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Evidence - Judical Notice
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. R. v. G.M.C.
In R. v. G.M.C. (Ont CA, 2021) the Court of Appeal cited basic principles of judicial notice:[34] The principles of judicial notice were recently explained by Brown J.A. in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 31-38. For the purposes of this appeal, only the following principles need be stated. First, courts may only take judicial notice of facts that are (1) “so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons”, or (2) “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: J.M., at para. 31.
[35] Second, as Brown J.A. observed in J.M., there are different forms of judicial notice. The form that arises in this case has been referred to as “tacit or informal judicial notice”. This involves the trier of fact drawing on “common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial”: J.M., at para. 32. One issue on this appeal is whether the trial judge applied “common sense or common knowledge”, or a specialized field of “memory science”, which should have been the subject of expert evidence.
[36] Third, judicial notice has a procedural dimension. As a matter of transparency and trial fairness, there may be occasions when a trial judge has an obligation to advise the parties that they are contemplating taking judicial notice of a fact and to invite them to make submissions. As Brown J.A. stated in J.M., at paras. 37-38:More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by [Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018)]: "Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:" at §19.61.
Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: [David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020)], at p. 582. . R. v. J.M.
In R. v. J.M. (Ont CA, 2021) the Court of Appeal canvassed principles applicable to the evidentiary use of judicial notice:[31] The basic principles regarding the substantive dimension of judicial notice can be summarized as follows:(i) 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: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) (“Paciocco”), at p. 573;
(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof: R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) (“Sopinka”) at §19.16;
(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48;
(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict: Find, at para. 48; and
(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons (R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71; Reference Re Alberta Statutes, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, at p. 128; Sopinka, at §19.18); and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy (Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424, at paras. 65-66. [32] However, as the editors of McWilliams helpfully point out, at §26.10, the jurisprudence discloses that the issue is somewhat more nuanced as the expression “judicial notice” captures several different forms of judicial notice:(i) Tacit or informal judicial notice, which involves the trier of fact drawing on common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial;[2]
(ii) Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety; and
(iii) Contextual judicial notice that strives, at a generalized level, to provide context, background or a frame of reference to assist the trier of a fact in making case-specific findings of fact: See, for example, Quebec (Attorney General), at para. 239; R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431, at paras. 83-88. To this category of “social framework facts” others would add “legislative facts”, which do not so much involve taking notice of specific facts but concern the consideration of policy factors or facts relevant to judicial reasoning when the judge embarks upon the path of making or changing the law: Paciocco, at pp. 574 and 578. Whatever may be the breadth of proper judicial notice in this category, a court must refrain from taking judicial notice of social phenomena unless they are not the subject of reasonable dispute for the particular purpose for which they are to be used: Quebec (Attorney General), at para. 239. [33] The current paradigm that judges must use to determine whether they may take judicial notice locates facts along a spectrum that runs from those that are central to or dispositive of an issue, at one end, to those that “merely paint the background to a specific issue:” Le, at para. 85. The closer the facts lie to the dispositive end of the spectrum, the more pressing it is to meet the two criteria of notoriety or immediate demonstrability: Le, at para. 85; R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 60; Paciocco, at p. 577.[3]
[34] The first category of judicial notice cases – those in which judges employ tacit judicial knowledge – contains an internal tension. Canadian law recognizes that judges will have been shaped by, and have gained insight from, their different experiences and cannot be expected to divorce themselves from these experiences on the occasion of their appointment to the bench: R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at para. 38. Judges who decide factual matters necessarily are conversant “with a library of facts or information acquired through experience, education, reading, etc.”: McWilliams, at §26:20.10. However, this fund of general knowledge is different from reliance on personal knowledge in a particular case: Sopinka, at §19.47; McWilliams, at §26:20.10. While it may prove difficult in some cases to know where to draw the dividing line, the general view is that unless the criteria of notoriety or immediate demonstrability are present, a judge cannot take judicial notice of a fact within his or her personal knowledge, even if it has been proved before the judge in a previous case: Sopinka, at §19.46.
[35] Finally, matters of which judicial notice may be taken and those that require expert evidence are not compatible. Matters that are the proper subject of expert evidence are, by definition, neither notorious nor capable of immediate and accurate demonstration: McWilliams, at §26:10; Paciocco, at p. 579.
The procedural dimension
[36] The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request.
[37] More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:” at §19.61.
[38] Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: Paciocco, at p. 582.
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[48] No judge comes to the bench a tabula rasa. We all bring varied experiences that, one hopes, assist us in fairly adjudicating the variety of legal disputes presented by the parties who appear before us. Invariably we examine, in some fashion, the legal disputes before us through the lens of that prior general experience.
[49] But here the appellant does not complain about the trial judge using his general prior experience. The appellant complains that the trial judge impermissibly drew upon his personal experience as counsel in specific types of cases to assist him in deciding a key issue in the present case: the credibility of the complainant.
[50] When a judge intends to draw upon specific experiences in his or her pre-judicial experience to determine a contested issue in a case, procedural fairness demands both judicial restraint and judicial transparency.
[51] The adversarial system imposes a necessary restraint on that which a trial judge can take into account when deciding contested issues, including the credibility of a party. The only facts a trier of fact may consider in making his or her decision in a case is the evidence adduced in the courtroom. Facts that satisfy the criteria for judicial notice are the only exception to that rule: Paciocco, at p. 573; Justice David Watt, Watt’s Manual of Criminal Evidence 2020 (Toronto: Thomson Reuters, 2020) at §14.01. As this court cautioned in R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 36 O.R. (2d) 195 (C.A.), at p. 204, leave to appeal refused, [1982] S.C.C.A. No. 301, “a trial court is not justified in acting on its own personal knowledge of or familiarity with a particular matter, alone and without more.” Accordingly, unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge: Sopinka, at §19.46.
. R v J.C.
In R v. J.C. (Ont CA, 2021) the Court of Appeal canvassed some related (and newly-named) principles of evidence law that relate to judicial notice and speculation:(1) The Rule Against Ungrounded Common-Sense Assumptions
[58] The first such rule is that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. Roth, 2020 BCCA 240, at para. 65; R. v. Cepic, 2019 ONCA 541, 376 C.C.C. (3d) 286, at paras. 19-27; R. v. Perkins, 2007 ONCA 585, 223 C.C.C. (3d) 289, at paras. 35-36. For clarity, I will call this “the rule against ungrounded common-sense assumptions”.
[59] To be clear, there is no bar on relying upon common-sense or human experience to identify inferences that arise from the evidence. Were that the case, circumstantial evidence would not be admissible since, by definition, the relevance of circumstantial evidence depends upon using human experience as a bridge between the evidence and the inference drawn.
[60] Nor is there any absolute bar on using human experience of human behaviour to draw inferences from the evidence. If there was, after-the-fact conduct evidence about things such as flight or the destruction of evidence would not be allowed. Such evidence is relevant because human experience tells us that these behaviours, flight and destroying evidence after a criminal act, are generally undertaken to hide guilt. An absolute bar on using human experience of human behaviour to draw inferences would also mean that evidence that an accused drove a protesting sexual assault complainant to a secluded location could not be used as proof of his intention or her lack of consent. The inferences to be drawn from that evidence depend on common-sense conclusions about what a person acting in a particular manner is likely to be thinking.
[61] Properly understood, the rule against ungrounded common-sense assumptions does not bar using human experience about human behaviour to interpret evidence. It prohibits judges from using “common-sense” or human experience to introduce new considerations, not arising from evidence, into the decision-making process, including considerations about human behaviour.
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(2) The Rule Against Stereotypical Inferences
[63] The second relevant, overlapping rule is that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. I will call this “the rule against stereotypical inferences”. Pursuant to this rule, it is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility: Roth, at para. 129; R v. A.B.A., 2019 ONCA 124, 145 O.R. (3d) 634, at para. 5; Cepic, at para. 14. It is equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: R. v. Quartey, 2018 ABCA 12, 430 D.L.R. (4th) 381, at para. 21, aff’d 2018 SCC 59, [2018] 3 S.C.R. 687; and see Cepic, at para. 24.
[64] Two points are critical in understanding this rule and ensuring that it does not impede proper judicial reasoning.
[65] First, like the rule against ungrounded common-sense assumptions, the rule against stereotypical inferences does not bar all inferences relating to behaviour that are based on human experience. It only prohibits inferences that are based on stereotype or “prejudicial generalizations”: R. v. A.R.D., 2017 ABCA 237, 422 D.L.R. (4th) 471, at paras. 6-7, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218.
[66] For example, it is a myth or stereotype that a complainant would avoid their assailant or change their behaviour towards their assailant after being sexually assaulted, and it is an error to employ such reasoning: A.R.D., at paras. 57-58; A.B.A., at paras. 6, 8-10; R. v. Caesar, 2015 NWTCA 4, 588 A.R. 392, at para. 6. Similarly, it is a stereotype that women would not behave in a sexually aggressive manner, or that men would be interested in sex. Reasoning that is based on such inferences is not permitted: Cepic, at paras. 14-16; Quartey, at para. 21.
[67] By contrast, no stereotype or prejudicial generalization is offended by inferring, where a man drives a resisting woman to a secluded location before touching her sexually, that she did not consent and that he intended to touch her without her consent. Hence, such inferences are appropriate.
[68] The second critical point in understanding the rule against stereotypical inferences is that this rule prohibits certain inferences from being drawn; it does not prohibit the admission or use of certain kinds of evidence. Professor Lisa Dufraimont makes this point admirably in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L. J. 316, at pp. 345-46, 350; and it is reinforced in A.R.D., at paras. 6-8, 62; and Roth, at para. 73.
[69] For this reason, it is not an error to admit and rely upon evidence that could support an impermissible stereotype, if that evidence otherwise has relevance and is not being used to invoke an impermissible stereotype: Roth, at paras. 130-38. For example, in R. v. Kiss, 2018 ONCA 184, at paras. 101-2, evidence that the complainant did not scream for help was admitted, not to support the impermissible stereotypical inference that her failure to do so undermined the credibility of her claim that she was not consenting, but for the permissible purpose of contradicting her testimony that she had screamed to attract attention.
[70] By the same token, it is not an error to arrive at a factual conclusion that may logically reflect a stereotype where that factual conclusion is not drawn from a stereotypical inference but is, instead, based on the evidence. For example, although it is a stereotype that men are interested in sex, it was not an error to infer that the accused male was interested in sex at the time of the alleged assault where that inference was based on evidence: Quartey, at para. 21. Similarly, in R. v. F.B.P., 2019 ONCA 157, the trial judge was found not to have erred in finding it implausible that the complainant would consent to spontaneous sex on a balcony, potentially in full view of others, because that inference did not rest in stereotypes about the sexual behaviour of women. The inference was based on evidence about the ongoing sexual disinterest the complainant had shown in the accused, and the ready availability of a private bedroom.
(3) The Effect of Reasoning Errors Related to the Plausibility of Human Behaviour
[71] Does a reversible error occur whenever a trial judge violates the rule against unfounded common-sense assumptions, or the rule against stereotypical inferences? As a matter of principle, such errors are reversible only when they “ground” the relevant inference by playing a material or important role in the impugned conclusion. Put otherwise, it is not per se a reversible legal error to draw impermissible inferences that do not matter, but it is a reversible legal error to reach a material factual conclusion based on such reasoning.
[72] Some passages could be taken as limiting the effect of these rules to cases where the impugned factual finding is based solely on impermissible reasoning. For example, the phrase “sole reason” was used by the majority in A.R.D., at para. 31, and, on further appeal, Wagner C.J. described the trial judge as erring by relying “solely” on impermissible stereotypical reasoning: R. v. A.R.J.D., 2018 SCC 6, [2018] 1 S.C.R. 18, at para. 2. However, I do not take these decisions as holding that no error will occur so long as additional, permissible lines of reasoning are also offered. In A.R.D., the only reason provided by the trial judge for doubting the complainant’s testimony was the stereotype that she had not altered her behaviour towards the accused after the alleged assault. In my view, when these courts referred to the impermissible stereotypical reasoning as the sole reasoning, they were not defining a precondition to error but were referring to the particular facts of that case. It is instructive that in A.R.D., at paras. 5-6, the majority described the error as “relying on an impermissible stereotype”, or “on prejudicial generalizations” (emphasis added). The majority also quoted, at para. 45, from R. v. R.G.B., 2012 MBCA 5, 275 Man. R. (2d) 119, at para. 59: “A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping” (emphasis added).
[73] As a matter of principle, an error is “based” on a stereotype or improper inference when that stereotype or improper inference played a material or important role in explaining the impugned conclusion. Where it did so, even if the trial judge offered other reasons for the impugned conclusion, it cannot safely be said that the trial judge would have reached the same conclusion without the error. Where the erroneous reasoning does not play a material or important role in reaching the impugned conclusion, and was only incidental, the accused will not have been prejudiced by it and no reversible error occurs.
[74] One final point. In argument before us, the Crown emphasized the importance of deferring to credibility determinations made by trial judges. I acknowledge this important practice, but where a trial judge contravenes the rules I have just described, resulting in a material effect on the impugned finding, an error of law has occurred: A.B.A., at paras. 4-5; A.R.D., at para. 28. The error will be reversible, unless the curative proviso in the Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii), is successfully invoked by the Crown. . Curley v. Taafe
In Curley v. Taafe (Ont CA, 2019) the Court of Appeal quoted as follows on judicial notice:[36] R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48 sets out limits for resorting to judicial notice: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. [Citations omitted.] . R. v. MacIsaac
In R. v. MacIsaac (Ont CA, 2015) the Court of Appeal commented usefully on the tension between the principle of judicial notice and when it can stray into impermissible speculation by a judge:[46] It was open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence. But it was an error of law to draw inferences that did not flow logically and reasonably from established facts, because doing so draws the trial judge into the impermissible realms of conjecture and speculation: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.), at pp. 530-531.
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A court can take judicial notice of a fact only if it is: (1) so notorious or generally accepted that no reasonable person would disagree; or (2) capable of immediate demonstration by reference to sources of indisputable accuracy (R. v. Find, 2001 SCC 32 (CanLII), [2001] 1 S.C.R. 863, at para. 48, citing R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.)).
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