Judicial Notice

From Criminal Law Notebook

General Principles

Judicial notice is an exception to the rule of formal proof that requires parties to present evidence to establish all facts in a trial.[1] It permits a court to rely upon facts that are not supported by evidence on the court record.[2]

A Judge accept something as fact thereby exempting the requirement to present evidence to establish the fact where:[3]

  1. the fact is so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
  2. the fact is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy

A judge should be cautious in finding facts based on judicial notice since they are not proven by evidence under oath or tested by cross-examination.[4]

The strictness and scope of judicial notice will "vary according to the nature of the issue under consideration"[5]

Notice to Counsel
Natural justice requires that the judge notify counsel when he is taking judicial notice of fact.[6]

Form of the Evidence
It can be dangerous and potentially unfair to take judicial notice based on written materials only.[7]

Use of Social Science
There are inherent dangers in taking judicial notice of social matters where there is not a sufficient underlying record.[8]

In establishing a basis for judicial notice, social science evidence should be presented through an expert witnesses that can be cross-examined.[9]

Standard of Appellate Review
The improper taking of judicial notice is reviewed as a misapprehension of evidence. [10]

The standard of review for social and legislative facts are are the same as the standard applied to any other type of findings of fact, which is the standard of "palpable and overriding error".[11]

  1. ↑ R v Daley, 2008 NBQB 21 (CanLII), at para 15 citing McWilliams Canadian Criminal Evidence
  2. ↑ Daley, ibid. at para 15
  3. ↑ R v Potts, 1982 CanLII 1751 (ONCA), (1982), 66 CCC (2d) 219 (Ont. C.A.)
    J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055
    R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863 at para 48
    R v Williams 1998 CanLII 782, (1998) 124 CCC (3d) 481 at p. 489
    R v Spence, 2005 SCC 71, [2005] 3 SCR 458, at para 53
  4. ↑ Find, supra at para 48
  5. ↑ Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), at para 51
  6. ↑ R v Haines, [1980] 5 W.W.R. 421 at 429, 20 B.C.L.R. 260, 52 CCC (2d) 558(*no CanLII links) ("it is clearly contrary to the rules of natural justice for a judge to rely on information obtained after the hearing was completed without disclosing it to the parties and giving them an opportunity to meet it.")
    Pfizer Co. Ltd. v Deputy Minister of National Revenue, 1975 CanLII 194 (SCC), [1977] 1 SCR 456
  7. ↑ R v King, 2013 ABCA 3 (CanLII) at para 14
  8. ↑ R v Bjornson, 2012 ABCA 230 (CanLII), 536 AR 1, at para 8
    King, supra at paras 14 to 22
    R v Sam, 2013 ABCA 174 (CanLII)
  9. ↑ Spence, supra at para 68
  10. ↑ R v Charles, 2013 BCSC 23 (CanLII) at para 36
  11. ↑ Canada (Attorney General) v. Bedford, [2013] 3 SCR 1101, 2013 SCC 72 (CanLII), at paras 48 to 56
    c.f. RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] 3 SCR 199

Types of Fact

Social, Legislative and Adjudicative Facts
More stringent proof should be required for "facts that are close to the center of the controversy between the parties (whether social, legislative or adjudicative) as distinguished from background facts at or near the periphery."[1]

Judicial notice of legislative and social fact should be treated as more "elastic" than adjudicative fact.[2] Courts should consider whether the fact would be accepted as not being subject to "reasonable dispute" by "reasonable people who have taken the trouble to inform themselves on the topic", taking into consideration the "purpose for which it is to be used" and "keeping in mind that the need for reliability and trustworthiness" the closer it is to the controversy".[3]

The standard "truth seeking procedures" are "not usually required for legislative facts" except where it is "critical to a judicial determination".[4]

When deciding whether to take judicial notice of legislative fact, the court should consider whether it is "essential to the case, whether they are disputed and whether it would be impossible or costly to prove them by conventional means."[5]

Simply because the Supreme Court of Canada will rely on authorities outside those presented by the parties to the trial judge, does not permit a judge to do the same.[6]

Constitutional Cases
It is well established that there is "some latitude" when considering judicial notice of legislative fact in constitutional cases.[7]

  1. ↑ Spence, supra at para 60
    Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), at para 52
  2. ↑ Spence, ibid.
    see also R v Malmo-Levin, 2003 SCC 74 (CanLII) at para 28
  3. ↑ ("... a court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition of the controversy.")
  4. ↑ Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 53
  5. ↑ Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 52
  6. ↑ Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 59 to 63
  7. ↑ Cambie Surgeries Corporation v British Columbia (Attorney General), supra at para 48

Permissible Examples of Judicial Notice

Location of Cities
A judge may take judicial notice of the location of cities for the purpose of establishing the jurisdiction of an offence.[1]

Alcohol
Alcoholic spirits have been acknowledge as being intoxicating.[2] However, notice cannot be taken on the degree of intoxication due to the consumption of certain amounts of alcohol upon certain body types or persons.[3]

Reference Books
Authoritative references books, almanacs, atlases, calendars, charts, textbooks, dictionaries, encyclopedia, historical documents, maps, reference works, scientific tables and the internet, can often be a source of judicial notice.[4]

Internet
Wikipedia or similar sites to not necessarily contain accurate information to take judicial notice fact.[5]

The judge may access the internet in order to consult with online maps such as Google maps.[6]

Use of the internet by the trial judge to consult commercial information, conduct outside of the courtroom is not appropriate.[7]

Google Maps
Canadian courts have taken judicial notice of Google maps in numerous cases.[8]

In the US, Google Maps is regularly the subject of judicial notice for geography and distances.[9]

Cellphone Towers and Cell phones
A judge may take judicial notice that cell phone was within a general vicinity of a cell tower recording a signal from the phone and that a travel route can be estimated based on the records of several towers.[10] The court may also find as fact that a call from a cell phone is likely to register at the tower closest to the caller without taking expert evidence.[11]

Langauge
Notice may be taken of expressions and certain slang.[12]

Prior Orders
A Court may recognize its prior orders through judicial notice without the need to provide a certified copy of the prior order.[13]

  1. ↑ e.g. R v Bednarz, [1961] 30 CCC 398(*no CanLII links)
    R v Kuhn, (1970) 1 CCC (2d) 132(*no CanLII links)
    R v Thorburn, 2012 BCPC 323 (CanLII)
    R v Purcell (1975) 24 CCC (2d) 139, (NSCA)(*no CanLII links) - judge erred in not concluding that "police station" referred to the station in Halifax, NS
  2. ↑ R v Hayes (1924), 43 CCC 398 (Ont. C.A.)(*no CanLII links) at 400-1
    McCormick v Greater Sudbury Police Service, 2010 ONSC 270 (CanLII) at para 129
  3. ↑ McCormick v Greater Sudbury Police Service at para 129
    R v Letford, 2000 CanLII 17024 (ONCA) at para 22
    R v Ostrowski, 1958 CanLII 102 (ON SC), (1958), 122 CCC 196 (Ont. H.C.) at 196-7
  4. ↑ R v Khan, 2017 ABPC 101 (CanLII), at para 42 citing McWilliams, Judicial Notice, Indisputable Sources Option, 26:30, 50 pp 26 – 26 – 26 - 29)
  5. ↑ R v Balen, 2012 ONSC 2209 (CanLII) at 61
  6. ↑ R v Calvert, 2011 ONCA 379(*no CanLII links) at 2-8
  7. ↑ Generally: United States of America v Saad 2004 CanLII 9931 (ON CA), (2004), 183 CCC (3d) 97 (Ont. C.A.), at p. 110 (leave to appeal refused, [2004] S.C.C.A. No. 232)
    Ardoch Algonquin First Nation v Canada (Attorney General), 2003 FCA 473 (CanLII), [2004] 2 FCR 108 at para 16
    AstraZeneca Canada Ltd. v Apotex Inc., 2003 FCA 487 (CanLII), (2003), 30 C.P.R. (4th) 431 (F.C.A.), at paras 6-14
    R v Whittaker, 2001 ABQB 873 (CanLII), (2001), 301 A.R. 136 (Q.B.), at para 25
  8. ↑ R v Ghaleenovee, 2015 ONSC 1707 (CanLII) per Goldstein J
    R v Robinson, 2010 ONCJ 576 (CanLII)
    Yates v. Fedirchuk, 2011 ONSC 5549 (CanLII)
    R v Hill, [2013] O.J. No. 3176 (Sup.Ct.)(*no CanLII links) Shaughnessy J.
    R. v. Gregory, 2009 BCCA 26 (CanLII)
  9. ↑ Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246, 259 n.13 (E.D.N.Y. 2010) (“Courts commonly use [I]nternet mapping tools to take judicial notice of distance and geography.”)
    United States v. Brown, 636 F. Supp. 2d 1116, 1124 n.1 (D. Nev. 2009) (“Courts have generally taken judicial notice of facts gleaned from [I]nternet mapping tools such as Google Maps or Mapquest.”)
    McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1 (9th Cir. 2012) (relying on judicial notice of Google Maps information that “[i]t is about 138 miles from Bannock County, Idaho to Salt Lake City, Utah”)
    United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (taking judicial notice of “a Google map and satellite image” for “the purpose of determining the general location” of a home that was the subject of a suppression motion)
  10. ↑ R v Ranger 2010 ONCA 759 (CanLII)
  11. ↑ R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, at paras 259, 277, and 279
    Any more precise triangulation may require expert opinion, see Hamilton, at para 280; Ranger at para 17
  12. ↑ R v Rennehan, 2005 NSSC 370 (CanLII) - a "pickup" means a type of vehicle
    R v MacAulay (1975), 11 N.B.R. (2d) 44. 25 CCC (2d) 1 (NBSCAD)(*no CanLII links) - "O.D'd" means to overdose
    R v O'Brien, 1987 CanLII 1162 (QC CA) - "hash" was short for "hashish" which is a name for canabis resin
  13. ↑ R v Tysowski, 2008 SKCA 88 (CanLII)

Legislation

Section 17 and 18 of the Canada Evidence Act requires judicial notice be taken of the laws of Canada, the provinces, the United Kingdom, as well as federal and provincial orders in council.

Judicial Notice
Imperial Acts, etc.
17. Judicial notice shall be taken of all Acts of the Imperial Parliament, of all ordinances made by the Governor in Council, or the lieutenant governor in council of any province or colony that, or some portion of which, now forms or hereafter may form part of Canada, and of all the Acts of the legislature of any such province or colony, whether enacted before or after the passing of the Constitution Act, 1867.
R.S., c. E-10, s. 17.
Acts of Canada
18. Judicial notice shall be taken of all Acts of Parliament, public or private, without being specially pleaded.
R.S., c. E-10, s. 18.


– CEA

Similarly, s. 781 of the Code states:

Want of proof of order in council
781. (1) No order, conviction or other proceeding shall be quashed or set aside, and no defendant shall be discharged, by reason only that evidence has not been given

(a) of a proclamation or order of the Governor in Council or the lieutenant governor in council;
(b) of rules, regulations or by-laws made by the Governor in Council under an Act of Parliament or by the lieutenant governor in council under an Act of the legislature of the province; or
(c) of the publication of a proclamation, order, rule, regulation or by-law in the Canada Gazette or in the official gazette for the province.

Judicial notice
(2) Proclamations, orders, rules, regulations and by-laws mentioned in subsection (1) and the publication thereof shall be judicially noticed.
R.S., c. C-34, s. 715.


– CCC


In the absence of an express statutory provision an official document or proclamation, including regulations and by-laws, will need to be validated by some means of proof. [1]

  1. ↑ R v Khan, 2017 ABPC 101 (CanLII), par. 37 - citing Bryant, "Law of Evidence", 3rd Ed. s.19.36 at p.1276

Impermissible Facts of Judicial Notice

It is impermissible to take judicial notice of the following:

  • A person can "only obtain a drug stronger than Extra Strength Tylenol with a prescription".[1]
  • the effect that a certain amount of alcohol will have on a person;[2]
  • where county boundary lines exist[3]
  1. ↑ R v Charles, 2013 BCSC 23 (CanLII) at para 33
  2. ↑ R v Ostrowski, 1958 CanLII 102 (ON SC), (1958), 122 CCC 196 (Ont. H.C.) at 196-7
  3. ↑ R v Eagles (1976), 31 CCC (2d) 417(*no CanLII links)
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