Duhaime's Law Dictionary


Judicial Notice Definition:

A doctrine which enables a judge to accept a fact without the need of a party to prove it through evidence.

Related Terms: Legislative Fact, Adjudicative Fact

Judicial notice is a litigation tool allowing a court to fast-forward and accept some notorious facts without any evidence: things of common knowledge. Justice Watson adopted these words in In re Digby:

"(E)very case involves the use of hundreds or thousands of non-evidence facts. When a witness in an automobile accident case says car, everyone, judge and jury included, furnishes, from non-evidence sources within himself, the supplementing information that the car is an automobile, not a railroad car, that it is self-propelled probably by an internal combustion engine, that it may be assumed to have four wheels with pneumatic rubber tires, and so on. The judicial process cannot construct every case from scratch, like Descartes creating a world based on the postulate Cogito, ergo sum. These items could not possibly be introduced into evidence, and no one suggests that they be. Nor are they appropriate subjects for any formalized treatment of judicial notice of facts."

adjudicative factJudicial notice is an elastic concept and difficult to exhaustively catalogue. Some examples from the law reports of facts for which judicial notice was contested and granted:
  • The hours of dawn and dusk,
  • Territorial borders and political divisions,
  • That the acronym DOB represents date of birth,
  • Basic mathematics concepts,
  • The normal human gestation period and other well-known facts of human, animal and plant life and medicine, and
  • That the cost of raising children increases as children grow older

And, more importantly, the contents of all laws and regulations in force within the court's jurisdiction.

Harvard University law professor Professor James Thayer wrote, in 1890:

“Courts may and should notice without proof, and assume as known by others, whatever, as the phrase is, everybody knows.”1

In Freson v Combs, Justice Neal of the Court of Appeals of Indiana used these words:

"Judicial notice is merely the cognizance of certain facts which jurors and judges may properly take into account and act upon without proof. Judicial notice is a branch of the law of evidence. It is merely a short cut, a doing away with the formal necessity of evidence."

In Murdy v Edgar:

"Courts may take judicial notice of matters which are commonly known or of facts which, while not generally known, are readily verifiable from sources of indisputable accuracy."

Or, as the Kansas Supreme Court noted in Brandon v Lozier-Broderick:

"Under the doctrine of judicial notice courts take cognizance without proof of facts known generally by well-informed persons, but not of particular facts not of common notoriety...."

In Reference re Alberta, Justice Duff wrote:

"It is our duty, as judges, to take judicial notice of facts which are known to intelligent persons generally...."

In 2001, the same Court, under the penmanship of Chief Justice McLachlin, wrote:

"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

In R v Spence, Justice Binnie wrote:

"In dealing with legislative facts and social facts, greater scope may be given to judicial notice, but a court must still ask itself whether the alleged fact would be accepted by reasonable people who have properly informed themselves on the topic as not subject to reasonable dispute for the purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the fact to the disposition of the issue in question."

Note these words of Justice Goodridge of the Newfoundland Supreme Court, Court of Appeal in McHugh v City Motors:

"The trial Judge ought not to have taken judicial notice of an advertisement in the newspaper. Judicial notice is a limited concept confined to such things as public statutes, the calendar, geography, notorious facts and some other matters. The advertisement does not fall within any established category of judicial notice."

In the context of administrative tribunals, the authors of the Canadian Encyclopedic Digest (Administrative Law, III.2.(b).(xi), §157) wrote:

"As with courts, statutory decision-makers which are obliged to act judicially are entitled to take official notice of certain facts, including matters of a general nature acquired during the exercise of their mandate. They may go outside the material submitted in evidence to supplement any deficiencies in the case presented with information of a public nature or of a kind that is readily available to affected parties prior to the hearing. Furthermore, statutory decision-makers, particularly those exercising powers involving a high policy content, may usually take account of their general knowledge of the regulated area in reaching a decision.

"While official notice may embrace a broader category of information than comes within the permissible range of judicial notice in regular court proceedings, there are limits nonetheless. Those affected by a decision are entitled to a fair opportunity to refute the case against their interests. For some categories of information, that fair opportunity is provided only if the evidence in issue is entered in the normal way. On other occasions, while formal proof may not be required, the decision-maker should alert the parties of her or his intention to take judicial notice of those facts and provide an opportunity for refutation and submissions."

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