COURT FILE NO.: CR-19-30000364-0000

DATE: 20200127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMED HAKIMZADAH

Jason Gorda, for the Crown

Michael Morse, Amicus

Anthony Paas, for Mr. Hakimzadah

HEARD: June 3, 4, 5, 6, 7, 10, 12, 13, 14, August 2, November 29, 2019; January 9, 17, 2020

Section 486.5(1) provides the court with the authority to make an order "directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

[1] Mohammed Hakimzadah faces five counts of counselling the commission of an offence that was not committed. The Crown alleges that he counselled the murder of his wife, planting a gun and drugs in her car in order to frame her and send her to jail, and the murder of his wife’s lawyer. The Crown principally relies on recordings of conversations between Mr. Hakimzadah and a police agent and an undercover police officer. Mr. Hakimzadah says he did nothing wrong. He says the police altered the recordings in order to frame him.

[2] In my view, Mr. Hakimzadah did indeed hire the undercover officer to carry out these crimes. I find no basis whatsoever to support the notion that the police framed him. For the reasons that follow, I find Mr. Hakimzadah guilty of all five counts.

BACKGROUND

[3] In October 2016 Steven Portelance went to a Food Basics in Scarborough. When he was done his shopping, he called a cab. Mohammed Hakimzadah picked him up. Mr. Hakimzadah owned a taxi company. He owned taxis and limousines. He also drives a taxi. Mr. Hakimzadah and Mr. Portelance talked. According to Mr. Portelance, the subject of Mr. Hakimzadah’s wife and daughter came up. Mr. Hakimzadah allegedly expressed a desire to revenge himself on them for the harm he said that they done to him. Although Mr. Hakimzadah surely did not know it at the time, Mr. Portelance is a highly experienced criminal. Mr. Portelance has over 100 convictions on his criminal record. Mr. Portelance said he could possibly help.

[4] According to Mr. Portelance, Mr. Hakimzadah raised the issue of women. He asked Mr. Portelance if he was married. Mr. Portelance said that he was. Mr. Hakimzadah said that he was divorced and hated his wife and was having problems with her. Mr. Portelance stated that he could probably help him. He testified that he thought he could make some money helping Mr. Hakimzadah out. Mr. Hakimzadah, he says, thanked him. Mr. Portelance says that they had further conversation regarding murdering Mr. Hakimzadah’s wife and daughter. According to Mr. Portelance, Mr. Hakimzadah brought up the prospect of killing his wife. He testified that he knew someone in Quebec who worked for the Hell’s Angels. That person was a hit man. He could introduce Mr. Hakimzadah to his friend.

[5] Mr. Portelance claims he originally planned to rip off Mr. Hakimzadah and had no intention of participating in a plot to kill Mr. Hakimzadah’s wife. He said he knew a Hells Angels hitman in Quebec because he wanted to buy time.

[6] Mr. Portelance and Mr. Hakimzadah met again, according to Mr. Portelance. He testified that he became scared. He was worried that Mr. Hakimzadah was going to actually follow through on the plot. He said and decided to go to the police. Whether that is actually the reason or not, he did go to the police. He contacted the police on October 29, 2016. He gave the police a videotaped statement on October 31, 2016. He agreed to become a police agent. The police decided to use Mr. Portelance to introduce an undercover officer as the hitman from Quebec. The police obtained judicial authorization to record Mr. Hakimzadah’s communications with Mr. Portelance, and the undercover officer, Officer S.

[7] On November 8, 2016 Mr. Portelance met with Mr. Hakimzadah. Mr. Portelance introduced his friend “Marc” to Mr. Hakimzadah. “Marc” was introduced as a hitman who could solve Mr. Hakimzadah’s problems. Mr. Hakimzadah and Officer S. met four times. They discussed planting a gun and drugs in Mr. Hakimzadah’s wife’s car; they discussed eventually killing her; they discussed killing his wife’s family lawyer, J.D.; and they discussed how Mr. Hakimzadah would pay.

[8] Mr. Hakimzadah was arrested on November 17, 2016 and charged with several offences. He was arraigned on the following charges:

• Count 1: counselling an unknown/known person to murder Pastana Hakimzada (Mr. Hakimzadah’s wife);

• Count 2: counselling Officer S. to unlawfully transfer a restricted firearm;

• Count 3: counselling Officer S. to unlawfully traffic in cocaine;

• Count 4: counselling Officer S. to commit public mischief; and,

• Count 5: Counselling Officer S. to murder J.D. (Mr. Hakimzadah’s wife’s family lawyer).

[9] Mr. Hakimzadah testified. He testified that he did not say any of the things that the Crown alleges he said. He says that the police altered the recordings of his conversations with Mr. Portelance and Officer S. He testified that they did it to frame him. He said in submissions and cross-examination that he was also checking to make sure the police were following procedures. He said he never had any intention of hiring anyone to harm people.

[10] I reject Mr. Hakimzadah’s evidence. I find that the tapes are accurate. There is no evidence that the tapes have been altered. I satisfied beyond a reasonable doubt that Mr. Hakimzadah counselled the commission of all the offences.

PROCEDURE

[11] This case followed a very unusual, and unusually crooked path. Mr. Hakimzadah did not have a lawyer. Mr. Morse was appointed by another judge as amicus. Mr. Morse raised some arguments that Mr. Hakimzadah might otherwise have raised. Mr. Hakimzadah throughout insisted that he needed an interpreter and that he needed a lawyer. Justice Forrestal heard evidence regarding the interpreter. She rejected Mr. Hakimzadah’s allegations that the interpreter was inadequate. Ultimately the interpreter was rarely used. It is very clear that Mr. Hakimzadah’s English was more than adequate for him to represent himself.

[12] I found that Mr. Hakimzadah’s protestations that he wanted various adjournments to obtain a lawyer were insincere, given the many adjournments he had already had for that purpose. The trial proceeded, unfortunately, in fits and starts because of Mr. Hakimzadah’s health. The trial also proceeded in fits and starts because some lawyers did show up and indicate that they were going to represent Mr. Hakimzadah. Inevitably, they did not.

[13] Regrettably, Mr. Hakimzadah appeared to deteriorate mentally and physically throughout the trial. Mr. Morse and Mr. Gorda, both of whom have observed Mr. Hakimzadah for some time, agreed that did deteriorate while in custody. At one point I became very concerned about Mr. Hakimzadah’s mental health. I continue to be concerned. He has been in custody since his arrest – more than three years – and has never had a bail hearing. Accordingly, I ordered that he be assessed. The assessing psychiatrist found no mental illness that would affect his fitness to stand trial. The trial continued.

[14] Mr. Hakimzadah insisted that he did not have disclosure. Mr. Morse, who was amicus, was satisfied that he did. Mr. Paas, who briefly represented Mr. Hakimzadah, was also satisfied that he had the disclosure.

[15] Mr. Hakimzadah stated that he needed access to the technical equipment used by the police to record his conversations. He said that he could prove that the police altered the recordings.

[16] The police, he insisted, had made it sound on the recordings that he was saying things that in fact he was not. They altered the recordings to frame him.

[17] I declined to make an order that the police disclose the technical equipment or recordings. There was no evidence that he has any particular expertise in recording equipment, or that he had some expert who could assist him. Leaving aside issues of investigative privilege, Mr. Hakimzadah never made a pre-trial application for disclosure. He did try to obtain an evidentiary basis: He suggested to Officer S. that the recordings were altered. Officer S. denied it. Other than Mr. Hakimzadah’s assertion, there is no other evidence to support his claim. In my view, it is spurious. I found no reason for the police to alter the recordings.

[18] I am aware that Mr. Hakimzadah is in custody and is self-represented. If there was some basis to make such an order, I would have, notwithstanding that Mr. Hakimzadah hardly followed the Rules. It is an extremely serious allegation that the police have framed an accused person, and I would not have let the rules prevent a thorough airing if I thought there was a possibility of a miscarriage of justice. There was, however, no air of reality whatsoever to Mr. Hakimzadah’s allegations. The allegations are either a figment of his fertile imagination or they are deliberate lie designed to throw sand in the gears of justice. Either way, there is no basis upon which I could possibly make such an order.

ISSES AND ANALYSIS:

[19] In my view, this case is best analyzed by grouping the charges in terms of transactions:

Count 1: whether Mr. Hakimzadah counselled a person to murder his wife;

Counts 3, 4, and 5: whether Mr. Hakimzadah counselled Officer S. to plant a gun and drugs in his wife’s car and then report her to the police; and,

Count 5: whether Mr. Hakimzadah counselled Officer S. to kill his wife’s lawyer, J.D.

[20] Since Mr. Hakimzadah testified, I must consider whether I believe his evidence or it leaves me with a reasonable doubt: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742. Even if I do not believe him or find his evidence does not leave me with a reasonable doubt, I must still consider whether the Crown has proven the elements of each offence beyond a reasonable doubt.

[21] Section 464 of the Criminal Code states:

464. Except where otherwise expressly provided by law, the following provisions apply in respect of persons who counsel other persons to commit offences, namely,

(a) every one who counsels another person to commit an indictable offence is, if the offence is not committed, guilty of an indictable offence and liable to the same punishment to which a person who attempts to commit that offence is liable; and

(b) every one who counsels another person to commit an offence punishable on summary conviction is, if the offence is not committed, guilty of an offence punishable on summary conviction.

[22] Subsection 22(3) of the Criminal Code states:

For the purposes of this Act, “counsel” includes procure, solicit or incite.

[23] The elements of the offence of counselling to commit an indictable offence that is not committed are:

First, that the accused person counselled a third party to commit an offence;

Second, that the accused person intended that the third party would commit the offence; and,

Third, that the third party did not commit the offence.

[24] The third element is not relevant for any of the counts. None of the offences were committed.

[25] In R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, Justice Fish stated at para. 29:

In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused's conduct.

[26] The issues in this case, therefore, are as follows:

(a) Do I believe Mr. Hakimzadah’s evidence, or does it leave me in a state of reasonable doubt?

(b) Has the Crown proven beyond a reasonable doubt that Mr. Hakimzadah counselled Mr. Portelance and/or Officer S. to murder his wife?

(c) Has the Crown proven beyond a reasonable doubt that Mr. Hakimzadah counselled Officer S. to plant the drugs and gun in his wife’s car in order to frame her?

(d) Has the Crown proven beyond a reasonable doubt that Mr. Hakimzadah counselled Officer S. to murder J.D.?

[27] I now analyze each issue:

(a) Do I believe Mr. Hakimzadah’s evidence, or does it leave me in a state of reasonable doubt?

[28] Mr. Hakimzadah testified in two parts. During the first part, Mr. Morse asked him questions and he testified in response. In that testimony Mr. Hakimzadah said that he was born in Kandahar, Afghanistan. He is 55 years old. He came to Caanda in 1986. He became a Canadian citizen in 1988 or 1989. He was married to P.H. in 1989. It was an arranged marriage through their parents. They have five children. He has worked consistently since coming to Canada. He has sold cars to make a living. He has also driven a cab. In 2004 he started his own business running cabs and limos but Uber has severly affected his business.

[29] Mr. Hakimzadah also testified that his wife defrauded the government. He testified that she manipulated the government. He testified that many immigrant women did that. She lied to the government in order to obtain family allowance money. She told the government that they were separated even though that was not true. He took a separate apartment but they continued to be husband and wife.

[30] Mr. Hakimzadah further testified that he and his wife separated in 2015. The had what he called a post-nuptual agreement. At the time of the offences in 2016 they had been separated for 12 months. They had a court case and there have been appearances in the Superior Court at 393 University Avenue in Toronto. That case is about custody and access. The address of the courthouse is relevant, as will become clear later in these reasons.

[31] Mr. Hakimzadah testified that Mr. Portelance and Officer S. approached him with money to solve his problems. He never paid anyone to harm his wife or family. He testified that he was just “trying to bullshit” as he put it in his testimony.

[32] Finally, Mr. Hakimzadah testified that he did not tell his wife that he was trying to put her in a hole.

[33] After Mr. Morse was finished, he asked if Mr. Hakimzadah could then testify on his own. I agreed. Mr. Hakimzadah then did so.

[34] What followed can only be described as a lengthy monologue that was difficult to follow. Mr. Hakimzadah complained a great deal about his wife and the injustice done to him. He then testified that when he picked up Mr. Portelance it was Mr. Portelance who raised the subject of drug dealing. He then somehow switched to talking about Officer S. Officer S., he said, wanted to hurt his family. That made him angry. He said that Officer S. talked non-stop.

[35] I pause to note that I have now observed Mr. Hakimzadah both on the stand and in court and I have listened to him on the recordings. I have absolutely no doubt that if anyone talked non-stop it was him.

[36] Mr. Hakimzadah said that he and Officer S. met the next day. He showed Officer S. pictures of his family on his phone in order to entertain him. The essence of his evidence was that Officer S. lied. It was difficult for me to understand but I believe what Mr. Hakimzadah testified to was that he never discussed killing or harming anyone. It was Officer S. who brought up the subject of harming his wife and children. Moreover, the police were engaged in an attempt to frame him.

[37] I do not believe Mr. Hakimzadah’s evidence. His evidence also does not leave me with a reasonable doubt. The recordings of his dealings with Officer S. and Mr. Portelance directly contradict Mr. Hakimzadah’s evidence. The recordings are real evidence and not subject to credibility problems. It is true that he did not directly use words that indicated he wanted Officer S. to murder anyone. He did use the exact words, but the implication was clear. As he indicated, he was nervous and did not want to be recorded. That is why he constantly told the officer to “write it down” so that he could destroy the evidence. It is basic and obvious that he would not have told Officer S. to write the truly incriminating things down if the conversations were innocent.

[38] Moreover, I accept Officer S.’s evidence in its entirety. As noted, I found him to be careful, professional, and doing his best to recollect accurately. He did not exaggerate and readily admitted when he could not recall accurately or made a mistake.

[39] Of course, a trial is not a credibility contest. It is not a question of me accepting one version of events over the other. I must examine Mr. Hakimzadah’s evidence in light of all the surrounding circumstances. Those circumstances include the recordings and Officer S.’s evidence. Mr. Hakimzadah’s evidence makes no sense and is not credible on its face. For example, the photographs taken by the surveillance officers of Officer S. showing Mr. Hakimzadah the replica gun and drugs directly contradict Mr. Hakimzadah’s evidence. The piece of paper seized by Officer S. is another piece of direct evidence that contradicts Mr. Hakimzadah.

[40] Moreover, Mr. Hakimzada’s evidence was internally inconsistent. He was doing some random investigation of the police but at the same time telling them he wanted them to plant a gun and drugs and kill his wife’s lawyer – all in order to test them. Yet at the same time he denied the conversations ever took place as recorded.

[41] Finally, Mr. Hakimzadah’s evidence simply defies reality. It simply makes no sense that the police would obtain judicial authorizations and then alter the recordings – for what? In order to frame a man of whom they had no prior knowledge and towards whom they not appear to be any animus toward?

[42] I therefore do not believe Mr. Hakimzadah. His evidence does not leave me with a reasonable doubt. Of course, that is not the end of the matter. I must decide whether the Crown has proven the offences beyond a reasonable doubt.

(b) Has the Crown proven beyond a reasonable doubt that Mr. Hakimzadah counselled Mr. Portelance and/or Officer S. to murder his wife?

[43] In my view, the Crown has satisfied each element of the offence. Mr. Hakimzadah actively induced, solicited, or procured Officer S. to kill his wife. He discussed it with Mr. Portelance. Mr. Hakimzadah promised payment and negotiated how he would pay.

[44] Mr. Portelance testified that sometime around October 21 he met with Mr. Hakimzadah. They met at an Esso station at Lawrence and Kennedy in Toronto at around 9 in the morning. They went to Mr. Hakimzadah’s house. The house was under construction. Mr. Portelance noted that Mr. Hakimzadah had two limousines parked at his house. While they were in the house, Mr. Hakimzadah said that he wanted to get rid of his wife. Mr. Portelance suggested planting a gun or drugs in her car. Mr. Hakimzadah said that sounded pretty good. Mr. Hakimzadah said his daughter was a prostitute and lived in a bad part of town. He also said that the divorce was costing him a lot of money. Mr. Portelance said that he understood that Mr. Hakimzadah wanted his wife and daughter killed. He said that he did not do that but he could introduce Mr. Hakimzadah to someone who did.

[45] Mr. Portelance also testified that Mr. Hakimzadah told him that he had paid a black man $6000 to have his wife killed. That man ripped him off. Mr. Portelance and Mr. Hakimzadah also discussed buying a gun or drugs and putting them in his daughter’s apartment. He told Mr. Portelance that he wanted proof before he paid. He said that he wanted Mr. Portelance to beat up his daughter and videotape it in order to prove that Mr. Portelance could arrange more criminal behaviour. Mr. Hakimzadah said he could pay $50,000 but could pay as much as $70,000 or $80,000. Mr. Portelance said he could introduce him to someone from the Hells Angels in Quebec. None of the conversation of October 21, 2016 was recorded.

[46] Mr. Portlance then went to the police. He agreed that he might have made a mistake about the dates. He said he was worried that something might happen to Mr. Hakimzadah’s wife or daughter if he did not.

[47] The police obtained a consent authorization to intercept Mr. Portelance’s conversations with Mr. Hakimzadah. On November 8, 2016 Mr. Portelance introduced “Marc” to Mr. Hakimzadah. Mr. Hakimzadah said to Mr. Portelance (on the recordings) he was frightened that Marc could be a cop. He wanted everything written down. Mr. Hakimzadah told Mr. Portelance that he should tell Marc that he wanted the “job” done for $50,000. That conversation was recorded by the police:

HAKIMZADAH: You talk…

PORTELANCE: … okay.

HAKIMZADAH: … like, just say my job… the thing is not to see that person.

PORTELANCE: (unintelligible)… yeah.

HAKIMZADAH: Completely disappear.

PORTELANCE: He knows that.

HAKIMZADAH: Yeah, just say that’s how… and I… your five zero is right there and how long… that’s it.

[48] Mr. Hakimzadah told Mr. Portelance that he had spent seven days in jail for assaulting his daughter. Later on November 8, 2016 they discussed it:

HAKIMZADAH: You understand what I’m telling you? Because (unintelligible) like my daughter.

PORTELANCE: Yeah that’s (unintelligible).

HAKIMZADAH: (unintelligible) my own daughter fuck me up.

PORTELANCE: That’s fucked up.

HAKIMZADAH: You understand? My own daughter (unintelligible) my own daughter.

[49] Mr. Portelance introduced Mr. Hakimzadah to Officer S. after that conversation. Mr. Hakimzadah was quite nervous about meeting Officer S. They met at a gas station. Officer S. introduced himself as a man who could manage what he called human resource problems. Mr. Hakimzadah and Officer S. spoke in Officer S.’s car that day. They also met at the Delta Hotel at Kennedy Road and Highway 401. Mr. Hakimzadah again talked about his daughter and how she had lied and put him in jail.

[50] Officer S. testified that his original understanding was that Mr. Hakimzadah wanted his wife and daughter murdered. Their discussions were a combination of talk and writing things down. Officer S. wrote down “family problems” and Mr. Hakimzadah indicated his wife. Exhibit 5B is the transcript of the conversation between Officer S. and Mr. Hakimzadah on November 8, 2016. At p. 98-100 of the transcript the following conversation took place:

OFFICER S.: Just so I understand. So, it’s not your… your daughter… you… you’re concerned with, its your wife.

HAKIMZADAH: Yeah.

OFFICER S.: I just wanna make sure that I understand.

HAKIMZADAH: Yeah, yeah, yeah.

OFFICER S.: Okay.

HAKIMZADAH: She’s fucking me around, this is what I’m saying to you.

OFFICER S.: Okay. Well… okay, so what is it that you… that you want?

HAKIMZADAH: l just want to write it down before.

OFFICER S.: Okay, you write it down… ‘cause I wanna make sure that I understand.

HAKIMZADAH: I talk to Steve already but I’m (unintelligible) write it down.

OFFICER S.: Okay.

HAKIMZADAH: Here, come, here. Come here.

OFFICER S.: Yeah, sure.

HAKIMZADAH: Don’t read it.

OFFICER S.: I won’t. Okay.

HAKIMZADAH: And I don’t know how it is going to happen. It’s you and him, if you know how to do it or…

[51] At page 129-130 of the transcript the following conversation took place:

OFFICER S.: So maybe I’m not understanding this, but wha’ you mean…

HAKIMZADAH: there’s no…

OFFICER S.: … no longer… ?

HAKIMZADAH: E-x-i-s-t-e-d… exist.

OFFICER S.: Existed… so no longer existed. But what does that… what… is that what you’re looking for?

HAKIMZADAH: Yeah.

[52] Officer S. testified that Mr. Hakimzadah wrote down that he did not want his wife to exist, or no longer existed. Mr. Hakimzadah also wrote: “I don’t want her alive.” They then discussed on the transcript how it was to happen. Officer S. testified at p. 133-136 how he could make the murder look like a suicide or an accident. They discussed the religious prohibition against suicide. Officer S. testified that he wrote “accident” and “suicide”. At p. 137 of the transcript the following conversation took place:

HAKIMZADAH: That’s… that’s… that’s a good way too. That’s a good way too.

OFFICER S.: Okay.

HAKIMZADAH: That’s a good way too.

OFFICER S.: Which… which one you want?

HAKIMZADAH: Like this way. This way.

OFFICER S.: Okay.

HAKIMZADAH: That’s… that’s the best way because it is better. But not this way; this way… I don’t know how she… a-ha… I don’t like this things.

[53] Officer S. testified that Mr. Hakimzadah pointed at “accident” when he said “like this way.” He indicated that he did not like suicide.

[54] Officer S. and Mr. Hakimzadah also discussed payment (P. 147-155). It was agreed that Mr. Hakimzadah would pay $50,000.00.

[55] Mr. Hakimzadah disposed of most of the paper that he and Officer S. used. Officer S. seized a picture of a car drawn by Mr. Hakimzadah. He interpreted it to mean that Mr. Hakimzadah wanted his wife to be put into a car and discarded. He wrote the word “suburbs”. Officer S. also seized a piece of paper where, he testified, Mr. Hakimzadah wrote “lawyer, social worker manipulated her”. And he wrote “she doesn’t come back”.

[56] I turn to an assessment of the evidence on this count. I will start with Mr. Portelance. He has a criminal record with over 100 convictions on it. He testified that he has a serious drug problem. That drug problem generated a life of petty criminality and almost constant contact with the criminal justice system.

[57] Given Mr. Portelance’s significant criminal history, I must approach his evidence with great caution: R. v. Vetrovec, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811. I have little difficulty in finding that Mr. Portelance went to the police because he knew he had an outstanding bench warrant. He clearly wanted assistance with a charge. It is certainly possible that Mr. Portelance went to the police because, as he testified, he was worried about Mr. Hakimzadah’s wife and daughter. I think it more likely that Mr. Portelance was worried about himself. Although he had an outstanding bench warrant from 2014, he did not go to the police to deal with it until he became involved with Mr. Hakimzadah. I suspect that he knew he would have serious problems if Mr. Hakimzadah actually arranged for wife and daughter to be murdered, even if he were not directly involved. His motives cast doubt on his credibility.

[58] Additionally, I found that Mr. Portelance frequently became confused about dates. He was also confused about the details of conversations. I have some serious difficulties with his reliability. It is true that there were aspects of his unrecorded conversations with Mr. Hakimzadah that were consistent with later conversations with Officer S. For example, Mr. Hakimzadah later told Officer S. in a recorded conversation that two men had earlier ripped him off. Mr. Hakimzadah also wanted to write down discussions rather than converse orally. His unrecorded desire to have his wife murdered is certainly consistent with his later statements.

[59] I think it would be unsafe to rely on the unrecorded recollections of Mr. Portelance, except where the main points are consistent with later comments made by Mr. Hakimzadah during recorded conversations. Accordingly, I do not accept the evidence of his conversations with Mr. Hakimzadah except where those conversations were recorded by the police or they are consistent with Mr. Hakimzadah’s later recorded comments.

[60] Mr. Hakimzadah vigorously attacked Officer S.’s evidence. I reject Mr. Hakimzadah’s attacks. Those attacks are without foundation. Officer S.’s evidence was recorded pursuant to a judicial authorization. I see no basis whatsoever to suggest that he, anyone at the Toronto Police Service, altered any recordings with Mr. Hakimzadah. I find that Officer S. also kept careful notes of all his dealings with Mr. Hakimzadah. I accept his evidence.

[61] Mr. Hakimzadah’s wife, P.H., also testified. She discussed much of the background, including the reasons for the separation. She noted that she and the children went to live in a shelter when she and Mr. Hakimzadah separated. She stated that she went to visit Mr. Hakimzadah when he was in custody. She testified that she wanted to understand why Mr. Hakimzadah would arrange to have her and the children killed. She testified that he told her “I built a hole for you and I fell in”. She interpreted this to mean that he had intended to have her killed and buried.

[62] I accept P.H.’s evidence. It is consistent with the other evidence in this case. Moreover, Mr. Hakimzadah was recorded during a conversation with Mr. Portelance saying this: “’cause you dig a hole for me, I dig a hole for you.”

[63] P.H.’s evidence is also consistent with what I have observed of Mr. Hakimzadah. I wish to be clear, however, that would still convict even without her evidence. In my view, the recorded evidence of Mr. Hakimzadah’s own words are enough for a conviction.

[64] It is clear that the recorded words spoken and written down (as testified to by Officer S.) indicate that Mr. Hakimzadah counselled the commission of the offence. He clearly both solicited and incited Officer S. to commit the offence. Mr. Hakimzadah quite clearly actively induced the offence: Hamilton, at para. 56; R. v. Root, 2008 ONCA 869 at para. 83. That satisfies the first element of the offence.

[65] In my view, Mr. Hakimzadah also intended that the crime be carried out. He was aware that he was speaking to a hit man, an associate of the Hell’s Angels. He took precautions to ensure that his most incriminating words could not be recorded – an obvious indication of his state of mind. He also discussed how the hit man would be paid. He did more than simply take an “unjustified risk” that the crime would be carried out. The evidence clearly discloses that he intended that the offence be committed: Hamilton, at para. 29.

[66] It is true that Mr. Hakimzadah later appeared to put the murder on hold in favour of a different crime – the planting of the gun and the drugs. It is also irrelevant. Officer S. did testify that Mr. Hakimzadah appeared to want to put the murder on hold in favour of planting the gun and the drugs. The offence of counselling to commit murder, however, was complete when Mr. Hakimzadah incited Officer S. to commit murder and intended that Officer S. carry it out. It did not matter that the plan changed. As Justice Martin stated in R. v. Gonzague (1983), 1983 CanLII 3541 (ON CA), 4 C.C.C. (3d) 505, [1983] O.J. No. 53 (C.A.) at para. 12:

The offence of procuring under s. 422 is complete when the solicitation or incitement occurs even though it is immediately rejected by the person solicited, or even though the person solicited merely pretends assent and has no intention of committing the offence. There is no authority in either the Canadian or Commonwealth decisions in support of the view that renunciation of the criminal purpose constitutes a defence...

[67] Finally, there was some suggestion by Mr. Hakimzadah that this offence (and the others) was actually instigated by Mr. Portelance and/or Officer S. I disagree. The evidence is quite clear that Mr. Hakimzadah was the insitgator. Even if it were so, however, it would be irrelevant. He had a clear independent interest in the offences: R. v. Markovitch, 2008 BCSC 2178 at paras. 66-68. Accordingly, I find Mr. Hakimzadah guilty on Count 1.

(c) Has the Crown proven beyond a reasonable doubt that Mr. Hakimzadah counselled Officer S. to plant the drugs and gun in his wife’s car in order to frame her?

[68] On November 11, 2016, Mr. Portlance and Mr. Hakimzadah met. They discussed the murder of J.D. and the planting of a gun and drugs to frame P.H. and have her sent to jail. The discussion was recorded pursuant to a judicial authorization. Mr. Hakimzadah wanted to give Mr. Portelance $10,000 so that he could give it to Officer S. Officer S. would plant a gun in his wife’s car or house. The following conversation ensued (Exhibit 3B, p. 11):

HAKIMZADAH: I just said to you I do anything… I can do anything. I give… I give… I give even though… I give… give ten thousand dollars immediately if he put one gun…

PORTELANCE: (unintelligible)

HAKIMZADAH: … into the house or to the car. You understand? That’s easy. What do you think?

PORTELANCE: Okay.

HAKIMZADAH: Huh?

PORTELANCE: Okay.

HAKIMZADAH: And you don’t involve. I give you ten g right away… immediately.

PORTELANCE: Okay, you have…

HAKIMZADAH: … You understand?

PORTELANCE: … that right away?

HAKIMZADAH: Right away.

PORTELANCE: Okay.

HAKIMZADAH: We call it they… they get arrested and they take them to jail and that’s it.

[69] Later, Mr. Hakimzadah stated that he would give Mr. Portelance the address so that he could tell the police. They also discussed the price that Mr. Portelance would have to pay to buy a gun.

[70] Mr. Hakimzadah met with Officer S. on November 14, 2016. They discussed planting the gun. Mr. Hakimzadah was very explicit. The following conversation ensued (Ex. 5C, p. 29-30):

HAKIMZADAH: And whatever it costs you talk to him and I said okay, so I talk to you so he’s supposed to be here. If you have this…

OFFICER S.: Yeah.

HAKIMZADAH: … that’s what I need one. Even put it in. To buy… to buy one, whatever it costs.

OFFICER S.: Okay.

HAKIMZADAH: That’s what I want. With a… with a… with a… with a piece a pistol with a… with a… with the things inside. With a.. with the bullets inside.

OFFICER S.: Okay. Okay.

HAKIMZADAH: Those are the things that he… he needs to put… place it in. he know… he has people to put it in.

OFFICER S.: yeah but you… like to put it in where? You haven’t told me anything.

HAKIMZADAH: To put it in… don’t mention the name.

OFFICER S.: Okay.

HAKIMZADAH: To my…

OFFICER S.: yeah.

HAKIMZADAH: Okay?

OFFICER S.: Put it in there.

HAKIMZADAH: Yeah. And then you call it in.

[71] Officer S. testified that “there” meant Mr. Hakimzadah’s wife’s car. “Calling it in” meant calling the police. They then discussed planting cocaine and the cost of $10,000 (p. 33):

OFFICER S.: You want it done today? Well you have to give me at least uh your… her name and where she lives… how am I… how am I supposed to do this? I don’t understand.

HAKIMZADAH: I know, I know. I can do that but I just… how much it costs?

OFFICER S.: To put that?

HAKIMZADAH: Mm-hmm.

OFFICER S.: Maybe ten.

HAKIMZADAH: That’s very fine. That’s fine. No problem. Together with the… with the white stuff you know with the powder, you know the powder? You know the… something like that. You know the one with the nose. Some people do that with the nose.

[72] Officer S. also indicated that planting guns and drugs was not something he did and that he was confused about what Mr. Hakimzadah really wanted. At that point Mr. Hakimzadah indicated that his wife drove a Chevrolet Uplander and that Officer S. was to plant the gun and drugs in it. He gave Officer S. his wife’s address, and the licence plate of the Chevy Uplander (p. 104).

[73] Officer S. and Mr. Hakimzadah met again on November 16, 2016. The transcript was entered into evidence (Ex. 5D). Mr. Hakimzadah confirmed that he wanted the gun and drugs planted in his wife’s car. He stated that he was “100%” ready to go ahead with it. On November 17, 2016 Officer S. and Mr. Hakimzadah met again in the parking lot of a Chapter’s bookstore. Officer S. showed Mr. Hakimzadah a replica handgun and a substance resembling powder cocaine. He indicated that those were the items he would plant in Mr. Hakimzadah’s wife’s car. They discussed price again. Later that day the police arrested Mr. Hakimzadah.

[74] I have little difficulty in finding that Mr. Hakimzadah counselled Officer S. to plant the gun and the drugs and in order to frame his wife. He clearly procured Officer S. to carry out the task. He actually used the words “bullets” and “powder”. Officer S. testified that he understood “powder” to mean cocaine. That is clearly and obviously correct. I am satisfied beyond a reasonable doubt on the first element of the offence.

[75] I am also satisfied beyond a reasonable doubt on the second element of the offence. Mr. Hakimzadah’s state of mind was extremely hostile to women generally and his wife in particular. He displayed an extreme animus. He said that he wished to do to her what he perceived that she had done to him, namely put her in jail for no reason. There is ample, indeed overwhelming evidence that he intended for Officer S. to carry out the crimes. He never resiled from that position, even when he saw what he believed to be the actual gun and drugs. He intended that Officer S. “call it in”, meaning tell the police. I find Mr. Hakimzadah guilty on counts two, three, and four.

(d) Has the Crown proven beyond a reasonable doubt that Mr. Hakimzadah counselled Officer S. to murder J.D.?

[76] Mr. Portelance and Mr. Hakimzadah discussed the murder of J.D. during the conversation of November 11, 2016. Mr. Hakimzadah indicated that he wanted J.D. murdered. The following conversation ensued (p. 68-69):

PORTELANCE: Okay.

HAKIMZADAH: And I’m supposed wanna do something I and show you the other one, I give you a… a lady and she’s the lawyer. (Unintelligible) understand?

PORTELANCE: (Coughs)

HAKIMZADAH: She was the lawyer of my wife. Whatever he charge you, fifty, forty, I give it to him, he finish the… the lady. Is… the lawyer is recognized.

PORTELANCE: Yeah, how much you spend so far with the lawyer?

HAKIMZADAH: I spend about… about thirty thousand…

PORTELANCE: Holy fuck.

HAKIMZADAH: Forty thousand.

PORTELANCE: Okay that’s a lot.

HAKIMZADAH: 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.

[77] In other words, Mr. Hakimzadah appeared to want J.D. murdered at the University Avenue courthouse. That is what Mr. Portelance testified to. That is certainly what the recordings indicate.

[78] On November 14, 2016 Mr. Hakimzadah and Officer S. also discussed the hit on J.D. They discussed price. Mr. Hakimzadah indicated that he could pay $50,000 to have the lawyer murdered. Officer S. indicated that he needed at least $5000 up front. He also wanted collateral. Mr. Hakimzadah agreed to give him a cab or his cars to hold as collateral.

[79] Mr. Hakimzadah told Officer S. the name of the lawyer. Officer S. googled the lawyer using his phone. He then found her almost immediately as a lawyer in Toronto. Mr. Hakimzadah then gave Officer S. her address. They looked at photographs of her on Mr. Hakimzadah’s phone.

[80] Officer S. and Mr. Hakimzadah then discussed what was to happen to J.D. Officer S. was trying to keep straight what Mr. Hakimzadah wanted (P. 107):

OFFICER S.: Okay, now what about um [J.D.]?

HAKIMZADAH: What that mean?

OFFICER S.: The… whatever her name was, the lawyer.

HAKIMZADAH: What happened. I just say to you, I … repeat it to you one other time.

OFFICER S.: Okay but… okay what ev… okay.

HAKIMZADAH: One other time. The other one, I don’t care. Six months, one… one month, one week… this one (BACKGROUND NOISE) right away. The one I just talked to you about.

OFFICER S.: ‘Kay but do you want that one to be found or not found?

HAKIMZADAH: Uh who?

OFFICER S.: Like…

HAKIMZADAH: I just say to you…

OFFICER S.: … with the… in the news or not in the news?

HAKIMZADAH: No, no, no, no in the news. The… things that you put that… The... the… the gun to put in, I want to put her in jail. That’s all.

OFFICER S.: Yeah, that… I understand that one.

HAKIMZADAH: The other one whether… whatever way you want it it. But if its in the news its better.

OFFICER S.: Okay, that’s what I want to get straight.

HAKIMZADAH: yeah ‘cause in the news is better.

[81] Officer S. testified that Mr. Hakimzadah made a slicing motion across his neck when they discussed J.D. They discussed the code that they would use for writing things down: “w” for “wife” and “l” for “lawyer”.

[82] During their meeting of November 16, 2016 Mr. Hakimzadah again discussed the murder of J.D. Mr. Hakimzadah indicated that he wanted to put that murder on hold for the moment. As he put it, “one at a time” (P. 37). He was not changing his mind but he wanted Officer S. to prove himself by succeeding with the gun and the drugs:

OFFICER S.: And then the L, are we still gonna go ahead or we not?

HAKIMZADAH: No, no, just…

OFFICER S.: I just…

HAKIMZADAH: Pause it.

OFFICER S.: We’ll pause it.

HAKIMZADAH: After we do…

OFFICER S.: Yep.

HAKIMZADAH: … then we get this one then you… the first thing you do and then you would say oh yeah, this guy is a real guy.

[83] Later, after Mr. Hakimzadah indicated that he was “100%” in favour of planting the gun and drugs, Officer S. asked again about the murder of J.D.

OFFICER S.: Okay, and then this.

HAKIMZADAH: That one after we talk.

OFFICER S.: Okay so you’re not hundred percent.

HAKIMZADAH: No, I said to you, we’ll talk.

OFFICER S.: Well…

HAKIMZADAH: I just said to you...

OFFICER S.: Okay.

HAKIMZADAH: … don’t, don’t do anything. Because when I do something…

OFFICER S.: Yep.

HAKIMZADAH: When I say to you I wana, I wanna pee, and then shit comes (laughs) afterwards. I want to do shit afterwards. Do you understand me? (laughs)

OFFICER S.: Right.

HAKIMZADAH: I’m just peeing now.

OFFICER S.: yeah.

HAKIMZADAH: (laughs) The other stuff is easy for me.

OFFICER S.: ‘Kay.

HAKIMZADAH: The other stuff is easy for me. The pee, I’m holding the pee. (Laughs)

OFFICER S.: Okay.

HAKIMZADAH: This W is a pee. ‘Cause its right there. Its very, very sensitive for me. Important for me.

[84] In my view, the offence was complete when Mr. Hakimzadah first indicated that he wanted Officer S. to kill J.D. I also find that all of the circumstances indicate that Mr. Hakimzadah intended that the murder be carried out, or at the very least he was reckless as to the unjustified risk that it would be carried out. He provided Officer S. with the name, address, and photograph of J.D. There was confusion about whether the murder was to be in the news or J.D. should just disappear. There was also confusion about when it should happen. There was no confusion about whether it should happen. The fact that payment had not yet been fully worked out is irrelevant: R. v. Pereira, [1996] B.C.J. 3021 (C.A.) at para. 7. The fact that details had not been worked out is also irrelevant: R. v. Devitt, 2016 ONCA 871 at para. 12. Mr. Hakimzadah’s crude references to urinating and defecating did not indicate that he was resiling. I find that Mr. Hakimzadah simply placed greater emphasis on planting the gun and drugs in his wife’s car than he did on killing J.D.

[85] I am therefore satisfied beyond a reasonable doubt that Mr. Hakimzadah incited or procured Officer S. to murder J.D. I am also satisfied beyond a reasonable doubt that he intended, or was at least reckless, that the murder be carried out. I find him guilty on count five.

DISPOSITION:

[86] I find Mr. Hakimzadah guilty on all counts.

R.F. Goldstein J.

Released: January 27, 2020

COURT FILE NO.: CR-19-30000364-0000

DATE: 20200127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOHAMMED HAKIMZADAH

REASONS FOR JUDGMENT

R.F. Goldstein J.