Court File and Parties

COURT FILE NO.: CR-19-30000364 DATE: 20200527 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – MOHAMMED HAKIMZADAH

Counsel: Jason Gorda, for the Crown Michael Morse, Amicus

HEARD: April 22, 2020

R.F. GOLDSTEIN J.

REASONS FOR SENTENCE

[1] On January 27, 2020 I convicted Mr. Hakimzadah of five counts of counselling the commission of an offence that was not committed: R. v. Hakimzadah, 2020 ONSC 572. This case followed a very difficult path. I set out that path in my reasons for convicting Mr. Hakimzadah. The path has been difficult from conviction to sentencing. Mr. Hakimzadah did not participate in a meaningful way in his sentencing hearing. I raised the issue of Mr. Hakimzadah’s fitness. He has since been seen by another psychiatrist. I find that he is fit. Accordingly, what follows are my reasons for sentence.

1. THE FACTS

(a) Circumstances of the offence

[2] In the fall of 2016 Mr. Hakimzadah was driving a taxi. He picked up a man named Steven Portelance from a Food Basics in Scarborough. According to Mr. Portelance they eventually discussed killing Mr. Hakimzadah’s wife. As I noted in my reasons for convicting Mr. Hakimzadah, I found that it would be unsafe to rely on Mr. Portelance’s testimony except where it was either confirmed by Mr. Hakimzadah’s testimony or recorded by the police. Mr. Portelance eventually went to the police because, as he said, he feared that Mr. Hakimzadah would carry through with a plot to kill his wife. I found that what Mr. Portelance really feared was that Mr. Hakimzadah would carry through with the plot and that he would be implicated.

[3] Mr. Portelance did eventually introduce Officer S., or “Marc” to Mr. Hakimzadah. Officer S. was an undercover police officer (I use “Marc” and “Officer S.” interchangeably in these reasons). All of his interactions with Mr. Hakimzadah were recorded pursuant to a judicial authorization. As far as Mr. Hakimzadah was aware, however, “Marc” was a hit man. He was associated with the Hell’s Angels in Quebec. “Marc” and Mr. Hakimzadah discussed what Mr. Hakimzadah wanted. They discussed price. They discussed how Mr. Hakimzadah felt that his wife and daughter had humiliated and disrespected him.

[4] I found that Mr. Hakimzadah counselled Mr. Portelance that he wanted his wife to “disappear”. He knew it might cost him $50,000.00. Mr. Hakimzadah told “Marc” that he wanted his wife to “no longer exist”. They discussed whether he should make it look like accident or suicide. I found Mr. Hakimzadah guilty of counselling Mr. Portelance and Officer S. to murder Mrs. Hakimzadah.

[5] I also found that Mr. Hakimzadah put the murder plot on hold in order to counsel the commission of another offence. Mr. Hakimzadah wanted “Marc” to plant a gun and drugs in his wife’s car. “Marc” would then call the police, who, if all went according to plan, would search the car and arrest his wife. They discussed a price of $10,000.00. “Marc” eventually showed Mr. Hakimzadah a replica handgun and a powder substance purported to be cocaine. I found Mr. Hakimzadah guilty of counselling Officer S. to commit three offences: transferring a restricted firearm; trafficking cocaine; and public mischief.

[6] Mr. Hakimzadah and “Marc” also discussed the murder of Mrs. Hakimzadah’s family law lawyer, J.D. In Mr. Hakimzadah’s mind J.D. had been responsible for much of his trouble. He wanted her eliminated. Mr. Hakimzadah mused that he wanted J.D. to be shot on University Avenue in front of the courthouse, to send a message of some kind. As I have mentioned, Mr. Hakimzadah’s communications with Officer S. were recorded pursuant to a judicial authorization. This is the transcript of Mr. Hakimzadah’s comment:

So that lawyer, is to be gone. Anywhere she… she’s to be done, she… she can… It’s easy to… to… to the lawyer to be shot or as… huh? Because she… she comes to the University Avenue… do like this and finish her.

[7] I thus found Mr. Hakimzadah guilty of counselling Officer S. to murder J.D.

(b) Circumstances of the offender

[8] Mr. Hakimzadah is 55 years old. He was born in Afghanistan. He moved to Canada in 1986. He established himself, married, and had five children. He has worked as a taxi driver and limousine driver and started his own business. He was running his own business when he was arrested and jailed on the charges before the court. He is currently estranged from his family. Mr. Hakimzadah has no criminal record. He is under family law restraining orders.

[9] Mr. Hakimzadah has been unrepresented throughout most of this proceeding. He has hired and fired lawyers. Mr. Morse has been present as amicus throughout and has been of great assistance to the court.

[10] Mr. Hakimzadah complained of various health issues during the trial. Some context is necessary. Mr. Hakimzadah was arraigned before me on June 6, 2019. The Crown called its case on June 6, 7, 10, 17, 18, and 19, 2019. On June 20, Mr. Hakimzadah indicated to me that he was unable to proceed due to vertigo. He was in the midst of cross-examining Officer S., the undercover police officer. I agreed to adjourn the trial for one day. He indicated that he had been assaulted in jail. He had developed dizziness. He also alleged that correctional officers assaulted him and fractured his back. He had been using crutches. He had an MRI of his brain on January 22, 2019. He also had an MRI of his spine on June 5, 2019. His spine had shown some degenerative changes.

[11] On June 21, Mr. Hakimzadah indicated that he still had vertigo and needed a cataract operation. He said that he could not continue. Susan Robinson, the manager of health care services at Toronto South, provided information to the Court about Mr. Hakimzadah’s health issues at that time. Without getting into the details, she indicated that Mr. Hakimzadah had been diagnosed by a specialist with benign positional vertigo, a chronic condition. Mr. Hakimzadah had also been given naproxen for the pain in his back. Travis Williamson, the institutional security manager at Toronto South, also provided information. Mr. Hakimzadah had been complaining of death threats and assaults from other inmates. He also complained that he had been tortured by guards at Toronto East. Mr. Williamson indicated that the death threat had been investigated. Another inmate had thrown hot water on Mr. Hakimzadah. That inmate had been disciplined and may also have been charged by the Toronto Police. He was unaware of any death threats. He was also unaware of any injury reports in relation to mistreatment by guards at Toronto East.

[12] At that time Crown counsel took the position that Mr. Hakimzadah was deliberately trying to delay or derail the process. I did not make a finding at that time. In retrospect, however, looking at the entirety of the proceedings, notwithstanding that Mr. Hakimzadah has genuine health issues, I have reluctantly concluded that Crown counsel was correct. In other words, both those things can be true – he can have health issues and can also be trying to obstruct the process.

[13] On June 24, 2019 Mr. Hakimzadah continued with the cross-examination of Officer S. and with further evidence. Mr. Hakimzadah testified on June 25 and the evidence concluded.

[14] On August 2, 2019 the court was supposed to hear submissions on guilt or innocence. Mr. Hakimzadah pressed for disclosure of the Toronto police recording equipment and tapes. His position (not supported by amicus) was that the police had deliberately altered the tapes and recording equipment in order to frame him and make him look guilty. He also said he now wanted a jury trial. Those requests were a fairly consistent theme with him. I declined to make any orders for disclosure or declare a mistrial so that he could now have a new trial with a jury.

[15] I did, however, become concerned about the state of Mr. Hakimzadah’s mental health. Mr. Hakimzadah made a long, rambling, and frankly incoherent speech. I became particularly concerned because Mr. Morse, as amicus, indicated that he was having a very difficult time with helping Mr. Hakimzadah understand what was happening. Mr. Gorda, Crown Counsel, and Mr. Morse both agreed that it appeared that Mr. Hakimzadah has been deteriorating mentally and physically in custody. Accordingly, I ordered that he be assessed for fitness to stand trial pursuant to s. 672.11(1) of the Criminal Code. Dr. Andrew Morgan interviewed Mr. Hakimzadah. Dr. Morgan provided a report to the Court. Dr. Morgan found that Mr. Hakimzadah was not certifiable under the Mental Health Act. He did not diagnose Mr. Hakimzadah with a psychiatric condition. He was able to answer standard fitness questions. Dr. Morgan’s opinion was that he was fit.

[16] The trial process continued. Mr. Hakimzadah sought to retain counsel to make arguments on his behalf. The date of November 29, 2019 was set aside. I made it peremptory to Mr. Hakimzadah. On that day he indicated that he had retained counsel, Mr. Paas, to make submissions on his behalf about guilt or innocence. I reluctantly agreed to a further adjournment. Mr. Hakimzadah then refused to leave his cell and come to court on two occasions. On January 17, 2020, Mr. Hakimzadah appeared and explained that he fired Mr. Paas because he wanted Mr. Paas to move for a new trial and disclosure. Mr. Paas believed he had been retained to make legal arguments. Submissions went ahead. As noted, I eventually convicted Mr. Hakimzadah of all counts on the indictment.

[17] Sentencing submissions were supposed to proceed on March 12, 2020. Mr. Hakimzadah came to court. Mr. Hakimzadah came to court and began moaning very loudly and speaking in Pashto. He complained about his back. Eventually I had him removed from court. Mr. Morse advised me that there had been incidents where Mr. Hakimzadah had thrown feces around his cell. That is obviously a significant red flag for a possible psychiatric condition. I remained concerned about Mr. Hakimzadah’s mental health, which, it seemed to me, continued to deteriorate. I am also aware that as a trial judge I have an ongoing duty to protect the fairness of the proceedings, especially in cases where there may be significant mental health issues: R. v. Walker, 2019 ONCA 765 at para. 60.

[18] Accordingly, I ordered that Mr. Hakimzadah be sent for another fitness assessment. Dr. Morgan again assessed Mr. Hakimzadah. Briefly, Dr. Morgan noted that Mr. Hakimzadah presented as cooperative. They conversed in English. Dr. Morgan’s diagnosis did not change in any substantive way. Although Mr. Hakimzadah appeared to be paranoid and delusional, there was no indication that he was unfit. Mr. Hakimzadah was mostly animated about what he considered the unfairness of the trial process.

[19] While it is difficult to tell the extent of Mr. Hakimzadah’s health problems, I am satisfied that they are real and ongoing and have been aggravated by his lengthy stay in custody. It is clear that he needs more medical intervention. It is likely that he will receive better care in a penitentiary setting than the correctional authorities are able to give him in a remand facility.

(c) Impact on the victim and the community

[20] The impact of this crime on the victims has been stark. Fortunately, no one was physically harmed. The psychological harm to Mr. Hakimzadah’s own children and former spouse appears to have been significant.

[21] A pre-sentence report was filed with the court. According to Mrs. Hakimzadah, who was interviewed by the probation officer, she initially separated from Mr. Hakimzadah and fled with the children to a shelter. She stated that Mr. Hakimzadah abused one of the children, causing her to flee the marital home with him. Mrs. Hakimzadah told the probation officer that she loves her husband, does not want him in jail, and wishes him all the best; at the same time, she also believes that he will try to kill her when he gets out of jail. According to the probation officer, Mrs. Hakimzadah’s psychiatrist has told her that she has Stockholm Syndrome. Stockholm Syndrome, of course, refers to a psychological condition where a hostage begins to feel sympathy for her kidnapper.

[22] The probation officer contacted three of Mr. Hakimzadah’s daughters. All three expressed fear of their father. All three were concerned about their safety in the event of Mr. Hakimzadah’s release from custody.

2. LEGAL PARAMETERS

[23] Pursuant to s. 464(a) of the Criminal Code, the penalties for attempting to commit an offence are the same as for counselling the commission of an offence. The attempt provisions are set out in s. 463 of the Criminal Code.

[24] Pursuant to s. 463(a) of the Criminal Code, anyone who attempts to commit an offence where the maximum penalty is life imprisonment is liable to a maximum punishment of 14 years imprisonment.

[25] I convicted Mr. Hakimzadah of two counts of counselling murder and one count of counselling trafficking cocaine. Murder, of course, carries a mandatory penalty of life imprisonment. Cocaine is a Schedule 1 drug under s. 5(1) of the Controlled Drugs and Substances Act. The maximum penalty for trafficking in a Schedule 1 drug is life imprisonment.

[26] Thus, those three counselling offences each carry a maximum penalty of 14 years imprisonment.

[27] Where a person attempts to commit an offence that carries a maximum penalty of 14 years or less, that person is liable to imprisonment for a maximum of one-half of the maximum penalty.

[28] I convicted Mr. Hakimzadah of counselling the commission of transferring a firearm. The maximum penalty for transferring a firearm is 10 years: Criminal Code, s. 99(2). Mr. Hakimzadah is, therefore, liable to imprisonment for a maximum of five years on this count.

[29] I also convicted Mr. Hakimzadah of counselling the commission of the offence of public mischief, specifically the attempt to mislead a peace officer by causing an investigation by falsely accusing someone else of committing an offence: Criminal Code, s. 140(1)(a). The maximum penalty where that offence is prosecuted by indictment is five years. Mr. Hakimzadah is, therefore, liable to imprisonment for a maximum of 2 ½ years on this count.

3. CASE LAW

[30] The range for counselling offences is quite wide.

[31] In R. v. Devitt, 2016 ONCA 871, the offender was charged with several counts of sexual assault. He was being held in custody. He approached another inmate and offered him money in order to kill the complainant. The trial judge imposed a sentence of nine years imprisonment. The Court of Appeal, in upholding the conviction, noted that the range of sentence for the offence of counselling murder is very wide. The Court also noted that the victim was a justice system participant. The Court stated:

A significant aggravating factor in this case, as the trial judge pointed out, is that the person whose death was counselled was the complainant, for all practical purposes the case for the Crown, in the offences with which the appellant was charged. As the complainant and a witness for the Crown, she was a justice system participant, a person deserving of the law's protection. In these circumstances, the trial judge was right to emphasize denunciation and deterrence in his sentencing decision.

[32] In R. v. Terpstra, 2011 ONCA 500, the offender approached a man to kill his wife. The man went to the police. A police undercover officer posed as a hitman. The offender was video and audio-taped discussing the murder. The trial judge imposed a sentence of 6 years. The Court of Appeal upheld the sentence.

[33] In R. v. Gregson, 2017 ONCA 88 the Court of Appeal upheld a 12-year sentence for an offender who hired two hitmen to kill his wife.

[34] In R. v. Shier, 2018 ONSC 5624, the offender hired a “hitman” to kill his ex-partner. The offender believed he had been subject to psychological abuse and control by his ex-partner. He was subject to a significant spousal support order. The “hitman” turned out to be a police officer. Mr. Shier pleaded guilty but brought an entrapment hearing. DiLuca J. dismissed the entrapment application. On sentencing, he reviewed the authorities. He found that the range of sentence for counselling murder in a domestic context was three to eight years. He noted that courts have imposed double-digit sentences where there are particularly serious aggravating factors.

[35] In R. v. Cozzi the accused hired two “bikers” to kill her husband for $10,000.00. The “bikers” were actually undercover police officers. The accused was a nurse and a first offender. The sentencing judge found that the offender was not abused by her husband; rather, she feared losing her children in a custody dispute. Weinper J. imposed a sentence of three years.

[36] In R. v. Tokhi, 2014 ONSC 3142 the offender hired a “hitman” to kill her husband. She had been married to him in Afghanistan in an arranged marriage when she was 14. Her first child was born when she was 16. She had never attended school and could not read or write. It was a very challenging case for the trial judge, Molloy J. The offender did not testify. She did, however, make several allegations to a probation officer (who was writing a pre-sentence report) that could have constituted a defence of duress. The offender ended up testifying on a motion to re-open the trial. The motion was ultimately abandoned. Molloy J. eventually found the offender to be a wholly unreliable witness. Nonetheless, she did find that it was clear that she did not have the full story. She found that the offender had had a difficult life. She was a first offender. She was subject to the will of her husband. She sentenced the offender to 3 ½ years in prison. Respectfully, I think Molloy J.’s explanation is very helpful in explaining her reasons (at paras. 50-51):

Based on these factors and the applicable case law, a sentence of five to six years could be justified. However, the Crown seeks a sentence of three to four years. In my view, that is the appropriate range for Mrs. Tokhi. Her difficult personal circumstances are the factor that moves her case out of the usual range for a crime of this nature. She was forced into an arranged marriage and motherhood at a very young age. She had virtually no control over her own life. She has never gone to school and is unable to read or write. She has also lived under her husband's thumb, and the control of male members of her own family, for her entire life. Finally, more recently, she has seen this attitude revisited on her daughter, to whom she is very close. Against Mrs. Tokhi's wishes, her husband forced their daughter into an inappropriate marriage at an age when she did not even have the legal capacity to marry. Then, when the marriage did not work out, Mr. Tokhi was angry with the daughter. I have no doubt that these circumstances were stressful and difficult for Mrs. Tokhi. She is naïve, uneducated and unsophisticated. None of these things justify murder. However, they do provide a basis for compassion and mercy.

[37] With great respect, I do not agree that the top of the range is in domestic murder counselling cases is 8 years. I note that in Gregson, the Court of Appeal stated at para. 2:

The first ground of appeal is that the sentence of 12 years exceeded the range for the offences. The appellant concedes that the significant aggravating factors in this case put his sentence at the top of the range, but he says that is 8.5 years. We see no error in the 12-year sentence imposed. Case law provided by the Crown shows sentences as high as 16 years for this type of offence. Given the horrendous circumstances of this case, including paying two hit men to kill his wife and continuing to harass her after his arrest, the sentence of 12 years was not outside the range.

[38] Gregson involved a guilty plea. There were clearly aggravating factors (the use of hit men to continue to harass the victim) but the Court did not speak of exceptional circumstances. In my view, double-digit sentences for this most serious of offences are within the normal range.

4. POSITIONS OF THE PARTIES

[39] Mr. Gorda, on behalf of the Crown, acknowledged the seriousness of the case, including the aggravating circumstances. His position, which is fair and compassionate, is that an appropriate sentence is at the higher end of the 8-year range identified by Justice DiLuca. He suggested that when taking all the circumstances of the offence into account, including the aggravating and mitigating factors, is 7 ½ years. His position takes into account that Mr. Hakimzadah put the murder of J.S. and his wife on hold – meaning that there might have been some wavering. He takes the position that because of that conduct this is not the worst of cases.

[40] Mr. Morse, amicus, suggested that the range is between 3 and 8 years. He suggests that the evidence shows that Mr. Hakimzadah abandoned the plot to kill his wife. He also suggests that Mr. Hakimzadah put the plot to kill J.D. on hold. He agreed that the offences were complete but argues that Mr. Hakimzadah’s backing off makes the offences less serious for the purposes of sentencing. Thus, he suggests, the offences are not as serious as it might appear to be at first blush.

[41] Mr. Hakimzadah did not make a submission on his behalf that was particularly helpful. It was difficult for me to understand what he wished. He seemed to suggest that he should receive the maximum penalty possible if he were really guilty.

5. MITIGATING AND AGGRAVATING CIRCUMSTANCES

[42] There are many aggravating factors in this case.

[43] It is obviously highly aggravating that Mr. Hakimzadah wanted Officer S. not just to kill his wife but to make her suffer incarceration and humiliation for a crime she did not commit. He thought that was fair play because he had spent 7 days in custody for allegedly assaulting his daughter.

[44] It is exceptionally aggravating that Mr. Hakimzadah counselled the murder of J.D., his wife’s family law lawyer. Mr. Hakimzadah was under a restraining order regarding his family. That restraining order was obtained by the lawyer. Mr. Hakimzadah entertained the preposterous belief that the lawyer was responsible for turning his wife against him. Mr. Hakimzadah suggested that Officer S. murder J.D. on University Avenue in downtown Toronto in front of the courthouse.

[45] As counselling offences go, discussing the gunning down of a lawyer in broad daylight in front of a courthouse, Hollywood-style, has to be among the most serious. That is not just an attack on an individual lawyer, it is an attack on the administration of justice. Family law is an area where emotions run high and people sometimes engage in violence. Physical threats to lawyers and litigants (and of course, actual violence), are not uncommon. It is completely certain that the successful murder of a family law lawyer under these circumstances would have had a huge chilling effect on members of that bar.

[46] Regrettably, I see few mitigating factors. Mr. Hakimzadah does not seem to have the support or affection of his family, who have expressed dismay at the prospect of his release and fears for their safety.

[47] It is clearly mitigating Mr. Hakimzadah is a first offender. It is an important mitigating factor that Mr. Hakimzadah has led a productive, pro-social life prior to these offences. He has run a business and did provide financial support for his family.

[48] Another important mitigating factor is that Mr. Hakimzadah’s health has deteriorated while he has been in prison, as I have described. He has both mentally and physically. I will take that into account when sentencing Mr. Hakimzadah.

6. ANCILLARY ORDERS

[49] There will be an order under s. 109(1) of the Criminal Code prohibiting Mr. Hakimzadah from possessing any firearms, crossbows, or other weapons as mentioned in that section for ten years.

[50] Counselling the commission of an offence is a secondary designated offence. An order to take a sample of Mr. Hakimzadah’s DNA is not mandatory. In my view, however, it is appropriate to make such an order. Mr. Hakimzadah represents an ongoing threat to his wife and family, and possibly to J.D., his wife’s family lawyer. He will be required provide a sample of his DNA.

[51] There will also be a forfeiture order as sought by the Crown.

[52] Finally, I am also ordering that Mr. Hakimzadah not communicate with his wife and daughters for the duration of his custodial sentence pursuant to s. 743.21(1) of the Criminal Code. I wish to be very clear: if I had the jurisdiction to impose a lifetime ban on communications, variable only at the instance of the victim, then I would do so.

7. SENTENCE TO BE IMPOSED

[53] The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the circumstances of the offender. The key principles of sentencing in a case of counselling the commission of an offence are general deterrence and denunciation. In my respectful view, this is a case where denunciation and general deterrence must play the predominant role.

[54] The court must strongly denounce a crime where a spouse seeks to torture his wife using the legal system. As Mr. Hakimzadah saw it, putting his wife in jail was simple payback. His wife had called the police when Mr. Hakimzadah had allegedly assaulted his daughter. She deserved some time in prison as a proper response, he reasoned, even though she had not committed a crime. That kind of thinking is shocking and must be strongly denounced.

[55] After his wife had been successfully charged and jailed (thus satisfying Mr. Hakimzadah that Officer S. was good at his job) Mr. Hakimzadah then wanted her killed. The murder was only on hold, it was never off the table in my view. Again, the court must strongly denounce counselling of the murder of a spouse. Some of the circumstances that might make the offender more sympathetic – such as those recounted by Molloy J. in Tokhi – do not exist here.

[56] The court must also denounce the counselling of the murder of J.D. in the strongest terms. That crime is utterly egregious. It is certainly aggravating that Mr. Hakimzadah appeared to want to have her murdered in a spectacular fashion. That strikes at the heart of the rule of law. The proposed murder of a lawyer in front of the courthouse is, frankly, either the worst offence or close to the worst offence.

[57] With great respect to the views of Mr. Morse, I cannot agree that Mr. Hakimzadah’s decision to put the murder of his wife and J.D. on hold is mitigating. I respectfully disagree that Mr. Hakimzadah abandoned the plot to murder his wife. In my view, the evidence indicates that Mr. Hakimzadah wanted Officer S. to prove himself first by planting the gun and the drugs. If he succeeded, then Mr. Hakimzadah would carry on with the two murder plots. I do not believe that the evidence shows that Mr. Hakimzadah abandoned the plot. Even if I am wrong, and Mr. Hakimzdah did abandon the plot to kill his wife, he never seems to have abandoned the intention to kill J.D. although he seems to have put it on hold pending the planting and the guns and drugs.

[58] Specific deterrence is also required in this case. Mr. Hakimzadah seems to bear a particular animus towards women. Just as you don’t need a weatherman to tell which way the wind blows, you don’t need a psychologist to tell you that Mr. Hakimzadah is a misogynist. It is more than a cultural artifact. All of the people he targeted or blamed were women – his wife, his daughter, and his wife’s female family law lawyer. This is a worrisome finding, because the implication is that there is an ongoing concern with the safety of Mr. Hakimzadah’s former wife and daughters. They are fearful of him. The author of the pre-sentence report noted:

There is a strong concern for victim safety, and the offender may pose an imminent threat.

[59] Right now, Mr. Hakimzadah appears physically harmless – he has difficulty moving, he appears to be in pain, and he seems debilitated. On the other hand, Mr. Hakimzadah never proposed to kill anyone personally. He tried to hire someone to do it. His physical infirmities, whatever they may be, do not preclude another attempt. His health may also improve, and hopefully it will.

[60] Although denunciation and deterrence are the prime sentencing principles here, I must still give weight to the principle of rehabilitation. It is important that Mr. Hakimzadah is a first offender. It is also important that he has led a pro-social life to this point, established and ran a successful business. He is capable of doing that again. We must hope that after a spell in the penitentiary he can put this behind him and go back to leading a pro-social life.

[61] In imposing sentence, I also take into account the Covid 19 virus that has thrown our society into such turmoil. I am aware that it could affect the inmates of whatever institution Mr. Hakimzadah may be sent to. I do take it into account.

[62] When I consider the mitigating and aggravating factors and the principles of sentencing, I find that a global sentence of 9 years is appropriate. I wish to make it clear that had it not been for the mitigating factor of Mr. Hakimzadah’s health, I would likely have imposed a global sentence the range of 11 or 12 years.

[63] I therefore impose the following sentence:

• Count 1: Counselling the murder of Pastana Hakimzadah: 9 years.
• Count 2: Counselling the transfer of a firearm: 2 years.
• Count 3: Counselling trafficking in cocaine: 2 years.
• Count 4: Counselling the offence of public mischief: 1 year.
• Count 5: Counselling the murder of J.D.: 9 years.

[64] All counts are to run concurrently to count 1 and to each other.

[65] Mr. Hakimzadah has been in custody since his date of arrest. Between November 17, 2016 and today he has spent 1,256 days in custody. I am prepared to credit him with custody at 1.5:1. That is the equivalent of 1,884 days, or at 30 days per month 62.8 months. That works out to five years, 2.8 months or more than 5 years, 3 years at 31 days per month. I am aware that jail has been hard on him. I am also aware that he has been subject to lockdowns at the Toronto South Detention Centre and Toronto East Detention Centre, although more at the South. Ordinarily, I would require that there be evidence as to the number of days to which he was subject to lockdown, as well as the effect on him. I have no such evidence. No doubt that is because Mr. Hakimzadah is self-represented. There is no mathematical formula for determining lockdown credit. I am also aware that Mr. Hakimzadah has suffered marked physical and mental deterioration while in custody. It has not been easy on him – of course, he is in many ways the author of his own misfortune. In this case, I think the circumstances of detention are quite exceptional. I therefore credit Mr. Hakimzadah with the equivalent of 72 months, or six years in custody.

[66] The pre-sentence credit is to be applied to the global sentence, such that Mr. Hakimzadah will serve another three years from today’s date.

[67] This was an exceptionally difficult case for both Mr. Gorda and Mr. Morse as well as for the court staff. Both counsel were of great help to the Court. I wish to express my gratitude for their assistance.

R.F. Goldstein J. Released: April 27, 2020