6.10 There are a number of reasons for the doctrine of judicial notice:1 to expedite the hearing of a case where obvious facts do not need proving; to promote uniformity in judicial decision making, and to prevent the possibility of a decision which is demonstrably erroneous or false.2 Brett JA summed up the concept in R v Aspinall:
‘Judges are entitled and bound to take judicial notice of that which is the common knowledge of the great majority of mankind and of the greater majority of men of business.’3 In the High Court of Australia,4 Isaacs J emphasized the guiding principle of the doctrine:
The only guiding principle—apart from Statute—as to judicial notice which emerges from the various recorded cases, appears to be that wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court ‘notices’ it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt.
The basic essential is that the fact is to be of a class that is so generally known as to give rise to the presumption that all persons are aware of it.5
1 See Law Commission New Zealand, ‘Evidence law: documentary evidence and judicial notice. A discussion paper’ (Preliminary Paper No 22, 1994), ch. IX for a more nuanced consideration of the topic; Hodge M Malek (ed), Phipson on Evidence (18th edn, Sweet & Maxwell 2013) ch. 3.
2 Tapper, Cross and Tapper on Evidence 84; for examples, see 77 and Christopher Allen, ‘Case Comment: Judicial notice extended’ (1998) 2 E & P 37, 39; David M Paciocco, ‘Proof and progress:
coping with the law of evidence in a technological age’ (2013) 11 Canadian Journal of Law and Technology 181, 188–9; Evidence (Interim) [1985] ALRC 26, [969]; Law Commission New Zealand,
‘Evidence law: documentary evidence and judicial notice’ [259].
3 (1876) 3 QBD 48, 61 – 62.
4 Holland v Jones 23 CLR 149 (1917), [1917] VLR 392, 23 ALR 165, 1917 WL 15976, [1917] HCA 26.
5 23 CLR 149 (1917), 153.
6.11 Lord Summer considered the practical approach in Commonwealth Shipping Representative v P. & O. Branch Service:
My Lords, to require that a judge should affect a cloistered aloofness from facts that every other man in Court is fully aware of, and should insist on having proof on oath of what, as a man of the world, he knows already better than any witness can tell him, is a rule that may easily become pedantic and futile.1
1 [1923] AC 191, 211.
6.12 The doctrine of judicial notice is restricted to very clear knowledge,1 and it can be more severe in its effect than a presumption, as noted by Susan G. Drummond:
It is a manoeuvre that forecloses further evidence. The judge operates, in this case, as a virtually unlimited authority with limitations imposed only from within the legal hierarchy. Judicial notice can only be contested on appeal and invalidated if it can be demonstrated that the criteria for the application of judicial notice were not present (the fact was not notorious, the sources to establish the fact were not indisputable ...). As judicially noticed matters operate in the domain of fact, not law, they have no precedential value.2
1 For discussions on the confusing treatment of this doctrine, see G D Nokes, ‘The limits of judicial notice’ (1958) 74 Law Quarterly Review 59 and Susan G Drummond, ‘Judicial notice: the very texture of legal reasoning’ (2000) 15 Canadian Journal of Law and Society 1.
2 Drummond, ‘Judicial notice’ 4.
6.13 Given that it appears as if this doctrine has been extended to electronic evidence in Canada, this observation by Drummond illustrates the importance of ensuring judges more fully understand the nature of the world in which they now live. Thorson JA discussed judicial notice in R. v Potts before the Ontario Supreme Court, Court of Appeal:1
Judicial notice, it has been said, is the acceptance by a court or judicial tribunal, without the requirement of proof, of the truth of a particular fact or state of affairs that is of such general or common knowledge in the community that proof of it can be dispensed with.
…
Thus it has been held that, generally speaking, a court may properly take judicial notice of any fact or matter which is so generally known and accepted that it cannot reasonably be questioned, or any fact or matter which can readily be determined or verified by resort to sources whose accuracy cannot reasonably be questioned.
1 1982 CarswellOnt 56, [1982] OJ No. 3207, 134 DLR (3d) 227, 14 MVR 72, 26 CR (3d) 252, 36 OR (2d) 195, 66 CCC (2d) 219, 7 WCB 236, at [15].
6.14 In R. v Find,1 before the Supreme Court of Canada, McLachlin CJC directed that the threshold for judicial notice is strict:
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.2
1 2001 CarswellOnt 1702, 2001 CarswellOnt 1703, 2001 SCC 32, [2001] 1 SCR 863, [2001] SCJ No.
34, 146 OAC 236, 154 CCC (3d) 97, 199 DLR (4th) 193, 269 NR 149, 42 CR (5th) 1, 49 WCB (2d) 595, 82 CRR (2d) 247, J.E. 2001-1099, REJB 2001-24178.
2 At [48].
6.15 The concept of ‘notorious’ is considered in Phipson:
the concept covers matters being so notorious or clearly established or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary. Some facts are so notorious or so well established to the knowledge of the court that they may be accepted without further enquiry.1
1 Malek (ed.), Phipson on Evidence para 3:02.
6.16 The judge can conduct their own research, and the United States Court of Appeals, Ninth Circuit reached conclusions regarding automatic programs in this way, as in U.S. v Lizarraga-Tirado, where Kozinski, CJ said:
Because there was no evidence at trial as to how the tack and its label were put on the satellite image, we must determine, if we can, whether the tack was computer generated or placed manually. Fortunately, we can take judicial notice of the fact that the tack was automatically generated by the Google Earth program. By looking to ‘sources whose accuracy cannot reasonably be questioned’—here, the program—we can ‘accurately and readily determine[ ]’ that the tack was placed automatically. See Fed.R.Evid. 201(b). Specifically, we can access Google Earth and type in the GPS coordinates, and have done so, which results in an identical tack to the one shown on the satellite image admitted at trial.1
1 789 F.3d 1107 (9th Cir. 2015), 1109.
6.17 In justifying judicial notice, David M. Paciocco comments that ‘If a court could not rely on a notorious and incontrovertible material fact because it had not been proved, verdicts would not conform to reality. The repute of the administration of justice would be harmed’.1 Paciocco went on to illustrate his argument with the following example of how a brake on a motor vehicle operates:
For example when someone describes putting the brakes on in a car no-one offers expert testimony that the function of brakes is to slow or stop vehicles, that brakes are typically controlled by foot-pedals that are depressed in order to slow or stop the vehicle, or that brakes are depressed gently to come to a gradual stop and aggressively for an emergency stop.2
1 Paciocco, ‘Proof and progress’ 188–9.
2 Paciocco, ‘Proof and progress’ 189
6.18 But there is a distinction between the purpose of a brake on a motor vehicle and how the braking system operates. In the example above, Paciocco made assumptions about how braking systems work and failed to understand the nature of the technology.
Most braking systems in motor vehicles are controlled by a mix of electronic systems and software code (a fact so notorious that no citation ought to be required1). It is more accurate, using a high level functional description of the brake system, to explain the braking technology in vehicles as involving the use of brakes primarily under the control of electronics or software code. The failsafe fallback strategy is that if the
electronics or software code fails, the system reverts to a standard hydraulic brake system. It does not necessary follow that the function is always performed correctly or as normally expected in the situation where the action is mediated by electronic systems. For instance, antilock braking systems (ABS), electronic stability control (ESC) and traction control are predicated on interactions between the engine torque output and brake control on individual wheels. This means that there is a possible difference between the fact that a braking event took place, and whether or not a braking event was requested, and vice versa.2 This example is far from the strict application of the doctrine as noted in the Supreme Court of Canada by McLachlin CJC. If judicial notice is extended to such an extent, then the question of whether justice is served by this doctrine must be carefully scrutinized.
1 Notwithstanding it is notorious that anti-lock brake systems are partly controlled by software code and electronic systems, the reader can obtain more information from the Society of Automotive Engineers International; the open access journal Intelligent Control and Automation, and IEEE Transactions on Vehicular Technology.
2 I owe this point to Dr Michael Ellims; see also the following, in which it is demonstrated that braking systems can be controlled by hacking into the motor vehicle computer system: C. Valasek and C. Miller,
‘Adventures in automotive networks and control units’ (Technical White Paper, 2014) <www.ioactive.
com/pdfs/IOActive_Adventures_in_Automotive_Networks_and_Control_Units.pdf>; Charlie Miller and Chris Valasek, ‘Remote exploitation of an unaltered passenger vehicle’ (2015) <http://illmatics.com/
Remote%20Car%20Hacking.pdf>; Roderick Currie, ‘Developments in car hacking’ (SANS Institute, 2015) <www.sans.org/reading-room/whitepapers/internet/developments-car-hacking-36607>.