Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog

In R. v. J.M., 2021 ONCA 150, March 11, 2021, the accused was convicted of the offence of sexual assault.  The defence had argued that the complainant’s credibility was negatively impacted by her having associated with the accused after the alleged sexual assault occurred.

In convicting the accused the trial judge stated:

In many years of appearing before the Ontario Court of Appeal as counsel for accused convicted of interfamilial sexual crimes, I can say that instances in which a complainant fails to distance her or himself from the abuser are not unusual. In fact, as a study of the evidence in appellate cases would I am sure bear out, such cases are commonplace.

The trial judge also made reference to R. v. Lavallee and an article in Scientific American, in support of his conclusion that the complaint’s actions were similar to a person subject to intimate partner violence. 

The Appeal:

The Ontario Court of Appeal described the two issues raised as being the following:

The trial judge misapplied the decision in A.R.J.D.(AB) in finding that the complainant’s post-offence association with the appellant did not impact her credibility by relying on his own anecdotal experience as defence counsel;

The trial judge erred in drawing parallels between the complainant’s emotional state and the psychology of battered woman syndrome in rejecting the defence submission that she willingly engaged in one of the sexual acts

The Ontario Court of Appeal:

The appeal was allowed and a new trial ordered.  The Court of Appeal concluded that “in making findings that were central to his assessment of the credibility of the complainant, the trial judge erred by exceeding the bounds of judicial notice, including the proper limits of drawing on previous personal experience as counsel. As a consequence, his credibility findings were materially infected by those improper considerations. Given those errors on the key issue at the trial, I would allow the appeal, set aside the conviction, and direct a new trial” (at paragraph 3).

Judicial Notice:

The Court of Appeal described the “basic principles regarding the substantive dimension of judicial notice” in the following manner (at paragraph 31):

(i) Judicial notice is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court: David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020) (“Paciocco”), at p. 573;

(ii) Judicial notice involves the acceptance of a fact or state of affairs without proof: R. v. Williams, [1998] 1 S.C.R. 1128, at para. 54; Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018) (“Sopinka”) at §19.16;

(iii) Facts judicially noticed are not proved by evidence under oath; nor are they tested by cross-examination: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48;

(iv) Since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict: Find, at para. 48; and

(v) Judicial notice applies to two kinds of facts: (a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons (R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 71; Reference Re Alberta Statutes, [1938] S.C.R. 100, at p. 128; Sopinka, at §19.18); and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy (Quebec (Attorney General) v. A., 2013 SCC 5, [2013] 1 S.C.R. 61, at para. 238; Sopinka, at §19.16). The sources may include both large bodies of scientific literature and jurisprudence: R. v. Paszczenko, 2010 ONCA 615, 103 O.R. (3d) 424, at paras. 65-66.

The Court of Appeal also indicated that “[w]here a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response” (at paragraph 38).

Personal Experience:

The Court of Appeal concluded that the trial judge erred in relying “on his personal experience” (at paragraph 54):

I am persuaded by the appellant’s submission that for the trial judge to accept, without a proper evidentiary foundation and in reliance on his personal experience, that the complainant’s conduct in continuing to associate with the appellant reflected “commonplace” conduct by complainants in sexual assault cases amounted to “sidestepping” the test for judicial notice. Whether a witness is credible is a question of fact: A.R.J.D. (AB), at para. 28; R. v. R.G.B., 2012 MBCA 5, 100 W.C.B. (2d) 630, at para. 59. The trial judge’s conclusion was based on his personal experience rather than an assessment of either criterion for taking judicial notice of facts: notoriety or immediate demonstrability.

The Reference to R. v. Lavallee:

The Court of Appeal concluded that the trial judge erred in talking “judicial notice of expert evidence adduced in the Lavallee case and applied it to explain the conduct of the complainant in the present case.  Such use of the Lavallee decision constituted an improper use of judicial notice” (at paragraph 66).

The Use of the Scientific American Article:

The Court of Appeal concluded that “the trial judge’s use of the article in his reasons as part of his assessment of the complainant’s credibility amounted to an error for two reasons: (at paragraphs 74 to 76):

First, its use compromised the integrity and fairness of the trial process. By relying on a popular scientific publication that was not put into evidence or referred to at the hearing, the trial judge breached the rules of natural justice. He used social science information obtained after the hearing without disclosing it to the parties and giving them an opportunity to meet it: Hearn v. McLeod Estate, 2019 ONCA 682, 439 D.L.R. (4th) 217, at para. 28; R. v. Désaulniers (1994), 93 C.C.C. (3d) 371 (QC CA), at p. 377, leave to appeal refused, [1995] 1 S.C.R. vii. As was put by Goldstein J. in R. v. Ghaleenovee, 2015 ONSC 1707, 19 C.R. (7th) 154, at para. 21:

Checking indisputable facts [on the internet] is one thing.  Conducting an investigation and drawing inferences – especially without giving the parties an opportunity to respond – is another.

Second, it constituted an improper use of judicial notice.In R. v. Hernandez-Lopez, 2020 BCCA 12, 384 C.C.C. (3d) 119, leave to appeal to S.C.C. refused, 39090 (July 9, 2020), the British Columbia Court of Appeal saw no error in a trial judge using the parts of an academic article on the evidence of children that merely outlined generally understood and common features of the evidence of children, already reflected in judicial commentary and practice. The concepts described in the article did not lie outside the general knowledge that judges are required to apply in assessing the evidence of witnesses: at paras. 17-22.

The court in Hernandez-Lopez went on to note that the trial judge did not rely on the article to furnish critical evidence or as an instruction manual for assessing the evidence of children: at paras. 14 and 21. However, that is how the trial judge in the present case used the Scientific American article. His reasons disclose that he relied on the article as a source of expert evidence that was not properly before the court to assess the veracity of the complainant. It was an error for him to do so; he exceeded the proper limits of judicial notice.