Crim 330 Chapter 13:

Judicial Notice, Opinion Evidence,

and Social Science Research in Law
 Judicial Notice of Facts
 An exception to the formal
proof/admissible evidence rule

 Judicial Notice of Law is Mandatory

 Judicial Notice of Facts is

Discretionary
• Zundel

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 Judicial Notice of Facts
 McLachlin in Williams (Chap.
5/S.638(2)) said there are two types:

• 1) Facts capable of immediate/accurate

demonstration
 Example: The population of B.C.

• 2) Facts that are so notorious/widely

known…

(Once established, fact can have

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precedential value)
 Facts that are so
notorious/widely known…
• The problem of Judicial “reasoning”
• A widely known fact about women
published in the 1970 edition of John
Wigmore’s text on evidence:
 “…Their psychic complexes are multifarious,
distorted partly by inherent defects, partly by
diseased derangements or abnormal instincts,
partly by bad social environments, partly by
temporary physiological or emotional
conditions. One form taken by these complexes
is that of contriving false charges of sexual
offenses by men.” (Quoted by L’Heureux-Dube, 4
J. in Seaboyer)
 Facts that are so
notorious/widely known…
• Judge Sparks (1997, in S. (R.D.)), in
acquitting a black youth of assaulting a
white police officer/resisting arrest:
 “I am not saying that the Constable has misled
the court, although police officers have been
known to do that in the past… certainly police
officers do overreact, particularly when they
are dealing with non-white groups… I believe
that probably the situation in this particular
case is the case of a young police officer who
overreacted.”

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 The Role of Social Science
Research In Law
 Crim 330 Bookends
 Kenneth Davis  Monahan & Walker

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 Monahan and Walker [from
Kenneth Davis]: S.S.R.I.L.
 Adjudicative [Social] Facts
 Assists trier of fact in determining facts in
issue at trial (Eg: Survey/S.167 “obscene”?)

 Social Authority [Legislative Facts]

 Assists Judge in determining questions of law
(Eg: no corroboration needed for sexual
assault cases)

 Social Framework
 Helps explain social/psychological context 7

(Eg: Battered Woman’s Syndrome)

 S.S.R.I.L. & Opinion Evidence
 Social Science Research In Law usually
enters court through secondary sources
or expert testimony (a form of opinion
evidence)

 Opinions are excluded as a general rule

 Experts are the major exception

• What danger(s) does expert testimony
pose?
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 Expert Opinion Evidence
 R. v. Mohan, [1994] 2 S.C.R. 9
• Pediatricians, pedophiles, psychopaths
and psychiatric profiles

 Mohan Test/Criteria
 Relevance
 Necessary to assist trier of fact
 Absence of exclusionary rule
 A qualified expert

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 Relevance (Logically & Legally)
• Cost-benefit analysis
 Prejudice vs. Probative
 Reliability vs. Effect
 Time vs. Value
 Necessity for trier of fact
• Is trier unlikely to form correct opinion
without expert? Instructions sufficient?
 Absence of exclusionary rule
• Character evidence excluded (Morin)
 Unless “distinctiveness” exists (Q. of law)
 Qualified expert
• Academic or practical experience
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 Expert Opinion Evidence
 R. v. D.D., [2000] 2 S.C.R. 275
 Sexual assault charges laid two and one-half
years after incident
 Defence vs. Crown expert re: delay

 What type of S.S.R.I.L. is this?

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 Junk Science in the Courtroom
 R. v. J.L.J., [2000] 2 S.C.R. 600

• Dr. Beltrami & the Penile Plethysmograph

• “Special Scrutiny” Test for Novel Science

elaborated
 Criteria from U.S. Supreme Court in Daubert adopted

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“Special Scrutiny” Required if…
• Novel Scientific Theory or Technique
 a) whether the theory or technique can be

and has been tested;

 b) whether the theory or technique has

been subjected to peer review and

publication;
 c) the known or potential rate of error or

the existence of standards; and,

 d) whether the theory or technique used
has been generally accepted
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**Mohan Criteria Must Still be Met**
 Regular Opinion Evidence

 Lay opinions are excluded as a general

rule

• Exceptions discussed in Graat:

 Impairment = “day-to-day”

• Additional “narrative” exception (as with

hearsay evidence):
 How does the “narrative” exception for hearsay
evidence work again?
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 Hearsay?
 Inadmissible hearsay of a crime from a
witness:
• “I didn’t see anything, but my father told me
that he saw the car swerve down the road,
cross back and forth over the centre line, and
hit a pedestrian.”

 Admissible “narrative” from a police

officer, justifying an arrest:
• “When I arrived on the scene X told me that
Y had robbed the bank, so I arrested Y.”
 R. v. Van (2009)

 A photo-finish
 Contradicting accounts (Mr. Van vs.
Mr. Kong), Credibility, and the
Curative Proviso (s. 686(1)(b)(iii))

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Narrative Opinions:
 The Curative Proviso
 s. 686 (1): On the hearing of an
appeal… the court of appeal…
• (b) may dismiss the appeal where
 (iii) …it is of the opinion that no substantial
wrong or miscarriage of justice has occurred

 Held: (Binnie, Fish, Charron and

Cromwell JJ. dissenting): “The
appeal should be allowed and the
convictions restored.” 18