DATE: 20050606

DOCKET: C40368

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOHN GUY BRADFORD (Appellant)

BEFORE:

ARMSTRONG, LANG and ROULEAU JJ.A.

COUNSEL:

Marie Henein

for the appellant

David Finley

for the respondent

HEARD & RELEASED ORALLY:

June 2, 2005

On appeal from the conviction entered by Justice C.R. Harris of the Superior Court of Justice on January 10, 2003.

E N D O R S E M E N T

[1] The appellant was convicted of one count of indecent assault and one count of sexual assault in the early 1980s. He was sentenced to fourteen months incarceration. The appellant served approximately 2½ months in custody before being admitted to bail pending this appeal.

[2] At the time of sentence, the appellant was 75 years of age and in very poor health. His health has continued to decline, he is confined to a wheelchair and in need of 24-hour nursing care. On the fresh evidence, which we have admitted, it is clear that the provincial custodial facilities in this province are completely inadequate to deal with the health care needs of the appellant.

[3] The appellant asks that the balance of his sentence be served as a conditional sentence. The Crown does not oppose this appeal.

[4] We agree with the submission of counsel for the Crown contained in para. 8 of his factum as follows:

Having regard to the unique combination of factors presented by this case at this juncture – i) the Appellant served approximately two and one-half months of custody before being admitted to bail pending the hearing of his appeal; ii) he would be eligible for parole in approximately two months (and likely would receive same); iii) he has been on bail pending appeal, with restrictions on his liberty, since July of 2003; iv) the Appellant, according to the fresh evidence, continues to experience significant and in some respects worsening health problems; and v) re-incarceration would pose health related risks for the Appellant and resource issues for the provincial correctional system (the appellant requires almost constant care) - the Respondent submits that it would not be contrary to the interests of justice if the remaining portion of the Appellant’s sentence was varied to a conditional sentence of twelve months duration…

[5] Leave to appeal sentence is therefore granted and the sentence is varied to a conditional sentence of twelve months in addition to the time already served. The statutory conditions shall apply and, in addition, there shall be a condition that the appellant is not to associate or hold any communication directly or indirectly with D.M. Further, that for the first 105 days of the conditional sentence, the appellant is to remain in his place of residence at all times except for his scheduled medical appointments, medical emergencies, or to meet with his conditional sentence supervisor, and finally, that he is not to be in the presence of any person under the age of twelve years unless in the company of another adult.

“Robert P. Armstrong J.A.”

“S. E. Lang J.A.”

“Paul Rouleau J.A.”