In R. v. Hussein, 2022 ABCA 219, June 15, 2022, the accused was charged with the offences of extortion and unlawful confinement. At the trial, the “complainant was unable to identify any of the perpetrators as they were masked or had the hoods of their hoodies pulled tight around their faces. The complainant testified that two of the three men were wearing gloves”. A “garbage bag that was seized from the scene contained four fingerprints that matched those of the appellant and one from an unidentified person”.
In convicting the accused, the trial judge concluded that one of the penetrators had removed a glove to take the garbage bag out of a box:
[Defence counsel] has argued strenuously that while there — I cannot be convinced that the accused was part of these proceedings because there’s an extra print that comes from somebody and [the complainant] was clear that there were two people wearing gloves. I look at Exhibit 7 and I see a very rational explanation for that. That Glad garbage box, I would challenge somebody to stick a gloved hand into one of those and pull out a garbage bag. I take judicial notice they come in a roll, the garbage bag has — garbage bags have to be detached and, really, the logical way that you get a garbage bag out of those, you’re not going to be able to do it very easily with a glove. Take a glove off and pull it off. So it’s a perfectly rational explanation as to why two prints could appear on that garbage bag. Very clever argument and I give [defence counsel] credit, but I dismiss that as a possibility. Rather, I dismiss it as pointing to somebody else.
The accused appealed from conviction, arguing that the trial judge erred in taking judicial notice as to how the fingerprint got on the garbage bag.
The appeal was allowed and a new trial ordered. The Alberta Court of Appeal concluded that the trial juge erred in applying the doctrine of judicial notice (at paragraphs 18 and 19):
In this appeal, the trial judge relied on information not on the record. He took “judicial notice” that it is not possible to remove a plastic garbage bag from a box without taking a glove off and found the unidentified fingerprint on the garbage bag was the result of one of the perpetrators taking off his glove to remove the bag from the box of garbage bags.
As explained above, a trial judge ought not to supplement and supplant the evidentiary record except in very limited situations where taking judicial notice is permitted. “[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”: R v Find, 2001 SCC 32 at para 48.
This was not such a situation where judicial notice could be taken of disputed facts. Neither situation for judicial notice is met in this case. The trial judge was speculating in the absence of any evidence when he attempted to explain the presence of the unidentified print on the garbage bag.