DATE: 20051103

DOCKET: C43090

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JOHN VOLK (Appellant)

BEFORE:

ROSENBERG, MOLDAVER and SHARPE JJ.A.

COUNSEL:

James Carlisle

for the appellant

Robert Goldstein

for the respondent

HEARD & ENDORSED:

October 25, 2005

On appeal from sentence imposed by Justice Francine Van Melle of the Superior Court of Justice, dated October 24, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] The sentence imposed by the trial judge was conceded to be fit when it was imposed. The appellant submits that the fresh evidence shows that because of his health problems and that he is not eligible for day parole, the sentence is harsher for this appellant than other inmates. The fresh evidence shows that the appellant has severe health problems but they are not so serious as to render the sentence unfit. While the appellant is not eligible for day parole he will likely be deported back to his home at an early time and will then be completely free from the sentence, unlike a Canadian with the same sentence.

[2] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.