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. Judicial notice involves the acceptance of a fact or a state of affairs without proof and may occur in two circumstances:
i. When the fact is so notorious or accepted as not to be the subject of dispute among reasonable persons, or
ii. When the fact is capable of immediate and accurate demonstration.
In R. v. J.M., 2021 ONCA 150, the Court of Appeal for Ontario recognizes that judicial notice also has a procedural dimension. The procedural dimension of judicial notice bears on the answer to the question: What is required when a judge–on his/her own initiative–wishes to take judicial notice of a fact?
The procedural dimension The issue of judicial notice most often arises when a party requests the trier of fact to take judicial notice of a fact. Other parties then may support or oppose the request. The adversarial process ensures a transparent consideration of the request.  More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by the authors of Sopinka: “Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:” at §19.61.  Where 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: Paciocco, at p. 582.
R. v. J.M., 2021 ONCA 150, at paras 36-38.
J.M. and the substantive dimension of judicial notice
An error in taking judicial notice is a legal error. The trial judge in R. v. J.M erred by “sidestepping” the test for judicial notice in using his pre-judicial experience as legal counsel on sexual assault cases as the basis to conclude that in cases of interfamilial sex crimes it is not unusual for a sexual assault complainant to fail to distance herself from her abuser. 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.
J.M. and the procedural dimension of judicial notice
Further, the trial judge’s resort to judicial notice without giving the accused an opportunity to make submissions on the issue was procedurally unfair. It violated the procedural requirements of judicial notice.
Stuart O’Connell (Barrister/Solicitor).