COURT OF APPEAL FOR ONTARIO

20000906

DOCKET: C32480

RE: HER MAJESTY THE QUEEN (Respondent) v. JEFFRY DOSCH (Appellant)

BEFORE: OSBORNE A.C.J.O., DOHERTY and CHARRON JJ.A.

COUNSEL: Alan D. Gold

for the appellant

Erin MacCarthy

for the respondent

HEARD: August 31, 2000

On appeal from the conviction imposed by Justice Kerry P. Evans on May 20, 1999.

E N D O R S E M E N T

[1] The trial judge held that the appellant’s exculpatory statement given to the police was admissible. In doing so, he stated on the statement voir dire that he was not “convinced” by the appellant’s voir dire evidence that the appellant was unaware of what was taking place in the hospital. The Crown accepts that the trial judge improperly reversed the onus in determining on the voir dire whether the appellant’s statement was admissible. However, the Crown contends that apart from the appellant’s statement, there was compelling evidence that the appellant committed the offence of break and enter and theft. Thus, the Crown contends that the proviso should apply. We do not agree. We are not satisfied that without the appellant’s statement, the verdict would necessarily have been the same.

[2] The appeal is, therefore, allowed and a new trial directed. It is not clear to us what time toward this sentence the appellant has actually served. If he has served 4 1/2 months, which we consider to be an appropriate sentence, the Crown may well elect not to proceed with the new trial.

“C.A. Osborne A.C.J.O.” “Doherty J.A.” “Louise Charron J.A.”