Court of Appeal for Ontario

CITATION: R. v. Vertlib, 2008 ONCA 236

DATE: 20080403

DOCKET: C45977

BEFORE: DOHERTY, MOLDAVER and CRONK JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

VITALI VERTLIB

Appellant

COUNSEL:

Leslie Maunder for the appellant

Karen Shai for the respondent

HEARD: April 1, 2008

On appeal from the conviction entered by Justice Malloy of the Superior Court of Justice dated March 22, 2006 and the sentence imposed on May 31, 2006.

APPEAL BOOK ENDORSEMENT

[1] We see no basis upon which to interfere with the trial judge’s s. 11(b) analysis. The appellant does not take issue with the trial judge’s allotment of the time periods per the approach in R. v. Morin.

[2] The argument came down to the contention that the trial judge did not give adequate weight to the harm to the appellant’s health flowing from delay. The trial judge considered this factor and gave it some weight. She ultimately held that the appellant’s failure to raise health concerns at any time before the s. 11(b) motion tended to diminish the force of the prejudice claim (paras. 27-28, 41 of reasons). It was open to the trial judge to make that assessment.

[3] The appeal from conviction is dismissed.

[4] The trial judge considered a conditional sentence, but rejected it in the circumstances. She considered the health problems of the appellant. We see no error in her assessment or in the sentence imposed. The appeal from sentence is dismissed.