Of Note: A Primer on Taking Judicial Notice

The recent decision of the Court of Appeal for Ontario in R. v. J.M.,[1] has provided useful guidance to trial courts and counsel on the boundaries of judicial notice. While Justice Brown’s reasons are in the context of a criminal prosecution of sexual assault charges involving credibility as a central issue, an area in which appellate direction is particularly important, his analysis of the principles underlying judicial notice is relevant in civil and family litigation as well.

J.M. concerned an appeal from conviction on a single count of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. The trial turned primarily on credibility. The trial judge accepted the complainant’s credibility and rejected the appellant’s denial of the alleged incidents of sexual assault. In accepting the complainant’s credibility, the trial judge made three comments which became the focus on the appeal:

1. drawing on his experience as counsel appearing before the Court of Appeal for Ontario on appeals from sexual assault convictions, he found “instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact… such cases are commonplace”;[2]
2. drawing an analogy between the complainant’s testimony and the psychology of battered woman syndrome described by the Supreme Court of Canada decision in  v. Lavallee,[3] the trial judge found that the complainant’s emotional state displayed “more than a few parallels with the psychology of battered wife syndrome”;[4] and
3. the trial judge stated that the complainant’s passivity at the time of the sexual assault was explained by social science research described in a recent article published in the Scientific American magazine, which neither party had placed before the court.[5]

Justice Brown found that each of these findings constituted an error in the trial judge’s exercise of taking judicial notice.

The Governing Principles on Judicial Notice

In reaching this conclusion, Brown J.A. set out a comprehensive distillation of the general principles regarding taking judicial notice. He noted that the use of judicial notice to dispense with the proof of facts in a sexual assault prosecution is not subject to any distinct rules.[6] Accordingly, the general principles regarding taking judicial notice, which have both substantive and procedural dimensions, apply.[7]

Justice Brown summarized the principles underlying the substantive dimension of taking judicial notice:

1. 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;
2. Judicial notice involves the acceptance of a fact or state of affairs without proof;
3. Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination;
4. Since judicial notice dispenses with the need for proof of facts, the threshold for taking judicial notice is strict;
5. 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; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy;
6. The expression “judicial notice” captures several different forms of judicial notice:
   1. 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. Express judicial notice, which concerns the notice of specific facts of the notorious and indisputable variety;
   3. 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;
7. 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;
8. 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; and
9. 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.[8]

Procedurally, Justice Brown noted the problematic nature of judges taking judicial notice of facts without being invited to do so by a party, from a procedural fairness perspective. He held: “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”.[9]

The Principles Applied in J.M.

Justice Brown applied those principles and concluded that each of the three impugned findings were in error, they played important roles in the reasoning process regarding the complainant’s credibility, a key issue at the trial, and they denied the appellant a fair trial, collectively warranting a new trial.

Concerning the trial judge’s use of his personal experience as counsel, Justice Brown observed that no judge comes to the bench as a blank slate. Yet, “[w]hen 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.”[10] On the requirement of judicial restraint, he held “unless the criteria of notoriety or immediate demonstrability are present, a judge cannot judicially notice a fact within his or her personal knowledge.”[11] On judicial transparency, Justice Brown held that “[t]he parties were left in the dark about the content and scope of the trial judge’s personal experience that formed the basis for an element of his assessment of the complainant’s credibility, and they had no opportunity to respond to the information that drove the judge’s decision on this point.”[12]

Concerning the trial judge’s reference to Lavallee and his analogy to the psychology of battered woman syndrome, Justice Brown concluded: “It was an error for the trial judge to raise that issue without affording the parties an opportunity to address and respond to it during the trial.”[13] He also rebuked the trial judge’s improper use of judicial notice to take notice of the expert evidence adduced in Lavallee and apply that evidence to explain the conduct of the complainant in J.M.[14]

Finally, the trial judge’s reference to the Scientific American article was also improper. Justice Brown criticized the trial judge’s use of this article for two reasons:

1. “First, its use compromised the integrity and fairness of the trial process. By relying on a popular scientific publication that was not put into evidence or referred to at the hearing, the trial judge breached the rules of natural justice. He used social science information obtained after the hearing without disclosing it to the parties and giving them an opportunity to meet it”;[15] and
2. “Second, it constituted an improper use of judicial notice… His reasons disclose that he relied on the article as a source of expert evidence that was not properly before the court to assess the veracity of the complainant.”[16]

Closing Thoughts

Justice Brown’s decision in J.M. provides an important contribution to the developing jurisprudence pertaining to the admissibility of evidence, drawing of inferences, and credibility in sexual assault prosecutions. Beyond that specific context, however, J.M. is a valuable resource as a comprehensive distillation of the principles governing taking judicial notice. These principles will apply equally to civil, family, and estates litigation as they do in the criminal context. While the Crown may well seek leave to appeal the decision to the Supreme Court of Canada, appellate counsel will be well-served by keeping J.M. close at hand when assessing the propriety of a trial judge taking judicial notice as a potential ground of appeal in future cases.

 

 

[1] R. v. J.M., 2021 ONCA 150.

[2] R. v. J.M., 2021 ONCA 150, at paras. 17 and 44.

[3] R. v. Lavallee, [1990] 1 S.C.R. 852.

[4] R. v. J.M., 2021 ONCA 150, at para. 21.

[5] R. v. J.M., 2021 ONCA 150, at para. 22.

[6] R. v. J.M., 2021 ONCA 150, at para. 29.

[7] R. v. J.M., 2021 ONCA 150, at para. 30.

[8] R. v. J.M., 2021 ONCA 150, at paras. 31-35, citations omitted.

[9] R. v. J.M., 2021 ONCA 150, at para. 38.

[10] R. v. J.M., 2021 ONCA 150, at para. 50.

[11] R. v. J.M., 2021 ONCA 150, at para. 51.

[12] R. v. J.M., 2021 ONCA 150, at para. 55.

[13] R. v. J.M., 2021 ONCA 150, at para. 64.

[14] R. v. J.M., 2021 ONCA 150, at para. 66.

[15] R. v. J.M., 2021 ONCA 150, at para. 74.

[16] R. v. J.M., 2021 ONCA 150, at paras. 75-76.