8. Judicial Notice

Author:David M. Paciocco - Lee Stuesser
Profession:Justice of the Ontario Court of Justice - Professor of Law, Bond University

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8. 1) Judicial Notice of Facts

Judicial notice is the acceptance by a court, without the requirement of proof, of any fact or matter that is so generally known and accepted in the community that it cannot be reasonably questioned, or any fact or matter that can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.

It is important to distinguish between taking judicial notice of "adjudicative facts" and "legislative facts." Judicial notice, as outlined, applies to adjudicative facts, which are facts to be determined in the litigation between the parties. Legislative facts are also admitted without the need for proof. However, legislative facts are those that have relevance to legal reasoning and the law-making process and involve broad considerations of policy. Legislative facts assist in determining questions of law and are not intended to assist in resolving questions of fact.

Judicial notice also includes "social framework facts," which provide a context for the judge to consider and apply the evidence in a given case. This information may be provided to the court by experts where necessary, or may be accepted by the trial judge as a matter of common knowledge in the community. The social framework facts will only have relevance if linked to the evidence in the particular case.

Certain facts do not need to be proven. Indeed, much in every case is already known. Judges and jurors bring with them vast knowledge, understanding, and experience that they are expected to use. We know that children can drown in lakes; we need no proof of that. We also know that alcohol can impair a person’s faculties; we need no proof of that. Much is simply accepted as part of human experience, as a matter

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of common sense, for which no proof is needed and to which nothing is said. When the silence is broken and the acceptance of a matter of common knowledge is urged or disputed, the issue of judicial notice arises. However, keep in mind that there is no bright line that divides judicial notice from common sense.

Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.231What is looked to is general knowledge within the "community" where the trial is held. For example, in a Kenora, Ontario courtroom judicial notice is taken that there are numerous cottages on the Lake of the Woods. Judicial notice of this same fact may not be taken in a Toronto courtroom. On appeal none of the members of the panel hearing the case may be familiar with Kenora, but that is of no moment; the appellate court must look to what is or is not the local community’s common knowledge.232Moreover, should one of the justices actually have a cottage on Lake of the Woods and have a detailed knowledge of that area, it is equally clear that the judge is not justified in acting on that personal knowledge, unless, once again, it can be seen to be common knowledge within the local community.233Two purposes are advanced to justify judicial notice, and each affects the possible scope of the doctrine. One rationale is that it is a means to expedite the trial process - a tool of convenience designed to shorten and simplify trials. Professor Thayer wrote:

Taking judicial notice does not import that the matter is indisputable. It is not necessarily anything more than a prima facie recognition, leaving the matter still open to controversy . . . . In very many cases, then, taking judicial notice of a fact is merely presuming it, i.e., assuming it until there shall be reason to think otherwise. Courts may judicially notice much which they cannot be required to notice.234

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A second rationale, advanced by Professor Morgan, is that judicial notice is based on the need to protect the credibility of the judicial system. Under this model, judicial notice applies only to "indisputable" facts that, if not accepted by the court, would bring the judicial system into disrepute.235According to Morgan, once judicial notice is taken, the matter is "indisputable" - final. Morgan’s stricter view of judicial notice is accepted in Canada. We see this in the Supreme Court of Canada’s decisions in R. v. Find236and R. v. Spence.237

8. 1 (a) Adjudicative Facts

The above outline of judicial notice applies to what are termed "adjudicative facts."238Adjudicative facts are the facts to be determined in the particular case. They address such questions as "who did what, where, when, how, and with what motive or intent."239For example, judicial notice has been taken that camels are domestic animals,240that generally speaking the cost of raising children increases as the children grow older,241or that cigarettes are more expensive in Manitoba than Ontario.242Judicial notice is also taken of facts that are commonly before the courts and that are, if you like, of common knowledge in the court community, such as that police officers usually take notes or that legal aid is available to eligible persons.243It is also accepted that judicial notice may be taken of facts previously found by other courts.244In R. v. Paszczenko it was held that based on the practice and precedent of literally hundreds of cases courts are entitled to take judicial notice of two assumptions underlying toxicology reports in impaired driving cases: (1) an accepted elimination of alcohol rate and (2) that there is a plateau effect where elimination of the alcohol remains constant for a time.245

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Finally, judicial notice of adjudicative facts extends to facts capable of ready determination by resort to sources of indisputable accuracy. Although the facts discovered may not be generally known, their accuracy is easily verified by going to sources that ordinary, reasonable people would consult. Common examples include reference to calendars to match days and dates, or to maps to determine distance and location.

In R. v. Krymowski the Supreme Court of Canada recognized that dictionary meanings were another "source of indisputable accuracy."246

The issue in the case was whether the terms "Gypsy" and "Roma" were interchangeable. Dictionary meanings were relied on and the Court concluded that the trial judge should have taken judicial notice that "Gypsy" referred to "Roma."

8. 1 (b) Legislative Facts

A second type of judicial notice applies to "legislative facts," which are "facts" that have relevance to legal reasoning and the law-making process and involve broad considerations of policy.247They are not directed at resolving a specific factual issue in the case before the court. Rather, they are resorted to when the courts are asked to make law, which is a matter that transcends the particular dispute and is of general social importance. For example, where the constitutionality of a statute is being considered and a section 1 inquiry is undertaken, the obligation of the court is to consider the standards of a free and democratic society, which is not a question of fact relating to the allegation against the accused. In R. v. Clayton the Supreme Court of Canada took judicial notice of statistics...

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