



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Falconer, 2019 ONCA 195

DATE: 20190312

DOCKET: C51210

Juriansz, Pepall and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dale Falconer

Appellant

Nicholas A. Xynnis, for the appellant

Joe Hanna, for the respondent

Heard and released orally: March 8, 2019

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 appellants
    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
    appellants testimony lacked an air of reality. The trial judge was aware she
    had to treat Millers 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
    appellants submission the trial judge applied exacting scrutiny to the
    appellants 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 appellants own factum
    makes evident that the Crowns 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.


