The Supreme Court of Canada ruled today on the issue of judicial notice and hate crimes. The trial judge failed to take notice that certain information presented in the course of the case should be accepted as hate. Here is a summary of the Supreme Court's description of what occured at trial:

... It was incumbent upon the trial judge to look at the totality of the evidence and draw appropriate inferences to determine whether the respondents intended to target "any section of the public distinguished by colour, race, religion or ethnic origin", in this case, the Roma people. Several items of evidence potentially related to this issue. The reference to "gypsies" was but one item of evidence to consider. To illustrate the point, it may be useful to consider whether the offence could be made out even if the demonstrators had made the same statements but without using the word "gypsies". Among other things, the trial judge in his reasons for judgment referred to the following evidence as fact: (1) the motel outside of which the respondents demonstrated was temporarily housing the refugee claimants who were awaiting the outcome of their claims; (2) some of the participants were seen giving the "Sieg Heil" Nazi salute; (3) Nazi and American Confederate flags were used in the demonstration; and (4) the chant "White Power" was heard during the demonstration. Furthermore, the defence concession expressly linked Nazi persecution to the "Roma people". Hence, the ethnic flavour to the demonstration, the fact that it was situated outside a motel housing refugee claimants who were at times described by the witnesses as Roma, and the fact that Roma people are a group historically persecuted by the Nazis while the Nazi theme was apparent at the demonstration were all factors to consider, in addition to the actual words used, in determining whether Roma were the target of the hate speech. In focussing entirely on one of the specific statements particularized in the information, the trial judge misdirected himself as to the essential elements of the offence. In doing so, he erred in law. ... The dictionary definitions presented to the trial judge ... showed that "gypsy" can refer to an ethnic group properly known as "Roma", "Rom", or "Romany". I see no reason why the trial judge should not have taken judicial notice of that fact and then considered it, together with the rest of the evidence, to determine whether there was proof beyond a reasonable doubt that the respondents did in fact intend to target Roma."

Judicial notice can be considered a court accepting what is a plain fact obvious to anyone with, say, half a brain. It happens in every trial whether it is stated on the record or not as judges are in large part simply humans beings making decisions even if they do it in a context of jurisprudence. Here is the passage from the SCC on the issue of judicial notice:

21. In addition, I will deal briefly with judicial notice in the context in which it arose in this case.

22. A court may accept without the requirement of proof 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: R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32, at para. 48. The dictionary meaning of words may fall within the latter category: see J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §§19.13 and 19.22.

23. The Crown presented the trial judge with five dictionaries demonstrating a relationship between "Roma" and "gypsy". For example, the New Oxford Dictionary of English (1998) contained the following definitions:

1. gypsy (also gipsy) < noun (pl. -ies) a member of a travelling people with dark skin and hair, speaking a language, (Romany) related to Hindi, and traditionally living by seasonal work, itinerant trade, and fortune-telling. Gypsies are now found mostly in Europe, parts of North Africa, and North America, but are believed to have originated in the Indian subcontinent.

Rom < noun (pl. Roma/...) a gypsy, especially a man, origin mid 19th cent.: abbreviation of ROMANY.

Romany noun (pl. -ies) 1. (mass noun) the language of the gypsies, which is an Indo-European language related to Hindi. It is spoken by a dispersed group of about 1 million people, and has many dialects. 2. A gypsy.

24. The dictionary definitions presented to the trial judge hence showed that "gypsy" can refer to an ethnic group properly known as "Roma", "Rom", or "Romany". I see no reason why the trial judge should not have taken judicial notice of that fact and then considered it, together with the rest of the evidence, to determine whether there was proof beyond a reasonable doubt that the respondents did in fact intend to target Roma.

Hard to see what was not plain enough in this case for the trial judge's notice. Here is the full text of the ruling.

I trust we Canadians also remember this event when we are smug about other nations. I do not recall ever hearing about this in the news.