R. v. Ensafi Date:, 2011 BCPC 195

Citation: R. v. Ensafi Date: 20110325 2011 BCPC 0195 File No: 55166-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BANAFSHEH ENSAFI ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: D. McCormick Counsel for the Defendant: R. Peck, Q.C. A. Camilletti Place of Hearing: North Vancouver , B.C. Date of Judgment: March 25, 2011 [ 1 ] THE COURT: This is a charge of assault. The accused, Ms. Ensafi, is alleged to have pushed Ms. Ali against a wall in the foyer of Ms. Ali's home, on March 27th, 2010.

The relationship between the complainant and the accused is somewhat convoluted, but I will see if I can sum it up easily. [ 2 ] Ms. Ensafi was dating Ms. Ali's grandson. She is 10 years older than he is. He was 19 or 20 at the time their relationship commenced and she was around 29 or 30. Their relationship had been a secret. [ 3 ] Ms. Ali found out about the relationship or figured it out somehow in late February, about a month before this incident. The evidence of Ms. Ensafi, the accused, is that Ms. Ali then confronted her and made some very unfortunate threats such as that Ms. Ali was going to have Ms.

Ensafi shot or killed. There are various versions of the threats, but the essence is that she was going to have her killed or that something very unfortunate, including an abduction, might happen to her child. [ 4 ] Ms. Ensafi says that she told her boyfriend, Ms. Ali's grandson, Payam Ali, about those threats when they occurred. There is also evidence that she told Mr. Ali's mother, who is the daughter-in-law to the complainant, about those threats either at the time or around the time of the incident before the Court or shortly thereafter. In any event, she did not report those threats to the police.

[ 5 ] The relationship continued. Mr. Payam Ali continued to want to keep the relationship a secret. He was not sure his parents would be accepting of the age difference, in particular, as well as the culturally relative circumstances of Ms. Ensafi having a child. [ 6 ] In any event, on the day in question, Payam Ali's mother went to Ms. Ali's house for a luncheon. During the course of that, Ms. Ali asked to speak to her. Payam's mother, Ms. Pourshafi, had heard of the accused, Ms. Ensafi, and said that Ms.

Ali had previously spoken of her in very positive terms, saying that she was a nice person. [ 7 ] However, on this day, she said she had just found out that Payam, Ms. Pourshafi's son, and the accused were in a relationship. Ms. Pourshafi did not know about that and was taken aback. Ms. Ali went on to say that the accused was a whore, a bitch, a liar, that she had been with an older 46-year-old son of Ms. Ali's, in an intimate way.

There was also some mention of "a plan", but that she wanted the accused to finish her course of schooling at another sister's beauty school and that then she had a plan for her. [ 8 ] In any event, Ms. Pourshafi was very upset about this. Ms. Ali told her not to tell her husband, but she did and then she called Payam Ali. He had been with Ms. Ensafi in her car at a local shopping mall and hopped into a taxi. He fairly said at one point he was enraged and went to his Grandmother's in a taxi. Ms. Ensafi followed. Thereafter, something went on in the foyer of Ms.

Ali's home which caused a dent to the door, some broken drywall and some other broken objects in the home. [ 9 ] Ms. Ali's evidence was inconsistent and very strongly biased against the accused. It is clear that she was meddling where she should not have been. It is clear that she held a great deal of animosity towards Ms. Ensafi at the time of this incident. She denied, however, that she felt any anger or upset, although she was nearly yelling in court while she was denying that very same emotion. [ 10 ] She could not say enough bad things about Ms. Ensafi including that she believed that Ms.

Ensafi had met her older son, Farid, for only an hour and had gone to bed with him, I gather, in her own house. I was not quite sure about that, but then she even went on to say that that night she was certain that the two of them had gone to a hotel together. [ 11 ] She was taken aback, to say the least, that Ms. Ensafi would have done that (although it is completely denied and there is nothing except Ms. Ali's belief that it happened before me). Of course, if it were true, that would be of concern to anyone. [ 12 ] There were other concerns I had about, in particular, the incident itself.

She was taken through the incident very carefully by Crown counsel and she did not ever mention being kicked. It was later in her direct or in cross-examination that she then said that Ms. Ensafi had been kicking her during the course of this altercation. She also speculated and jumped, actually, to the speculation that some scratches to her abdomen were caused by Ms. Ensafi's use of a key. I did not believe her on that point whatsoever. [ 13 ] In any event, she says that what happened is that her grandson came in the door and that he broke some things.

He pushed over a coat rack and broke some things and that he then left her residence, Ms. Ensafi then pushed her so Ms. Ali grabbed her hair and they ended up falling against a wall causing a break to the wall. I accept Constable Olsen's evidence that the two women falling against the wall as described would be highly unlikely to cause the damage to the wall which was observed. [ 14 ] Mr. Payam Ali and the accused, Ms. Ensafi, both tell a very similar tale of what happened which is that they went over, they were both angry and they were both upset. They went into the house. [ 15 ] Mr.

Payam Ali says his grandmother opened the door and then he pushed the door wide open. He stepped inside. He began confronting her about the things she had been saying about Ms. Ensafi. He became particularly enraged when she once again referred to Ms. Ensafi in very uncomplimentary terms. He pushed over a coat rack and a little rack of photographs that was on the floor. At least, I understand that is what he was talking about when he said he pushed over some photographs. [ 16 ] While his back was turned, he says Ms. Ali reached over, and Ms. Ensafi says the same thing, and grabbed Ms.

Ensafi by the hair at the back of her head and pushed her head all the way down, and I think Mr. Payam Ali described it best, as though she were about to do a somersault. He believed that if he had not got to Ms. Ensafi in time, his grandmother may well have pushed her head right into the ground. He removed his grandmother's hands. [ 17 ] As I said, he acknowledges he was enraged. He pushed Ms. Ali against the wall three to four times. He acknowledges that he caused some of the damage to the drywall. Ms.

Ensafi's version of events is virtually the same. [ 18 ] There are some complications about what was going to be reported to the police by whom the next day. Mr. Payam Ali told Ms. Ensafi, "Don't talk about what I did, only talk about what you did," but by the time they got there, Ms. Ali was already there. They went away. They decided to come back and tell the truth, but by that point, it was too late for Mr. Payam Ali's version to be accepted by the police. [ 19 ] In any event, here we are today. What is particularly cogent, in my view, is that Ms.

Pourshafi testified that her husband went and got his mother after this incident. They brought her back to their home where she told them that she was going to say it was Ms. Ensafi who did it because she was not going to make a report against her grandson. She repeated that even though they told her not to do that. That is apparently, according to them, what she did. [ 20 ] This is a matter of credibility. The Crown must prove, of course, the allegation beyond a reasonable doubt. As I have indicated, I have some difficulty in accepting what Ms. Ali had to say about what happened.

I am frankly unclear about what Ms. Ali really said happened. Her evidence was unsatisfactory. [ 21 ] The evidence of the -- the defence evidence as a whole, in my view, could reasonably be true. It certainly raises a reasonable doubt in my mind. It is as equally in accord with the preponderance of probability as the evidence of the complainant as to what happened. [ 22 ] I am left not sure what happened on that day except that it is a very unfortunate thing that something like this has happened within a family.

I can only hope that the family can somehow make amends here, but I certainly am not in a position where I can find

Ms. Ensafi guilty and I acquit her of the charge. [REASONS FOR JUDGMENT CONCLUDED]