What facts can a judge find without proof? How much can a judge draw from the general facts of society (i.e. the law of gravity?, fire burns?, people drown in water?) what facts require proof? Why is this question important when going to court?
Here is the latest ONCA case on this issue:
In R.v. M(J), the Complainant alleged two sexual assaults at different times. The Accused acknowledged the incidents and alleged consent. For instance, one of the incidents occurred when the Complainant and Accused, who were cousins, went to the Complainant’s bedroom during a family gathering.
The trial judge convicted. The trial judge took judicial notice of all sorts of human behavior for instance, the apparent passivity of the Complainant in the bedroom scene. Without expert evidence, the judge said this:
[80] Examining the complainant’s emotional state, there are more than a few parallels with the psychology of battered wife syndrome explained by Justice Bertha Wilson in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852. There was reference there to the administration of a shock which leads to a motivational state of “learned helplessness.” In the interfamilial context, a phenomenon may occur known as “traumatic bonding” between a dominant person and a subjugated individual such as a child. In Lavallee, the process of “traumatic bonding” as explained by expert evidence, was adopted by the court at para. 60:
The less powerful person in the relationship — whether battered woman, hostage, abused child, cult follower, or prisoner — becomes extremely dependent upon, and may even come to identify with, the more powerful person. In many cases, the result of such dependency and identification is that the less powerful, subjugated persons become “more negative in their self-appraisal, more incapable of fending for themselves, and thus more in need of the high power person.” As this “cycle of dependency and lowered self-esteem” is repeated over time, the less powerful person develops a “strong affective bond” [traumatic bonding] to the more powerful person in the abusive relationship.
[81] It is this psychology which helps to explain the complainant’s quite extraordinary evidence with respect to her helplessness and paralysis during the second sexual assault. Her testimony that she just wanted to give the accused what he wanted and the admission of kissing him back once, together with a several month delay in disclosing the assault, is suggestive of a process similar to that in Lavallee referred to as “traumatic bonding.”
Can a judge use a Scientific American Magazine on ‘victim psychology’ as an instruction manual in making his decision in this sexual assault case?
Here is Harris J. using a magazine article to assist him in his determination:
[82] The complainant’s passivity at the time of the attempted rape is also explained by more recent social science research in the area: see Francine Russo, Sexual Assault May Trigger Involuntary Paralysis (August 4 2017), online: Scientific American, <www.scientificamerican.com/article/sexual-assault-may-trigger-involuntary-paralysis>.
The ONCA determined that Harris J. was not free to take judicial notice of battered wife syndrome or ‘traumatic bonding’ or ‘involuntary paralysis’ through a magazine article, read by the judge.
Here is the ONCA on judicial notice:
[28] Canadian law has adopted several rules concerning the admissibility of evidence and the use of proven facts when assessing the credibility of a complainant in a sexual assault prosecution. For example: rules relating to evidence of recent complaint have been abrogated (Criminal Code, s. 275); a complainant’s delay in disclosure, standing alone, can never give rise to an adverse inference against his or her credibility as there is no inviolable rule on how those who are the victims of trauma like a sexual assault will behave (R. v. D. (D.), [2000] 2 S.C.R. 275, [2000] S.C.J. No. 44, 2000 SCC 43, at para. 65); evidence of sexual reputation is not admissible for the purpose of challenging or supporting the credibility of a complainant (Criminal Code, s. 277); and evidence that a complainant has engaged in sexual activity is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant is more likely to have consented to the sexual activity that forms the subject-matter of the charge or is less worthy of belief (Criminal Code, s. 276(1)).
[29] However, the use of judicial notice to dispense with the proof of facts in a sexual assault prosecution is not subject to any distinctive rules. The general principles regarding judicial notice apply.
[30] Those principles are well settled, although their application can prove challenging on occasion as the limits of judicial [page410] notice are inexact: S. Casey Hill, David M. Tanovich & Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., looseleaf (Toronto: Carswell, 2019) (“McWilliams”), at §26.10. The principles have both substantive and procedural dimensions.
The substantive dimension
[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, [1998] S.C.J. No. 49, 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] 1 S.C.R. 863, [2001] S.C.J. No. 34, 2001 SCC 32, 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] 2 S.C.R. 584, [2012] S.C.J. No. 47, 2012 SCC 47, at para. 71; Reference Re: Alberta Legislation, 1938 CanLII 1 (SCC), [1938] S.C.R. 100, [1938] S.C.J. No. 2, at p. 128 S.C.R.; 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] 1 S.C.R. 61, [2013] S.C.J. No. 5, 2013 SCC 5, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko (2010), 103 O.R. (3d) 424, [2010] O.J. No. 3974, 2010 ONCA 615, 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 [page411] 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;22
(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] S.C.J. No. 34, 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] 3 S.C.R. 458, [2005] S.C.J. No. 74, 2005 SCC 71, at para. 60; Paciocco, at p. 577.33
[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 [page412] 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, [1997] S.C.J. No. 84, 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.
(ECC emphasis)
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ECC comment on judicial notice:
Brown J.A. points out Harris J. was defence counsel in the most important criminal-proof case in last 50 years (R.v. W(D). It was perhaps therefore surprising that this judge would stray too far on judicial notice. Brown J.A. points out (para 28) that specific inferences otherwise available in sexual assault cases have been removed by statute. The law has not extended to endorsing, without proof, various theories current in sexual assault discourse.
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