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all right hello and welcome to this capsule on judicial notice and let's be clear this is gonna be a quick one judicial notice has some complex aspects and even some controversial ones but I'm not here to talk about those what I'm gonna do instead is just outlined how judicial notice works and why we need it so an adversarial system proof one of the most important precepts is that things that are alleged by a party are not established until they're proven and in an earlier capsule I discussed how admissions allow parties to collaborate and reach consensus on what is not in dispute but let's assume for the moment the parties are not willing to admit to everything or every relevant fact that's important and they say no the basis is you've gotta prove allegations that are made so I mean I just take a ridiculous example here but let's assume we have a main loss and an earthquake happens and the vaz falls and breaks and let's assume that one party says to the other party well how do we know that there was an earthquake or say more importantly how do we know that you know I understand that the vaz was up here on the pedestal and that it wound up down there but how do we know what caused the vaz to actually go that way I mean imagine as ridiculous as it is that somebody actually contested the theory of gravity and I'm taking an extreme example here just to make a point do you have to prove the gravity exists I I said anything not admitted must be proven and if the allegation is that the force of gravity caused this vaz to end up on this ground and ended crack-up don't you have to prove gravity do you have to actually call on a scientist I mean I'm assuming it can be done and prove theory of gravity and the answer of course is no and the reason is because that would be ridiculous and to be honest that's why we have the doctrine of judicial notice to establish facts that are not admitted and are not really proven but can nonetheless be noted by judges simply because they are so obvious that it would be effectively ridiculous to prove them and in a colloquial sort of way that's what the doctrine of judicial notice actually is they actually have various types of judicial notice and I'm just going to go through the three most important ones first of all you have judicial notice of the law you'll notice that people cite the law all the time and mostly because of a various variety of statutory provisions you don't need to prove the law judges are taken to know the law and you can just recite it back to them no need to call witnesses for this again by statute you're allowed to cite what's called judicial notice of legislative facts things like Hansard legal journal articles are allowed to use to interpret or develop the law and I can tell you that this is a bit of a controversial area for what constitutes a legislative fact and I'm gonna touch on this a little bit when I talk about the third type of judicial notice but generally speaking if you're not trying to prove a fact but you're just trying to see how a piece of law should be interpreted you're given a little bit more leeway to cite various facts to the court in order to prove various things but I can tell you as you're about to hear even that gets a little bit controversial when we're talking about what types of judicial notice you'll be taken the most common type of judicial notice is what I call judicial notice of adjudicated facts and let's just say if if these are facts that have to be proven and they are not conceded so remember there is no admission let's just say that judicial notice doesn't come up very often and the reason is because facts need to be proven we're not going to allow a party to just say voila that fact actually exists and as you can see if you look at this that's where the standard is set so very high and it said so very high because effectively we don't want to allow parties to get off the hook with having facts just magically proven without actually having to tender evidence to support them so what we go with are things that are so notorious well known or clearly established that virtually everybody would agree upon it like gravity or perhaps you can point to an indisputable source to actually prove something so let's say I wanted to know what was the Bank of Canada exchange rate on January 1st 2014 do I need to call witness nah I can just get the court traditionally noted by referring to indisputable for source the Bank of Canada website or the Bank of Canada official records you're allowed to go to indisputable sources you know to actually verify facts that can be clearly and easily established you know and then there when you're talking about a you're talking about things that are just obvious for example it's hot in July and you may think well why would you need to prove that well you'd be amazed you'd be amazed things you actually need to be proven in a particular case you know a very famous Supreme Court of Canada case was a case about hate discrimination and one of the parties use the term Roma but the indictment used the term gypsy so you created hate crimes against gypsies oh sorry it's vice-versa hate crime against Roma but in in the actual hate speech involved using the slur against gypsies right so the question was are Roma's gypsies that was the only issue that was never proven in the case and the court took judicial notice of that fact they looked to a variety of historical sources and said you know what you know what's notorious the fact that Roma's equal gypsies and if you look at all the judicial notice cases that's the type of stuff that we're really talking about one more aspect to judicial notice that I want to talk about here's what it really gets controversial because to be honest judicial notice is often used a little bit more than then these two points you'd be amazed how often little things sneak in without being proven here's the way the Supreme Court of Canada has approached the issue of judicial notice and about judges taking cognizance of things that have not been proven here's the question you need to ask how central is the allegation to the case and how certain is the proposition being tendered those are really the two factors that you really need to think about when you're deciding whether judicial notice should be taken number one the more central a matter is to a case the less likely you should be to take judicial notice of it and the most famous example of this is a case by the name of sundel back in the 1980s when one of the issues in the case was did the Holocaust happen and let's just say that the Holocaust happened and there was a lot of you know authoritative indisputable sources and it was so notorious that everybody knew about it and the question was can you take judicial notice of the Holocaust and the court said no and one of the reasons there were a couple but I'll just cut to the chase was the allegation was so central to the case that we're not going to allow you to dispute you know bypassed the adversarial process and just assert it and second of all the question is how certain it is and the reason that's important is well the less central it is to your case the more sliding scale will allow on certainty of the proposition let's put it that way but the more central it is the more certain you've absolutely got to be the more indisputable it is so in short judicial notice is really important doctrine it's a dark thing that arises you know as an actual formal evidentiary matter quite infrequently because most cases involve a lot of disputed propositions and if there's something hanging around the middle that's clearly notorious well it usually results in an admission so it's fairly rare that a matter is not admitted and yet is so notorious that everybody would virtually agree upon it and that's why we get so few disputes over the doctrine of judicial notice so let's be clear judicial notice is incredibly important it allows you to admit things without having to prove them and obviously if you forget to prove things and a judge can take judicial notice of it you know imagine one party says there was a case where a disputed issue was it's hot in July and nobody called a witness say it was hot on that day in July well if the judge can just say look it's July it's gonna be hot that's the way it is it's certainly not gonna be below freezing in downtown Toronto in July well then you can just bypass the matter and say well you I will take judicial notice even though there has been no official proof of this fact that's the way judicial doughnuts tends to work and that's why it's a pretty important doctrine although one that's not relied upon very often good know about though hope that was useful to you have a great day to learn more about this topic you might want to check out my book the law of witnesses and evidence in Canada published by Thomson Reuters this book covers every topic involving the law of evidence and also how witnesses come before courts and tribunals in criminal civil and administrative proceedings to learn more you can check out my website at Peter sank Ofcom