Judicial Notice

From Criminal Law Notebook
This page was last substantively updated or reviewed July 2021. (Rev. # 80897)

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] This is the only exception to that rule.[2] It permits a court to rely upon facts that are not supported by evidence on the court record.[3]

A Judge accept something as fact thereby exempting the requirement to present evidence to establish the fact where:[4]

  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.[5]

The strictness and scope of judicial notice will "vary according to the nature of the issue under consideration"[6]

Notice to Counsel

Natural justice requires that the judge notify counsel when he is taking judicial notice of fact.[7]

Form of the Evidence

It can be dangerous and potentially unfair to take judicial notice based on written materials only.[8]

Use of Social Science

There are inherent dangers in taking judicial notice of social matters where there is not a sufficient underlying record.[9]

In establishing a basis for judicial notice, social science evidence should be presented through an expert witness that can be cross-examined.[10]

Effective Notice

Most consider notice conclusive and it is prohibited to prove the contrary as it would otherwise "erode trust in the administration of justice".[11] There is some debate suggesting notice is a rebuttable presumption.[12]

Standard of Appellate Review

The improper taking of judicial notice is reviewed as a misapprehension of evidence. [13]

An error in taking judicial notice is as legal error and may be sufficient by itself to require an appeal to be allowed.[14]

The standard of review for social and legislative facts are the same as the standard applied to any other type of findings of fact, which is the standard of "palpable and overriding error".[15]

  1. ↑ R v Daley, 2008 NBQB 21 (CanLII), 841 APR 156, per Garnett J, at para 15 citing McWilliams Canadian Criminal Evidence
    R v JM, 2021 ONCA 150 (CanLII), 154 OR (3d) 401, per Brown JA, at para 31 ("Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court")
  2. ↑ JM, ibid., at para 31
  3. ↑ Daley, ibid., at para 15
  4. ↑ R v Potts, 1982 CanLII 1751 (ON CA), 66 CCC (2d) 219, per Thorson JA
    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, per McLachlin CJ, at para 48
    R v Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128, per McLachlin J, at p. 489
    R v Spence, 2005 SCC 71 (CanLII), [2005] 3 SCR 458, per Binnie J, at para 53
  5. ↑ Find, supra, at para 48
  6. ↑ Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), per Steeves J, at para 51
  7. ↑ R v Haines, 1980 CanLII 2884 (BC SC), [1980] 5 WWR 421 at 429, 20 B.C.L.R. 260, 52 CCC (2d) 558, per Perry J ("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, per Pigeon J
  8. ↑ R v King, 2013 ABCA 3 (CanLII), 542 AR 43, per curiam, at para 14
  9. ↑ R v Bjornson, 2012 ABCA 230 (CanLII), 536 AR 1, per curiam (2:1), at para 8
    King, supra, at paras 14 to 22
    R v Sam, 2013 ABCA 174 (CanLII), 553 AR 118, per curiam
  10. ↑ Spence, supra, at para 68
  11. ↑ Khodeir v Canada (AG), 2022 FC 44 (CanLII), per Grammond J at para 30(complete citation pending)
  12. ↑ Khodeir, ibid. at para 30
  13. ↑ R v Charles, 2013 BCSC 23 (CanLII), per Sigurdson J, at para 36
  14. ↑ JM, supra, per Brown JA, at para 83
  15. ↑ Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), [2013] 3 SCR 1101, per McLachlin CJ, at paras 48 to 56
    cf. 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. ↑ R v Spence, 2005 SCC 71 (CanLII), [2005] 3 SCR 458, per Binnie J, at para 60
    Cambie Surgeries Corporation v British Columbia (Attorney General), 2017 BCSC 860 (CanLII), per Steeves J, at para 52
  2. ↑ Spence, ibid.
    see also R v Malmo-Levin, 2003 SCC 74 (CanLII), [2003] 3 SCR 571, per Gonthier and Binnie JJ, at para 28
  3. ↑ Spence, ibid., at para 65("... 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, supra, at para 53
  5. ↑ Cambie, supra, at para 52
  6. ↑ Cambie, supra, at paras 59 to 63
  7. ↑ Cambie, 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]

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.[5] 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.[6]

Language

Notice may be taken of expressions and certain slang.[7]

Prior Orders

A Court may recognize its prior orders through judicial notice without the need to provide a certified copy of the prior order.[8]

Vulnerable Victims

A court may be permitted to take notice that a vulnerable complainant "might" behave counter-intuitively and be reluctant to give against against their abuser.[9]

  1. ↑ e.g. R v Bednarz, 1961 CanLII 506 (ON CA), [1961] 30 CCC 398, per Morden JA
    R v Kuhn, 1970 CanLII 1033 (BC SC), 1 CCC (2d) 132, per Tyrwhitt-Drake J
    R v Thorburn, 2012 BCPC 323 (CanLII), per Challenger J
    R v Purcell, 1975 CanLII 1246 (NSCA), 24 CCC (2d) 139, per MacKeigan CJ - judge erred in not concluding that "police station" referred to the station in Halifax, NS
  2. ↑ R v Hayes, 1924 CanLII 514 (ON CA), 43 CCC 398, per Mulock CJ, at pp. 400-1
    McCormick v Greater Sudbury Police Service, 2010 ONSC 270 (CanLII), 259 OAC 226, per Hill J, at para 129
  3. ↑ McCormick v Greater Sudbury Police Service, ibid., at para 129
    R v Letford, 2000 CanLII 17024 (ON CA), 150 CCC (3d) 225, per Goudge JA, at para 22
    R v Ostrowski, 1958 CanLII 102 (ON SC), 122 CCC 196 (Ont. H.C.), per Stewart J at 196-7
  4. ↑ R v Khan, 2017 ABPC 101 (CanLII), per Robertson J, at para 42 citing McWilliams, Judicial Notice, Indisputable Sources Option, 26:30, 50 pp 26 – 26 – 26 - 29)
  5. ↑ R v Ranger, 2010 ONCA 759 (CanLII), OJ No 4840, per curiam
  6. ↑ R v Hamilton, 2011 ONCA 399 (CanLII), 271 CCC (3d) 208, per curiam, at paras 259, 277, and 279
    Any more precise triangulation may require expert opinion, see Hamilton, ibid., at para 280
    Ranger, ibid., at para 17
  7. ↑ R v Rennehan, 2005 NSSC 370 (CanLII), 770 APR 30, per Warner J - a "pickup" means a type of vehicle
    R v MacAulay, 1975 CanLII 1507 (NB CA), (1975), 11 NBR (2d) 44, 25 CCC (2d) 1 (NBSCAD), per Ryan JA, - "O.D'd" means to overdose
    R v O'Brien, 1987 CanLII 1162 (QC CA), 41 CCC (3d) 86, per McCarthy JA - "hash" was short for "hashish" which is a name for canabis resin
  8. ↑ R v Tysowski, 2008 SKCA 88 (CanLII), 10 WWR 11, per Jackson JA
  9. ↑ R v PO, 2021 ABQB 318 (CanLII), at para 179

Internet

Wikipedia or similar sites to not necessarily contain accurate information to take judicial notice fact.[1]

Independent Internet Research

The judge may access the internet in order to consult with online maps such as Google maps.[2]

Use of the internet by the trial judge to consult commercial information, conduct outside of the courtroom is not appropriate.[3]

Google Maps

Canadian courts have taken judicial notice of Google maps in numerous cases.[4]

The use of reputable websites like google maps must not compromise trial fairness.[5]

In the US, Google Maps is regularly the subject of judicial notice for geography and distances.[6]

  1. ↑ R v Balen, 2012 ONSC 2209 (CanLII), 258 CRR (2d) 2012, per Hill J at 61
  2. ↑ R v Calvert2011 ONCA 379(*no CanLII links) at 2-8
  3. ↑ Generally: United States of America v Saad, 2004 CanLII 9931 (ON CA), 183 CCC (3d) 97, per Rosenberg JA, at p. 110 (leave to appeal refused, [2004] SCCA No 232)
    Ardoch Algonquin First Nation v Canada (Attorney General), 2003 FCA 473 (CanLII), [2004] 2 FCR 108, per Rothstein JA, at para 16
    AstraZeneca Canada Ltd. v Apotex Inc, 2003 FCA 487 (CanLII), 30 C.P.R. (4th) 431 (F.C.A.), per' Malone J, at paras 6 to 14
     R v Whittaker, 2001 ABQB 873 (CanLII), 301 AR 136 (Q.B.), per Veit J, at para 25
  4. ↑ R v Ghaleenovee, 2015 ONSC 1707 (CanLII), 19 CR (7th) 154, per Goldstein J, at para 1 ("Google Maps is incredibly powerful and useful. Images and maps downloaded from Google Maps are now very common in criminal trials and often accepted as authoritative. In fact, there is nothing wrong with a trial judge using Google Maps or some other indisputably accurate source for the purpose of taking judicial notice of a notorious fact. Google Maps has a function that permits a user to drill down to the actual Street View."), at para 20 ("I see no difficulty, however, with consulting a reputable website that is generally accepted as containing accurate information.")
    R v Robinson, 2010 ONCJ 576 (CanLII), OJ No 5233, per Bourque J, at para 30 ("I am satisfied that Google Earth has been accepted in the Ontario Court of Appeal and in the Superior Courts to show streets in Ontario as a readily accessible source of indisputable accuracy.")
    Yates v Fedirchuk, 2011 ONSC 5549 (CanLII), 343 DLR (4th) 171, per Annis J
    R v Johnson, 2008 CanLII 64410 (ONSC), per Ricchetti J
    R v Johnson, 2009 ONCA 668 (CanLII), 254 OAC 178, per curiam, per curiam - refuses google maps fresh evidence on foreseeability ground, but suggests maps could have been tendered at trial
    R v Hill, [2013] OJ No 3176 (Sup.Ct.)(*no CanLII links) , per Shaughnessy J
    R v Gregory, 2009 BCCA 26 (CanLII), BCJ No 240, per Chiasson JA
  5. ↑ Ghaleenovee, supra
  6. ↑ 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)

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.

– CEA

Note up: 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

Note up: 18

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) [want of proof of order in council] and the publication thereof shall be judicially noticed.
R.S., c. C-34, s. 715.
[annotation(s) added]

– CCC

Note up: 781(1) and (2)

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), per Robertson J, at para 37 - citing Bryant, "Law of Evidence", 3rd Ed. s.19.36 , at p. 1276

Regulations

Any federal regulation that that has been published in the Royal Gazette shall be proven by judicial notice.[1]

The Statutory Instruments Act, RSC 1985, c. S-22 addresses this at s. 16:

Judicial notice

16 (1) A statutory instrument that has been published in the Canada Gazette shall be judicially noticed.

Evidence

(2) In addition to any other manner of proving the existence or contents of a statutory instrument, evidence of the existence or contents of a statutory instrument may be given by the production of a copy of the Canada Gazette purporting to contain the text of the statutory instrument.

Deemed publication in Canada Gazette

(3) For the purposes of this section,

(a) if a regulation is included in a copy of the Consolidated Regulations of Canada, 1978 purporting to be printed by the Queen’s Printer, that regulation is deemed to have been published in the Canada Gazette; and
(b) if a regulation is included in a copy of a revision of regulations purporting to be published by the Queen’s Printer, that regulation is deemed to have been published in the Canada Gazette.

R.S., 1985, c. S-22, s. 16 2000, c. 5, s. 59 2012, c. 19, s. 477.

– SIA

For provincial regulations, there may be judicial notice of provincial regulations where the provincial Evidence Act requires it.[2]

  1. ↑ R v ‘Evgenia Chandris’, 1976 CanLII 178 (SCC), [1977] 2 SCR 97
    R v Boillard, 1978 CanLII 200 (SCC), [1978] 2 SCR 728, per Pigeon J
  2. ↑ R v Webb, 2008 NBPC 51 (CanLII), 870 APR 276, per Ferguson J

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), per Sigurdson J, at para 33
  2. ↑ R v Ostrowski, 1958 CanLII 102 (ONSC), 122 CCC 196 (Ont. H.C.), per Stewart J at 196-7
  3. ↑ R v Eagles, 1976 CanLII 1451 (ONSC), , 31 CCC (2d) 417, per Robins J
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