Show me the Evidence: Judicial Speculation Gone Wrong


The Ontario Court of Appeal recently released R v MacIsaac, 2015 ONCA 587. Justice Hourigan writing for the Court of Appeal ordered a new criminal trial, stating that hockey strategy was not a proper subject for judicial notice (a rule of evidence that allows a fact to be introduced into evidence based on being so notorious or so authoritatively clear).

Hockey strategy does not satisfy either test. “Canadians often disagree about what constitutes a rational hockey strategy.” A rational hockey strategy may or may not include checking someone into a board. Furthermore, there is no “source of indisputable accuracy by which to settle …disagreements [about checking].”

[46]  It was open to the trial judge to draw inferences that reasonably and logically flowed from the facts established by the evidence…

[49]…A trial judge ought not to supplement and supplant the evidentiary record, except in very limited situations where taking judicial notice is permitted.

Judges have more latitude in drawing inferences from established evidence in the civil sphere, where the burden of proof is less. However, they do not have carte blanche to draw whatever inference they so please.

In assessing damages for future developments, trial judges can be tempted to enter the realm of speculation.

In Beljanski (Guardian ad litem of) v. Smithwick, 2006 BCCA 399, the assessment of damages for the children’s loss of care, guidance, and companionship from the death of their father seems to be based almost entirely on inferences bordering on speculation. The inference that borders on speculation is that the loss of the parent is less because of the parent’s criminality.

Exhibit 1 – Criminal record = Bad Father:

2]               It is safe to say that Mr. Dorey was not a model father.  The summary trial judge described his criminal record…

Exhibit 2 – Criminality = No Guidance:

The defendants pleaded that his children had no reasonable expectation of deriving care, guidance, or companionship from their father

[27]...  They argued that because Mr. Dorey had been incarcerated as a result of criminal convictions for approximately 60% of the life time of the [children]… the amount of guidance that he would be able to provide would have been minimal.

28]           The trial judge found that because of his irregular manner of life, it was unlikely that Mr. Dorey would have been able to give any real guidance to his children and thus he declined to make any award under this head, even an award of a conventional nature…

[35]           With respect to the claim for damages on account of loss of parental guidance, while this parent was very much not in the upper quartile of diligent parents, nonetheless he did have some contact with his children.  …  His death deprived them of any future benefit they might have garnered from their contact with their father… I believe that some modest award of damages is justifiable under this head…

I would love to know what puts someone in the upper quartile of diligent parents. Who is the authority on parenting – Gwenyth Paltrow? How do we measure the impact of a parent’s criminality on their children? Would this require expert evidence before a judge could draw a reasonable inference?

Regardless, judges should not be allowed to draw inferences tainted by classist thinking and a bourgeois conception of proper parenting. Inferences coloured by class do not necessarily flow reasonably from the evidence.