Mechanics of Proof Formal Admission of Fact

Mechanics of Proof

Formal Admission of Fact

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  Formal admissions of fact = both sides agree upon fact(s) taking them out of contention, so no evidence need be presented
  
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    E.g. defendant may admit they were negligent, but dispute damages.
    
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    Sometimes all the facts are agreed to (e.g. in corporate cases) and the parties file an “agreed statement of facts”, leaving the trial to determine the law
    
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    Beware, the word “admission” is used to also mean:
    
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      Statement by an accused to a person in authority or agent of the state
      
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      Statement by anyone
      

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  Where an accused is on trial for an indictable offence, he or his counsel may admit any fact alleged against him for the purpose of dispensing w/ proof thereof
  

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  Unlike civil cases, in criminal cases there are no pleadings and thus no precisely worded allegations of fact may be admitted categorically.
  
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  The accused is under no obligation to admit to an alleged fact, rather he has the choice to admit or decline it.
  

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  Either the Crown or defence may admit a fact if they want to
  
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  But Crown has to accept admission of a fact of the defence – cannot refuse to accept an admission where the Crown’s purpose is to keep an issue alive just to prejudice the accused’s case
  

Judicial Notice

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  Taking judicial notice = a matter of judicial notice means the judge will simply accept some fact without requiring evidence to establish it.
  
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    Judge can take judicial notice on their own initiative or counsel can invite the court to take judicial notice of such facts.
    
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    In either case the court should give counsel opportunity to make submissions on appropriateness of taking judicial notice (unless the fact is totally indisputable). Once judicial notice is taken it is final.
    

Adjudicative Facts

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  Begin with strong proposition that a court is to decide case exclusively on facts (relevant and admissible evidence) before it – courts are not supposed to do own fact finding – parties are in control
  

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  Doctrine of Judicial notice is an exception to this: there are some facts that are so obvious that we’ll allow judicial notice – “I take judicial notice that X is true” – a way of having a fact form part of what trier of fact makes decision upon w/out going through standard channels of E – in absence of admissible E
  

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  Reasons for taking judicial notice:
  
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    Efficiency i.e. don’t want to waste time proving common knowledge
    
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    Credibility/reputation of administration of justice i.e. if didn’t accept indisputable facts would being administration of justice into disrepute
    

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  Thayer – said we take notice of adjudicative facts as a tool of convenience – way of speeding up trials – he viewed it as a discretionary thing used to speed up trial and is presumptive i.e. can intro E to disprove
  
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  Morgan – says that judicial notice exists to protect the credibility / reputation of the justice system – i.e. having to demand proof for some sorts of facts would make a mockery of the trial system – and so he sees it as mandatory and conclusive – must take notice of adjudicative facts – by and large in CDA we accept Morgan’s approach – judicial notice is mandatory and final
  
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    Morgan Criteria: To warrant judicial notice the probability must be so great as to make the truth of the proposition notoriously indisputable among reasonable men
    

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  Generally two broad categories of facts that judicial notice may be taken of:
  
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    Facts that are notorious / common knowledge of every person of ordinary understanding and intelligence i.e. so generally known and accepted that cannot be reasonably questioned (e.g. bees sting, alcohol can intoxicate, sun rises in the East, reform school doesn’t always work, but note can depend on locality e.g. Victoria is in BC acceptable in BC but might fall into the next category outside of BC).
    
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    Facts that can be readily / clearly determined / verified by resort to authoritative sources whose accuracy cannot reasonably be questioned (e.g. texts, atlases, dictionaries – although of course if opposing side thinks there’s a forgery or error can submit judicial notice should not be taken)
    

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  Note that the closer an issue is to the core of the litigation (i.e. too important to the outcome of the case) less chance court will take judicial notice of it and so evidence will be required. E.g. Zundel, R. v. (1987) (Ont. C.A.):
  
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    Issue: Crown requested judge take judicial notice of the Holocaust during WWII
    
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    Decision: court would not since was at the core of the litigation, and so wanted evidence of it
    

Legislative Facts

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  Judicial notice of legislative facts. Post-charter, the courts now had an important new power to determining constitutionality of legislation based on phrases such as “life, liberty and security of the person”, “democracy”, “fundamental justice”, but needed help in interpreting such words.
  

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  Legislative Facts = Facts that have to do with law or interpreting law – these are broad facts about social, theoretical, economic context that are used by judges to decide questions of law – i.e. referring to history, social value (e.g. values under Charter), etc.
  

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  Note such interpretations are findings of law, not findings of fact and hence are for the judge to make.
  

Thus post-Charter, courts (especially S.C.C.) started looking beyond the law at a wide variety of social science research and facts, such as history, sociology, theology, political science, practices in other countries, etc. which had been unknown prior to 1982. Such info is amorphous and not likely to be ‘indisputable’ (e.g. works on two theologian’s may be presented that give different interpretations of aspects from the Bible) and counsel can dispute the credibility of whatever research/information other side presents.

Social Framework Facts

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  E.g. Lavallee and battered spouse syndrome – helping us to interpret a situation – or background on racial profiling – to help you to determine a fact (contextual info helping you determine a fact)
  
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  Emerging category – neither adjudicative (not about specific fact at issue) nor legislative (not being used to decide a legal issue)
  
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  Cannot raise these issues unless there is an evidentiary hook – has to be an issue – social framework facts have to be relevant
  
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  Note that judges rely a great deal on social context facts without saying a word about judicial notice
  

Lavallee, R. v. (1990) (S.C.C.)

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  Facts: wife killed husband after years of abuse, defense based on her fear and ‘battered wife syndrome’. The wife testified, and some of what she claimed was corroborated by hospital records.
  
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  Decision: court took judicial notice of facts which provided background for understanding behavior of battered women
  
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  Comment: note there was a base of evidence here (i.e. wife’s testimony, hospital records, etc. showing long history of violence) and the social background information was accepted in order to provide context to this base of evidence.
  

R. v. S.(R.D.) (1997) (S.C.C.)

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  Facts: struggle between police officer and accused, accused claimed was responding to racism by police officer
  
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  Issue: was trial judge correct in taking judicial notice of background contextual information on racism among police officers and how this can lead to them over reacting
  
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  Decision: contentious with 6-3 decision, and the majority was split 2-4:
  
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    Dissent (3) one extreme: the background info was not relevant at all, should have simply looked at the facts of the event – trial judge was stereotyping police officers as being racist which resulted in acquittal
    
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      Life experience is important in a myriad of decisions, but of no value in reaching conclusions for which there is no evidence. There was no evidence before the trial judge to support the conclusions she reached (overreaction based upon race).
      
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    Majority (4) other extreme: background info can be broadly used through judicial notice
    
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    Majority (2) in middle: found trial judge’s reasoning troubling/unfortunate, but nothing in her reasons to convince them she had misapplied judicial notice
    
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  Rule: trial judge can take judicial notice of social conditions and can charge jury on it to help with findings of fact, but there must be a sufficient linkage between the evidence in the case and the background info. In the absence of evidence, reliance on general propositions simply leads to inappropriate and unfair speculation.
  
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  Comment: less clear than Lavallee since less of a base of facts here (single scuffle) compared to long history of violence with Lavallee
  
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    Reveals a lot about how trials unfold
    
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    Dissenters and concurring judges most worried by the fact that there was no evidence adduced relating to police racism – although there may be link between race and overreaction, there was no evidence adduced of this link
    
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      Contrast with Lavallee where there was significant evidence adduced regarding the existence of battered wife syndrome
      
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  Foster’s opinion: There was evidence on which she could conclude that there was some evidence of police overreaction, but there was no evidence that it was racially motivated. However, evidence of the overreaction itself would have been sufficient to raise a reasonable doubt and acquit.
  

R. v. Malott

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  Raises concerns that the treatment of expert evidence on battered woman syndrome, which is admissible to combat the myths and stereotypes within society about battered women, has led to the new stereotype of the battered woman.
  
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  Comment: The courts earlier description of battered wife syndrome in Lavallee may have been in error and too restrictive.
  

In earlier cases such as Lavallee, the courts often championed the need for a wide approach to judicial notice in order to bring social context evidence into the courtroom. However, the courts have more recently began to back away from this generous approach in favour of a more cautious interpretation of judicial notice.

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  Increasing concern about the evidence that is coming down under judicial notice, particularly social framework facts. The closer evidence gets to the core of the issue, the more nervous we should be about taking judicial notice of it.
  
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  Should instead be brought in under expert evidence.
  

The leading case on judicial notice is now:

R. v. Spence (2005) (SCC)

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  Facts: Black accused charged with robbing an East Indian pizza parlour. There was concern that the fact that the victim was East Indian might prejudice the jury against him.
  
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  Issue: Can the judge take judicial notice of the fact that jurors could be influenced by the race of the victim and that they ought to be probed on this fact?
  
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    Also concern over the Americanization of the jury process
    
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  Held: The closer the fact approaches the key issue in the case, the more the court ought to insist on compliance with the stricter Morgan criteria (notoriously indisputable)
  
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    For adjudicative issues, the strict Morgan criteria applies
    
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    More discretion for judicial notice with social and legislative facts
    
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  BUT social framework facts, when judicially noticed, must be linked to the facts at hand
  
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    As with legislative facts, social facts are general – they are not specific to the circumstances to a particular case, but if properly linked to the adjudicative facts, they help to explain aspects of the evidence.
    
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  Comment: It was also discussed the possibility that even legislative and social facts should be established by expert testimony rather than through reliance on judicial notice – preference for social science evidence to be presented through experts who can be cross-examined.
  

Judicial Notice of Personal Knowledge

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  Judges are not permitted to use their personal knowledge to take judicial notice - Cannot fill in the gaps in the evidence because they happen to know something – has to be something that can be established in the evidence or which you can take judicial notice of.
  
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  However, may be difficult to tell is a judge is basing a decision on his own knowledge or general knowledge held by reasonable people.
  

A Note on Credibility

R. v. Bartleman

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  When placed on the stand, Aboriginal people may be perceived a less credible because they do not look counsel in the eye when answering questions
  
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  This is a cultural issue because in native culture it was considered inappropriate to stare at someone directly in the eyes – this was social context evidence that may be relevant in assessing the demeanour of the accused on the stand
  

Judicial Notice of Foreign Law

Judicial notice of certain “foreign” laws

Judges are expected to know the law of your own jurisdiction (BC, Federal), but not necessarily the law of other jurisdictions like, say Peru

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  Domestic law in BC is the binding law here (federal + BC etc), and in determining questions of law (e.g. interpreting BC statute) counsel may show judge laws from other jurisdictions (i.e. foreign laws from Alberta or India).
  
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  Sometimes the foreign law itself is an issue (e.g. were couple married when they lived in India where laws vary state to state and religion to religion). To determine the law in foreign jurisdiction is a finding of fact and generally evidence may be required e.g. expert witnesses such as lawyers from that jurisdiction may be presented etc.
  
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  However, Evidence Acts (e.g.) say that judicial notice must be taken of certain laws (so no evidence required). E.g. BCEA s.24 includes Acts and ordinances of other provinces, UK, and British Commonwealth. E.g. In Manitoba judicial notice shall be taken of laws of US as well
  

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