



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dixon, 2019 ONCA 698

DATE: 20190909

DOCKET: C61103

Pardu, Brown and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jason Alonso Dixon

Appellant

Jason Alonso Dixon, in person

Andrew Hotke, for the respondent

Heard: September 4, 2019

On appeal from the conviction entered by Justice Larry B.
    OBrien 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 appellants parole officer became concerned that 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 appellants cell phone. R.J. told him
    what happened earlier in the year. She gave a statement and was subpoenaed to
    testify at the appellants 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 appellants 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 appellants 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 appellants 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 appellants 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
    appellants 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.
    Dixons 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 appellants 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 appellants 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 appellants 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 appellants 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.


