Voice Identification in Criminal Cases and Appealing a Conviction with Fresh Evidence pertaining to phone records.

Published On: Sep 26,2019

Voice Recognition evidence in a criminal trial
Voice ID in Criminal Cases.

The recent decision of Regina v.  Dixon, 2019 ONCA 698 (RD) by the Ontario Court of Appeal considers the manner in voice identification is contextually analyzed by a trial court.  The Court of Appeal upheld the accused’s convictions for attempting to obstruct justice and breaching a long-term supervision order (the “LTO”). The specific breach was failing to obey the law and keep the peace. The factual basis of the charges arose from an alleged phone call by the accused to a woman, named: J. She had been subpoenaed to testify at the accused’s trial for breaching a condition of his LTO.  During this case, it was the Crown’s theory that the accused told J not to attend court, or to lie if she did attend court. The critical issue at trial was the reliability of J’s voice identification evidence.  The accused was convicted,  In convicting the accused of the above offences, the trial judge was satisfied beyond a reasonable doubt that J had identified the accused as the caller in the phone call.

Mr. Dixon appeal and it was dismissed.  In dismissing the accused’s appeal, the Court of Appeal held (at para. 10) that the accused’s convictions “were not unreasonable nor were they unsupported by the evidence.” The convictions were supported by the voice identification evidence of J.  The Court evinced a factual and contextual analysis of the degree of their relationship. The court noted the following:

[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 (CanLII), 322 C.C.C. (3d) 429, at para. 79; R. v. Clouthier, 2012 ONCA 636 (CanLII), 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.

There was a further defence application to adduce fresh evidence.  The representative passages of the judgement averred:

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.

The court dismissed that application as well. The test for admission of fresh evidence set out in Regina v. Palmer, 1979 CanLII 8, [1980] 1 S.C.R. 759. It was not met in this case because of  the “due diligence” requirement; and the proposed fresh evidence did not substantiate the accused’s claim that he could not have called J on the night in question.

If you have been charged with a criminal offence, contact Mr. J.S. Patel, Barrister at 403-585-1960 to schedule a consultation.