L'UTILISATION PAR LE JUGE DE SES CONNAISSANCES PERSONNELLES, DANS LE PROCES CIVIL
AbstractThe use by the judge of his personal knowledge in a civil action raises suspicion when that knowledge has been acquired outside the trial process, whereas it is most desirable when acquired during the trial process. The use by the judge of knowledge acquired outside of the trial process is governed by the doctrine of judicial notice. In Quebec civil law, this doctrine is entirely derived from the Common Law. Its description is therefore of some relevance for any Common Law jurisdiction. This article seeks to determine the rules governing judicial notice, whether dealing with law or with facts. It is critical of the proposals of the federal government for the modification of the doctrine by imposing constraints on the parties and the judge, and in particular the proposal to create an irrebuttable presumption of the truth of facts judicially noticed. The use by a judge of personal knowledge acquired within the trial process is made possible by a category of evidence called "Real Evidence". This category includes anything the judge witnesses during the trial and which constitutes information directly relevant to the case. It also includes objects, buildings and places, as well as the reproduction of such things by the modern technology of audiovisual recording. The rules governing this category of evidence remaining rather vague, this article tries to outline the conditions for its admissibility and the principles for assessing its weight . Finally, it suggests that law reform at both federal and provincial levels should seize this opportunity to clarify the law of real evidence.
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