Elizabeth F. Judge, “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”

Elizabeth F. Judge (University of Ottawa – Faculty of Law (Common Law)) has posted “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”, Annual Review of Civil Litigation, pp. 325-350, Honourable Mr. Justice Todd L. Archibald Superior Court of Justice (Ontario) and the Late Honourable Mr. Justice Randall Scott Echlin, eds., 2012. The abstract reads:

Judicial notice allows uncontroversial facts to be established without evidentiary proof. The facts must either themselves be beyond dispute because they are “notorious” (that is, generally known within the community) or they must be able to be referenced in easily accessed sources whose accuracy is beyond dispute. Judicial notice is an especially vexing topic because it goes to the heart of the epistemological inquiry of the adversarial process and the nature of the judicial function. Judicial notice implicates the allocation of responsibilities for fact finding between the parties and the court, between the judge and the jury, between the court of first instance and the appellate bodies, and between the courts and the legislature; how fact finders engage in ordinary reasoning processes to decide what a fact is; the distinction between adjudicative and legislative facts and their respective roles; and due process concerns for one or both parties. The rules governing judicially noticed facts are especially sensitive because whenever a fact is judicially noticed it is not subject to the ordinary processes for testing evidence, such as oaths and cross examination, and thus the rules implicate concerns about fairness to the parties and accuracy. For a common law precedential system, these concerns are particularly acute.

Drawing on American and Commonwealth commentators, this article provides a detailed analysis of the general theory and policy of judicial notice and the role of judicial notice in the adversarial system. The article then turns to a discussion of the practice of independent judicial research and an examination of the impact of the internet on judicial notice. The article analyses the laws and policies governing judicial notice of facts and independent judicial research in Canada and the Supreme Court of Canada’s legal framework. It examines independent judicial research and, most pertinently for modern practices of judicial notice, appropriate uses of internet search tools and online sources in the context of judicial notice. It considers how the internet is affecting key aspects pertaining to the judicial notice of facts: first, what “notoriety” and “community” mean; and second, what counts as an authoritative reference. The paper concludes by addressing how the internet, including search engines and online content, may affect the traditional framework for judicial notice of facts.

A copy of the paper is available for download via SSRN here.

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