Court of Appeal for Ontario

Date: 2019-09-09 Docket: C61103 Judges: Pardu, Brown and Trotter JJ.A.

Parties

Between

Her Majesty the Queen Respondent

and

Jason Alonso Dixon Appellant

Counsel and Hearing

Counsel:

• Jason Alonso Dixon, in person
• Andrew Hotke, for the respondent

Heard: September 4, 2019

On appeal from: The conviction entered by Justice Larry B. O'Brien of the Ontario Court of Justice on March 2, 2015, and from the sentence imposed on September 30, 2015.

Reasons for Decision

Background

[1] Jason Dixon was convicted of attempting to obstruct justice, contrary to s. 139(2) of the Criminal Code, R.S.C. 1985, c. C-46, and breaching a long-term supervision order ("LTSO") by failing to obey the law and keep the peace, contrary to s. 753.3(1). He received a total sentence of 18 months' imprisonment, less credit for 68 days of pre-sentence custody (credited on a 1:1 basis).

[2] On December 23, 2008, following a conviction for aggravated assault, the appellant was placed on a LTSO. Among the conditions of his long-term supervision order, the appellant was required to report the name of every person with whom he was having, or intended to have, a sexual relationship.

[3] The appellant was released to a halfway house on December 21, 2011. Once in the community, the appellant met R.J., a woman who worked nearby. In late December of 2013 or early in January of 2014, R.J. agreed to go on a date with the appellant. They went out for dinner and returned to an apartment that the appellant had rented (even though he was living at the halfway house). The appellant and R.J. watched television and had a couple of drinks. Not feeling comfortable with the situation, R.J. left the apartment around 10:00 to 10:30 p.m. She later discovered that the appellant lived at the halfway house. She told him that she did not want to go out again.

[4] The appellant's parole officer became concerned that the appellant was in breach of the LTSO condition identified above. He contacted R.J. and asked why her phone number was on the appellant's cell phone. R.J. told him what happened earlier in the year. She gave a statement and was subpoenaed to testify at the appellant's trial for breaching his LTSO.

[5] On July 27, 2013, at about 8:30 p.m., R.J. received a call from the appellant, who identified himself as "Jimmie", a name he went by when interacting with R.J. R.J. testified that she recognized the appellant's voice. The appellant told her not to go to court because it would result in jail time for him. When R.J. said she would attend court, the appellant asked her to lie for him by saying that the two went for a work-related lunch, and did not go out for dinner. R.J. said she would not lie. The appellant offered her money, which she declined.

[6] A short time later, R.J. received a call from someone purporting to be the appellant's cousin. R.J. thought that it was the appellant, who was attempting to disguise his voice, but she could not be sure. The person asked her not to go to court, to say that they had a work-related meeting, or to claim that she did not know anything. She refused and asked the person not to call her again.

[7] The appellant did not testify, nor did he offer any other evidence.

[8] The sole issue at trial was the reliability of R.J.'s voice identification evidence. It was conceded that, if it was proved beyond a reasonable doubt that it was the appellant who attempted to persuade R.J. not to attend court, or to lie if she did, the elements of attempting to obstruct justice would be satisfied. It was also conceded that, if proved, the same conduct would amount to a breach of the appellant's LTSO. The trial judge was satisfied beyond a reasonable doubt that R.J. had identified the appellant as the caller in the first telephone call. He did not consider the second call from the appellant's "cousin". On this basis, he found the appellant guilty of both offences.

Issues on Appeal

[9] The appellant appeals his convictions on two bases. First, he argues that the case against him was not properly proved without the corroboration of other evidence, such as phone records. Secondly, the appellant applies to adduce fresh evidence to prove that, when he was detained prior to his trial, he did not have access to a phone at the times that R.J. reported receiving calls from him. He also appeals his sentence.

Evidence Identifying the Appellant

[10] The appellant's convictions were not unreasonable nor were they unsupported by the evidence. The convictions were supported by the voice identification evidence of R.J. The trial judge was well aware of the dangers associated with voice identification and the need to approach this type of evidence with extreme caution: see R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429, at para. 79; R. v. Clouthier, 2012 ONCA 636, at para. 19.

[11] The trial judge found that the nature and extent of R.J.'s previous face-to-face contact with the appellant "allowed her to be sufficiently familiar with Mr. Dixon's voice to be able to recognize it." The trial judge recognized that "the weakest" aspect of R.J.'s evidence was her "struggle with articulating specific objective criteria for voice recognition." However, R.J. testified that she recognized the appellant's voice because he spoke in a particular manner. Moreover, in finding the appellant guilty, the trial judge also relied on the content of the telephone call, which he found added "significant weight to the voice identification analysis." In this call, the appellant identified himself as the caller. The details of the call (i.e., concerning the night the two went on a date and the charge that he was facing at the time) clearly pointed to the appellant as the caller.

[12] This ground of appeal is dismissed.

The Fresh Evidence Application

[13] The appellant seeks to adduce fresh evidence to prove that he did not have access to a phone at the times when R.J. said that he called her. The appellant relies on information obtained pursuant to a 2017 request under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31. From this information, the appellant asserts that, while he was in pre-trial detention at the Quinte Detention Centre, he was often in segregation and was only able to access a phone between 11:00 a.m. to 4:00 p.m. each day. Calls made after 4:00 p.m. required written consent and could only be for the purpose of contacting counsel. Because R.J. testified that she received the first call from the appellant at 8:30 p.m., the appellant asserts that he could not have been the caller.

[14] In oral argument, the appellant advised the court that the 2017 request was his second request for the same information. He had obtained the same materials prior to his trial and had given them to defence counsel. However, the appellant says that the lawyer who represented him came to court without these materials and they were not adduced at trial. The appellant placed no evidence before the court to substantiate this claim. Moreover, much earlier in the proceedings leading up to the hearing of this appeal, this court noted that the appellant would not be asserting ineffective assistance of counsel at trial. Accordingly, we decline to consider the case on this basis.

[15] Returning to the fruits of the appellant's 2017 request, the documentation obtained by the appellant does not substantiate his claim of being deprived of phone access at the relevant time. One of the documents obtained, a Standing Order at Quinte Detention Centre, provides that: "The hours of operation for inmate telephones in all areas including Segregation are 830 to 2130 hrs." Moreover, institutional records documenting the appellant's time at the detention centre do not support his claim. There are gaps in that information suggesting that the appellant was not in segregation at all times.

[16] In response to the appellant's application, the respondent has gathered information from Quinte Detention Centre indicating that, at the time R.J. received a call from the appellant, he would likely have had phone access.

[17] The test for admission of fresh evidence is governed by the principles in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. To gain admission, it must be established that: (1) the evidence could not have been previously obtained through due diligence; (2) the evidence is relevant and bears on a decisive or potentially decisive issue; (3) the evidence must be credible in the sense of being reasonably capable of belief; and (4) the evidence must be such that, if believed, when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result.

[18] The proposed fresh evidence fails to meet the test of admissibility. Although the diligence requirement is sometimes relaxed in criminal cases, there is nothing properly before us to explain why this evidence was not adduced at trial. The appellant was represented by counsel at trial. As already noted, there has been no complaint about the adequacy of the representation provided by counsel. The application fails on this basis.

[19] More fundamentally, the documents relied upon by the appellant do not substantiate his claim that he could not have called R.J. on the night in question. Consequently, the application fails on the fourth factor identified in Palmer in that, if believed, the fresh evidence could not reasonably be expected to have affected the result.

[20] The fresh evidence application is dismissed.

The Sentence Appeal

[21] The sentence appeal is effectively moot because the appellant has already served the 18-month sentence he received for these offences. In any event, we see no basis to interfere. The appellant, who already had a serious criminal record, was convicted of serious offences against the administration of justice. The sentence imposed was fit.

Conclusion

[22] The appeal against conviction is dismissed. The application for leave to appeal sentence is refused.

"G. Pardu J.A."

"David Brown J.A."

"Gary Trotter J.A."