Judicial Notice: How Much Is Too Much?
| Author | Mr. Justice Ian Binnie |
| Pages | 543-567 |
Judicial Notice:
How
Much
Is Too
Much?
A.
INTRODUCTION
I
have been asked
to
suggest various ways
in
which
you can get the
judge
to do the
work
of
proving your case
for you by
taking judicial
notice
of
facts,
or by
directing
a
jury
to do so.
I
once thought judicial notice
was a
rather exceptional procedure.
It
allows
a
court
to
accept
as
facts
matters that have
not
been established
in the
evidence either
by
viva
voce
testimony
or in
authenticated docu-
ments.
By
"facts"
I do not
merely mean
the
facts
of who did
what
and
to
whom
in the
particular dispute
but
also
the
facts
or
perceptions that
go
into
the
evaluation
of
that evidence
by the
judge
or the
juror,
as
well
as
the
facts
that provide
the
rationale
for the
legal rules that govern
the
outcome
of the
case.
I
am
going
to
suggest here that, rather than being
an
exceptional
procedure, judicial notice
is the
rule.
In
other words, what
is
actually
established
in
court using
the
complex rules
of
evidence that have been
under discussion
in
these
Special
Lectures
is
merely
the tip of the
iceberg.
Facts judicially noticed rest
on a
vast submerged universe
of
unproven
fact,
intuition, conjecture,
out-of-court
perception,
and
other mental
baggage brought into court
by the
judge
and
jurors, representing
the
*
Of the
Supreme Court
of
Canada. Much
of the
research
for
this paper
was
undertaken
by my law
clerk,
Alain Roussy,
whose
contribution
was
invaluable.
543
Mr.
Justice
Ian
Binnie*
544 MR.
JUSTICE
IAN
BINNIE
product
of
their collective
life
experiences, most
of
which
is not
accessi-
ble for
contradiction
to
contending counsel
in any
precise detail.
An
American professor named James
Thayer
spent
a lot of time
thinking about judicial
notice,
and he
commented that
"in
conducting
a
process
of
judicial
reasoning,
as of
other reasoning,
not a
step
can be
taken
without assuming something which
has not
been
proved."1
To
prove
the
truth
of
this proposition,
one
need
go no
further
than
to
reflect
on the
everyday occurrence
of
drawing
factual
inferences
from
circum-
stantial evidence. Where
do
judges
or
jurors acquire
the
wherewithal
to
make
(or
reject)
most
of
such
inferences
if not
from
general knowledge?
I
remember taking
a
course
in
evidence
from
the
late Professor
Bruce
Dunlop
at the
University
of
Toronto years ago.
He
used
the
Socratic
method, which meant that most
of the time the
class
sat in
silence trying
to
think
of
something
to
say.
At one
point,
he was
think-
ing
aloud about
the
rule that
you
cannot swear
a
child
of
tender years
unless
the
child
is
shown
to
understand
the
nature
of an
oath
and the
consequences
of
perjury.2
We sat in
silence
for a
while
and he
said,
"How
is the
child expected
to
know
the
consequences
of a
false
oath?"
Another long pause
and he
asked, "How does
anybody
know?"
The
rule
of
evidence simply assumed that there
was
hell
and
damnation
and the
only question
is
whether
the
child
fully
realized
it.
The
fact
of
hell
and
damnation
is
"judicially noticed."
Fast
forward
to the
case
of
William
Jefferson
Clinton
v.
Paula
Corbin
Jones.3
The
issue
before
the
Supreme Court
of the
United States
was
whether
a
sitting president
is
entitled
to
automatic immunity during
his
term
of
office
with respect
to
private conduct prior
to his
election
to the
presidency.
All but one
member
of the
United States Supreme Court
accepted
as a
fact
that such civil actions
do not
detract
significantly
from
the time
devoted
to
presidential
duties.
Under American constitutional
law,
"the separation
of
powers doctrine requires that
a
branch
not
impair
another
in the
performance
of its
constitutional
duties."4
Formu-
lating
the
precise content
of the
legal rule giving rise
to
civil
immunity
therefore
depended
on the
acceptance
of the
fact
of
potential impair-
ment. This
was not a
"fact"
the
Supreme Court
was
prepared
to
accept.
The
majority
said:
1
J.B.
Thayer,
"Judicial
Notice
and the Law of
Evidence"
(1890)
3
Harv.
L.
Rev.
285
at
287-88.
2
R. v.
Brasier
(1799),
1
Leach
199.
(1997).
4
Ibid,
at
701.
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