Rules Dispensing with or
Facilitating Proof
Formal Admissions, Judicial Notice,
Prior Judicial Determinations
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.
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.
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.
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.
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)
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
Effect
 The TOF is directed that the fact is so
proven, it is not a matter of weight
for them
Test
 The following matters can be
judicially noticed:
(1)Matters “so notorious” as to be
common knowledge; or
(2)Matters clearly and readily
ascertainable or demonstrable by a
quick reference to an indisputable
source
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.
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.
 “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.
 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.
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?
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.
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).
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.”
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 …
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
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.
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.
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.
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
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)
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
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.
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.”
e.g.
 Assistance in family law
 Charter interpretation
 Human rights legislation,
understanding what was happening at
the time which gave rise to the
provisions
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”
Effect of Judicial Notice: pp. 12811282
 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.
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.
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).
Policies at Play





Judicial economy
Consistency of verdicts
Finality
Integrity of administration of justice
Conclusion: relitigation, in general,
should be avoided
 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).
 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?
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?”
At common law …
 No. Hollington v. Hewthorn.
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.
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.
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.
Notes
 “Offence” not limited to crimes, can
be regulatory offences.
 Must be final (ie. no appeal, past
deadline).
 Includes discharges.
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
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?
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.
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.