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Evidence - Judicial Notice (2). R. v. Donnelly
In R. v. Donnelly (Ont CA, 2023) the Court of Appeal considered stereotypical/speculative versus common sense evidence findings, which to me are very much akin to the issue of 'judicial notice':[38] That the trial judge had recourse to “a common sense proposition” is not, by itself, an error. Triers of fact are permitted to rely on “logic, common sense, and experience” in making credibility assessments: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 112; R. v. Delmas, 2020 ABCA 152, 452 D.L.R. (4th) 375, at para. 31, aff’d 2020 SCC 39, 452 D.L.R. (4th) 371; R. v. Safieh, 2021 ONCA 644, at para. 7; R. v. Cowan, 2021 ONCA 729, at para. 15; R. v. S. (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484, at paras. 39, 129. What constitutes common sense and how common sense applies are determinations for the trier of fact: R. v. Radita, 2019 ABCA 77, 374 C.C.C. (3d) 223, at para. 52, leave to appeal refused, [2019] S.C.C.A. No. 407.
[39] Error arises where common sense and human experience become a substitute for evidence: United States of America v. Huynh (2005), 2005 CanLII 34563 (ON CA), 200 C.C.C. (3d) 305 (Ont. C.A.), at para. 7; and where common sense inferences are “pulled out of thin air at the whim of the trier of fact” and lack “a reliable factual foundation”: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 56. As a result, trial judges must “avoid speculative reasoning that invokes ‘common sense’ assumptions not grounded in the evidence: R. v. Roth, 2020 BCCA 240, 66 C.R. (7th) 107, at para. 65, relying on R. v. Cepic, 2019 ONCA 541, 57 C.R. (7th) 166), at paras. 19-27, and R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116, at paras. 30-42.
[40] While not all assumptions about ordinary human behaviour rest on impermissible stereotypes, caution must be exercised lest the “common sense approach” that purports to rely on common sense assumptions “mask[s] reliance on stereotypical assumptions”: R. v. Steele, 2021 ONCA 186, 154 O.R. (3d) 721, at para. 19; R. v. A.R.D., 2017 ABCA 237, 353 C.C.C. (3d) 1, at paras. 8-9, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218.
[41] On appellate review, courts must “carefully scrutinize reasons to ensure that findings said to be based on ‘common sense or logic’ are reliably just that, and are not, in fact, unfair and inaccurate external viewpoints that find no foundation in the record”: A.R.D., at para. 71.
[42] In R.D.S., at para. 129, in concurring reasons, Cory J. contrasted the difference between the permissible common sense approach and the impermissible speculative approach:On one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence. . IMS Incorporated v. Toronto Regional Real Estate Board
In IMS Incorporated v. Toronto Regional Real Estate Board (Fed CA, 2023) the Federal Court of Appeal cited the reasoning of a motion judge below on judicial notice (though the appeal court felt it was irrelevant):[18] In reaching this conclusion, the motion judge noted that it was inappropriate to use judicial notice to assume the works were the same. Relying on R. v. Daley, 2007 SCC 53, 288 D.L.R. (4th) 1 at para. 86; Tsawwassen Indian Band v. Delta (1997), 1997 CanLII 1097 (BC CA), 149 D.L.R. (4th) 672, 37 B.C.L.R. (3d) 276 at paras. 98–99; R. v. Levkovic, 2010 ONCA 830, 103 O.R. (3d) 1 at para. 48; R. v. Perkins, 2007 ONCA 585, 51 C.R. (6th) 116 at para. 38; and R. v. Spence, 2005 SCC 71, 259 D.L.R. (4th) 474, the motion judge held that facts that could reasonably be questioned cannot be the subject of judicial notice and that caution is warranted where the use of a prior judicial precedent would permit a party to substitute precedent for proof. . A.V. v. C.V.
In A.V. v. C.V. (Div Court, 2023) the Divisional Court, in a COVID child vaccination family law case, considered the public document exception to the hearsay rule and judicial notice, both in relation to government health publications:Evidence of Government Recommendations and Judicial Notice
[11] The first issue raised in both appeals is whether the motion judge erred in admitting into evidence government recommendations with respect to vaccination. That question has now been settled by the Court of Appeal in J.N. v. C.G. As George, J.A. stated in that case at para. 26, reports of public officials are admissible into evidence for the truth of their contents, pursuant to the public document exception to the hearsay rule: see also A.C. v. L.L., 2021 ONSC 6530, 159 O.R. (3d) 600, at para. 26; A.P. v. L.K., 2021 ONSC 150, 51 R.F.L. (8th) 334, at paras. 147-173. The reason for the exception is not only the inherent reliability and trustworthiness of public documents, but also to avoid the inconvenience of public officials having to be present in court to prove the documents. Section 25 of the Evidence Act, R.S.O. 1990, c. E.23 also provides that certain public documents as defined in that provision, including those published under the authority of the government of any “dominion, commonwealth, state…shall be admitted into evidence to prove the contents thereof.”
[12] Government of Canada publications addressing paediatric vaccination against COVID-19 fall squarely within the public document exception to the hearsay rule. In addition to being reliable, allowing these documents into evidence permits parties to rely on them without the unnecessary burden of calling a government representative: J.N. v. C.G., at para. 44.
[13] For the same reasons, judicial notice may be taken of the regulatory approval of paediatric vaccination against COVID-19. Judicial notice is an exception to the rule of formal proof that requires parties to present evidence to establish facts. It dispenses with the need to prove facts that are clearly uncontroversial or beyond reasonable dispute. The threshold is strict. The Supreme Court of Canada has stated that a court may 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: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.
[14] While judicial notice generally is not taken of expert evidence, as set out in J.N. v. C.G., at para. 43, this general principle does not apply “where the ‘expert opinion’ in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness.” As explained at paras. 44-45:It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge…going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. … Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. [15] Indeed, both the public documents exception and judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules, O. Reg. 114/99. They save the parties the time and expense of collecting expert evidence, which is a particularly challenging task on an interim motion. As stated in J.N. v. C.G., at para. 29, “it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.” These principles allow the parties instead to focus on the central question: the best interests of the child. See A.P. v. L.K., at para. 186
[16] The admissibility of government recommendations into evidence is not determinative of the best interests of the child. However, it places the onus on the objecting party to show why the child should not be vaccinated: J.N. v. C.G., at para. 45. It remains open to the opposing party to file competing evidence. However, the competing evidence must be admissible. Opinion evidence is not admissible unless the person offering the opinion is qualified as an expert and the opinion relates to a matter within their expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-25, see also R v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 47. The proposed expert also must also be independent and unbiased: J.N. v. C.G., at paras. 12, 17. While in many cases, it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. This could include a child’s particular risk for contracting COVID-19.
[17] Another factor, which has arisen in the cases, is the child’s views and preferences. For example, in M.M. v. W.A.K., the motion judge declined to order vaccination where the child had clearly expressed her strong opposition to it. The motion judge considered the child, who was 12 years-old, to be mature and put significant weight on her views and preferences. However, a court must always carefully consider how much weight to give a child’s wishes in accordance with the factors set out in Decaen v. Decaen, 2013 ONCA 218, at para. 42. In J.N. v. C.G., the Court of Appeal found that the motion judge erred in giving the children’s views any weight, as the evidence did not support the finding that they had reached their own conclusions free from their mother’s influence.
[18] In short, government publications and recommendations may be admitted into evidence. Once admitted, regulatory approval of the vaccine places the onus on the objecting party to demonstrate that the child should not be vaccinated. The motion judge is to make this determination in the best interests of the child. . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal allowed an appeal in part due to the trial court's evidentiary treatment of federal COVID government publications, particularly as judicial notice:Did the motion judge err by finding that the appellant’s evidence (from public health authorities and other well-known sources) was credibly disputed?
[20] I turn now to the motion judge’s treatment of the appellant’s evidence. The appellant filed, among other things, Government of Canada materials which speak to the importance of paediatric vaccination against COVID-19, possible side effects, and the testing and development of COVID-19 vaccines. While taking judicial notice of a fact is highly discretionary, I note that several courts have already taken notice of the safety, efficacy and importance of paediatric COVID-19 vaccines: I.S. v. J.W., 2021 ONSC 1194; A.B.S. v. S.S., 2022 ONSC 1368; Warren v. Charlton, 2022 ONSC 1088; Campbell v. Heffern, 2021 ONSC 5870. Some have even taken judicial notice of the fact that being vaccinated against COVID-19 is in the best interests of a child, unless there is a compelling reason not to: Dyquiangco Jr. v. Tipay, 2022 ONSC 1441; Rashid v. Ayanesov, 2022 ONSC 3401; Davies v. Todd, 2022 ONCJ 178.
[21] In this case, the motion judge declined to do so, taking the position that the safety and effectiveness of the vaccine is not a notorious, well-known fact, and is the subject of debate among reasonable people. I need not decide whether judicial notice should be taken of the public health and government information adduced by the appellant, as the motion judge fell into error in other respects, including by treating government approval of the vaccine as irrelevant.
[22] As Hackland J. wrote in A.M. v. C.D., 2022 ONSC 1516, at para. 27:If we exclude Health Canada advisories from the assessment of whether vaccines are safe, the court will be left in most cases with whatever random information the parties are able to download from the internet. The court often lacks the expertise or the resources to assess this information. In JN, the court was reassured that the mother’s downloads included qualified and reputable sources. Dr. Robert Malone was the primary example referred to. A Google search will, however, disclose that Dr. Malone was barred by Twitter for violating the platform’s coronavirus misinformation policy and includes a recent Washington Post article stating that Dr. Malone’s “claims and suggestions have been discredited and denounced by medical professionals as not only wrong, but also dangerous”. The point being that internet downloads are simply not reliable in many instances, particularly when contrasted with public health advisories. [23] Instead of conducting a meaningful analysis of the appellant’s material, the motion judge simply cited historical events – such as residential schools and internment camps, as well as the fact that courts across the country routinely find that the government (i.e., police) violates people’s Charter rights – as a reason to not place reliance on government sources generally. He wrote, at para. 67 of his reasons:Why should we be so reluctant to take judicial notice that the government is always right?
a) Did the Motherisk inquiry teach us nothing about blind deference to “experts”? Thousands of child protection cases were tainted – and lives potentially ruined – because year after year courts routinely accepted and acted upon substance abuse testing which turned out to be incompetent.
b) What about the Residential School system? For decades the government assured us that taking Indigenous children away – and being wilfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies.
c) How about sterilizing [Inuit] women? The same thing. The government knew best.
d) Japanese and Chinese internment camps during World War Two? The government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.
e) Few people remember Thalidomide. It was an experimental drug approved by Canada and countries throughout the world in the late 1950’s. It was supposed to treat cancer and some skin conditions. Instead, it caused thousands of birth defects and dead bodies before it was withdrawn from the market. But for a period of time government experts said it was perfectly safe.
f) On social issues the government has fared no better. For more than a century, courts took judicial notice of that fact that it was ridiculous to think two people of the same sex could get married. At any given moment, how many active complaints are before the courts across the Country, alleging government breaches of Charter Rights? These are vitally important debates which need to be fully canvassed.
g) The list of grievous government mistakes and miscalculations is both endless and notorious. Catching and correcting those mistakes is one of the most important functions of an independent judiciary.
h) And throughout history, the people who held government to account have always been regarded as heroes – not subversives.
i) When our government serially pays out billions of dollars to apologize for unthinkable historic violations of human rights and security – how can we possibly presume that today’s government “experts” are infallible?
j) Nobody is infallible.
k) And nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review. [24] The motion judge then reinforced these inapt comparisons by characterizing the appellant’s evidence as “somewhat narrow and repetitive” and by indicating that the appellant’s attack upon the respondent’s position was “misguided and inaccurate”. ... . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal reviewed the evidentiary onus that lies on someone resisting COVID measures for children, as it interrelates with judicial notice:Did the motion judge err by placing the onus on the appellant to show that the children should be vaccinated?
[37] For the reasons that follow, I would give effect to this ground of appeal.
[38] As mentioned, most family court decisions related to the pandemic, at least to this point, have deferred to the government recommendation that people, including children, get vaccinated against COVID-19. These decisions have been made in relation to decision-making, parenting time, travel, and education. In Chase v. Chase, 2020 ONSC 5083, 151 O.R. (3d) 422, Zinati v. Spence, 2020 ONSC 5231 and A.C. v. L.L., 2021 ONSC 6530 – all decided at a time when the Ontario government deemed in-person classes safe – the court held that the parent who did not want a child to attend was required to explain why, and to offer evidence in support. In a travel context – when the federal government recommended against unnecessary travel – courts have consistently held that the party seeking to travel with the child had the onus to establish that it was necessary: Yohannes v. Boni, 2020 ONSC 4756; Gillespie v. Jones, 2020 ONSC 2558.
[39] Courts have also found that parents must, as a condition to exercising parenting time, abide by government guidelines designed to slow the spread of COVID-19, and that the failure to do so will have consequences: A.T. v. V.S., 2020 ONSC 4198.
[40] In Dyquiango, the court held that vaccination itself was in the child’s best interests (absent compelling reasons to the contrary), which placed the burden squarely on the objecting parent and not the one defending a public health measure.
[41] While the motion judge acknowledges many of these decisions, he clearly viewed them as neither binding nor persuasive. While he was not obliged to adopt the reasoning in a court of coordinate jurisdiction, it was important for the motion judge to cogently explain why he was departing from decisions that had already addressed health-related parenting decisions in this same context.
[42] Instead of the cases listed above, the motion judge relied on the case of R.S.P. v. H.L.C., 2021 ONSC 8362. The court in that case, in a passage relied on by the motion judge, noted, at para. 58, that “[j]udicial notice cannot be taken of expert opinion evidence”, citing R. v. Find, 2001 SCC 32 (CanLII), 2001 S.C.C. 32, [2001] 1 S.C.R. 863, at para. 49.
[43] In my view, this statement, while generally accurate, is inapposite in this case, where the “expert opinion” in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness. In O.M.S v. E.J.S., 2023 SKCA 8, the Saskatchewan Court of Appeal, at para. 48, writes that:[I]n a family dispute, it is both unnecessary and, in most cases, unhelpful, for the parties and court to look for more than the approval of a drug, such as the Pfizer vaccine, together with any medical advice that may reasonably be required as to the risks and benefits to the child at issue, as the basis to conclude that it is in the child’s best interests to administer the drug. It is unnecessary because a parent is not obliged to prove, and a court is not obliged to consider or decide, that an approved drug is safe or efficacious when used in accordance with and to the extent specified in the approval – just as they need not consider whether medical advice from the family doctor meets that mark. In most cases at least, additional evidence is unhelpful because, absent sufficient evidence to the contrary, parents and courts are entitled to decide that a child should be treated with approved medications in accordance with the approval, subject, of course, to any child-specific medical concerns that may be in play, or other relevant factors. [44] Recall the two primary rationales for the public documents exception to the hearsay rule: the impracticality of traditional modes of proof, and the expectation that public servants perform their duties with a degree of diligence and care. It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge … going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. Requiring that opinion to be tendered viva voce in every case via live, human experts would be – especially in family court – unnecessarily burdensome.
[45] Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. That being the case, where one party seeks to have a child treated by a Health Canada-approved medication, the onus is on the objecting party to show why the child should not receive that medication. The motion judge erred by reversing that onus.
[46] The respondent, as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be. That onus was not satisfied. . Taylor v. Hanley Hospitality Inc.
In Taylor v. Hanley Hospitality Inc. (Ont CA, 2022) the Court of Appeal considered the interesting issue of whether judicial notice 'facts' could be considered in the R21 striking pleadings motion where the pleadings in the claim (only) were assumed to be true (no, they couldn't):[29] Nor was it open to the motion judge to take judicial notice of the litany of adjudicative facts set out in paragraph 4 of her reasons. These adjudicative facts mirror many of the disputed allegations contained in the respondent’s statement of defence concerning the impact of the COVID-19 pandemic and of the government’s various emergency measures on the respondent’s operations and its business decisions.
[30] The concept of judicial notice allows a court to receive “facts” that are “so notorious or uncontroversial that evidence of their existence is unnecessary”. This does not allow parties “to put before the court controversial evidence to the prejudice of the opposing party without providing a proper opportunity for its truth to be tested”: Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2, [2000] 1 S.C.R. 44, at para. 5. The threshold for judicial notice is strict since the facts are not proved by evidence under oath nor tested by cross-examination: R. v. Find, 2001 SCC 32, [2001] S.C.R. 863, at para. 48.
[31] The fact of the COVID-19 pandemic is notorious and uncontroversial, as are the facts that the government declared a state of emergency and has undertaken various remedial emergency measures to combat the pandemic’s severe health, economic and social effects. However, the legislative context and intention behind the government’s emergency measures and their impact, especially as they pertain to the parties to these proceedings, are not. This is demonstrated by the parties’ respective, divergent pleadings. For example, the motion judge purported to take judicial notice of the respondent’s pleading that it “was required by the Ontario government to close all their storefronts and was limited to takeout and delivery”, which “had an impact on the employment market”. As I have already noted, the appellant did not admit those facts and disputed that her lay-off was the result of the Ontario government’s mandatory pandemic measures.
[32] Under the rule 21.01(1)(a) motion that the respondent chose to bring, the only facts that the motion judge was entitled to accept as true as far as they related to and affected the parties were those in the statement of claim. As a result, there was no basis for the motion judge’s myriad findings, including that the appellant had not resigned from her employment and that the appellant was on an infectious disease emergency leave because of the COVID-19 emergency government-mandated measures and therefore was not constructively dismissed by the respondent.
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