Canadian Criminal Evidence/Judicial Notice

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General Principles[edit]

A Judge accept something as fact thereby exempting the requirement to present evidence to establish the fact where:

  1. the fact is so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
  2. the fact is capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy[1]

The improper taking of judicial notice is reviewed as a misapprehension of evidence. [2]

  1. R. v. Potts, (1982), 66 C.C.C. (2d) 219 (Ont. C.A.)
    J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055
    R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, 2001 SCC 32 at para 48
    R v Williams 1998 CanLII 782, (1998) 124 CCC (3d) 481 at p. 489
    R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 53
  2. R. v. Charles, 2013 BCSC 23 (CanLII) at para. 36

Permissible Examples of Judicial Notice[edit]

Wikipedia or similar sites to not necessarily contain accurate information to take judicial notice fact.[1]

The judge may access the internet in order to consult with online maps such as Google maps.[2]

Use of the internet by the trial judge to consult commercial information, conduct outside of the courtroom is not appropriate.[3]

A judge may take judicial notice that cell phone was within a general vicinity of a cell tower recording a signal from the phone and that a travel route can be estimated based on the records of several towers.[4] The court may also find as fact that a call from a cell phone is likely to register at the tower closest to the caller without taking expert evidence.[5]

  1. R. v. Balen, 2012 ONSC 2209 (CanLII) at 61
  2. R v Calvert, 2011 ONCA 379 at 2-8
  3. Generally: United States of America v. Saad 2004 CanLII 9931 (ON CA), (2004), 183 C.C.C. (3d) 97 (Ont. C.A.), at p. 110 (leave to appeal refused, [2004] S.C.C.A. No. 232)
    Ardoch Algonquin First Nation v. Canada (Attorney General) (2003), 311 N.R. 180 (F.C.A.), at para. 16
    AstraZeneca Canada Ltd. v. Apotex Inc. 2003 FCA 487 (CanLII), (2003), 30 C.P.R. (4th) 431 (F.C.A.), at paras. 6-14
    R. v. Whittaker 2001 ABQB 873 (CanLII), (2001), 301 A.R. 136 (Q.B.), at para. 25
  4. R v Ranger 2010 ONCA 759 (CanLII)
  5. R. v. Hamilton, 2011 ONCA 399 (CanLII), 271 C.C.C. (3d) 208, at paras. 259, 277, and 279
    Any more precise triangulation may require expert opinion, see Hamilton, at para. 280; Ranger at para. 17

Impermissible Facts of Judicial Notice[edit]

It is impermissible to take judicial notice of the following:

  • A person can "only obtain a drug stronger than Extra Strength Tylenol with a prescription".

[1]

  1. R. v. Charles, 2013 BCSC 23 (CanLII) at para. 33