The Historic Concept of "Judicial Notice" Has Been Twisted by Canadian Courts
Once Embraced to Allow "Generally Accepted Facts" into Court Proceedings Quickly & Efficiently, "Judicial Notice" Now Means Courtrooms Must Accept Government Propaganda Without Question.
The historic doctrine of “Judicial Notice” was always considered to be an exception to the fundamental Canadian legal rule that matters relevant to legal actions must be established through formal proof, witnesses and/or independent evidence.
The concept was considered to be a practical compromise necessary for the efficient operation of Canadian courts. It saved time and court resources by eliminating the need for formal proof of well-known facts.
Judges were generally required to apply a two-part test to determine when judicial notice is appropriate.
Notorious Facts: These are facts that are considered common knowledge among reasonable people. Examples could include universally known scientific laws, historical events, or geographical features.
Easily Verifiable Facts: These are demonstrably true facts sourced highly reliable sources, such as official government publications, legal statutes, or recognized almanacs.
While the 1985 Canadian Evidence Act opened the door for the use of judicial notice in “all Acts of Parliament, public or private, without being specially pleaded,” there were limitations placed on “Imperial proclamations, orders in council, treaties, orders, warrants, licences, certificates, rules, regulations or other Imperial official records, Acts or documents.”
According to the Evidence Act, those proclamations and documents could be used in court:
In the same manner as they may from time to time be provable in any court in England;
By the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the same or a notice thereof; or
By the production of a copy of them purporting to be published by the Queen’s Printer
But acceptance of official government publications and other sources of “easily verifiable facts” came initially with caveats.
For example, as outlined in the 1980 Alberta Law Review post on “Judicial Notice,” a matter was traditionally noted as being appropriate for use only when it was:
… taken as true without the offering of evidence by the party who should ordinarily have done so because the matter is so notorious that it will not be disputed.”
While uncommon, a party could contest a judge's use of judicial notice on appeal. This would normally involve arguing that the fact in question doesn't meet the criteria for notoriety or verifiable accuracy.
Judicial notice was at the core of the highly contentious, R. v. S. (R.D.), [1997] 3 S.C.R. 484 case (R. v. S. (R.D.)), which remains to this day a leading and often referenced Supreme Court of Canada decision on the matter.
It established the rules for determining reasonable apprehension of bias in the court system by judges, and of establishing limits to the application of social context in judging. In paragraph 115 of the judgement, the court noted:
…in the context of the current appeal, it is vital to bear in mind that the test for reasonable apprehension of bias applies equally to all judges, regardless of their background, gender, race, ethnic origin, or any other characteristic.
A judge who happens to be black is no more likely to be biased in dealing with black litigants, than a white judge is likely to be biased in favour of white litigants. All judges of every race, colour, religion, or national background are entitled to the same presumption of judicial integrity and the same high threshold for a finding of bias.
Of course, time marches on.
The hard fought social, political and legal conclusions from 1997 seem to have been forgotten in at least some circles.
Over the last few years, the concept of “judicial notice,” has been twisted by the courts to include highly controversial political concepts such as “climate change“ “systemic racism,” and “forth wave feminism,” especially when bolstered by official government statements, whether or not a consensus exists that “the matter is so notorious that it will not be disputed.”
For example, there’s a lot of criticisms of the concept of “systemic racism” by critics who generally note that:
The notion of systemic racism oversimplifies complex societal issues by attributing them solely to race and overlooking the role of individual actions and decisions in perpetuating inequalities. This perspective suggests that systemic explanations may not capture the full complexity of social dynamics and may inadvertently absolve individuals of responsibility for their actions.
Critics often challenge the broad categorizations of racism as “institutions” or “systemic,” arguing that these categories can encompass a wide range of behaviors and conditions that may not necessarily be racist in nature. Differences in educational outcomes or employment rates could be attributed to a variety of factors beyond racism, including socioeconomic status, cultural background, and personal choices.
The idea that systemic racism exists independently of individual prejudices and institutional practices, risks reducing racism to a set of impersonal forces that operate outside the control of individuals, thereby diminishing the agency of those who experience its effects.
Since traditional concepts of law depend on the concept of individual choices and the consequences of those choices, the perception of anything being “systemic” and influencing individual choice to the point where individual agency doesn’t matter, is deeply destructive to the core concepts of western jurisprudence.
Despite the practical criticisms, at least some political philosophies are now assumed to be so obviously true and verifiable, they need not be questioned in Canadian public discourse or in the courts.
An example of this bias is the core thesis of the December 14th, 2023 CBC News post, “How can Toronto police address anti-Black racism?”
“Systemic racism” is also referenced in a a recent June 23rd, 2022 Lerners post, “A Step In the Right Direction: Judicial Notice of Racism Impacting Black Businesses upheld by the Court of Appeal for Ontario in 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371.”
As noted in the article title, the formal name of the case is 8573123 Canada Inc. (Elias Restaurant) v. Keele Sheppard Plaza Inc., 2021 ONCA 371. It’s commonly shortened to the “Elias Restaurant case,” and well worth taking a look at.
According to paragraph 7 of the actual court documents:
The application judge found that the affidavits of the Landlord and its agents were “almost a caricature of racially derogatory themes”. Moreover, the Landlord’s position was logically inconsistent – they wished to evict a family-run business to have more “family-oriented customers” and they complained of drinking on the premises when the Tenant’s business was licensed to sell alcohol and it was permitted in the lease. The application judge observed that the Landlord’s “economic” justification for seeking a new tenant, combined with the Landlord’s statements about the nature of the Tenant’s clientele, suggested that the Landlord’s desire to replace the Tenant was motivated by racism, rather than the prospect of higher rent.
It a fair assessment focused, as a legal decision should be, around specific inconsistencies of the Landlord’s publicly stated position as presented in court documents.
But the Lerners overview of the case seems to have forgotten all of those listed specifics. According to the Lerner’s post:
The Court of Appeal for Ontario concluded that Justice Morgan (the justice presiding over the case) was entitled to take judicial notice of anti-Black racism in Canada. Further, Justice Morgan was entitled to conclude that racism was relevant to the refusal (of the landlord in the case) to negotiate a renewal (with the tenant involved in the case).
The law of equity involves, in a broad sense, striving to assess and provide fairness. Racism involves unfair treatment. This case is a reminder to parties and their counsel to consider and address the effect of racism not just in jury selection or sentencing, but also in commercial settings.
So while the actual court decision in the Elias Restaurant case broke no new ground, the overall impression provided by Lerners and others was of a court decision which automatically benefited one specific color of skin (the ”Blacks”) in Canadian court rooms at the expense of everyone else.
According to Lerners, the specific intentions or actions of the two parties involved in the Elias Restaurant case, didn’t matter. Statements of facts, actions, motivations and intent were considered subordinate to automatically accepted systemic or “anti-black racism” and must be judged as such because of the acceptance of
This was an error on the part of one of the top law firms in Canada. But while the Lerners assessment of the decision was incorrect, it’s assessment of the Elias Restaurant case was widely quoted and accepted as gospel in legal circles.
If Lerners comes out in public favoring the use of judicial notice to support obviously unequal and unfair political concepts like “systemic racism,” you just know the legal landscape has changed, and not for the better.
Three years before the Elias Restaurant case came into the public eye, the Federal government began consultations with various stakeholders on “Canada’s Anti-Racism Strategy.”
Their findings, most recently updated in the April 18th, 2024 Canadian government post, “Deepening Understanding, Developing Ideas: A Cross-Country Conversation on Anti-Racism,” are influencing and affecting Canadian laws.
The concepts contained within the government’s post are considered demonstrably true, at least by Liberal supporters of current Prime Minister Justin Trudeau, since they are referenced in official government publications Canadian courts consider to be highly reliable sources.”
So the concepts are allowed into courts under judicial notice, without formal proof, witnesses and/or independent evidence.
People unfamiliar with the core concepts of Canadian legal jurisprudence or unaware of the 1997 Supreme Court R. v. S. (R.D.) decision assume this is a good thing.
But its not.
Prior to the great pandemic of 2020 - 2022, the use of “judicial notice” was reserved for social science matters only, and never invoked for medical practices or independently verifiable questions of science.
But no longer.
Despite criticisms by others, including acknowledged medical experts and sitting opposition members of parliament during question period, Federal government pronouncements regarding science and medicine are now assumed to be so obviously true and verifiable, they need not be questioned by the courts.
They are accepted as facts under judicial notice.
This makes it very easy for the courts to be used as an adjunct to support Canadian Federal government political policy and completely reverses the courts traditional role as a separate branch of government capable of drawing independent conclusions often at odds with the government of the day.
As noted in the August 22nd, 2022 Julien Payne Linked-In post “Covid-19, Judicial Notice,” courts across Canada:
…have made various findings with regard to the scope of judicial notice related to the pandemic, the risk it poses to children, and the safety and efficacy of the vaccines.
Those findings include:
The risk it poses to children, and the safety and efficacy of the vaccines.
The “presumption” that being vaccinated against COVID-19 is in the best interests of children, unless there is a compelling reason not to do so.
That contracting COVID-19 poses many serious and significant health risks to both children and adults.
The assumed “safety” and “effectiveness” of the vaccines.
Those findings were traditionally decided outside of the courts using scientific methodologies and experimental evidence, but not anymore.
Payne notes that, at least when his document was written, there was only one reported case where judicial notice has been taken of the risks of the COVID‑19 vaccine and only a few cases in which the courts were not prepared to take judicial notice of the efficacy and safety of COVID-19 vaccines.
Julian Payne, is one of Canada’s pre-eminent family law specialists.
He has taught family law at the universities of Alberta, Ottawa, Saskatchewan, and Western University. He was awarded the Law Society Medal by the Law Society of Upper Canada in 2002 and was made a member of the Order of Canada in 2004.
The April 17th, 2023 Law Times post, “Courts can rely on government recommendations on COVID-19 vaccination, find two recent rulings,” notes that:
Two recent appeals at the Ontario Divisional Court have confirmed that courts can rely on government-published recommendations concerning the COVID-19 vaccine when assessing the best interests of the child.
The post noted that:
Both cases tell us that Government-published edicts are admissible and reliable hearsay. In other words, s. 25 of the Ontario Evidence Act is alive and well,” says Toronto family lawyer Gene Colman.
So whatever the government says is now acceptable in an Ontario court of law as “reliable hearsay” under section 25 of the Ontario Evidence Act.
In essence, if the Federal government says it’s true, then it’s true.
Since most of the above documentation was originally published, places like the “Behind the FDA Curtain: WarRoom/DailyClout Pfizer Reports,” an independent collaboration of “over 3,250 physicians, RNs, medical investigators, and other expert volunteers analyzing thousands of pages of internal Pfizer and Moderna documents released under court order,” have uncovered uncomfortable and contrary evidence about the safety and effectiveness of Covid vaccines.
And science, always changing, dependent on public “peer review” and the independent verification of results, no longer supports government pronouncements on medical care.
The matter is no longer “so notorious” that it will not, and cannot, be disputed.
But the courts, burdened by the precedents supporting previous decisions and hampered by the use of judicial notice to support those earlier decisions, will find it increasingly difficult to reconcile current and future court decisions with the reality of what’s actually going on.
Some commentators have gone so far as to note the breakdown of the traditional independence of the judiciary and the rise of “lawfare,” essentially the use of the court system to enforce political beliefs and policies such as “systemic racism.”
They note that systemic racism, with its focus on the past actions of groups instead of the specific actions of individuals, undermines the core concepts of 150 plus years of Canadian jurisprudence focused around individual responsibility.
The 2016 book, “Lawfare: Law as a Weapon of War,” provides “a coherent cascade of examples of twenty-first century political forces using law as a policy tool to achieve warlike aims,” at least according to Matt Welch’s review of the book.
The book focuses on the use of legal concepts, including judicial notice to enforce foreign and domestic policy objectives.
And while sometime those objectives are just, sometimes they’re not. Their intent is not to dispense justice. Their intent is to win the battle.
The Canadian Association for Security & Intelligence Studies (CASIS), explicitly discussed the use of lawfare in its July 19th, 2018 roundtable discussion on “A Canadian Perspective on Lawfare.”
It’s noteworthy that presentation focused on Canada’s use of lawfare techniques for both “domestic” and “international” security.
Legal experts in Canada should explore these concepts in order to prevent the Canadian justice system from being co-opted by “bad actors,” in government and elsewhere looking to pervert justice to their own ends.
A good place to begin is with the concept of “judicial notice.”
Chuck, thanks for digging in to this issue of judicial notice. It clearly has become a weapon of the government to impose their propaganda. Your efforts to expose this is important to reclaiming justice in Canada.