Canadian Law of Evidence/Exemptions from proof
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There are certain situations in which facts need not be proven and the Judge will be allowed to either presume something or declare something a "fact" by Judicial Notice.
[edit] Presumptions
A presumption is a reasoning process whereby to some degree, proof of one fact (absent anything to the contrary) is taken as evidence of another fact o Ex. A is an adult, so A is legally competent (unless they are mentally instable) Three types: [1] Presumption of fact – proof of fact A is evidence of fact B o Not prescribed by law, but derived from common sense § Ex. if you mail a letter with a stamp on it that is evidence that the letter arrived. § Ex. People are presumed to have intended the natural course of their actions. § Ex. person who shoots a gun at someone is presumed to have wanted to shoot that person [2] Rebuttable presumptions of law o Prescribed by law, but rebuttable – not conclusive if there is evidence to the contrary o Ex. Criminal code – person habitually in the company of prostitute is, absent evidence to the contrary, presumed to be living off the avails of the prostitute. [3] Irrebuttable presumptions of law o Prescribed by law, and conclusive as to some issue – do not allow for evidence to the contrary o Ex. If blood alcohol over “X” à presume to be driving while intoxicated. o Ex. K made at sea, is deemed made at Royal Exchange in Cornhill. § Such presumptions fly in the face of common sense – legal fictions
[edit] Judicial Notice
Judicial notice is when the judge will acknowledge a proposition as an indisputable fact, so as to keep the focus of the trial on the issues of the case. § JN are certain facts that are known to the court and accepted without proof o Ex. state of hostility in Iraq, TO is in ON, colder in winter than summer.... § The court takes judicial notice of facts that are generally known in the community and are not capable of dispute amongst reasonable people (and they are capable of immediate and accurate demonstration by use of readily accessible sources of indisputable accuracy). o People have tried to extend these facts into things § ex. systemic racism in Canada may be true, but cannot assert it without proving it o Unfortunately JN is often taken of things that are not even true. Ex. preferability of young children staying with their mothers vs. their fathers. If it really is something that should be done by JN – it shouldn’t have to be disputed. Once JN is taken, it is not disputable and no evidence may be taken on the fact because it is no longer an issue in dispute. § Facts in the community can change over time. The community that is used is the community in which the trial is taking place. Ex. a trial in rural Ontario vs. downtown Toronto would have very different common knowledge in the community § JN is a sensible way to limit investigation to matters really in dispute. However, JN is dangerous when: o Too widely extended o Notoriously indisputable propositions may be wrong o Someone does not notice that JN is something taken into consideration – better that certainties be stated rather than be passed over in silence
