Friday, April 12, 2013

Judicial notice in sentencing

R. v. Sansalone, 2013 ONCA 226 deals, albeit obliquely, with the use of judicial notice in sentencing. The Court approves of its use where a fact is "notorious". This seems quite consistent with established principles. The Court holds:

[15]       The appellant raises one issue on his sentence appeal.  He submits that the trial judge erred by treating as an aggravating factor on sentencing the fact that GHB "is commonly used to put into the drinks of unsuspecting third parties, mainly women, so as to render them unable to effectively resist others who seek to take sexual advantage of them".  This statement, the appellant says, finds no support in the evidentiary record at this trial.

[16]       We also reject this submission.

[17]       The trial judge appreciated, as acknowledged by the Crown at trial, that GHB is used for various purposes.  His sentencing reasons contain a discussion of the nature of GHB, a drug that appellate courts have recognized as "a notorious date-rape drug": see for example, R. v. Strickland, 2012 BCCA 276, at para. 14.  The appellant does not dispute this characterization of the nature of GHB.

[18]       It is implicit in the unchallenged identification of GHB as "a notorious date-rape drug" that one of its uses is for the criminal purpose of facilitating non-consensual sex with third-party victims, including women.  In his reasons, the trial judge simply took account of this potential wrongful use of the drug.