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Legal Research in Canada’s Provincial Appellate Courts 183
others seem less inclined to that view. The Alberta Court of Appeal has stated
quite strongly that once the hearing has been held, a judge has no duty to consult
counsel for their comments if the judge’s own research turns up relevant case
law. 8 The Ontario Court of Appeal has also confirmed that “There is, of course,
nothing wrong in a trial judge seeking assistance on the law wherever he can find
it”. 9 The Newfoundland and Labrador cases of R v Cluett 10 and Atlantic Auto Inc v
Furey 11 are to similar effect. However, in the earlier trial-level decision of R v
Barlow, Meldrum J held that a judge may conduct independent legal research, but
if he or she finds an authority overlooked by counsel, the judge has a duty to offer
each side an opportunity to be heard on the point before making a decision. 12
Judges occasionally lament the lack of research assistance provided by counsel, 13
or the difficult position into which they are placed in cases involving
unrepresented litigants, 14 arguing that it is not their job to conduct all of the legal
research necessary to decide the case.
Oftentimes issues relating to independent judicial research overlap with the
concept of judicial notice. It seems clear that the extent to which a judge may
conduct their own research into facts is different, and much more limited, than
the extent to which they may conduct their own legal research. The notion of
judicial notice generally relates to extra-legal research, or research into facts –
historical, sociological or otherwise. 15 On the other hand, judicial legal research is
more closely tied to the concept of judicial knowledge 16 or research into ideas. 17 It
is generally accepted that judges “may not – apart from what is allowed by the
doctrine of judicial notice – have regard to materials which are not in evidence
before him [or her]. Law reports, law texts, and legal journals are the only
exception.” 18
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R v Rhyason, 2006 ABCA 367 at para 28, 397 AR 163. See also R v Doz (1985), 59 AR 185 at
para 72, 19 CCC (3d) (CA).
R v Rowbotham (1988), 25 OAC 321 at para 116, 41 CCC (2d) 1 (CA).
(2002), 217 Nfld & PEIR 87 at para 52, 651 APR 87 (TD).
2011 NLTD 1 at para 34, 2011 CarswellNfld 3 (WL Can) (G).
(1984), 57 NBR (2d) 311, 148 APR 311 (TD).
See e.g. R v CLS., 2009 MBQB 103 at para 40, 2009 CarswellMan 165 (WL Can).
See e.g. Simpson v Trowsdale, 2007 PESCTD 3 at paras 14-15, 264 Nfld & PEIR 1.
The Supreme Court had occasion to address the concept of judicial notice in the case of R v
Spence, 2005 SCC 71, [2005] 3 SCR 458. See also Justice Binnie’s article, “Judicial Notice: How
Much is too Much” (2003) Spec Lect LSUC, Montana Band v Canada, [1994] 3 CNLR 44, [1994]
1 FC 425 (TD), R v Hamilton (2004), 72 OR (3d) 1, 241 DLR (4 th ) 490 (CA) and Works v Holt,
[1976] OJ no 192 (available on QL), 22 RFL 1 (CA). With respect to historical facts, see
Canadian Union of Public Employees v Hachey, 2011 NBCA 41, 2011 CarswellNB 41, and R v Paul
(1998), 196 NBR (2d) 292, 158 DLR (4 th ) 231 (CA).
R v Sioui, [1990] 1 SCR 1025 at 1050, 70 DLR (4 th ) 427.
R v Bartleman (1984), 13 CCC (3d) 488 at para 13, 12 DLR (4 th ) 73 (BCCA).
C v Saskatchewan (1984), 37 Sask R 23, 43 RFL (2d) 334 (QB) at para 3.