Judicial Notice of COVID-19

There is often far too much in dispute in litigation. Counsel are often encouraged for this reason to formulate agreed upon facts, narrow the issues, and focus the dispute as much as they can.

Courts also assist with this process. One of the mechanisms for doing so is judicial notice, which was defined by the Supreme Court of Canada in R. v. Find as follows,

48 In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: 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. Potts(1982), 1982 CanLII 1751 (ON CA), 66 C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.

The Court also expanded on the purpose of judicial notice in Newfoundland (Treasury Board) v. N.A.P.E.,

57 The purpose of judicial notice is not only to dispense with unnecessary proof but to avoid a situation where a court, on the evidence, reaches a factual conclusion which contradicts “readily accessible sources of indisputable accuracy”, and which would therefore bring into question the accuracy of the court’s own fact-finding processes…
As Professor Morgan famously wrote:

. . . [the court] cannot adjust legal relations among members of society and thus fulfill the sole purpose of its creation if it permits the parties to take issue on, and thus secure results contrary to, what is so notoriously true as not to be the subject of reasonable dispute . . . .

(E. M. Morgan, “Judicial Notice” (1944), 57 Harv. L. Rev. 269, at p. 273)

Judicial notice therefore promotes public confidence in the administration of justice, because some litigants would use the elevated standard of proof such as reasonable doubt to encourage courts to draw conclusions that were contrary to notorious facts or reasonable dispute.

Courts have taken judicial notice of facts that are of a technical and scientific nature, even when they are aware that there may be some disagreement about aspects of judicial notice, and exert some caution where there is not consensus on the science or there are conclusions laden with value judgment.

There is very little these days that is more controversial than the COVID-19 pandemic, especially the best response to dealing with the virus, but there is also widespread consensus that the SARS-CoV-2 virus actually exists. The Applicant in Khodeir v. Canada (Attorney General) believed otherwise, and the Attorney General sought judicial notice from the Federal court of its existence.

The Applicant was challenging the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, which was enacted under the Financial Administration Act, and became effective on Oct. 6, 2021.

His basis for the challenge was not grounded in the Charter or other rights, but rather that SARS-CoV-2 was never proven to exist, and the policy is enforcing COVID-19 vaccinations to protect against a non-existent pathogen.

Justice Grammond noted that he failed to provide any evidence to substantiated this position, and stated that the allegations were manifestly incapable of being proven.

Courts across Canada have already taken judicial notice of its existence, specifically of the fact that COVID-19 is caused by the SARS-CoV-2 virus. Justice Grammond stated,

[36] Over the last two years, most people on this planet have been affected in various ways by the COVID-19 pandemic. It has become common knowledge that COVID-19 is caused by a virus called SARS-CoV-2. Numerous trusted sources of information have repeated this fact, to the point that it is now beyond reasonable dispute. There is a lack of debate on this issue in scientific circles.

[37] A fact, however, does not become indisputable by mere repetition. One must consider channels through which the information is conveyed, scrutinized and exposed to criticism, and the fact that these channels operate in a society based on freedom of discussion. This is particularly important in this case because, over the last two years, the COVID-19 pandemic and the public health measures deployed to fight it have been one of the most significant topics of public debate. Scientific knowledge about COVID-19 has developed under intense public scrutiny. The existence of the SARS-CoV-2 virus and the fact that it causes COVID-19 are at the root of the matter. As matters related to the pandemic have been debated so thoroughly, it is unimaginable that any actual scientific debate about these basic facts would have escaped public attention. Moreover, if there was any evidence incompatible with the existence of the virus, one would have expected Mr. Khodeir to provide it to the Court…

This judicial notice was dispositive of the Applicant’s case, which typically requires a higher bar. In R. v. Malmo-Levine the Court stated,

28 While the courts apply the requirements of judicial notice less stringently to the admission of legislative fact than to adjudicative fact (Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] 2 S.C.R. 1086, at p. 1099), courts should nevertheless proceed cautiously to take judicial notice even as “legislative facts” of matters that are reasonably open to dispute, particularly where they relate to an issue that could be dispositive: R. v. Find,[2001] 1 S.C.R. 863, 2001 SCC 32; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 1 S.C.R. 44, 2000 SCC 2…

The test used by Professor Morgan has been repeated in Canadian evidence texts and adopted by courts, and contrasted with the previous approach by Professor James Thayer in 1890, which has also been adopted by Canadian courts. Justice Grammond, in using the Morgan approach, also noted that judicial notice would foreclose attempts to prove the contrary, because attempts to disprove what is beyond reasonable dispute would also erode trust in the administration of justice.

Debates around COVID-19 can and should occur in our justice system, and are likely to manifest in large volume in employment law disputes alone in the months and years to come. Whether the SARS-CoV-2 virus itself exists should not be part of those disputes, and will allow the parties to focus on more important issues that need to be resolved.