R. v. Verdon, 2012 ONCA 638

ENDORSEMENT

1The appellant’s main complaint about the three convictions under appeal is that the trial judge erred in making her findings of credibility. As the trial judge pointed out, there were problems with the complainant’s credibility. Indeed, the trial judge dismissed a number of charges because of those problems. That said, it was open to the trial judge to accept some of the complainant’s evidence. The appellant’s arguments would have us in effect retry the charges on which she convicted. That is not our function. In our view, the trial judge carefully considered the relevant evidence and made findings open to her on the basis of that evidence.

2We are aware of the argument that some parts of the evidence on the first day of this four-day trial were not adequately recorded and transcribed. However, we are not satisfied that the missing portions affected any of the appellant’s grounds of appeal. We see no unfairness in the trial judge’s reliance on the fact that the 911 call was made on September 5, 2009.

3Finally, as to the assault by gesture charge, we are of the view that it was open to the trial judge on the basis of the appellant’s and Mr. Kempster’s evidence to conclude that the offence had been made out.

4In the result, the appeal is dismissed.