R. v. Hoda, 2023 BCPC 218

Citation: R. v. Hoda 2023 BCPC 218 Date: 20231006 File No: 95144 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. BRENNAN GERALD FRANKLIN HODA BAN ON PUBLICATION: pursuant to s. 486.4(1) of the Canadian Criminal Code REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE A. TAM Counsel for the Crown: D. Blumenkrans Counsel for the Defendant: D. Johnson Place of Hearing: Kelowna , B.C. Dates of Hearing: April 24, 25, 26, 27, May 8, 9, 10, August 24, 2023 Date of Judgment: October 6, 2023

INTRODUCTION [1] Mr. Hoda and Ms. W. met each other on an online dating website. After some virtual exchanges, the two met in person.Thereafter, the two began a brief relationship of a few weeks during which they spent time at a hotel or a hostel on three occasions. Thetwo also spent some time in Mr. Hoda’s van. During these encounters, the Crown alleges that Mr. Hoda committed the followingoffences: 1. Aggravated sexual assault of Ms. W. (s. 273(2)(b)); 2. That he, with intent to commit a sexual assault, did attempt to choke, suffocate or strangle Ms. W. (s. 246(a)); 3. Unlawful confinement of Ms.

W. (s. 279(2)); 4. Aggravated sexual assault of Ms. W. (s. 273(2)(b)); and 5. With intent to commit a sexual assault, did attempt to choke, suffocate, or strangle Ms. W. (s. 246(a)). THE CROWN’S CASE [2] The Crown’s evidence comes primarily from Ms. W.’s viva voce evidence, as well as two statements she gave to the police. Byconsent, those two statements were admitted into evidence pursuant to s. 715.2 of the Criminal Code. It is not disputed that Ms. W. has asignificant intellectual disability and has an IQ of 70 or less. She lives with support workers who assist her in managing her day-to-daylife. Ms.

W. has difficulty recognizing dangers and risks that arise in the modern context. [3] According to Ms. W., the two first met in person in late September 2020. On that occasion, they went to the hostel where Mr.Hoda was staying. Shortly after arriving, Mr. Hoda pushed her down onto the bed, climbed on top of her and put his legs on hershoulders. He told Ms. W. to perform oral sex on him. He put his knees on her collarbone and his penis in her mouth. This caused her notto be able to breathe. With his knees on her, she could not get up. Eventually, she was able to push him off of her.

When she tried toleave, he told her that “you can’t go anywhere” and pushed her against the wall and choked her with his hands. He did this until shealmost lost consciousness. He also put his hand over her mouth to prevent her from yelling. [4] On a second occasion, the two were at the Canada’s Best Value Inn in Kelowna. While at the hotel, Mr. Hoda ripped off Ms.W.’s pants and had intercourse with her in her vagina as well as her anus. Mr. Hoda also positioned himself so as to direct Ms. W. toperform oral sex on him. [5] On a third occasion, the two went to a hotel in Penticton. Ms.

W. was coerced into going as Mr. Hoda had threatened to rape thepeople with whom Ms. W. was living. At one point, Ms. W.’s phone kept receiving alerts which angered Mr. Hoda. Mr. Hoda thenstrangled Ms. W. with his hands almost to the point of unconsciousness. No sexual activity was alleged at the hotel in Penticton. [6] During her oral testimony in court, Ms. W. added that Mr. Hoda forced intercourse on her while the two were in his van. Ms. W.said that she did not consent to any of these sexual activities and that she had told this to Mr.

Hoda. [7] In light of her evidence, the Crown seeks a conviction on the five counts laid. However, rather than a conviction for aggravatedsexual assault as charged in Counts 1 and 4, a conviction for the lesser and included offence of sexual assault simpliciter is moreappropriate. Presumably, this is due to the lack of evidence of Ms. W’s life being endangered by any of the alleged acts. Moreover,rather than a conviction under s. 246(

a) in Counts 2 and 5, a conviction for the lesser included offence of assault by strangulationcontrary to s. 267(

c) is sought. THE DEFENCE’S CASE [8] Mr. Hoda was the sole witness for the defence. In general terms, he did not disagree with much of the Crown’s case. Thisincluded that he met Ms. W. on a dating website, that they saw each other in person on a few occasions and that they spent time at eithera hotel or a hostel. He also agreed that they spent time in his van, including a time when they drove around in Penticton looking for ahotel room. [9] However, his recollection of any sexual activity is drastically different than that of Ms. W. He said that it was Ms.

W. whoproposed to perform oral sex on him at the hostel on the day they first met in person. He denies any strangulation or choking at any pointand he never had sexual intercourse with her. He said that he performed oral sex on her while the two were in his van on one occasion.While at the Canada’s Best Value Inn, the two snuggled in bed while naked, but did not engage in sexual activity beyond that. He saysthat all sexual activities were done with the consent of Ms. W. [10] The defence asks the court to acquit Mr. Hoda of all charges.

APPLICABLE LEGAL PRINCIPLES [11] There are a few important principles that govern and guide the court’s decision in this case. Firstly, since Mr. Hoda presentedevidence, the analysis in R. v. W.D., (SCC), [1991] 1 S.C.R. 742, applies. The court must ask itself whether I believeMr. Hoda’s evidence. If I do, I must acquit him. If I do not believe him, I must then ask myself whether his evidence nevertheless raisesa reasonable doubt. If it does, I must acquit him.

Even if his evidence does not raise a reasonable doubt, I must then go on to considerwhether, on the basis of the evidence which I do accept, the Crown has proven each and every element beyond a reasonable doubt. Onlyif all these questions were answered in favour of the Crown could a conviction follow. Anything short of that would not properly honour

the presumption of innocence. [12] Another important guiding principle that comes into play relates to the prohibition against stereotypical reasoning based onunfounded myths. Higher courts have time and again instructed trial judges that there is no “ideal victim”. Victims of any type of assaultcannot be expected to behave in any prescribed way. Human beings react to these traumas differently. It would be an error to discountthe evidence of a complainant merely because it does not conform with how a victim is expected to behave.

While trial judges must stillmake inferences based on common sense and experience, any conclusions drawn must be based on the evidence and established factualfoundation, and not on any preconception, myths, or stereotypes. [13] Lastly, and as noted above, Ms. W. has some cognitive challenges. An assessment of her reliability and credibility must be donethrough the lens of her particular circumstances and limitations. As was said in R. v.

R.W., (SCC), [1992] 2 SCR 122,“every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by referenceto criteria appropriate to [their] mental development, understanding and ability to communicate.” ANALYSIS [14] Having reviewed the entirety of the evidence, paying attention to the legal principles as identified above, this Court hasconcluded that there is a reasonable doubt with respect to Mr. Hoda’s guilt. Mr. Hoda testified in a relatively straightforward manner. Hisanswers were responsive to the questions asked.

He did not appear argumentative and for the most part, he had a good recollection of theevents. He was frank in acknowledging certain aspects of his life, such as his drug use and criminal record, which did not necessarilypaint him in a favourable light. And he readily admitted to having engaged in some sexual activities with Ms. W. He was carefully andthoroughly cross-examined, which cross-examination did not significantly discredit what he had to say. His evidence was not materiallycontradicted by other evidence that the court accepts. At the end of all that, the court is unable to reject Mr.

Hoda’s evidence entirely. Iam left with a reasonable doubt with respect to his guilt. [15] Mr. Blumenkrans urges the court to reject Mr. Hoda’s evidence for several reasons. Firstly, he says that it is rendered lessreliable since he had a poor recollection of the time period of these allegations. For example, Mr. Hoda was unable to remember the yearhe first met Ms. W. and was not able to recollect the names of the various hotels and hostels where he stayed. Additionally, Mr.

Hodawas using crystal methamphetamine at the relevant time, which had an impact on his memory. [16] In the overall context of the case and his evidence, the court finds that Mr. Hoda’s inability to remember the year of his firstencounter with Ms. W. to be of little moment. The court notes that the alleged offences happened in 2020 and the trial took place in 2023.With respect to his drug use, the court cannot come to the conclusion, based on this evidence, that his consumption was so significantand that the effect of the drug so severe as to deprive Mr.

Hoda of the memory of having committed the sexual assault as alleged by Ms.W. [17] The Crown also says that Mr. Hoda was evasive and minimized the degree to which his interest with Ms. W. was primarilysexual. In support, the Crown drew the court’s attention to an exchange in which Mr. Hoda resisted the suggestion that the text “wannaget drunk and cuddle in my bed” was a sexual invitation. The court had occasion to review that passage, as well as others, and concludedthat Mr. Hoda did minimize to some degree the apparent sexual nature of that text.

However, this has to be put in the context that Mr.Hoda did not remember sending the text at all. And at other parts in the exchange, he agreed that the messages he sent were of a sexualnature, for example, when he offered to be Ms. W.’s servant and wanted to drink her urine. Overall, this element does not lead the courtto discount Mr. Hoda’s evidence in its entirety. [18] Moreover, the Crown says that Mr. Hoda contradicted himself in an attempt to further minimize the sexual nature of hisrelationship with Ms. W.

Regarding the evening at the Canada’s Best Value Inn, he was inconsistent with respect to whether the twowere completely naked, partially clothed, or even fully clothed. Again, the court had occasion to re-examine that portion of the evidence.Mr. Hoda testified in chief that the two of them were naked while cuddling and rubbing against each other.

In fact, he says that “I don’tknow if that [sic] a sexual thing or not, but to me, it kind of seemed a little bit like it.” It is significant that this was his evidence in chiefand it was only in cross-examination where the issue arose as to whether the two were wearing clothing. [19] The questions posed in cross-examination were as follows: Q: So, where did you sleep? A: We both slept on the bed together. Q: You were naked; right? A: No, I don’t recall being naked. I was – I had my underwear on, I believe. Q: [Ms. W.] was naked from the bottom down though, wasn’t she? A: No, I don’t think so.

I think she had clothes on. Q: Like she was fully clothed? A: Either fully clothed, or partly -- mostly clothed, yeah. [20] In reviewing those passages, the court finds an ambiguity as to whether Mr. Hoda was answering questions pertaining to theperiod of time when the two were cuddling together, or whether he was talking about the time when the two were sleeping. Although asubtle difference, it is nevertheless an important distinction. If Mr. Hoda was simply referring to the fact that the two may have beenwearing some clothing when they were sleeping, then the two excerpts are not necessarily inconsistent.

Because of the ambiguity, it isnot fair to discount Mr. Hoda’s evidence based on the alleged contradiction. This is so especially because it was Mr. Hoda who initially

offered that the two of them were naked in bed, cuddling, which seemed to him a little sexual. [ 21 ] The proposition that Mr. Hoda attempted to minimize the sexual nature of his relationship is further undermined by another portion of his evidence. According to him, he performed oral sex on Ms. W. while the two were in his van. This is somewhat significant in that Ms. W. never mentioned anything about Mr. Hoda performing oral sex on her. Indeed, in her statements to the police, she denied or did not recall anything happening in the van of a sexual nature.

And although she testified in chief that sexual intercourse happened in the van, it became much more equivocal after cross-examination. At one point, Mr. Johnson asked her: Q. You don’t remember if there was sexual stuff in the van – that happened in the van? A. No, I don’t. And then again a few lines later: Q. But you don’t remember if anything ever happened in the van, right? A. No, I don’t remember. [ 22 ] In the context of that evidence, Mr. Hoda offered that he performed oral sex on her, with her sitting on his face. Consequently, the court does not conclude that Mr.

Hoda attempted to minimize the sexual nature of his relationship with Ms. W. [ 23 ] Lastly, the Crown says that Mr. Hoda contradicted himself with respect to his memory of whether he ejaculated on his stomach during the incident at the hostel. At first he did remember, and then later he did not remember. On this issue, Mr. Hoda said, “I recall on my stomach in some form. Actually, I don’t really – I don’t remember how – where I ejaculated. I don’t recall.” Nevertheless, the overall tenor of his evidence remains that that is his recollection, although he is not certain.

These passages do not cause the court concern regarding his evidence that are germane to the issues at trial. [ 24 ] For all of these reasons, the court respectfully disagrees with Mr. Blumenkrans as to the basis for rejecting Mr. Hoda’s evidence. Accordingly, the court has a reasonable doubt with respect to the element of consent. There was nothing in Ms. W.’s behaviour that would lead the court to conclude that the sexual activities were not consensual. She appeared to be a willing participant in the narrative as related by Mr. Hoda. Notwithstanding Ms.

W.’s oral evidence to the contrary at trial, the court has a reasonable doubt as to whether she consented to the sexual activities described. [ 25 ] The court is, of course, mindful that Mr. Hoda’s evidence must not be assessed in isolation. Rather, the court must assess it in the context of the other evidence led. And it is open to the court to reject an accused’s bare denial, for example, where the balance of the case is sufficiently compelling against him or her. Be that as it may, such is not the case here as the court does have some residual concerns about Ms.

W.’s evidence. [ 26 ] Specifically, it strikes the court that Ms. W. attempted to minimize the degree to which she was interested in pursuing a relationship with Mr. Hoda. In her statements to the police and her viva voce evidence, she painted a picture in which she was not a particularly eager participant in the relationship. For example, questions about whether she texted him that she wanted to see him, or that she enjoyed being in a hotel with him, were repeatedly met with “I don’t remember”. At one point, she outright denied the fact that she enjoyed spending time with Mr. Hoda at a hotel.

This, of course, was outright contradicted by the number of text messages that she exchanged with Mr. Hoda. While the court would not expect Ms. W. to remember every text she sent, the frequency with which she denied having any memory of any of the texts of that nature leads the court to conclude that her answers were not just a matter of forgetfulness, but rather an evasion to answer the question. [ 27 ] Here, I am mindful again not to assess Ms. W.’s evidence as against what the “ideal victim” would say or do.

The fact that she sent those messages or had those feelings is not inconsistent with the fact that the alleged offences occurred. That notwithstanding, what troubles the court is the manner in which she presented the nature of the relationship and her denial of her desire and willingness to be involved with Mr. Hoda. It is, therefore, an issue of credibility with which the court is struggling. [ 28 ] Additionally, whether she enjoyed spending time at a hotel with Mr. Hoda goes to the very heart of one of the elements of Count 3 – whether she was unlawfully confined.

It is incumbent upon the Crown to prove, beyond a reasonable doubt, that Ms. W. was kept, in essence, against her will. The fact she enjoyed spending time there flies in the face of that proposition. [ 29 ] Nor does the court find her explanation compelling. She said that she sent messages of that nature because at the time, she did not know what he was going to do, or that she was going to be assaulted. However, by the time she sent the message “I love spending time at hotel with you”, she had already spent time with Mr. Hoda, and according to her, had already been assaulted and unlawfully confined.

Consequently, her explanation is not a sensible answer and the court is left with a reasonable doubt with respect to whether she was unlawfully confined at all. [ 30 ] Lastly, like Mr. Johnson, the court did have some concerns about Ms. W.’s physical description of what happened during the assault at the hostel. She said that Mr. Hoda had his knees on her collarbone and at the same time put his penis into her mouth to the point that she was struggling to breathe. Anatomically, the court has some trouble envisioning that to be plausible.

CONCLUSION [ 31 ] For the above reasons, the Crown’s case is not sufficiently compelling for the court to reject Mr. Hoda’s evidence in the face of it. As alluded to earlier, the court does entertain a reasonable doubt with respect to Mr. Hoda’s guilt. I am not satisfied that the sexual activities were engaged in without Ms. W.’s consent. I am further not satisfied that she was unlawfully confined against her will. Accordingly, Mr. Hoda will be acquitted of all counts.

_____________________________ The Honourable Judge A. Tam Provincial Court of British Columbia