Rethinking the Conclusiveness of Judicial Notice: A Theoretical Approach

AuthorFred Gjoka
PositionB.A. (Hons), J.D. Candidate (2009), is currently a third-year JD student at the University of Western Ontario
Pages100-107
ARTICLE
RETHINKING THE CONCLUSIVENESS OF
JUDICIAL NOTICE:
A THEORETICAL APPROACH
By Fred Gjoka*
CITED: (2009) 14 Appeal 100-107
I. INTRODUCTION
is is a theory-oriented paper which takes a normative stance. Its central submission is
that judicial notice of adjudicative facts in criminal cases should not be conclusive when
such notice operates to the prejudice of the accused. Instead, defence counsel should be able
to rebut judicially noticed facts in formal court proceedings. is alternative approach is
in accordance with procedural fairness, permitting the defendant to make full argument be-
fore the jury.
In advancing this submission, the paper proceeds as follows: Section II denes terms and
sets the parameters of the analysis. Section III provides a brief picture of the current Cana-
dian position on the conclusiveness of judicial notice. Section IV argues that the nality of
judicial notice is merely an invention by a certain segment of American legal academia—
an invention which runs against the bulk of American jurisprudence, both past and pres-
ent. As such, it is misleading for Canadian courts to regard the conclusiveness of judicial
notice as the generally accepted, modern approach. Section V asserts that the argument for
the nality of judicial notice is based on premises that are at least as weak as those that sup-
port the argument against it. Section VI proposes that a departure from the conclusiveness
of judicial notice is required in order to preserve the fairness of criminal trial proceedings
and to avoid counterintuitive fact-related results. Section VII provides a brief conclusion.
II. SPECIFIC TERMS AND THE SCOPE OF ANALYSIS
In the common law system, judicial notice generally refers to “the acceptance by a court or
judicial tribunal, in a civil or criminal proceeding, without the requirement of proof, of the
100 wAPPEAL VOLUME 14
* Fred Gjoka, B.A. (Hons), J.D. Candidate (2009), is currently a third-year JD student at the University of Western
Ontario. In the summer of this year, he will begin articling with McMillan LLP in Toronto. Fred is especially
thankful to his f‌iancée, Blerta, for her patience and support while this paper was being written.

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