Thursday, December 12, 2013
Where the body is struck at increasing range, the shotgun pellets do not have enough energy to traverse the body, and particularly they do not have the energy to pierce the skin at the exit site, and it is not uncommon to find pellets lodged just under the skin at the back of a victim.
Shotguns rarely produce an exit wound when fired into the chest or abdomen, though they often exit when fired at close range or a contact shot into the head, neck or mouth. The exit wound is large and irregular. The skull may explode open with all the gases inside, ejecting part or even all of the brain from the cranial cavity."
Wednesday, December 11, 2013
R. v. Dexter, 2013 ONCA 744:
 The rule in Browne v. Dunn is not merely a procedural rule; it is a rule of trial fairness. The rule was summarized by this court in R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at p. 636 as follows:
This well-known rule stands for the proposition that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.
The cross-examiner gives notice by first putting questions to the witness in cross-examination that are sufficient to alert the witness that the cross-examiner intends to impeach his or her evidence, and second, by giving the witness an opportunity to explain why the contradictory evidence, or the inferences to be drawn from it, should not be accepted: see the comments of Lord Herschell in Browne v. Dunn, at pp. 70-71.
 The application of the rule prevents a witness from being "ambushed". However, it does not require the cross-examiner to "slog through a witness's evidence-in-chief putting him on notice of every detail the defence does not accept": see R. v. Verney (1993), 67 O.A.C. 279, at para. 28. Only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness.
 The rule is also a rule of common sense. By enabling the trial judge to observe and assess the witness when he or she is confronted with contradictory evidence and given an opportunity to explain his or her position, the rule promotes the accuracy of the fact-finding process. In doing so, it enhances public confidence in the justice system.
 The effect that a court should give to a breach of the rule in Browne v. Dunnwill depend on a number of factors. In deciding how to address a breach, a trial judge may consider:
· The seriousness of the breach;
· The context in which the breach occurred;
· The stage in the proceedings when an objection to the breach was raised;
· The response by counsel, if any, to the objection;
· Any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation;
· The availability of the witness to be recalled; and
· In the case of a jury trial, whether a correcting instruction and explanation of the rule is sufficient or whether trial fairness has been so impaired that a motion for a mistrial should be entertained.
Thus, the extent of the rule's application is within the discretion of the trial judge after taking into account the circumstances of the case: see R. v. Lyttle, 2004 SCC 5,  1 S.C.R. 193, at para. 65; R. v. Werkman, 2007 ABCA 130, 404 A.R. 378, at para. 9.
 There are at least two permissive options to rectify the breach. One is for the trial judge to take into account the failure to cross-examine when assessing a witness's credibility and deciding the weight to be given to that witness's evidence: see Werkman, at paras. 9-11; R. v. Paris (2000), 138 O.A.C. 287, at para. 22. Another is to allow counsel to recall the witness whose evidence has been impeached without notice. As Moldaver J.A. explained in R. v. McNeill (2000), 48 O.R. (3d) 212 (C.A.), at paras. 47-49, where the concern lies in the witness's inability to present his or her side of the story, if the witness is available and the trial judge is satisfied that recall is appropriate, the trial judge ought to offer the aggrieved party that opportunity. The mechanics of when and by whom the witness should be recalled should be left to the discretion of the trial judge. If the aggrieved party who is offered this option declines it, then the trier of fact would simply decide whether to believe all, part or none of the [later] witness's evidence regardless of whether the evidence was uncontradicted.
 Deference is owed to a trial judge's exercise of discretion in deciding how to deal with a breach of the rule unless error in principle is shown: see R. v. Blom(2002), 61 OR (3d) 51 (C.A.), at para. 20.
Monday, December 9, 2013
Rausch v. The Corporation of the City of Pickering, 2013 ONCA 740:
 Although I would reject Mr. Rausch's claim that there is an explicit statutory duty of care, I do not agree with the City that this is the end of the matter. In my view, when negligence is alleged against a government actor, the reach of the duty of care divining rod is not restricted to the legislative scheme and whether it imposes a statutory duty of care. In R. v. Imperial Tobacco, 2011 SCC 42,  3 S.C.R. 45, at paras. 43-45, the Supreme Court recognized that in addition to a statutory duty of care set out in the governing legislation, there may be a common law duty of care that arises by virtue of interactions between the statutory actor and a private individual.
 Before analyzing whether there may be a common law duty of care, the statutory scheme must be examined to determine whether it forecloses such a duty.
 In my view, the statutory scheme in play in this case does not preclude the recognition of a common law duty of care. I see nothing in either the FFPPA or the Municipal Act that impedes a finding that such a duty may exist in appropriate circumstances.
 As I noted earlier, while the Municipal Act relieves the City from liability for many acts, it expressly does not relieve it of liability for torts, for damage that results from acts done in bad faith or for the exercise of discretion with respect to operational decisions: see ss. 448-450.
 It is true that the FFPPA created a tribunal to determine whether a farm operation is protected by s. 6. However, this court has held that the FFPPAdoes not preclude a court's making the determination, if warranted by the circumstances: Pyke, at para. 55.
 Having concluded that the statutory scheme does not foreclose the existence of a common law duty of care, two issues must be determined in order to resolve the question of whether Mr. Rausch's negligence claim based on such a duty is viable and should otherwise be allowed to proceed to trial, subject to the limitation period issue. First, in these circumstances, can it be said that the City may owe a common law duty to Mr. Rausch? Second, does the amended pleading, read generously, advance such a claim?