Improper Application of Judicial Notice Leads to New Trial
Our latest Canlii Connects case summary considers a case from the Alberta Court of Appeal where a new trial was required because the trial judge went too far in applying Judicial Notice to make factual findings without evidence.
Issue: Did the trial judge err when they took judicial notice of certain facts for which no evidence had been lead?
Facts: Mr. Hussein was accused of participating with two others in a home invasion. The complainant could not identify any of the participants. Two of the three participants wore gloves. The central piece of evidence was Mr. Hussein’s fingerprint that was identified on a garbage bag seized from the scene. The bag also had a fingerprint that could not be identified.
The trial judge took judicial notice of how the fingerprints ended up on the garbage bag. Specifically, he found that garbage bags come in a roll and the only way to detach one was to remove gloves. This explained how the fingerprints, including the unidentified one, were placed onto the bag.
Ruling: The Court allowed the appeal, set aside the convictions and ordered a new trial. There was no basis to take judicial notice.
A court may properly take judicial notice of facts that are either:
1. so notorious or generally accepted as not to be the subject of debate among reasonable persons; or
2. capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy
Neither of those routes to judicial notice were met.
The trial judge speculated in the absence of evidence when he attempted to explain the presence of the unidentified fingerprint.
The court highlighted the procedural unfairness that occurs when judicial notice is taken by a trial judge on their own initiative:
More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond”: at §19.61.
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.
Given that the facts found through the improper application of judicial notice played a part in the conviction a new trial was required.