COURT FILE NO.: CJ7327 (Kitchener) DATE: 2012 05 23

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N: HER MAJESTY THE QUEEN John F. Hanbidge, for the Respondent Respondent

• and - HARALD MATTSON Timothy E. Breen, for the Applicant Applicant HEARD: April 16, 2012 REASONS FOR DECISION SPROAT J.

INTRODUCTION

[ 1 ] This is an application to quash the decision of P. Sheppard J. committing the accused, Harald Mattson (“Mattson”) for trial on a charge of attempting to obstruct justice. In brief the allegation is that Mattson counselled Tyson Holmes (“Holmes”), a prospective Crown witness, that if called to give evidence at a preliminary hearing he should not identify the accused Hinojosa by his street name of “Chico”. It was material to the Crown’s case to prove that a party identified on wiretaps as “Chico” was in fact Hinojosa.

THE EVIDENCE

Introduction

[ 2 ] At the preliminary inquiry the Crown called a homicide investigator, and a Crown Attorney, to provide background information concerning the prosecution of a number of accused, including Hinojosa, for the attempted murder of Michael Rogers on March 9, 2009. The crucial evidence concerning the attempt to obstruct justice charge was given by the prospective witness Holmes and his step-mother Mary Green (“Green”). [ 3 ] The following evidence sets the stage and is not contentious: (a) The accused is a criminal defence lawyer. (b) Mattson had previously represented Holmes, his step-brother, and other family members and so was known to Holmes and his step-mother Green. Mattson was regarded by Green as “the family lawyer”. (c) Michael Rogers was shot on March 9, 2009. Luis Hinjosa was one of four men charged with attempted murder and related charges. Holmes was also originally a co-accused and the charges were later withdrawn against him. Mattson had a conflict and could not represent Holmes and so recommended the counsel. (d) The Crown had wiretap evidence. It was material to the Crown’s case to prove that Hinjosa was also known as “Chico”, a name used on the wiretaps. (e) Holmes was served with a subpoena that required him to give evidence at the preliminary hearing on October 21, 2010. The Crown had scheduled two meetings with Holmes to discuss the evidence he was to give at the preliminary hearing but he failed to attend. A further meeting was scheduled for October 20, 2010. (f) Holmes knew the men charged with attempted murder and did not want to testify against them. He had received conflicting advice from lawyers he had consulted as to whether it would be helpful or not helpful to meet with the Crown in advance of the preliminary given his objective of not having to testify. (g) Green called Mattson on the evening of October 19, 2010 because Holmes was confused over whether he should meet with the Crown the next day as he had received conflicting advice. She called because “we knew Hal would tell us the right thing to do”. In essence, Mattson advised there was no obligation to attend the meeting but Holmes could go if he wanted. (h) Holmes and Green came to the courthouse for the scheduled meeting with the Crown on October 20, 2010. Holmes was still undecided about meeting with the Crown although Green believed it to be the right thing to do and was encouraging him to attend. (i) The Crown did not call Holmes to testify at the preliminary inquiry. [ 4 ] To provide some additional context, before turning to the meeting itself, Green described Holmes as having been under psychiatric care for post traumatic stress disorder and other mental issues. She agreed in cross-examination that he was obsessing over having to testify and inaccuracies in his statement. Holmes did not want to be a “rat” and was concerned for his safety if he testified, particularly because he faced a sentence of imprisonment on unrelated charges and so might be incarcerated at the same time and place as the men he would testify against.

Evidence of Green

[ 5 ] The position of the Crown is that the evidence of Green puts the Crown’s case at its highest. I will, therefore, first review her evidence. [ 6 ] Green testified that on arriving at the courthouse Mattson saw them and inquired what they were doing. They said they were here for the meeting. Mattson said you know you don’t have to attend. Mattson then asked them to hang on a minute and then invited them in to a meeting room. Mattson again asked why they were there. They said Holmes wanted to talk to the Crown to clear up some errors in his statement to the police. [ 7 ] Green testified that she could not recall the exact words but Holmes said there were “errors” that he wanted to clear up with the Crown before he testified. [ 8 ] Green then testified as follows: Q. Okay. And did Mr. Mattson participate further in that exchange? A. Yeah, he did. Q. Okay. Tell the court what was said by him. A. He said – he said to Tyson, something about a guy named Chico. Something about that, you know, his name is – and I can’t pronounce it but Luis something or other and you know, that’s how you know him, right; you don’t really know him as Chico; And, you know, that’s what you should call him; don’t use his nickname. (at p. 157-8) [ 9 ] Green further testified Holmes was concerned about how his statements could be used and that Mattson explained that Holmes’ evidence was what he testified to at the hearing and that his prior statements might or might not refresh his memory. If the statements did not refresh Holmes’ memory he should say that. [ 10 ] While Green was not very specific she testified that Holmes told Mattson he had to explain certain things to the Crown and that he did not want to testify. Holmes tried to ask Mattson a number of questions. When Holmes quit talking Mattson spoke to Holmes. Green testified that the following exchange then took place: Q. All right. And then in particular you mentioned about the word Chico. What do you precisely remember Mr. Mattson saying about that issue? A. About Chico, it was not to use Chico’s name. Q. When? A. When he’s testifying. That he should only refer to him as Luis Hinojosa. Q. All right. And did you or Tyson question him why he was saying that? A. No. It was weird but we didn’t ask any questions. Q. It was weird, you said? A. Yeah. Q. Why did you think that was weird? A. Well we – not me – I can’t speak for Tyson but, I mean, I’ve only ever heard the guy referred to as Chico so I don’t know who – why he wouldn’t be referred to as that. Q. All right. And you’re sitting there and what is the – what is being said by Mr. Mattson about that? A. It was – strictly what he said was that – not to call Chico, Chico. Call him Luis and that you never knew him as Chico. Q. All right. Was there any discussion at all about telling the truth? A. Not that I remember. (at pp. 161-2) [ 11 ] Green continued her preliminary hearing evidence the following day and covered some of the same topics covered earlier. She explained that in her telephone conversation with Mattson, the night before the meeting at the courthouse, she had left him with the impression Holmes was not going to attend the meeting. She believed it was for that reason Mattson expressed surprise to see them. Green then testified as follows: Q. I appreciate that but my question is, what did he say about Chico in…. A. He said something about Chico and, you know Chico and Tyson said yeah. And he says, well, don’t – don’t call him Chico; don’t use his nickname; just refer – or call him Luis Hinojosa. I’m not too sure of the pronunciation of the last name. Q. And your understanding was Luis Hinojosa was whom? A. Chico. Q. I see. A. But I…. Q. And so what exactly did Mr. Mattson say about this? A. The words were don’t – don’t call Chico, Chico; just call him his proper name. Don’t – not a quote but don’t use – I can’t pronounce the real name – don’t use a nickname; just use the real name. Q. All right. And when he – when Mr. Mattson said that – first of all, how many times did he say that? A. Once. Q. Yeah, we’ll come to that in a minute. I’m still focusing on when you’re in the room… A. Okay. Q. …what was said and how you took it. What did you believe, from your perspective, to be the case when you walked out of there concerning Chico – the conversation about Chico? A. Well, all I believed was that Tyson was not to use the fellow’s nickname. Q. When? A. At any – any further. Q. No, but at what setting? A. Well, any further, which would mean during the Crown meeting or any further. Like, I mean, he had the Crown meeting coming up. He had his – he was supposed to testify later and, like…. Q. So, at any of those times? A. I kind of assumed that. (pp. 8-9) [ 12 ] Green testified that Mattson did not direct them one way or the other but they made a joint decision to not attend the meeting with the Crown Attorney. [ 13 ] In cross-examination Green added that: (a) Holmes was concerned that there were aspects of his statement to police that were not true and which implicated other people and he was concerned his statements would become evidence. (b) While Mattson was assertive in speaking to Holmes, and told him to be quiet while he was speaking, this was the way Mattson typically interacted with Holmes. (c) Mattson never spoke to her about the substance of what Holmes had told the police. (d) Mattson said if Mr. Holmes did not attend the meeting with the Crown it was possible that uncertainty over what Holmes might say could lead the Crown to not call him as a witness. This logic appealed to Holmes who then started to think he would not go to the meeting. This made Green angry. Mattson was undoing what she had been trying to accomplish.

Evidence of Holmes

[ 14 ] Holmes testified to a number of matters unrelated to the meeting and that did not involve Green. On these points a trier of fact could only look to Holmes’ evidence, as follows: (a) he first met Hinojosa in June 2009 as part of a group that went to Grand Bend. Hinojosa was known in the drug community as “Chico”. (b) his second meeting with Hinojosa was on the weekend before his arrest, July 7, 2009. (c) Hinojosa was introduced to him as “Luis”. (d) in thinking about his statements to police it occurred to him that he may have described Hinojosa to the police as “Chico” when in fact he did not personally know him as “Chico”. [ 15 ] As to the meeting, in-chief Holmes testified as follows: Q. Okay. A. And then, I don’t know how it came up but he also said, don’t refer to Luis Hinojosa as Chico and by that, I didn’t know if he meant don’t use slang in court or whatnot and then I didn’t know. Q. Okay. A. Then I…. Q. And what exactly did he say on that? A. What did he say? Q. Yeah, what was – what did he say, yes. A. I don’t remember how it came up. Like, what he – he said don’t refer to Luis Hinojosa as Chico. Q. Okay. And did you know that man as Chico? A. I’ve heard it before. I didn’t – I didn’t want to use it in court. I didn’t personally hear it myself. Q. […] And how many times did Mr. Mattson advise you that you shouldn’t refer to that man as Chico if you testified? A. Just once, as I remember. Q. All right. And – and did you get it when he said that or…. A. I didn’t really take it to heart or anything. I didn’t care. Q. Okay. And then what was said? A. I don’t recall what was said after that. I don’t think much. (pp. 78-79) [ 16 ] Holmes’ evidence in-chief departed from or supplemented the evidence of Green in a number of respects. Holmes testified as follows: (a) it was his request to ask Mattson questions that led to the meeting. (b) Mattson said, “as lawyer I have to tell you that you have to go and you have to tell the truth.” (c) in telling him to not refer to Hinojosa as Chico, Mattson may have meant “don’t use slang in court”. (d) it may have been that he raised with Mattson his concern that in his statement to the police he had referred to Hinojosa as “Chico” when he personally did not know him by that name.

REASONS FOR COMMITTAL FOR TRIAL

[ 17 ] Mr. Hanbidge for the Crown submitted that the obstruct justice consisted of Mattson’s advice and direction to not use the word “Chico” when describing Hinojosa at the preliminary inquiry. [ 18 ] Mr. Breen conceded that telling a witness to testify falsely constitutes an attempt to obstruct justice. Mr. Breen, however, submitted that the fragments of the conversation in evidence cannot be intelligibly understood or reliably interpreted without additional evidence as to the context. As such no reasonable trier of fact could draw an inference of an intention by Mattson to obstruct justice. Given that Holmes only knew Hinojosa by his real name and not Chico there is no evidence that suggest Mattson told him to say anything that was not the truth. There was no evidence that Mattson had any knowledge of the substance of what Holmes had said in his statements to the police. [ 19 ] The reasons of P. Sheppard J. for committing Mattson for trial did not extend much beyond stating the test for committal; that the role of the presiding justice was not to be a trier of fact and that the test for committal was met. There was no analysis and no reference was made to specific evidence from which a reasonable jury properly instructed could draw inferences and find facts upon which the jury could convict.

THE LAW

Test to Quash a Committal for Trial

[ 20 ] As stated by Watt J. in R. v. Gollogly , [1989] O.J. No. 3127 (Ont. H.C.) ; approved [1989] O.J. No. 3126 (Ont. C.A.) : 2. The Standard of Review 5 It is a commonplace that upon a motion to quash an order to stand trial, a reviewing court is not authorized to determine whether in its opinion there is any evidence upon which a properly instructed jury, acting judicial, could convict but, rather, is confined to considering whether there is any evidence before the judge presiding at the preliminary inquiry upon which, acting judicial, he or she (the judge presiding at the preliminary inquiry) could form an opinion that the evidence was sufficient to order the accused to stand trial. See, Re Martin and R.; Re Nichols and R. (1977), 1977 1383 (ON CA) , 20 O.R. (2d) 45 , 41 C.C.C. (2d) 308 (C.A.) , affd. 1978 30 (SCC) , [1978] 2 S.C.R. 511 , 41 C.C.C. (2d) 342 ; R. v. Tuske, [1978] O.J. No. 1253 , October 25, 1978 (O.C.A.); and, R. v. Seguin (1982), 1982 5527 (ON CA) , 31 C.R. (3d) 271 (O.C.A.) .

Admissibility – Meaning of “Chico” Reference – the Significance of Context

[ 21 ] In R. v. Hunter (2001) , 2001 5637 (ON CA) , 155 C.C.C. (3d) 225 (Ont. C.A.), a witness overheard the accused say, “I had a gun but I didn’t point it”. Words were spoken before and after that the witness did not hear. Goudge J.A. stated: [20] When the principles derived from Ferris are applied to this case, I think the evidence must be excluded as it was in Ferris . The only possible relevance of the overheard utterance is if it could be found to constitute an admission by the appellant that he had a gun. Here, as in Ferris , the trial judge found that the overheard utterance had a verbal context, which is unknown and that it was part of a fuller statement. That statement may have been a statement such as “I could say I had a gun, but I didn’t point it, but I won’t because it is not true” or “What if the jury finds I had a gun but I didn’t point it – is that aggravated assault?” Neither would constitute an admission. Indeed, given the reasoning of the trial judge, had these possibilities been pointed out to him he might well have reached a different conclusion. [21] In my view, without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission or perhaps even what it meant. Clearly its meaning remains highly speculative. The trier of fact would have to guess at the words that came before and after to fix on a meaning. Since its meaning is highly speculative, its probative value is correspondingly tenuous. However, the substantial prejudicial effect is obvious. This balance clearly favours exclusion of the overheard utterance and, as in Ferris , that should have been the result. (Emphasis added) [ 22 ] In R. v. Ferris (1993), 1994 ABCA 20 () , 27 C.R. (4 TH ) 141 (Alta. C.A.); affirmed 1994 31 (SCC) , 34 C.R. (4 th ) 26 (S.C.C.), after arrest the accused called his father and was overheard to say the words, “I killed David”. The witness could not hear what words were spoken before or after. As such the court hypothesized that the accused could have said, “They think I killed David”, or “You don’t think I killed David?” or “They think I killed David but I didn’t”. [ 23 ] The Supreme Court of Canada, in one paragraph oral reasons by Sopinka J., stated that if the words “I killed David” had any relevance the meaning was so speculative that it ought to have been excluded on a prejudice versus probative value analysis. The Court was, of course, considering the case in the context of an appeal from a jury verdict. There was no need for Sopinka J. to turn his mind to the committal for trial test. [ 24 ] While Sopinka J. did not adopt or express approval with all of the reasons of Conrad J.A. for the majority in the Court of Appeal, he did make reference to the fact that Conrad J.A. had fully outlined the circumstances rendering the words speculative and tenuous. [ 25 ] In his reasons Conrad J.A. makes repeated references that would, in the context of a certiorari application, suggest that the words “I killed David” had no relevance and did not constitute any evidence of guilt. [ 26 ] In this regard Conrad J.A. stated: (a) 16 […] Without meaning being ascertainable the words are not relevant to any fact in issue and they have no probative value. 17 Wigmore on Evidence , vol. 7, para. 2094, analyzes well the problems surrounding verbal utterances. 18 The following appears at p. 595: In general, then, looking at the usual character and practical bearings of conduct and events not involving verbal utterances, there is for such facts no need and no opportunity for a rule requiring the whole of the deed or the occurrence to be offered or taken together. But where words are the object of proof, the conditions are decidedly otherwise. Verbal utterances are attempts to express ideas in words … It follows that the thought as a whole, and as it actually existed, cannot be ascertained without taking the utterance as a whole and comparing the successive elements and their mutual relations. To look at a part alone would be to obtain a false notion of the thought. The total – that is to say, the real – meaning can be got at only by going on to the end of the utterance. One part cannot be separated and taken by itself without doing injustice, by producing misrepresentation. [my emphasis] 19 And further at p. 601: Entirety of parts is equally essential to the correct understanding of an utterance. A word is interpretable in the light of the use of the same word in another part; a clause is modified by a prior or subsequent clause; one sentence qualifies another; and one paragraph may form only a part of the whole exposition. We must compare the whole, not because we desire the remainder for its own sake, but because without it we cannot be sure that we have the true sense and precision; for the greatest possibilities of error lie in trusting to a fragment of an utterance without knowing what the remainder was. [my emphasis] 20 And further at p. 604: The general principle, then – which may be termed the principle of completeness – that the whole of a verbal utterance must be taken together, is accepted in the law of evidence; for the law in this respect does no more than recognize the dictates of good sense and common experience. There are in the application of it important qualifications and exceptions, but the recognition of the principle, and the reason for it, are unquestionable. [emphasis in original] (at pp.151-2) (b) 26 In my view, the trial judge, in his ruling following the voir dire , never directed his mind to the issue of completeness and whether or not words incapable of definitive meaning could be relevant to anything. He said in his ruling that all the circumstances could be brought out and the jury could assess the weight to be given to it. What circumstances? He had all the circumstances and it was his duty to determine whether or not on the evidence before him a properly instructed jury could determine from the fragmented utterance the meaning of the whole. […] (at p.153) (c) 30 The trial judge must be satisfied there is some evidence upon which a jury could conclude the meaning of the uttered words. On the evidence introduced at the voir dire it would be impossible for a properly instructed jury, acting reasonably, to come to a conclusion as to what these words meant on any standard of proof. A trier of fact could not ascertain the accused’s meaning when he uttered the words. Certainly, it would be impossible to conclude they constituted an admission made by the accused. Therefore the words are not logically probative of a fact in issue, are not relevant, are inadmissible and should not have been left with the jury. (at p.155) [ 27 ] Mr. Hanbidge submitted in his factum that: 48. As for the case at bar, in order for the impugned utterances of the Applicant to be considered reliable, and thereby, admissible evidence, does not require a full context. Provided there is sufficient context for a trier of fact to appreciate the meaning, hearing the full conversation is not necessary. What is necessary is that here be sufficient context and content (as compared to fragmented utterances) to give the words real meaning in the sense that it is possible for the trier of fact to determine what was actually being communicated when the statement was made. […] [ 28 ] I take no issue with this proposition. As will be discussed, however, in my opinion on the facts of our case the trier of fact does not have sufficient context and content to give the words meaning. [ 29 ] The four cases cited by the Crown on this point, which I will now review, are all distinguishable. They are all cases in which the conversations were situated in a context in which there was evidence of other words, actions and/or motives which could contribute to giving the spoken words real meaning. [ 30 ] In R.R.W. , [2010] N.J. No. 267 (Nfld. & Lab. S.C. – Tr. Div. – Gen Div. (W.H. Goodridge J.)), the accused was charged with assaulting his wife. The Crown sought to introduce the evidence of the mother of the complainant who overheard part of a telephone conversation in which the accused stated that something had occurred [no detail is provided in the decision] between him and the complainant but not what she alleged. In the context of all the evidence, which is not discussed in any detail, Goodridge J. concluded that there was sufficient context to appreciate the meaning of the words. [ 31 ] In R. v. Ahmad , [2008] O.J. No. 5918 (S.C.J.) (Dawson J.) the Crown sought to introduce wiretap and other recordings of the accused some of which had unintelligible portions. As explained by Dawson J.: 24. The intercepted communications in question here are conversations between two or more people. There is a context in which to interpret the words. The intercepted conversations represent far more than partial thoughts. In many of the intercepts entire threads of conversation are reasonably discernible even if not everything that was said in an entire intercept is. In addition, considerable context is available from other surrounding circumstances such as surveillance evidence, intercepted telephone calls, evidence from the civilian agents, recovered video, and conversations recovered from "memory sticks" used by the accused to communicate with each other. [ 32 ] In R. v. Hall , [2011] O.J. No. 5108 (S.C.J.) (Archibald J.) an altercation took place between the accused and another man resulting in the man being doused with gasoline, set on fire and killed. The utterance was evidence the accused said to the victim, “you want some more come and get it”. Archibald J., after discussing Ferris and Hunter , stated: 42 In contrast, this is not a case "[w]here an overheard utterance is known to have a verbal context, but that context is itself unknown". The utterance "Rob, you want some more, come and get it" was not made in an unknown verbal context. Mr. Laranja observed that nothing preceded this utterance, and nothing followed. In addition, in light of Mr. Laranja's initial observation that Mr. Hall was observed to be putting out the lawn fires, it is reasonable to infer that the tragedy which involved both Mr. Brown and Mr. Hall had just occurred. As such, the jury will not need to speculate about the verbal context in which the utterance was made. 43 Defence counsel further argued that Mr. Hall and Mr. Brown could have had conversations that were not heard by any witnesses. The utterance by Mr. Hall overheard by Ron Lonsdale, "I told you I wasn't joking" certainly implies that this is potentially true. However, it is not necessary for the jury to have every conversation before it in order to determine the meaning of a specific utterance. A jury must only have sufficient context to come to an interpretation of the utterance that is not speculative: see e.g. R. v. R.R.W. (2010), 300 Nfld. & P.E.I.R. 109 (S.C.) , at para. 13 . 44 I find that there is sufficient context in this case for the jury to interpret the utterance in a way that is not speculative. The jury has the context of the surrounding circumstances and the evidence of other witnesses. The jury also has the verbal context in which the utterance was made - that is, that no words preceded the utterance and no words followed. As such, the jury will be able to interpret the utterance without any speculation. [ 33 ] In R. v. Osguthorpe , [2004] B.C.J. No. 2602 (Wong J.) the court was ruling on a voluntariness voir dire . There was a 73 minute videotaped confession. The only thing incomplete was that the police testified to a cellblock confession, prior to the videotaped conversation, which they could not recite word-for-word. The focus was on voluntariness and there is no indication that the Crown placed any, or particular reliance, on anything said in the cellblock given the “extended videotaped confession”.

The Mens Rea of the Offence

[ 34 ] I agree with the Crown’s factum, and the authorities cited, that: 38. The offence of attempt to obstruct justice is a specific intent offence. The prosecution must prove beyond a reasonable doubt that the accused person did in fact intend to act in a way tending to obstruct, pervert or defeat the course of justice. The mental component of the offence is, therefore, to be interpreted narrowly. R. v. Beaudry , 2007 SCC 5 () , [2007] S.C.J. No. 5 R. v. Charbonneau (1992), 1992 2979 (QC CA) , 13 C.R. (4 th ) 191 (Que. C.A.) R. v. Kirkham , [1998] S.J. No. 458 (Q.B.; per: Baynton J.)

ANALYSIS

[ 35 ] Mr. Hanbidge submitted that the Green evidence puts the Crown’s case at its highest and I approach my analysis on that basis. While I have referred to Holmes evidence I appreciate that the trier of fact could accept some, none or all of Holmes’ evidence. To my mind this is something of a Catch 22 situation for the Crown. Holmes’ evidence provides additional context and further support for the defence argument the committal should be quashed. If, however, Holmes’ evidence is ignored completely the brief exchange regarding “Chico” is further deprived of context. [ 36 ] A central question is whether there is any evidence that would permit the trier of fact to infer that Mattson made the comments he did with the intent to obstruct justice. [ 37 ] There are two possible interpretations of what Mattson said. [ 38 ] It would be an attempt to obstruct justice, for Mattson to advise Holmes that, if asked, he should deny that he had ever heard anyone refer to Hinojosa as “Chico”. [ 39 ] It would, however, not be an attempt to obstruct justice to simply advise Holmes that in giving evidence he should state that he personally only knew Hinojosa by his real name and not as “Chico”. [ 40 ] Put differently there is nothing wrong in advising a witness to refer to individuals by their proper name and not by a street name. This is not the same as advising a witness to lie if asked whether the witness had any awareness of the person having a street name. [ 41 ] The question then is whether there is any evidence upon which P. Sheppard J. could have formed the opinion that a properly instructed jury acting reasonably could conclude that the first version, to deny any knowledge that Hinojosa was referred to as “Chico”, was correct. What evidence of context, that might illuminate the meaning of the words spoke, do we have? [ 42 ] When Green first described the meeting she quoted Mattson as having said “you don’t really know him as Chico” and as saying that Holmes should refer to him by his real name and not a nickname. On Green’s evidence there must have been something that led Mattson to say “you don’t really know him as Chico”. Green’s evidence does not provide or suggest the context in which “Chico” came to be discussed. Holmes’ evidence is that he did not personally know Hinojosa as Chico but he had heard him referred to by others as such. [ 43 ] In any event, Green’s evidence does not provide the context in which the “Chico” reference was made. More specifically Green did not recall and could not testify to the words which immediately preceded it. [ 44 ] At the preliminary hearing, in the course of Mr. Breen’s submissions, P. Sheppard J. stated: THE COURT: Well, I agree if what you’re saying is that the prosecution has some difficulties in this case, to put it at its mildest. I, by way of obiter, am perfectly prepared to agree with you but we do have some context here. We have an unequal conversation. We have a conversation occurring under circumstances of clearly mental anxiety, if nothing else. We have a conversation occurring with a time line, given that he’s supposed to testify the next day and is supposed to be at a Crown meeting that day and we have a conversation occurring with someone that he views as his friend as well as his previous legal counsellor. So, we do have that much of a context. [ 45 ] On the application before me to quash the committal Mr. Hanbidge conceded, quite correctly in my view, that none of the particulars of the context cited by P. Sheppard J. were relevant to interpreting the words spoken by Mattson. [ 46 ] The Crown’s factum submits that: 9. As one of the local practising criminal defence attorneys, it is reasonable to infer that the Applicant was acquainted with the circumstances of the Crown’s case against Mr. Hinojosa and the other accused persons in this other outstanding serious criminal/drug proceedings. [ 47 ] It was further submitted that this inference was based on the fact that Mattson had been consulted by one or more of the accused at an early point in the proceeding. [ 48 ] Clearly Mattson knew something about the case against Hinojosa and others. There is, however, nothing in the evidence to suggest he knew about the content of Holmes’ statements to the police and the significance of the name “Chico” to the prosecution. To draw that inference would require impermissible speculation on the part of the trier of fact. [ 49 ] The Crown’s case hinges on the interpretation of one reference (perhaps one or two sentences) to “Chico”. We do not know what words preceded the reference. In my view this case is much more analogous to Hunter and Ferris as cited by the defence than it is to the cases cited by the Crown. [ 50 ] In Ferris and Hunter the court considered the evidence of what was said and then hypothesized as to the context which could alter the meaning of the words attributed to the accused by the witness. [ 51 ] In Hunter Goudge J.A. stated: In my view, without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission or perhaps even what it meant. [ 52 ] I appreciate that I am not the trier of fact. I also appreciate that in Hunter that Goudge J.A. went on to refer to the probative value as being tenuous such that the evidence should have been excluded on a balance of probative value against prejudicial effect. It is not my role to engage in this balancing. In my opinion, however, this quotation supports the conclusion that the utterance this was the only evidence against Hunter his committal could have been quashed or the basis that there was no evidence upon which a reasonable jury, properly instructed, could convict. [ 53 ] Analogizing to Hunter in my opinion there was no evidence upon which P. Sheppard J., acting judicially, could form the opinion that the evidence was sufficient to order Mattson to stand trial.

CONCLUSION

[ 54 ] The order made by P. Sheppard J. on September 9, 2011 committing Mattson for trial is quashed. It follows that the remand date of May 25, 2012 is vacated.

SPROAT J. Released: May 23, 2012