Archive for the ‘judicial discretion’ Category
January 10, 2013
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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Tags:Jurisdiction, Canada, Law, Civil procedure, Social media, Judges, Internet, Judicial Notice
Posted in evidence, procedure, judicial discretion, judgments, internet, Procedure vs. Substance, courts, social media, Civil Litigation, internet law, procedural rights, Judge, judging, Courts of Justice Act, judicial decision-making, judicial notice | Leave a Comment »
November 20, 2012
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I previously blogged about Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center, 2011 BCCA 192, where the British Columbia Court of Appeal ordered a new trial and overturned a five million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center. The Supreme Court of Canada subsequently granted leave to appeal and the the Court’s decision is under reserve following oral arguments on November 13, 2012.
The issues before the Court in Cojocaru are:
If a trial judge adopts the submissions of only one party into his or her reasons for judgment, is the presumption of judicial integrity and impartiality so fundamentally displaced so as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias?
Whether the trial judge committed a palpable and overriding error by failing to conduct an independent assessment of the evidence and in failing to consider the respondents’ causation defence.
Is this an isolated incident or is there a judicial trend toward “cut-and-paste justice”? (more…)
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Tags:Alberta, Appeal, British Columbia, British Columbia Court of Appeal, Cojocaru, Supreme Court of Canada
Posted in ethics, Judge, judging, judgments, judicial decision-making, judicial discretion, judicial power, justice | Leave a Comment »
April 11, 2012
In his “Essays—of Judicature (1612),” Sir Francis Bacon—the English philosopher, statesman, writer and founder of modern Jurisprudence— wrote:
“Judges ought to be more learned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”
After reading the following excerpt from today’s judgment in MacGregor v. Potts, 2012 ONCA 226 (Ont. C.A.), one cannot deny that that The Honourable Justice James C. MacPherson, of the Court of Appeal of Ontario possesses all of these judicial qualities:
[3] The consequences of a medical misfortune for the person injured and often their families can be devastating and life-altering. The same can be true for the medical professional who may have caused the injury. In the medical area, this shared result is very painful because the doctors, nurses and hospitals involved are passionately dedicated to preserving life and health.
[4] The doctor defendant here is a fine professional man who has devoted his life to the care of mothers and children. The MacGregor family must endure and respond forever to Matthew’s injuries and precarious situation. In this sad context, a judge can – and I do – express my genuine sympathy to the MacGregor family and to Dr. Potts.
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Tags:Court of Appeal for Ontario, Francis Bacon, Ontario, Ontario Court of Appeal
Posted in Judge, judging, judgments, judicial decision-making, judicial discretion, judicial power | Leave a Comment »
October 25, 2011
The Court of Appeal for Ontario decision in Harrison v. Burns, 2011 ONCA 664, deals with procedural justice and the duty of judges to give written reasons. (more…)
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Tags:Court of Appeal for Ontario, reasons for de, Supreme Court of Canada
Posted in Judge, judging, judgments, judicial decision-making, judicial discretion, judicial power, judicial review, justice, Procedural Justice, procedural rights, Procedure vs. Substance, reasons for decision | Leave a Comment »
May 9, 2011
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In today’s Canadian Lawyer article, “Trust not reasons, required in leave application process: A response to Philip Slayton“, Jean-Marc Leclerc responds to Phillip Slayton’s Canadian Lawyer article entitled Justice is in the details. Slayton’s key argument rests on lack of judicial transparency: (more…)
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Tags:Appeal, Canada, Canadian Charter of Rights and Freedoms, Court of Appeal for Ontario, Federal Court of Appeal, Ontario Court of Appeal, Supreme Court of Canada
Posted in access to justice, accountability, appeals, Canadian Lawyer Magazine, decision-making, Judge, judging, judgments, judicial discretion, judicial power, jurisdiction, justice, law, law and culture, law and society, lawyer, lawyers, legal practice, legal profession, legal theory, Rule of Law, Supreme Court of Canada, transparency | 1 Comment »
Antonin I. Pribetic
