W A R N I N G

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486. (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that

(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b) justice system participants who are involved in the proceedings are protected

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

Court File and Parties

CITATION: R. v. Weig, 2009 ONCA 861

DATE: 20091207

DOCKET: C49377

COURT OF APPEAL FOR ONTARIO

Laskin, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Matvei Weig

Appellant

Counsel:

William Friedman and James Clark, for the appellant

M. David Lepofsky, for the respondent

Heard and released orally: December 2, 2009

On appeal from the conviction entered on April 24, 2008 and the sentence imposed on October 30, 2008 by Justice Nancy J. Spies of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] After a trial before Spies J., the appellant was convicted of eight charges, including four counts of sexual assault and two counts of unlawful confinement. He was sentenced to 30 months in jail. He appeals both his conviction and his sentence. We did not call on the Crown.

[2] On his conviction appeal, the appellant’s submissions amount to an attack on the trial judge’s credibility findings. He maintains that the trial judge’s assessment of the complainant’s evidence and the appellant’s evidence was not fair and even-handed. We are not persuaded that the trial judge erred in her findings or that she scrutinized the evidence in an unbalanced way. She properly instructed herself on and applied the W.D. principles for assessing credibility. She gave detailed reasons why she rejected the appellant’s evidence and why his evidence did not raise a reasonable doubt. She also gave detailed reasons why she accepted the complainant’s evidence and why that evidence proved the Crown’s case on all counts beyond a reasonable doubt. In our view, her assessment and evaluation of the evidence of the parties was fair and even-handed.

[3] We have no basis, therefore, to interfere with the convictions.

[4] On his sentence appeal, the appellant submits that although the trial judge took into account his ill health as a mitigating factor, she did not consider imposing a conditional sentence on purely compassionate grounds.

[5] We recognize that the appellant is in poor health and that incarceration may add to the stress he is now experiencing. However, the fresh evidence filed before us does not materially change the picture of the appellant’s health that was presented to the trial judge. She concluded that the appellant’s medical needs could be adequately taken care of in custody. That still seems to be the case. Overall, we are not persuaded that the evidence makes out the kind of compelling case that would warrant reducing the sentence to two years less a day and imposing a conditional sentence.

[6] Accordingly, although leave to appeal sentence is granted, the sentence appeal is dismissed.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”