R. v. R.M., 2023 BCCA 455, DECEMBER 11, 2023.
FACTS: The accused was convictedof a number of sexual offences against two children whose parents were friends. He appealed from conviction and argued that “the trial judge’s approach to the evidence was irreparably flawed and enabled guilty verdicts that overlook serious and objectively appreciable credibility and reliability concerns”.
HELD: The appeal was allowed and a new trial ordered. The British Columbia Court of Appeal held that the trial judge erred in her application of judicial notice.
Judicial Notice:
The Court of Appeal noted that “[i]t has long been recognized that trial judges may take judicial notice of facts that were not the subject of proof at trial, accept those facts as true, and rely on them in deciding the case…Where a fact is dispositive of an issue in dispute, a judge may only take judicial notice where: (1) the fact is clearly uncontroversial and beyond reasonable dispute; or (2) it is capable of immediate and accurate demonstration by resort to readily accessible and accurate sources… Importantly, where an extrinsic fact falls in the middle of the spectrum, in that it may not be dispositive, but does more than ‘merely paint the background’, a trial judge must not take judicial notice of it without first asking whether that fact ‘… would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used …’” (Court of Appeal’s emphasis, at paragraphs 96, 105 and 107).
This Case:
The Court of Appeal described the issues raised under this ground of appeal in the following manner (at paragraphs 90 to 93):
The first judicial notice complaint arises out of the trial judge’s assessment of C2’s evidence. The defence challenged C2’s testimony about sexual touching during a sleepover on a number of bases, including the plausibility of her evidence that although she was “really scared”, her heart was “racing”, and the incident was shocking and traumatic for her, she fell back asleep shortly thereafter.
The trial judge rejected this challenge, in part, because she had “observed that children can and do fall asleep quickly after a traumatic incident”…
A second and third alleged improper use of extrinsic information involves factual assumptions made about the behavioural pattern, the intentionality, and the detection of adults who perpetrate sexual abuse against children. R.M. says the trial judge accepted these assumptions as true and without exception.
At trial, R.M. argued that the complainants’ evidence should not be believed, at least in part, because R.M. would not have had the opportunity to commit the offences given his work schedule…
The Court of Appeal’s Conclusion:
The Court of Appeal felt that “the trial judge assessed C2’s testimony about the sleepover, the evidence from the complainants’ parents, and the overall credibility of R.M.’s denial of sexual touching by testing that evidence against factual assumptions about how people conduct themselves in a particular context that she accepted as true, and which were drawn from her personal experience extrinsic to the trial process, or from ‘stories’ or factual narratives that had been proved in other cases” (at paragraph 118).
The Court of Appeal concluded that it was “plain from the trial judge’s reasons that she relied on her personal observations of children falling asleep after a traumatic event and on factual assumptions made about ‘determined adult predator[s]’, for a substantive purpose. She did so without asking herself (or the parties) whether these accepted facts were properly the subject matter of judicial notice. Then she proceeded to assess the credibility and reliability of adduced evidence and to determine its probative value, or her possible use of it, based on consistency or inconsistency between that evidence and the accepted facts” (at paragraph 143).
