Rules Dispensing with or Facilitating Proof

1. Rules Dispensing with or Facilitating Proof Formal Admissions, Judicial Notice, Prior Judicial Determinations

2. Admissions This is an adversarial system where the parties, not the Court, call the evidence and frame the issues. The Court expects you to, as counsel, but cannot force you to, admit that which is not in issue. Admissions frame the relevancy of evidence later called.

3. Admissions, Continued Admitted facts are deemed proven by the Court. The Court has no problem accepting facts for the purpose of the case at Bar, as long as all parties have approved same (all parties for whom the fact will affect). Can be in writing (ie. Agreed Statement of Fact) or oral. Courts prefer in writing to avoid misunderstandings as to what was agreed to.

4. Admissions The TOL will hold counsel/parties to agreed upon facts, in general, but do have the ability to relieve you of your admission and allow evidence on the point (ie. withdrawal at leave of Court, or with agreement of adversary). For example, some new evidence has come to your attention. Surprise, undiscoverable by due diligence. Counsel’s misunderstanding.

5. Sopinka p. 1264 Leave to Withdraw an Admission: Admission made without authority (but authority is normally implied in the solicitor-client relationship, express authorization not required), by Mistake Or Under Duress There exists a triable issue on the fact And no prejudice to party in whose favor it was made. “The discretion of the Court to be used warily and usually on terms.” Note: terms are usually the way to deal with prejudice: ie. costs, adjournment etc.

6. Admissions See e.g. s. 655 Criminal Code Note para. 19.10 Crown cannot refuse acceptance where its purpose is to artificially keep an issue alive in order to call prejudicial evidence. See, for example, s. 230 Alberta Rules of Court: Notice to Admit Admission by Failing to Respond or by Agreeing Costs by Court for refusing to Admit Obvious Fact Court May Allow any Party to Amend or Withdraw any Admission on Just Terms Any Admission for The Case at Bar Only (Sopinka, and not for re-trial)

7. Judicial Notice Another way to prove your facts-in-issue An application by the proponent to the TOL, to have the TOL recognize/hold that a fact is proven without evidence on the point, and so instruct the TOF A question of law

8. Effect The TOF is directed that the fact is so proven, it is not a matter of weight for them

9. Test The following matters can be judicially noticed: Matters “so notorious” as to be common knowledge; or Matters clearly and readily ascertainable or demonstrable by a quick reference to an indisputable source

10. Sopinka para. 1916 A power to be used with care. If the facts can be reasonably questioned, they must be proven in the normal course.

11. Notoriety “Notoriety” is notoriety in the general community in which the trial is being heard. It is community specific. What is notorious to the community in Edmonton, may not be notorious in Winnipeg or Montreal. Other matters may be notorious Canada wide. Because of this, decisions on judicial notice do not necessarily depend on precedent, but moreso a judge’s knowledge of her own locale. Precedent here is instructive, not determinative. Point, because the test is community based, and because knowledge changes over time, what can and cannot be judicially noticed continually evolves.

12. “Notoriety” is a matter upon which reasonable persons in the community would not disagree. The TOL will entertain argument on this issue (as opposed to the calling of evidence), and rule accordingly.

13. The events of September 11, 2001, would be considered notorious, and would likely be judicially noticed across Canada and the U.S.: unless Zundel applies. That the LRT in Edmonton has been extended to Southgate, would likely only be recognized in Edmonton and the local surrounding community, not elsewhere. That Katz/Rexall group is considering relocating the Oilers to an arena located downtown, would likely be judicially noticed locally. That our oil production has brought great wealth to this Province would likely be judicially noticed across Canada.

14. Reference Sources of Indisputable Accuracy This alternative portion of the test again involves matters that are not in dispute, but do require us to look the Information up. Maps of the world and the boundaries of countries are generally not in dispute, even though we cannot so describe them without reference to the map itself. A Court is likely to do so itself on application. The Webster’s Dictionary. Reasonable people do not disagree with their spellings and ascribed meanings, even though we have to revert to the actual book itself. For weather on the date in question, Environment Canada. Calendars for the day of the week upon which a certain date fell. Sources for weights and Measures. E.g. How many leaugues in a furlong?

15. Procedure The Court should not take judicial notice without informing the parties that it is so considering, and should hear representations on the matter, and if necessary, hear evidence on same. Judges are cautioned against doing their own research on the matter – yet some undoubtedly have.

16. Arguments to be Made On application of the proponent, the opponent may object and argue that the matter is not a proper area for judicial notice. That is an area of dispute. Opponent may also argue that the matter being put forward as a proper area for judicial notice is actually a central issue in the trial, and is therefore not a matter for judicial notice: Zundel (hate literature, proposed judicial notice: Holocaust).

17. p. 1268, note 43 “The scope of judicial notice depends on the nature of the fact of which judicial notice is taken, and the centrality of that fact to a dispositive issue in the litigation. If the fact is an adjudicative, as opposed to a legislative or social fact, the scope of judicial notice is narrowed. Similarly, if the fact is central to a dispositive issue, resort to judicial notice is restricted.”

18. Arguments to be made cont’d It is also open to the opponent to argue that although the matter could be noticed, the appropriate reference material would be …

19. What Judicial Notice is Not Judicial Notice is not the personal expertise or “special skill” of the TOL or TOF (they can bring their common sense to the jury room, not their particular expertise) Remember that the test involves referral to the knowledge of the community, not the TOL/TOF It may be, for example, that the TOL or TOF is a mechanic, but that does not allow the importation of that pool of knowledge into the case at bar

20. Sopinka para 19.38 Unless the other criteria for taking judicial notice are present, the TOL cannot judicially notice a fact within his or her personal knowledge even if proved before the judge in a previous case.

21. What Judicial Notice is Not Judicial Notice Does not allow the importation of expert evidence from other trials (nature of adversarial system) A judge may not take notice of a fact proved in another case.

22. e.g. Sopinka p. 1269, note 51 The Manitoba Court of Appeal held that a Court cannot take judicial notice that the Hell’s Angels are a criminal organization, despite that conclusion having been reached in a lengthy case which heard extensive expert evidence. Quite frankly, it is an issue that needs to addressed in each case on an evidentiary basis. Think of it as an issue of fairness (ie. my client was not present or represented during that trial to ask his own questions and call his own evidence). The difference between in rem and in personam proceedings.

23. A court may, in general, take notice of … Courts may generally take notice of the location of cities, whether a certain city is within a particular Province (important for jurisdiction), boundaries, landmarks etc The situs of an offence may be judicially noticed where the location is common knowledge within that community – ie. the evidence refers to Sir Winston Churchill Square

24. Other examples Drug jargon “Od’d”, paraphenalia of drug trade General effect of alcohol (“intoxicating”) but NOT elimination/absorption rates Historical Facts with readily obtainable and authoritative source materials (ie. arrival of Metis in Alberta) Normal Gestation period of Humans (but not the impossibility of birth 360 days after coitus, see para. 19.33)

25. Usually not … Scientific facts Has also been disallowed in: Workings of a radar machine How certain card games are played Sopinka, para 19.22 Olson v. Olson, Alberta Court of Appeal held that the causal relationship between athletic training and career advantages was not notorious

26. Legislative Facts/Social Context P. 1279, note 114 Facts which do not relate to guilt/innocence, but rather to the framework in which that adjudication takes place are called “social facts” when they relate to the fact-finding process, and “legislative facts” in relation to legislation or judicial policy: note, using these monikers do not lessen the TOL’s inquiry before judicial notice is taken.

27. e.g. Interpretation of legislation Consideration of Parliamentary intention, by looking at inter alia, social and historical context Or use of social science research and socio-economic data to “illuminate the social framework in which the facts of a particular case are to be decided.”

28. e.g. Assistance in family law Charter interpretation Human rights legislation, understanding what was happening at the time which gave rise to the provisions

29. Systemic Factors SCC in Cobham “courts are entitled to take judicial notice of the broad parameters of these [duty counsel] services, such as their existence and how they are generally accessed”

30. Effect of Judicial Notice: pp. 1281-1282 Query: does the taking of judicial notice foreclose evidence on the point? Answer: on principle, it seems that judicial notice is intended to dispense with evidence, assuming the criteria for its application are present.

31. Judicial Notice of Law See Sopinka pp. 1276 and 1277 Refers us to ss. 17 and 18 CEA, s. 32 AEA We have been looking at judicial notice of facts. Domestic Law is a matter of law for the TOL (we produce it, we don’t prove it). Foreign law is a matter of fact.

32. Evidentiary Value of Prior Judicial Determinations ie. proving something by proving it has been proven before in another forum Explaining the rule of res judicata (e.g. the binding effect of decisions where there is an identity of parties and issues) properly is beyond the limits of this course. However, please consider that there are only two kinds of legal cases: in rem (against all) and in personam (against named parties).

33. Policies at Play Judicial economy Consistency of verdicts Finality Integrity of administration of justice Conclusion: relitigation, in general, should be avoided

34. A relevant question arises in criminal cases: does a conviction mean anything in a civil case dealing with admittedly different parties (ie. the State is a named party in the criminal case), yet the same event (ie. the “crime” is also the “tort” for example).

35. The second question to be asked is, can a civil judgment ever determine an issue in a criminal case, again, where there is some identity of issue, even if the parties are, by definition, different?

36. Sopinka para 19.157 “However, the determination of the facts upon which a conviction or other judgment is rendered is not conclusive as against all the world. The issue explored in this section is whether it has any evidentiary effect in a proceeding against parties where they or their privies were not both parties to the previous proceeding in which the judgment was given. So, for example, is evidence of the previous conviction for careless driving admissible as evidence of negligence against the Defendant in a civil negligence suit brought by the victim?”

37. At common law … No. Hollington v. Hewthorn.

38. AEA, s. 26: Statutory Reform Specifically provides that, where a person has been convicted or found guilty of an offence anywhere in Canada, and where the commission of that offence is relevant to an issue in an action, then, whether or not that person is a party to the action, proof of the conviction or finding of guilt is admissible in evidence for the purpose of proving that the person committed the offence.

39. Notes Can put in Information/Indictment. Except in defamation cases, where the finding of guilt is conclusive for the TOF (presumption of law, not rebuttable), findings of guilt go before the TOF with other evidence, weight to be determined by TOF. Note, can be used on application for Summary Judgment.

40. Notes Because the conviction is not conclusive of the civil issue, evidence on all substantive points remains allowable. Except for defamation: e.g. accused charged and convicted. Reported in the media. Media sued by accused for defamation. Validity of story regarding “conviction” made out by proof of conviction. Irrebutable. No further evidence allowed on point.

41. Notes “Offence” not limited to crimes, can be regulatory offences. Must be final (ie. no appeal, past deadline). Includes discharges.

42. Ways to Challenge the Conviction in Civil Court (ie. argue weight) Show that the first proceeding tainted by fraud/dishonesty Fresh new evidence available (even testimony of accused now defendant!) Show that the issues are different Lack of fairness or effective representation in Court below

43. Previous Acquittals Query: can previous acquittals be called as evidence in the related civil matter? Answer: no. The issue is relevancy. Deemed irrelevant because of the different standards of proof. Ie. the existence of reasonable doubt can lead to acquittal, but does it tell us whether the tort took place on a balance of probabilities?

44. What about a civil judgment imported into the Criminal? Civil judgment worthy of less respect due to lower standard of proof than criminal sphere. General rule: not admissible as prima facie proof of commission of the relevant acts or negligence. It cannot logically raise a presumption of fact or law. It is, however, not irrelevant.

45. Resolution: Depends on Facts in Issue If motive is financial, it is certainly open to prove that the Defendant was a judgment debtor to the complainant. This can be done through a certified copy of the civil Judgment. Validity of a marriage: e.g. anulment from the civil court.