R. v. Ghazimir-Saeed, 2024 BCPC 16

Citation: R. v. Ghazimir-Saeed 2024 BCPC 16 Date: 20240111 File No: 263930-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. SEYED GHAZIMIR-SAEED REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R.P. HARRIS Counsel for the Crown: T. Cullen Counsel for the Defendant: G. Garih

Place of Hearing: Vancouver , B.C. Dates of Hearing: July 12, 13, September 11, 14, 2023 Date of Judgment: January 11, 2024 [ 1 ] Mr. Li’s inquiry about an apparent theft of tulips resulted in a violent encounter between himself and the accused, Mr. Ghazimir- Saeed. Mr. Ghazimir-Saeed is now charged with assault causing bodily harm. A trial was held and Mr. Ghazimir-Saeed acknowledged striking Mr. Li, but stated he was acting in self-defence. He also argues that Mr. Li’s injuries do not constitute bodily harm.

The issues to be determined are whether the Crown has disproved the elements of self-defence beyond a reasonable doubt and whether the evidence proves beyond a reasonable doubt that Mr. Li suffered bodily harm. THE EVIDENCE Location of incident [ 2 ] The incident occurred outside of an eastside residence once owned by Mr. Li. At the time, the residence had multiple persons occupying various rooms with Mr. Ghazimir-Saeed living in the basement suite that was accessed by a set of exterior stairs leading to a small concrete landing just outside the entry door.

Two security cameras are on the exterior of the building and they provide a partial view of the area outside of Mr. Ghazimir-Saeed’s suite. Relationship between Mr. Li and Mr. Ghazimir-Saeed [ 3 ] Mr. Li and Mr. Ghazimir-Saeed became acquainted when Mr. Li hired Mr. Ghazimir-Saeed to perform work at the property in issue. Some of the work included renovations, landscaping, painting and sod installation. In March of 2011, Mr. Ghazimir-Saeed moved into the basement suite. [ 4 ] Between March 2011 and approximately February 2021, Mr. Li and Mr. Ghazimir-Saeed enjoyed a cordial landlord-tenant relationship.

This does not mean that Mr. Ghazimir-Saeed was happy, rather, he testified the property had multiple electrical issues that culminated in a fire and a sprinkler activation. He also testified that the appliances where faulty and that Mr. Li violated local by-laws by renting out the rooms to individual tenants. As a result of these issues, Mr. Ghazimir-Saeed complained to several regulatory bodies. Mr. Li [ 5 ] On April 26, 2021, Mr. Li and his wife, Ms. Wang, attended the property and when they arrived Mr. Li saw Ms. Maharaj removing planted tulips and placing them into the trunk of her car. At one point, Mr.

Li stepped forward toward the car and he tried to photograph the trunk and the tulips. When he did this, Ms. Maharaj moved to a position that blocked the trunk and Mr. Li responded by reaching out and gently moving her to the side. [ 6 ] Ultimately, Ms. Maharaj explained that she had permission from Mr. Ghazimir-Saeed to take the flowers. Mr. Li next called the police and Ms. Maharaj started walking along the side of the property and down the exterior stairs toward Mr. Ghazimir-Saeed’s suite. Mr. Li and his wife followed and as they did, Mr.

Li spoke with a 911 operator and his wife filmed using her phone. [ 7 ] Mr. Li did not follow Ms. Maharaj down the stairs, rather he stopped near the top of the stairs while his wife waited on the sidewalk and filmed. [ 8 ] Ms. Maharaj knocked on Mr. Ghazimir-Saeed’s door and he answered. Almost immediately after he opened the door, Mr. Li moved down the stairs and yelled “Why you steal my flowers?” Mr. Li stopped at the bottom of the stairs and according to his testimony, when Mr. Ghazimir-Saeed saw that he was on the phone, Mr. Ghazimir-Saeed charged at him, punching him in his left eye and hitting his head.

Mr. Li fell backwards onto the stairs and Mr. Ghazimir-Saeed moved over top of Mr. Li where he repeatedly hit him on his head. [ 9 ] Eventually, Mr. Li’s wife and Ms. Maharaj moved forward and they tried to stop Mr. Ghazimir-Saeed. The attack stopped and shortly thereafter the police arrived. [ 10 ] According to Mr. Li, his head began to hurt almost immediately and his left eye became swollen to the point where he could not see. He was transported to the hospital, examined, and released. Over the next few days, Mr. Li felt nauseous, he was in pain, and he received medication for his eye. Currently, Mr.

Li has vision problems with his left eye, he is fearful, and he does not sleep well at night. [ 11 ] During cross-examination, Mr. Li was challenged on his evidence regarding his eye not having healed. Mr. Li clarified that he was referring to his vision not healing and not his eye. [ 12 ] Counsel for Mr. Ghazimir-Saeed played a portion of the video wherein Mr. Li appears to strike at and scratch Mr. Ghazimir- Saeed in the facial area. Mr. Li acknowledged the correctness of the video and explained he was protecting himself. [ 13 ] Counsel for Mr. Ghazimir-Saeed suggested to Mr.

Li that he threw himself onto the stairs, that he orchestrated much of the events with the objective of forcing Mr. Ghazimir-Saeed to move from the residence. It was also suggested that he was motivated by vengeance in that he wanted to get back at Mr. Ghazimir-Saeed for having complained to the regulatory authorities. Mr. Li denied these suggestions. [ 14 ] Mr. Li was also confronted with an apparent inconsistency. In this regard, Mr. Li testified that he did not expect a fight with Mr. Ghazimir-Saeed and yet the video captures him saying to the 911 operator, “Somebody … to fight me.” Mr.

Li explained that he was nervous, he was anxious and that he has challenges with the English language. Ms. Wang

[ 15 ] Ms. Wang is married to Mr. Li and on April 26, 2021, she and her husband went to their rental property located on the east side of Vancouver. When they arrived she saw a woman digging up their tulips from the front yard. [ 16 ] The pair approached the woman and asked why she was taking the flowers. The woman responded by stating that Mr. Ghazimir- Saeed had given her permission. The pair indicated that they were going to call the police and as Mr. Li started to call the police the woman took them to Mr. Ghazimir-Saeed’s suite. [ 17 ] Ms. Wang and Mr. Li followed the woman. Ms.

Wang filmed as they walked in case the woman and Mr. Ghazimir-Saeed tried to frame them. The woman made her way to Mr. Ghazimir-Saeed’s suite and when Mr. Ghazimir-Saeed opened the door he appeared to notice that Mr. Li was on the phone. He then rushed forward and hit Mr. Li, knocking him down. Thereafter he repeatedly struck Mr. Li. [ 18 ] Ms. Wang tried to pull Mr. Ghazimir-Saeed away from her husband. She has little recollection on how she did this but she knows she did not make contact with him. [ 19 ] Counsel for Mr. Ghazimir-Saeed suggested to Ms. Wang that Mr. Li approached Mr.

Ghazimir-Saeed and scratched him. Ms. Wang denied this suggestion. Ms. Wang also denied the suggestion that Mr. Li threw himself onto the stairs while screaming. Police evidence [ 20 ] The officers who responded to Mr. Li’s 911 call observed a chaotic scene. They noted Mr. Li had injuries to his head and that he had significant swelling around his eye. One officer described it as a “baseball” sized swelling. They also noted that Mr. Ghazimir-Saeed had red scratches on his face. Mr. Ghazimir-Saeed [ 21 ] Mr. Ghazimir-Saeed met Mr. Li a number of years ago when Mr. Li hired him to help build his home.

When the home was finished Mr. Ghazimir-Saeed rented the basement suite. He has lived in the suite for a number of years and he acted as the unofficial property manager. In this regard, he ensured the property was tidy, he tended to unexpected issues, he gardened, and helped with the garbage. [ 22 ] Mr. Ghazimir-Saeed has experienced several challenges while living at the property and in his opinion the problems are related to the number of occupants in the residence. The issues include: excessive garbage, plumbing issues, electrical problems and ultimately a fire. [ 23 ] In response, Mr.

Ghazimir-Saeed complained to various regulatory agencies expressing his belief that Mr. Li was violating various ordinances, by-laws and regulations. By way of example, Mr. Li falsely complained to the police alleging that he threatened a tenant. Mr. Ghazimir-Saeed complained to the City of Vancouver regarding the number of occupants in the residence. According to him, these complaints deteriorated their relationship. [ 24 ] Ultimately, Mr. Ghazimir-Saeed decided to move from the property and in preparation he offered the tulips to Ms. Maharaj who accepted. According to Mr.

Ghazimir-Saeed, he had purchased the tulips and therefore there was nothing preventing him from giving them to Ms. Maharaj. [ 25 ] Turning to the events in issue, Mr. Ghazimir-Saeed was inside his suite when he heard banging at his door. In response, he opened the door and he saw Ms. Maharaj who was just outside. He also saw Mr. Li and his wife on the sidewalk at the top of the stairs. Mr. Li was on the phone and talking loudly to the police. [ 26 ] Almost immediately after the door was opened, Mr. Li walked down the stairs and he “barrelled” toward Mr.

Ghazimir-Saeed who had one foot inside his suite and the other outside and Ms. Maharaj was standing to his right. Then, and while still talking loudly into the phone, Mr. Li threw his hand forward, contacting Mr. Ghazimir-Saeed’s chest and face. Mr. Li next grabbed Mr. Ghazimir- Saeed’s body and he threw himself to the ground while screaming, “Seyed kill, Seyed kill.” [ 27 ] Mr. Ghazimir-Saeed then pushed, kicked and grabbed Mr. Li in an effort to get him back to the stairs. He did this so there would not be any conflict. As for his movements, Mr.

Ghazimir-Saeed described and demonstrated a scooping motion with both hands. [ 28 ] While Mr. Ghazimir-Saeed was trying to move Mr. Li, he saw Mr. Li give his phone to Ms. Wang. By this stage, Mr. Li was lying on the stairs with Mr. Ghazimir-Saeed over top of him. Mr. Li then punched upward, striking Mr. Ghazimir-Saeed in the face who responded by stating, “oh yeah?”, and then he proceeded to defend himself by punching Mr. Li who then scratched Mr. Ghazimir- Saeed’s face. Ms. Maharaj [ 29 ] Ms. Maharaj and Mr. Ghazimir-Saeed became friends after encountering each other when she walked past his residence.

They have been friends for a number of years and were friends at the time of trial. [ 30 ] As for what transpired, Ms. Maharaj knew that Mr. Ghazimir-Saeed was moving out of his residence and she asked if he was taking his flowers. He indicated that he was not and he gave her permission to take them. She then went to the property on April 26, 2021, and she started digging up the tulips and placing them into the trunk of her car. At some point, Mr. Li approached her and called her an “East Indian” and he stated she was stealing the flowers.

She testified she was called a “fucking East Indian” and “a thief”. [ 31 ] Ms. Maharaj told Mr. Li that she had permission and she was not stealing the flowers. Mr. Li told her he was calling the police,

she told him to go ahead and she offered to pay for the flowers. At one stage, Mr. Li pushed her. [ 32 ] Eventually, Ms. Maharaj made her way to Mr. Ghazimir-Saeed’s suite and Mr. Li followed her. Ms. Maharaj knocked on the door and when Mr. Ghazimir-Saeed opened the door, Mr. Ghazimir-Saeed told Mr. Li that he was not supposed to be there. Mr. Li then tried to reach around Ms. Maharaj and slap, kick or punch Mr. Ghazimir-Saeed who said, “go away”. Mr. Li then dropped to the ground and Mr. Ghazimir-Saeed tried to push Mr. Li away. At this point, Ms. Wang stepped forward and scratched Mr.

Ghazimir-Saeed’s face. [ 33 ] Crown counsel cross-examined Ms. Maharaj about the contents of her police statement. Specifically, the Crown pointed out she failed to mention Mr. Li reaching around her and being called a “fucking East Indian”. In response, Ms. Maharaj stated the police forced her to make the statement and that she was traumatized when she prepared it. [ 34 ] The Crown also challenged Ms. Maharaj on an inconsistency between her police statement and her testimony. In this regard, Ms. Maharaj told the police that Mr. Li hit her, whereas her testimony was silent on this point. In response, Ms.

Maharaj offered that “to hit” meant he was “trying to hit”. VIDEO EVIDENCE [ 35 ] Three video recordings were entered into evidence. Two recordings were from surveillance cameras mounted in an elevated position on the exterior of the house. The third recording was made by Ms. Wang on her phone. [ 36 ] The recordings are helpful in that they indicate positioning, movement, dynamics and some dialogue. There are times where movement is obscured by fixed items or the movement momentarily transitions out of camera view.

Despite this, I am satisfied that collectively the videos offer significant assistance in determining what occurred. [ 37 ] In viewing the videos I note, Ms. Maharaj’s vehicle parked at the side of the property with the trunk open and Mr. Li moving toward the vehicle and Ms. Maharaj following. When Mr. Li reaches the rear of the vehicle he appears to try to photograph the contents of the trunk and Ms. Maharaj steps forward and closes the trunk at which point Mr. Li reaches forward and tries to open the trunk while bringing his arm up and making slight contact with Ms. Maharaj. [ 38 ] After the above, Mr. Li, Ms.

Wang and Ms. Maharaj move to the exterior stairwell leading to the entry to Mr. Ghazimir-Saeed’s suite. Ms. Maharaj goes down the stairs toward the suite while Ms. Wang remains on the sidewalk filming. Mr. Li pauses at the top stairs where he can be seen and heard talking on his phone to the police. [ 39 ] Ms. Maharaj knocks on Mr. Ghazimir-Saeed’s door and when he eventually opens the door Mr. Li moves partially down the stairs, he points toward Mr. Ghazimir-Saeed and he asks why is he stealing the flowers. Mr. Ghazimir-Saeed almost immediately exits his suite and he takes a few steps toward Mr.

Li who is on the stairs. At this point, the parties are momentarily out of camera view, but Mr. Li can be heard screaming. [ 40 ] Mr. Ghazimir-Saeed is next observed standing over top of Mr. Li and he is grabbing and kicking at Mr. Li who is on his back lying on the stairs and yelling. Ms. Wang comes down the stairs and she reaches forward in an apparent attempt at protecting Mr. Li. Mr. Ghazimir-Saeed blocks Ms. Wang’s hand and Mr. Li swipes Ms. Wang’s other hand out of the way. He then partially gets to his feet and tries to punch Mr. Ghazimir-Saeed who blocks the punch. [ 41 ] Then, and while Mr.

Ghazimir-Saeed is standing over Mr. Li, he repeatedly punches Mr. Li in the head. The punches appear to be powerful. At some point and while covering his head, Mr. Li reaches up with his left hand and he scratches Mr. Ghazimir-Saeed’s face. Eventually, Mr. Ghazimir-Saeed moves away from Mr. Li who remains lying on the stairs yelling. POSITION OF THE PARTIES The Crown [ 42 ] The Crown argues three sources of evidence combine to overwhelmingly confirm Mr. Li’s credibility and reliability. In support, the Crown references the evidence of Ms. Wang, portions of Ms. Maharaj’s testimony and portions of Mr.

Ghazimir-Saeed’s testimony. [ 43 ] As for Mr. Ghazimir-Saeed’s testimony, the Crown argues portions different from Mr. Li’s should be rejected. In this regard, the Crown points out Mr. Ghazimir-Saeed’s evidence is contradicted by portions of the video recordings, that his evidence was self-serving and that he seized every opportunity to speak negatively about Mr. Li. [ 44 ] The Crown also urges the Court to reject Ms. Maharaj’s evidence.

The Crown points out that she seemed partisan and that her evidence was inconsistent with the video and her police statement. [ 45 ] As for the suggestion that the events were a ruse orchestrated by Mr. Li, the Crown points out the extreme difficulty and chance associated with such an endeavour. Namely, Mr. Li finding Ms. Maharaj removing the tulips, knowing she would go to Mr. Ghazimir- Saeed’s suite, and knowing about the exact field captured by the cameras, which is particularly problematic because Mr.

Li did not install one of the cameras. [ 46 ] Turning to the issue of bodily harm, the Crown submits the evidence of a “baseball” sized injury combined with Mr. Li’s description of his symptoms: dizziness, nausea, pain, and vision problems, proves beyond a reasonable doubt that Mr. Li suffered bodily harm. [ 47 ] In

summary, it is the Crown’s position that the evidence proves beyond a reasonable doubt that Mr. Ghazimir-Saeed attacked Mr. Li, that he was not acting in self-defence, that it was not a consensual fight, and that Mr. Li suffered bodily harm. The defence

[ 48 ] Counsel argues the accepted evidence raises a doubt on whether there was a consensual fight or whether Mr. Ghazimir-Saeed was acting in self-defence. Counsel argues Mr. Ghazimir-Saeed’s evidence on these issues is credible and reliable. Specifically, that his account was logical, detailed and consistent with the video recordings. [ 49 ] Similarly, counsel argues Ms. Maharaj’s evidence is reliable, credible and it supports Mr. Ghazimir-Saeed’s testimony.

In this regard, counsel points out her evidence was consistent with the videos, and that she was largely unshaken in cross-examination. [ 50 ] In terms of the injury, the defence argues there is insufficient reliable and credible evidence establishing beyond a reasonable doubt that Mr. Li suffered more than a transient or trifling injury. In support, counsel submits the only incontrovertible evidence of an injury are pictures showing some bruising and swelling. As for Mr. Li’s evidence regarding his injury, counsel argues it is not reliable or credible. ANALYSIS [ 51 ] Mr.

Ghazimir-Saeed is presumed to be innocent. The Crown has the burden of proving beyond a reasonable doubt that Mr. Ghazimir-Saeed is guilty. This burden never shifts and always remains with the Crown. Proof beyond a reasonable doubt is a very high standard. It is higher than suspicion but does not require proof to the high degree of certainty. [ 52 ] Critical to determining the instant matter is the credibility and reliability of the witnesses. In considering the matter, I remind myself that the matter is not a contest between the witnesses.

Guidance regarding assessing credibility in the context of the Crown’s burden is found in R. v. W(D) , 1991 SCC 93. If I believe Mr. Ghazimir-Saeed’s evidence I must acquit. If I do not believe Mr. Ghazimir- Saeed’s testimony but I am left in a reasonable doubt by it I must acquit. Lastly, even if I am not left in doubt by Mr. Ghazimir-Saeed’s evidence, I must consider if based on all of the accepted evidence whether I am convinced beyond a reasonable doubt by the evidence of the guilt of Mr. Ghazimir-Saeed.

CONCLUSION [ 53 ] When I consider the credibility and reliability of the witnesses, I accept the incident occurred quickly in a highly charged and emotional environment. With this in mind, inconsistencies with respect to minor details are understandable. Perfection in such circumstances is not expected and would be surprising. That said, the reliability and credibility of a witness’ evidence becomes an issue when their evidence deviates significantly from the video recordings. [ 54 ] In my view, Mr. Ghazimir-Saeed’s evidence differs significantly from the videos in key areas.

In this regard, the videos show that Mr. Li did not advance directly toward Mr. Ghazimir-Saeed when he opened the door, nor does it show Mr. Li falling directly to the ground at the door. Simply, the timing, Mr. Li’s positioning on the stairs, the location where he falls, Mr. Ghazimir-Saeed’s position in the doorway, Mr. Ghazimir-Saeed’s movements and the movement of the railing leads to the conclusion that Mr. Ghazimir-Saeed did not remain with one foot inside his suite as he testified, rather, it is clear he left his suite, advanced a number of steps to the stairs where he punched Mr.

Li, knocking him backward onto the stairs. As such, I conclude that Mr. Ghazimir-Saeed’s testimony, regarding Mr. Li hitting him as he stood in the doorway and then falling to the ground, did not happen and is a fabrication. I am therefore unable to accept Mr. Ghazimir-Saeed’s evidence where it departs from the video. [ 55 ] As for Ms. Maharaj, the videos contradict her evidence. First, Mr. Li was not behind her when she knocked on Mr. Ghazimir- Saeed’s door nor was he behind her when the door opened. Further problems with her evidence include important omissions from her police statement. Notably, Mr.

Li apparently calling her a “fucking East Indian” and Mr. Li reaching around her. I do not accept her suggestion that these shortcomings are because the police forced her to write her statement. A further issue is, unlike her testimony, she stated in her police statement that Mr. Li hit her. Her explanation for not including this in her testimony is when she used the word “hit” she actually meant he “tried” to hit her. If that is the case, one ponders why Ms. Maharaj did not testify that Mr. Li tried to hit her.

In the circumstances, I have grave concerns regarding her credibility and I reject those portions of her evidence not confirmed by the videos. [ 56 ] As for the evidence of Mr. Li and Ms. Wang, I conclude they were reliable and credible witnesses. Their evidence was internally and externally consistent. They did their best to answer questions and I acknowledge there were times when Mr. Li’s testimony was tangential. In my view, this was not in an effort to conceal, rather, I view it as an indicator of his emotional involvement. Any suggestion of collusion between Mr. Li and Ms.

Wang has not been established and although married, they both gave their evidence in an unbiased fashion. [ 57 ] With the above in mind and based on all of the evidence that I accept, I am satisfied beyond a reasonable doubt that the following occurred: when Mr. Ghazimir-Saeed opened his door Mr. Li moved down the stairs stopping close to the bottom. Mr. Ghazimir-Saeed became angered and he charged Mr. Li punching him in the left eye and causing Mr. Li to fall. Thereafter, Mr. Ghazimir-Saeed moved forward and he grabbed and kicked at Mr. Li. During these events Ms. Wang tried to intervene, providing Mr.

Li with the opportunity to try and stand at which point he tried to punch Mr. Ghazimir-Saeed. [ 58 ] Mr. Ghazimir-Saeed blocked the punch and he struck Mr. Li, knocking him backwards on the stairs. He then stood over Mr. Li and punched him at least 6 times. At some point during this event, Mr. Li managed to reach up and scratch Mr. Ghazimir-Saeed’s face. [ 59 ] Given my factual findings, I conclude there is no air of reality to Mr. Ghazimir-Saeed’s claim of self-defence. His attack on Mr. Li was unprovoked and all responses by Mr. Li were weak attempts at protecting himself from Mr.

Ghazimir-Saeed’s vicious assault. [ 60 ] I have considered the suggestion that the event was a ruse and I reject this as nonsensical. A ruse would have required luck, choreographing, and practice consistent with a successful championship game. The luck would be; lucky that Ms. Maharaj was present and taking the tulips, lucky that she took Mr. Li and Ms. Wang to Mr. Ghazimir-Saeed’s suite, lucky that he was home, and lucky that Mr. Li’s “dropping to the ground” was not captured on a camera that he did not know about. As for choreographing, Mr.

Li would have had to move and position himself with precision so that he was not captured on the cameras while acting violently but also moving to ensure that Mr. Ghazimir-Saeed’s violence was captured. Lastly, Ms. Wang’s recording managed to capture Mr. Li scratching Mr. Ghazimir-Saeed and also trying to punch him. Capturing these events is completely inconsistent with an orchestrated ruse.

[ 61 ] As for Mr. Li’s injuries, I accept he suffered pain, blurred vision, bruising and swelling. I am satisfied beyond a reasonable doubt that the injuries, but for the vision blurring which still persists, took some time to resolve. Therefore, they were not trifling or transient. [ 62 ] For the above reasons I find Mr. Ghazimir-Saeed guilty of assault causing bodily harm. _____________________________ The Honourable Judge R.P. Harris Provincial Court of British Columbia