DATE: 20050225

DOCKET: C36024

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – KOFI MENSAH BRADFORD (Appellant)

BEFORE:

WEILER, GOUDGE and GILLESE JJ.A.

COUNSEL:

Vanora Simpson

for the appellant

Frank Au

for the respondent

HEARD & ENDORSED:

February 18, 2005

On appeal from the conviction entered on April 15, 1999 and the sentence imposed on June 29, 1999 by Justice Michael Dambrot of the Superior Court of Justice, sitting with a jury.

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

[1] On April 15, 1999, after a trial with a jury, the appellant and two co‑accused were convicted on three counts of trafficking heroin and one count of conspiracy to traffic in heroin. The appellant was sentenced to six years in prison. He appeals against conviction.

[2] The appellant submits that the trial judge made two errors in his charge to the jury.

[3] First, the appellant argues that the trial judge erred in failing to give a Vetrovec warning in respect of the testimony of the two co-accused, given their admitted involvement in the trafficking of heroin, their unsavoury character and their evident motive to lie.

[4] We note that the trial judge was not asked to give this warning in respect of the co‑accused at trial, no objection was taken in respect of the changes on this matter and the co‑accused were not prosecution witnesses. All three co‑accused gave evidence. Credibility was a key issue. While the appellant argues that the co‑accused conceded their involvement in the offence, in respect of at least one count, they denied involvement.

[5] In our view, trial fairness considerations are implicated and fully justify the exercise of discretion by the trial judge to not give the caution.

[6] Second, the appellant argues that the trial judge failed to properly explain the appellant’s position and failed to relate the evidence to the appellant’s position. We reject this submission. The trial judge stated the issues, reviewed the evidence, presented the defence position and theory, and outlined the evidence relating to that theory. The key issue was whether the appellant, who was a taxi‑driver, knew what his passengers (the two co‑accused) were doing. The trial judge put this position to the jury more than once. In our view, the charge is not fairly characterized as undermining the defence. It was fair, balanced and thorough.

[7] Accordingly, the appeal is dismissed.