Has the online world become so pervasive as to warrant judicial notice? For the most part, the answer remains no.
At first blush, the doctrine of judicial notice is simple: courts will not require proof of facts that reasonable people consider to be indisputable or which “everybody knows.”
This test limits use of the doctrine to facts “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy.” The practice of taking judicial notice of Internet sources hinges on whether those sources are viewed as sufficiently accurate.
The problem is there is no bright line dividing judicial notice from its elusive cousin, common sense. Common sense, it has been noted, is anything but common and tends to reflect the experience of whoever happens to be driving the train at any given time.
Nonetheless, the Internet is not going away and, as such, courts are increasingly having to decide whether to take judicial notice of Internet sources.
Google Maps is a prime example.
In
R. v. Calvert, the Ontario Court of Appeal took judicial notice of Google Maps for the purpose of ascertaining the distance between two events. The court said the maps could be relied on because Google Maps constituted a readily accessible and indisputably accurate source. A similar attitude towards Google Maps has been seen in recent decisions in the United States, including
United States v. Rakotojoelinandrasana,
United States v. Sessa, and
Dai v. Holder.
All of this has occurred despite multiple cautions scattered among Google Maps’ terms of service advising against that very reliance: “Please note that Google’s maps are not always 100 per cent accurate. . . . Map data, traffic, directions, and related content are provided for planning purposes only. . . . Google and its licensors . . . make no representations or warranties regarding the accuracy or completeness of any content or the products.”
Counsel wanting to oppose the use of Google Maps in court would do well to alert the presiding justice to these warnings.
Moving beyond maps and distances, the use of other online sources has witnessed a mixed reception from the judiciary.
In
R. v. Whittaker, the Alberta Court of Queen’s Bench refused to take judicial notice of information found in an online copy of the Drug Identification Bible. Justice J.B. Veit stated: “I do not know if this is a readily accessible source of indisputable accuracy. Much less can I take judicial notice of information posted on an Internet site.”
Wikipedia has been met with even greater skepticism, no doubt reflecting the comment attributed to the comedian Stephen Colbert that “Wikipedia is the first place I go when I’m looking for knowledge . . . or when I want to create some.”
In
Bajraktaraj v. Canada (Minister of Citizenship and Immigration), the appellant relied on a downloaded extract from Wikipedia that provided no references for content. In dismissing the appeal, the Federal Court of Canada stated that the Wikipedia sources “did not impress.”
On the other hand, the U.S. District Court in Pennsylvania in
AVS Foundation v. Eugene Berry Enterprise LLC had no hesitation taking judicial notice of a trademark’s notoriety based on the fact that its online entry occupied six pages in Wikipedia.
This tension in the case law and the difficulties with evidence mined from the Internet was recently summarized in
R. v. Balen.
In that decision, Ivan Balen was challenging his conviction for failing to stop at the scene of an accident. The conviction was based, in part, on the trial judge’s decision to conduct a Google search concerning the manufacturer of an important piece of evidence.
The Ontario Superior Court of Justice allowed the appeal and set aside the conviction on the ground that “Internet Google search engine access to Wikipedia or similar site . . . may or may not contain accurate information. While a court may utilize the internet to access Google maps, resort to the internet by the trier of fact regarding commercial information, conduct outside the courtroom not disclosed at trial, is inappropriate.”
The court went on to highlight a further problem with any evidence that is judicially noted — that “the defence had no opportunity to see the extra-curial evidence, to cross-examine upon it or to lead other evidence relevant to it.”
In short, judicial notice of Internet sources remains a work in progress, much like the Internet itself.
S. Leonard Polsky is litigation counsel with the Calgary office of MacPherson Leslie & Tyerman LLP, practising in the areas of commercial litigation and employment law. Megan Kheong is a student at the same office and assisted in the preparation of this article.
