Using Social Science Research as Judicial Notice

• Author: Omar Ha-Redeye
• Date: August 07, 2016

Judicial notice is an important underpinning of litigation in Canada. The need to prove every trite and accepted fact as evidence would make litigation even more unwieldy than it already is.

Some of the problems emerge when judicial notice is used for facts which may be disputed by the parties. For example, in R. v. Zundel, the Court dealt with hate speech and the denial of the Holocaust. To provide the defendant to litigate the purported evidence against the facts around the Holocaust would only give him a platform to extend his hate speech further. Instead, the trial judge instructed the jury that,

“[t]he mass murder and extermination of Jews in Europe by the Nazi regime” was an (historical) fact no “reasonable person” could dispute…

The Court of Appeal in this case noted at para 153 that judicial notice of a historical fact may be made by the court on its own initiative through the consultation of historical works or other documents, and may even be referred to them or receive sworn testimony on it as well. The distinction of taking notice on their own accord as opposed to by the parties has more to do with exclusionary rules of hearsay than the ability of the court to do so.

Judicial notice is not always undertaken without controversy. In R. v. RDS, a judge’s statement that she preferred testimony of a defendant in concluding that a young police officer had overreacted as was “the prevalent attitude of the day” became subject to appeal on the basis of reasonable apprehension of bias.

The judge, and the defendant, were both black Nova Scotians community, and the comment that racial profiling may have played a role was charged, but likely informed as a matter of fact and knowledge of the social fabric from that community. The Supreme Court of Canada called the comment “troubling,” but did not find any reasonable apprehension of bias, stating,

47 The reasonable person is not only a member of the Canadian community, but also, more specifically, is a member of the local communities in which the case at issue arose (in this case, the Nova Scotian and Halifax communities). Such a person must be taken to possess knowledge of the local population and its racial dynamics, including the existence in the community of a history of widespread and systemic discrimination against black and aboriginal people, and high profile clashes between the police and the visible minority population over policing issues. The reasonable person must thus be deemed to be cognizant...