Court of Appeal for Ontario

Date: 2019-03-12 Docket: C51210

Judges: Juriansz, Pepall and Lauwers JJ.A.

Between

Her Majesty the Queen Respondent

and

Dale Falconer Appellant

Counsel

Nicholas A. Xynnis, for the appellant

Joe Hanna, for the respondent

Heard and Released

Heard and released orally: March 8, 2019

Appeal Information

On appeal from the conviction entered on May 28, 2009 and the sentence imposed on October 7, 2009 by Justice Barbara A. Conway of the Superior Court of Justice, sitting without a jury.

Reasons for Decision

[1] The appellant appeals his conviction of multiple frauds arising out of a credit card scam.

[2] Counsel submits that the trial judge erred in assessing the appellant's credibility, finding his testimony unbelievable and preferring the testimony of the witness Miller. R. v. Kiss, 2018 ONCA 184, the authority the appellant relies upon, stresses the great deference this court pays to assessments of credibility and explains why this argument is a difficult one to make successfully. In any event, we agree with the trial judge that the appellant's testimony lacked an air of reality. The trial judge was aware she had to treat Miller's evidence with care and she did so. She referred to much in the record that supported the evidence of Miller. We see no basis for the appellant's submission the trial judge applied exacting scrutiny to the appellant's testimony and too readily accepted the testimony of Miller.

[3] The appellant also submits the verdict is unreasonable. The test is whether a properly instructed jury, acting judicially, could reasonably have convicted the appellant. The summary of facts in the appellant's own factum makes evident that the Crown's case had considerable strength and that the appellant was involved in the key steps of setting up and implementing the fraudulent activity.

[4] Counsel wisely did not advance the argument in his factum that the trial judge misapplied the burden of proof and the presumption of reasonable doubt.

[5] The appeal is dismissed.

"R.G. Juriansz J.A."

"S.E. Pepall J.A."

"P. Lauwers J.A."