his wife as to her facility in the English language; this would not be the only thing about which she has deceived him. Whatever, the explanation, Mr. Tokhi’s evidence as to his wife’s complete inability to speak English is simply wrong. I accept the evidence of Officer Grewal on this issue, for the reasons already stated above.
[59] Mr. Tokhi was asked about a large sum of money that he kept in his Regent Park apartment rather than a bank. He confirmed that he had $75,000 in cash, which he said he had received from the sale of a store he owned in his home country. According to Mr. Tokhi, this money was stolen by someone in his family. He initially blamed his wife. Later he blamed his wife’s brother, apparently because she told him her brother took it. However, when he confronted the brother, he denied taking it and Mrs. Tokhi admitted that he had not. I do not pretend to have any insight into this issue. It may or may not have some bearing on Mrs. Tokhi’s desire to kill her husband. The only thing about which I am confident is that I have not heard the whole truth about it. It is not safe to rely on Mr. Tokhi’s evidence in relation to this money. I have disregarded it entirely in my analysis.
Conclusion
[60] I am satisfied beyond a reasonable doubt that Kadara Tokhi entered into a contract with the undercover officer to have her husband murdered. She clearly communicated her instructions to the officer, agreed on a price, and paid a deposit. I do not know what possible motive she may have had for doing so, but motive is not an essential element of the crime charged. I therefore find Mrs. Tokhi guilty of the crime charged.
MOLLOY J.
Released: March 13, 2014
[^1]: R. v. Moore-McFarlane (2001), 2001 CanLII 6363 (ON CA), 56 O.R. (3d) 737, 160 C.C.C. (3d) 493, 47 C.R. (5th) 203 (C.A.); see also R. v. Wilson (2006) 2006 CanLII 20840 (ON CA), 210 C.C.C. (3d) 23 (Ont.C.A.) at paras 20-21; R. v. Young, 2009 ONCA 891; R. v. Swanek (2005), 2005 CanLII 3326 (ON CA), 194 O.A.C. 155 at para. 8 [^2]: R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321 at paras. 27 and 41 [^3]: Swanek, supra Note 1, at para. 10