Using Social Science Research as Judicial Notice

Judicial notice is an important underpinning of litigation in Canada. The need to prove every trite and accepted fact as evidence would make litigation even more unwieldy than it already is.

Some of the problems emerge when judicial notice is used for facts which may be disputed by the parties. For example, in R. v. Zundel, the Court dealt with hate speech and the denial of the Holocaust. To provide the defendant to litigate the purported evidence against the facts around the Holocaust would only give him a platform to extend his hate speech further. Instead, the trial judge instructed the jury that,

 “[t]he mass murder and extermination of Jews in Europe by the Nazi regime” was an (historical) fact no “reasonable person” could dispute…

The Court of Appeal in this case noted at para 153 that judicial notice of a historical fact may be made by the court on its own initiative through the consultation of historical works or other documents, and may even be referred to them or receive sworn testimony on it as well. The distinction of taking notice on their own accord as opposed to by the parties has more to do with exclusionary rules of hearsay than the ability of the court to do so.

Judicial notice is not always undertaken without controversy. In R. v. RDS, a judge’s statement that she preferred testimony of a defendant in concluding that a young police officer had overreacted as was “the prevalent attitude of the day” became subject to appeal on the basis of reasonable apprehension of bias.

The judge, and the defendant, were both black Nova Scotians community, and the comment that racial profiling may have played a role was charged, but likely informed as a matter of fact and knowledge of the social fabric from that community. The Supreme Court of Canada called the comment “troubling,” but did not find any reasonable apprehension of bias, stating,

47 The reasonable person is not only a member of the Canadian community, but also, more specifically, is a member of the local communities in which the case at issue arose (in this case, the Nova Scotian and Halifax communities). Such a person must be taken to possess knowledge of the local population and its racial dynamics, including the existence in the community of a history of widespread and systemic discrimination against black and aboriginal people, and high profile clashes between the police and the visible minority population over policing issues. The reasonable person must thus be deemed to be cognizant of the existence of racism in Halifax, Nova Scotia. It follows that judges may take notice of actual racism known to exist in a particular society. Judges have done so with respect to racism in Nova Scotia…

[citations omitted]

The Court emphasized at para 113 that the threshold for finding real or perceived bias is high, as it questions not only the integrity of the judge, but the entire administration of justice.

More recently, the use of judicial notice has come under scrutiny with the decision in R. v. Ururyar, where Justice Zuker referred to 13 different social science articles and texts to take judicial notice of the many myths around rape.

The decision is an important one for the public, especially in the aftermath of the Ghomeshi controversy, and the reasons for the many references to literature can be found in his conclusion,

[523] There is a context for [the complainant’s] behaviour. The myths of rape should be dispelled once and for all. We cannot perpetuate the belief that niceness cannot coexist with violence, evil or deviance, and consequently the nice guy must not be guilty of the alleged offense. Nice people supposedly don’t rape. This is not society’s image. The accused knew [the complainant] . And if you don’t remember and when you know you don’t remember, he, Mr. Ururyar, is going to get to write the script. [The complainant] did remember. Everything, of course not. What happened to her, yes.

[emphasis in the original]

It helps that the complainant was herself a graduate student of sociology. But the problem is that these articles and texts were not presented by the Crown, discussed in court, or provided to the defence to comment on in any way.

That’s not to say that the myths Justice Zuker was attempting to dispel are not important ones, but that the defence may have had their own social science evidence or alternative explanations to how their narrative fit the evidence Justice Zuker was referring to, at least to the extent of creating a reasonable doubt.

How far does a judge go in ensuring that justice is done, and also seen to be done? At what point does judicial notice itself become a form of activism?

The defence in the case is appealing the decision, citing the social science evidence as creating a reasonable apprehension of bias that “cloud[ed] his objective assessment of the evidence.”

The sources Justice Zuker used though are not particularly controversial or contentious, and as Catherine Porter of The Star points out, one was even used to help create the rape shield provisions in the Criminal Code.

In this context, the use of social science evidence was largely directed towards bolstering the assessment of the complainant’s testimony, largely by dismissing many traditional lines of attack used to discredit witnesses in these cases.

In RDS, the Court stated that assessment of witness credibility is more of an art than a science,” and said,

130 When making findings of credibility it is obviously preferable for a judge to avoid making any comment that might suggest that the determination of credibility is based on generalizations rather than on the specific demonstrations of truthfulness or untrustworthiness that have come from the particular witness during the trial. It is true that judges do not have to remain passive, or to divest themselves of all their experience which assists them in their judicial fact finding. Yet judges have wide authority and their public utterances are closely scrutinized. Neither the parties nor the informed and reasonable observer should be led to believe by the comments of the judge that decisions are indeed being made based on generalizations.

[citations omitted]

Were Justice Zuker’s references to social science evidence in the context of assessing the complainant’s testimony the type that under public scrutiny would give rise to a determination based on generalizations rather than specific demonstrations? Absent any evidence linking a generalization to a particular witness, the Court in RDS indicated at para 133 that the allegation of bias that an individual witness was prejudged base on generalizations may have have merit, and should be avoided.

The Ururyar appeal will likely look at Justice Zuker’s comments in context, “through the eyes of the reasonable and informed person who is taken to know all the relevant circumstances of the case.” But it will also include a strong presumption of judicial integrity, as well as the underlying social context through which these statements, and this case, has come to the public light.