WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: Toronto: CFO 10 10411 B3

Date: 2013-12-17

Ontario Court of Justice

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

J.C. and C.J., Respondents.

Before: Justice Ellen B. Murray

Reasons for Decision released on: December 17, 2013

Counsel

Ms. Yvonne Fiamengo — for the applicant society

Ms. Zeenath Zeath — for J.C., respondent

Ms. Jean Hyndman — for C.J., respondent

Ms. Deborah Stewart — for the child I.C.

Mr. Louis Alexiou — for the child A.C.

Decision

MURRAY, E. B. J.:

[1] Introduction

[1] This motion concerns the issue of what facts may be "judicially noticed" by a court in a child protection proceeding.

[2] I.C. is 7 years old, and his sister, A.C., is 15 years old. They have been found in need of protection. The Society, Mother, and Father each present a plan for the children's future, and in this trial I will ultimately decide what plan meets their best interests. Father is a failed refugee claimant, and is subject to an order of deportation to his home country, Angola, which will likely be executed soon after the completion of this trial. Father asks that the children be placed in his care, and his plan entails a move by the children to Angola with him. I.C. was born in Canada, and has never been to Angola. A.C. was born in Angola, and came to Canada when she was one year old with Mother. Each child is represented by a lawyer, and each is opposed to any plan which would send them to Angola.

[3] At the outset of the trial, on motion from the Society I ordered Father to produce documents related to his refugee claim and the execution of the deportation order, documents which are likely to speak to his perception of risk in Angola. At the time this motion was heard, seven days into the trial, he had not yet produced those documents. I have yet to hear evidence from Father; he and several family members from Angola will be presenting evidence about the particulars of his plan.

[4] I.C.'s lawyer seeks to have me take judicial notice of certain information about Angola contained in documents published by the United Nations or UN agencies and in documents relied upon by Canada's Immigration and Refugee Board (IRB) in assessing refugee applications concerning Angola. She is supported in this by the Society and by A.C.'s lawyer. Father objects to the court taking judicial notice of any of the documents in the package.

The Law on Judicial Notice

[5] In R. v. Spence the Supreme Court of Canada dealt with the permissible scope of judicial notice. In that decision, Justice Ian Binnie reviewed two theories of judicial notice:

• The approach of Professor James Thayer, for whom judicial notice created a rebuttable presumption of accuracy; and

• The stricter approach of Professor E.M. Morgan, whose conception of judicial notice was adopted by the Supreme Court in R. v. Find

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 . . .

[6] Given this conception, facts that are properly the subject of judicial notice are not open to rebuttal.

[7] The Court in Spence reaffirmed that it subscribes to the "gold standard" of the Morgan approach to judicial notice.

[8] In considering the doctrine of judicial notice, the Supreme Court identified different types of facts, and this distinction has been explored in subsequent cases and commentaries.

• "Adjudicative facts" are facts which are to be determined in the litigation between the parties in a particular case. Examples include reference to a map to establish the distance between two places, or the "fact" that the cost of raising children increases as they grow older.

• "Legislative facts" are facts which "have relevance to legal reasoning and the law-making process and involve broad considerations of policy". Such facts may assist a court in analyzing a statute by, for example, providing information on the objectives of the drafters of the statute. Documents from government commissions or hearings may be submitted and accepted on this basis in Charter cases.

• "Social context facts" were defined by Justice Binnie in Spence as social science research which is "used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case". As Professor David Paciocco says, social context facts are "not 'facts' in the true sense of the word; rather they are general explanations about society or human behaviour". Examples include the Supreme Court's acceptance of "the battered wife syndrome" to explain the defendant's conduct in R. v. Lavalee, 1 S.C.R. 852. Professor Paciocco has said that social context facts may properly include not just facts derived from social science research, but "general questions of fact that are not peculiar to the parties but which will affect the determination of a legal issue". An example of such facts are a court's conclusions in sentencing about the prevalence and social cost of a particular crime.

[9] Justice Binnie in Spence commented on the proper use of judicial notice.

• Regardless of the type of fact to be noticed, a court must start with the Morgan criteria. If "the fact is adjudicative in nature" and that test is not satisfied, "that is the end of the matter".

• Where social or legislative facts do not meet the Morgan criteria, the test may be more elastic, but "simply categorizing an issue as 'social fact' or 'legislative fact' does not license the court to put aside the need to examine the trustworthiness of the 'facts' to be judicially noticed".

• Regardless of the classification of a "fact" proposed for judicial notice, "the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with" stricter criteria for trustworthiness. In other words, the proposed use of the "fact" put forward is central to assessing the level of scrutiny required by the court. This point is illustrated by the decision of the Ontario Court of Appeal in Isakhani v. Al-Saggaf, a case in which a mother tendered an Amnesty International report to support her claim that she and her child would not be adequately protected by a Dubai court if compelled to return to that country, the habitual residence of the family. The Court of Appeal observed that – whether the facts contained in the report were classified as adjudicative, legislative or social—they came close to the dispositive issue in the case, and as such were not the proper subject of judicial notice.

• It is preferable for social or legislative facts to be established through expert evidence, rather than attempting to rely upon a court taking judicial notice of those facts.

[10] In the instant case, we are concerned with whether the facts advanced are "capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy" -- sources that "ordinary, reasonable people would consult to find authoritative answers." Caselaw indicates that courts assessing claims for judicial notice made on this basis consider not only the reliability of the source, but the potential level of controversy or "debateability" about the fact put forward.

[11] For example, in R. v. Khawaja, the Ontario Court of Appeal upheld a trial judge in a case in which the defendant was accused of terrorism offences where the judge relied upon United Nations General Assembly resolutions to take judicial notice of what the Court described as "skeletal and obvious facts" about the geo-political situation in Afghanistan. The Court summarized the facts below:

• the internationally recognized government of Afghanistan is backed by a coalition of western nations, including Canada, pursuant to various United Nations Security Council Resolutions;

• insurgents in Afghanistan are conducting armed warfare against the coalition forces, the local government and that part of the local population that supports them;

• Canadian forces have sustained fatal casualties as a result of insurgent fighting in Afghanistan; and

• the purpose of the armed insurgent attacks is to intimidate those assisting in or supporting the peaceful reconstruction of Afghanistan and to compel those persons to desist from those efforts.

[12] The Court went on to say:

The trial judge's reasons reveal that he appropriately employed a conservative approach to judicial notice. He expressly refused to accede to the Crown's request that he take judicial notice "of the unconventional and unprincipled nature of the conduct of hostilities by the insurgent fighters in Afghanistan" based on daily news reports of the deaths of civilians and military personnel in Afghanistan (at para. 112). He also declined to take judicial notice of facts regarding the conduct of hostilities in Afghanistan from certain "specialist publications" concerning the war in Afghanistan filed at trial by the Crown (at para. 111).

The Facts Proposed by I.C.'s Lawyer

[13] At this stage, greater scrutiny of the facts proposed for judicial notice and the source of those facts is in order.

[14] Category 1: Documents from the United Nations Human Development Index, 2013.

The Human Development Index (HDI) report is produced by the United Nations Development Program (UNDP). The UNDP describes the HDI as an "independent, empirically grounded" analysis and "an alternative to conventional measures of national development, such as level of income and the rate of economic growth. The HDI represents a push for a broader definition of well-being and provides a composite measure of three basic dimensions of human development: health, education and income". In the HDI analysis, Canada is ranked 11 and Angola is ranked 148 out of 186 countries.

[15] Category 2: Bulletin dated October 31, 2011, published by UNICEF.

This article reports that Angola's infrastructure was destroyed by the civil war, and speaks to resulting problems, such as destruction of birth registration records, the absence of which limits access to health care and schooling. The article quotes an individual described as the director of education in a particular province.

[16] Category 3: National documentation packages for Angola, utilized by the Immigration and Refugee Board of Canada.

These documents are not produced by the IRB. The documents include:

• a "World Factbook" produced by the U.S. Central Intelligence Agency (CIA), last updated in November 2013, which includes demographic data about Angola (such as proportion of population with access to safe drinking water), and a report on trafficking in children and child labour

• 2012 U.S. State Department report on human rights practices in Angola affecting children, dealing with such topics as child abuse and sexual exploitation of children

• A 2012 document from a publication called "Freedom in the World" dealing with alleged infringements on civil and human rights and the continuing effects of the civil war in Angola.

[17] Category 4: CIA World Factbook about Canada, last updated November 2013.

This contains information in categories similar but not identical to those contained in the publication about Angola.

Analysis

[18] I.C.'s lawyer submits that the court should apply the test for judicial notice keeping in mind the paramount purpose of the Child and Family Services Act—to promote the best interests and protection of children. She argues that the materials she wishes to place in evidence fall within the category of "social context facts", but that even if they are seen as "adjudicative facts", the gold standard of the Morgan test is satisfied. Counsel says that the sources of the information offered are highly reliable, and distinguishes this case from those in which publications put forward come from non-governmental organizations such as Amnesty International or from the press. Counsel argues that the evidence is necessary to assist the court in assessing the evidence that will be presented by Father and his witnesses about the plan in Angola. She asserts that if the court has no knowledge as to general conditions and risks that exist in Angola with respect to health, education, and personal security, it will be unable to assess the adequacy of Father's plan.

[19] I.C.'s counsel was unable to provide any cases in which a court in a protection or custody case had taken judicial notice of facts of the type set out in the documents she put forth.

[20] Father's lawyer objects to the court taking judicial notice of any facts for several reasons.

• Many of the "facts" put forward cannot be understood without evidence to explain them. For example, when the UN Human Development Index reports that Angola's expenditure on public health is 2.4% of GDP, what does that mean?

• The fact that the IRB includes documents in its national information package about Angola does not mean that those documents are a source of "indisputable accuracy". The package for Angola includes documents from the BBC, Amnesty International, Human Rights Watch, the U.S. State Department, and the C.I.A.

• The "facts" put forward deal with issues that are open to debate, issues such as current risks to personal security in Angola. The "facts" deal with national averages, not specific facts in a specific place in Angola. This court will hear from Father's witnesses about conditions in the neighborhood of Luanda in which he and the children will live.

• The facts offered cannot be correctly classified as social context facts. They are facts offered to determine a dispute between the parties to this case, which address a core issue relevant to assessing whether the children's best interests will be met by living with Father in Angola. As such, Father should be offered an opportunity to cross-examine the source of these "facts". Counsel asserts that this case presents an issue identical to that dealt with by Justice Jennifer MacKinnon in Ndegwa v. Ndegwa. In that case in a mother opposing the enforcement of a Kenyan custody order against her in Canada asked the court to consider a "resource book" providing "social context facts" contained in articles from various non-governmental sources critical of treatment of women in Kenya. Justice MacKinnon observed that the resource book was tendered to support the allegation that mother and the child could not return to Kenya in safety and would be dispositive of the central issue in the case—whether there would be serious harm to the child in returning to Kenya. As such, the facts could not be the subject of judicial notice.

[21] I agree with all of the critiques offered by Father's counsel set out above. In my view, the facts offered are best classified as adjudicative; they are offered to assist in determining the adequacy of a specific plan in specific circumstances. Regardless of whether the facts are classified as adjudicative or social context, they closely approach the central issue which the court has to determine with respect to Father's plan. As such, those facts should be subject to a strict application of the Morgan standard.

[22] I will not admit any of the documents proffered for the purpose of taking judicial notice of the information in those documents. Counsel are, of course, at liberty to use those documents in cross-examining Father and his witnesses about his plan.

Released on: December 17, 2013

Justice E. B. Murray