10. Judicial notice and specialized knowledge
10.1 Judicial notice
Facts that can be “judicially noticed” are facts so notorious or generally accepted as not to be the subject of debate among reasonable persons.Footnote 302 Judicial notice is invoked to relieve parties from having to prove facts that are not in dispute. Thus, when judicial notice is taken of a fact, no formal evidence of that fact must be introduced at the trial or hearing.
The purpose of taking judicial notice is to shorten the proceeding. Every trial or hearing could continue for an interminable length of time if courts and tribunals were required to receive formal proof of every assertion being made and were not allowed to make use of their ordinary experience to reach a decision. No one is required to provide evidence that Monday follows Sunday, that the sun rises in the east, or any of the other innumerable facts which are “generally known”.
The essential basis for taking judicial notice is that the fact involved is of a class that is so generally known as to give rise to the presumption that all reasonably intelligent persons are aware of it. This analysis excludes from judicial notice “particular” facts not generally known (i.e. facts known to people who have some special knowledge gained through their work or travel, for example, but which are not known by the general public).
No universal line can be drawn distinguishing between the generally known and particular facts. As a general guideline, the more central to the question in dispute a matter is, the greater the need is for proof to be made at the trial or hearing.Footnote 303
The Supreme Court of Canada has held that the threshold for judicial notice is strict. A court or tribunal may take judicial notice—that is, accept a statement as true without formal proof—where the statement (a) would be considered as common knowledge without dispute among reasonable people, or (b) is capable of being shown to be true by reference to a readily accessible source of indisputable accuracy.Footnote 304
Situations in which courts have taken judicial notice include local conditions (e.g., time of sunset in the summer), geographic facts (e.g., location of Canada-U.S. border), the existence and transmission of the virus that causes COVID-19,Footnote 305 and the overincarceration of Aboriginal offenders in Canada.Footnote 306 Judicial notice can be taken of Canadian laws, including all federal and provincial statutes and regulations, however courts do not take judicial notice of foreign laws.Footnote 307 The validity or existence of any foreign law must be established in evidence like any other fact to be proved.Footnote 308
The IRPA specifically provides that the RPD and RAD “may take notice of any facts that may be judicially noticed … .”Footnote 309 Even absent similar provisions with respect to the ID and IAD, those Divisions may also rely on judicial notice to establish obvious matters.
The Divisions are not required to give notice to the parties before relying on judicial notice, unlike specialized knowledge (see 10.2 below). This is because of the very nature of the matters of which judicial notice may be taken. Judicial notice should only be used for facts that are commonly known and are not in dispute.Footnote 310 For example, the Federal Court has held that it was not appropriate to take judicial notice of dangerous country conditions.Footnote 311 Furthermore, if the source of the information is unknown, it is difficult to establish that the information is common knowledge.Footnote 312
The Federal Court has found the RPD reasonably took judicial notice of the following:
- the fact that a claimant's son would be cared for by children's welfare agencies if he were left in Canada;Footnote 313
- anomalies on a birth certificate, including the lack of a stamp;Footnote 314 and
- a decision in a judicial proceeding involving the same parties.Footnote 315
Conversely, the RPD has been found to have improperly taken judicial notice of the following:
- the investigation of a person's background that occurred before a passport was issued in Turkey;Footnote 316
- police powers under the Bangladesh Special Powers Act;Footnote 317 and
- the norms of diplomatic life, particularly those of the wife of an Ethiopian diplomat.Footnote 318
10.2 Specialized knowledge
The IRPA provides that in addition to having authority to take judicial notice of facts, the RPD and RAD may take notice of “any other generally recognized facts and any information or opinion that is within its specialized knowledge.”Footnote 319 This special power has not been given to the other two Divisions.
Rule 22 of the RPD Rules provides:
Before using any information or opinion that is within its specialized knowledge, the Division must notify the claimant or protected person, and the Minister if the Minister is present at the hearing, and give them a chance to
- make representations on the reliability and use of the information or opinion; and
- give evidence in support of their representations.
Rule 24 of the RAD Rules imposes similar requirements.
The power to take notice of facts, information and opinions within a Division's specialized knowledge must be exercised fairly,Footnote 320 in accordance with the legislative parameters.Footnote 321 The Federal Court appears to be more likely to uphold the use of specialized knowledge where the documentary evidence supports the panel's statement regarding the existence of certain facts or information.Footnote 322
Specialized knowledge is knowledge accumulated over time as a result of a decision-maker's adjudicative functions, as opposed to knowledge obtained in a personal capacity.Footnote 323 In contrast to judicial notice, specialized knowledge may be used when facts are in dispute. Unlike facts of which judicial notice may be taken, specialized knowledge involves information which would not necessarily be known to the parties in a particular case.
For example, in Merja,Footnote 324 the RPD had found an Albanian Legality Party membership card had been tampered with and gave it no weight because its dry seal did not form a complete circle over the applicant's photograph. The RPD had disclosed to the applicant its specialized knowledge that the dry seal on such membership cards should be applied over the photograph as a security feature. The Federal Court confirmed that the IRB can rely upon its own knowledge of what a document would normally look like and take note of particular features, such as security measures, when deciding whether a document is fraudulent.
Where the panel takes notice of matters within its specialized knowledge, the panel should still consider the weight to be given to that information in relation to the other evidence and in light of the representations made by counsel or the Minister's representative.
10.2.1 Notice requirement
A panel cannot rely on specialized knowledge without first disclosing it to the claimant. Failure to do so can result in a breach of natural justice. For example, in Nur,Footnote 325 the RPD was found to have erred in concluding that nationality is determined by the father as much as the clan in Djibouti. The Federal Court held that nationality is a matter of law and therefore cannot be within the IRB's specialized knowledge; any knowledge of ethnicity, which could constitute specialized knowledge, ought to have been disclosed to the claimant.
A panel is not required to provide notice of specialized knowledge before the hearing. The relevant rules do not provide time frames for the notice requirements, however, they do require that parties be able to adequately present their points of view.Footnote 326
Generally, failure to give the claimant the required notice constitutes a breach of natural justice that may justify overturning the decision, unless there are other findings that would support the decision and a redetermination would result in the same outcome,Footnote 327 or the specialized knowledge relied upon was essentially not in dispute.Footnote 328 For example, the Federal Court upheld the RPD decision in Kabedi,Footnote 329 despite finding that the RPD had failed to notify the claimant of its specialized knowledge regarding the content of Union for Democracy and Social Progress membership cards, due to the remaining credibility findings.
In Agguini,Footnote 330 the Federal Court held that the former Convention Refugee Determination Division (CRDD) erred in relying upon specialized knowledge to find the claimant was not credible because, among other things, he had mentioned that none of his Islamic aggressors had beards. In addition, the court found the Division erred by failing to give notice under section 68(5) of the Immigration Act of its intention to consider this fact.
In Appau,Footnote 331 the Federal Court doubted that the CRDD's “alleged knowledge of procedures at Swiss border points and procedures of Swissair … could be described as ‘generally recognized facts' or ‘information or opinion that is within its specialized knowledge.'” Even if it could be, the court found that the Division had erred in not giving notice of its intention to rely on those facts, and by not giving the claimant an opportunity to make submissions.
However, in Tchaynikova,Footnote 332 the Federal Court - Trial Division found that the CRDD had not erred in making use of its specialized knowledge that false documents indicating Jewish identity were commonly available in the former Soviet Union without notifying the claimant. The Division had put the claimant on notice at the outset that the hearing would focus on the claimant's ethnicity and her credibility. The adverse finding on credibility was based on all of the evidence, not just on the Division's specialized knowledge. In the view of the Court, the Division “is not required to bring to a claimant's attention every reservation held or implausibility found in reflecting upon the [claimant's] testimony as a whole, before its decision is made.”
The Division must give notice of the specific knowledge at issue. In Habiboglu,Footnote 333 the panel stated that it had specialized knowledge of Islam, however it did not specifically disclose knowledge regarding Caliphs in Turkey. The court found that the applicant was denied an opportunity to make representations on the reliability and use of the information and to give evidence in support of his representations, which constituted a breach of natural justice.
The applicable level of procedural fairness does not reach the level of disclosure found in criminal law. The relevant rules only specify that a party be afforded an opportunity to make representations and to provide evidence in line with the representations. In Toma,Footnote 334 the IRB was found to have provided sufficient notice of its specialized knowledge through its extensive questioning about the impugned evidence and because the knowledge was evidently based on a Response to Information Request.
10.2.2 Specialized knowledge must be specific and verifiable
A member who declares specialized knowledge must place on the record sufficient detail of the knowledge to allow it to be tested.Footnote 335
In Isakova,Footnote 336 the IRB cited specialized knowledge of police reports in the former Soviet Union, finding it unreasonable that the applicant did not produce one because it would have been available. The Federal Court held that the basis for the specialized knowledge must be “quantifiable and verifiable” and that reliance on past experience, absent specific details, prevents the applicant from being able to test the reliability of such knowledge.
Similarly, in Cortes,Footnote 337 the panel rejected the applicant's explanation that he had been told that it would be useless to file a complaint with the police unless he was injured. The panel claimed to have specialized knowledge of other uninjured claimants in Mexico having filed complaints. The Federal Court held that since this knowledge was neither quantifiable nor verifiable, Rule 22 could not be relied upon.
10.2.3 Reliance on findings from previous cases
The Federal Court - Trial Division held that the CRDD could take notice of an expert opinion in a “lead case” and consider it in a subsequent case, as an exercise of its authority to take notice of facts, information and opinions within its specialized knowledge, provided it gives proper notice. Accordingly, a claimant has a “right to comment on the evidence in lead cases, make comments on the appropriate weight to be given to this evidence, and submit his or her own evidence.”Footnote 338 However, the IRB cannot import a finding of fact from a previous case without first providing notice to the claimant.Footnote 339
In Danyi,Footnote 340 the RPD discounted a psychological report due to the member's previous experiences with the psychologist in question, noting that the panel “has historically assigned very limited weight to this doctor's reports.” The Federal Court held that because the member had used information from sources external to the proceeding, the applicant had been deprived of an opportunity to respond to the evidence under Rule 22. This amounted to a breach of procedural fairness.
10.2.4 Information not considered to be specialized knowledge
Findings based on rationality and common sense are not considered to be based on specialized knowledge and do not require notice. For example, in Juma,Footnote 341 the RPD held it was reasonable to expect that if the Palestinian Authority suspected the claimant of posing a risk, they would not have reissued him a document to return. The Federal Court found that this reasoning relied on rationality and common sense as opposed to specialized knowledge.
In Mama,Footnote 342 a CRDD panel was found to have erred in relying on its many years of personal experience travelling through Europe to determine the claimant's credibility in relation to the ease with which he claimed to have travelled through Europe. The Federal Court – Trial Division found that the panel's personal experience, the full extent of which was unclear, did not qualify as specialized knowledge.
National Documentation Packages are not specialized knowledge. They are to be treated and relied upon in the same manner as other documentary evidence.Footnote 343