Public School Boards' Assn. of Alberta v. Alberta (Attorney General)

Binnie J. — This is an application by the appellants, the Public School Boards’ Association of Alberta, the Board of Trustees of the Edmonton School District No. 7 and Cathryn Staring Parrish (hereinafter collectively called “PSBAA”) to introduce fresh evidence to demonstrate two “underlying constitutional principles” in the present appeal, which they define as (a) “the reasonable (limited, supervised) governmental autonomy of municipal institutions”; and (b) “the basic constitutional equality of public and separate schools”. The fresh evidence sought to be introduced includes several batches of statistics, a couple of newspaper columns, a report by the Canada West Foundation entitled Cities @ 2000: Canada’s Urban Landscape and the interim report of the Education Property Tax Committee of the Alberta Legislative Assembly.

The present motion is the latest “fresh evidence” skirmish between the appellants and respondents. Initially, the Attorney General for Alberta sought to adduce fresh statistical evidence. This was opposed by the PSBAA. The application was dismissed by order of McLachlin J. (as she then was) dated May 19, 1999. Subsequently, the Attorney General for Alberta took exception to certain material included in the book of authorities and record book filed by the PSBAA, and much of the impugned material was struck out by my order dated November 18, 1999, [1999] 3 S.C.R. 845, without prejudice to the right of the PSBAA, to bring a motion to adduce fresh evidence in the ordinary way if so advised. The present motion seeks to reinstate some of the material earlier struck out, as well as to adduce additional fresh evidence, including statistical information and two reports.

I am of the view that the motion must be dismissed for the reasons which follow.

Legislative Fact and Adjudicative Fact

In the earlier decision of November 18, 1999, reference was made to the distinction between legislative fact and adjudicative fact. Adjudicative facts are those that concern the immediate parties and disclose who did what, where, when, how and with what motive or intent. Legislative facts are traditionally directed to the validity or purpose of a legislative scheme under which relief is being sought. Such background material was originally put before the courts of the United States in constitutional litigation through what became known as the Brandeis brief. As Sopinka J. pointed out in Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, at p. 1099:

Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements....

The usual vehicle for reception of legislative fact is judicial notice, which requires that the “facts” be so notorious or uncontroversial that evidence of their existence is unnecessary. Legislative fact may also be adduced through witnesses. The concept of “legislative fact” does not, however, provide an excuse to put before the court controversial evidence to the prejudice of the opposing party without providing a proper opportunity for its truth to be tested. In this application, PSBAA is endeavouring to adduce apparently controversial material without the intermediary of a knowledgeable witness. There is a supporting “information and belief” affidavit from a member of the Board of Trustees of the Edmonton School District No. 7, who essentially identifies the various categories of fresh evidence based on information provided by one of his counsel on this appeal. The deponent does not claim in his affidavit either relevant expertise or relevant personal knowledge.

Test for Fresh Evidence

The traditional test for the admission of fresh evidence on appeal was stated by this Court in Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

The Palmer case dealt with adjudicative fact. A key Crown witness gave a declaration that his trial evidence was untrue, that it had been fabricated in its entirety, and that he had been influenced by threats and inducements, including the promise of payments of money by the police. The evidence was considered wholly unreliable by the Court and the application was refused.

A comparable rule in terms of fresh evidence of adjudicative fact is applied in civil cases: see Dormuth v. Untereiner, [1964] S.C.R. 122, at pp. 130-31, Varette v. Sainsbury, [1928] S.C.R. 72, and K.V.P. Co. v. McKie, [1949] S.C.R. 698.

A recent application of the fresh evidence test in this Court was in R. v. Warsing, [1998] 3 S.C.R. 579, where a psychiatric report was successfully sought to be submitted by the defence over the Crown’s objections. The case illustrates the less strict application in criminal cases of the due diligence requirement in Palmer. The accused offered a thin argument on the issue of due diligence, but Major J. held for the majority, at para. 56:

While the fresh evidence failed the due diligence test in Palmer, the evidence sought to be introduced was credible and if believed could affect the verdict. It is my opinion that the Court of Appeal’s decision to admit the evidence after balancing the factors described was correct and should be upheld. The respondent’s failure to meet the due diligence requirement is serious and in many circumstances would be fatal; however it is overborne by the interests of justice and as Carthy J.A. stated in R. v. C. (R.) (1989), 47 C.C.C. (3d) 84 (Ont. C.A.), at p. 87, a failure to meet the due diligence requirement should not “override accomplishing a just result”.

The requirements of due diligence, relevance, credibility and decisiveness are also pertinent to an application to adduce fresh evidence of legislative fact. While, as pointed out by Sopinka J. in Danson, supra, at p. 1099, proof of legislative fact is “subject to less stringent admissibility requirements”, this does not mean that the Palmer requirements are altogether dispensed with. The Palmer principles reflect a broader judicial policy to achieve finality on the factual record at the trial level, with very limited exceptions. The matters in issue should narrow rather than expand as the case proceeds up the appellate ladder. The present application would, if allowed, broaden the field of combat.

Further, it is not fair to the other parties for an applicant seeking to adduce this type of fresh evidence simply to lay a lot of material before the Court with a generalized explanation of its utility, leaving to the other party the need to guess at its precise significance. This is not a case where published social science commentary is adopted as part of counsel’s argument, in which case any “facts” referred to would be treated by the Court simply as unproven assertions. These materials are sought to be established as evidence, albeit legislative fact evidence. They have a direct bearing on the matters in dispute, and they are (according to the respondents) controversial. In these circumstances, where it is sought to adduce such fresh evidence over objection, fairness suggests that the applicant should be precise as to the points sought to be established by the fresh evidence and what, in particular, is relied on in support thereof in the mass of “fresh” material presented. So far as the Court is concerned, such precision allows a better evaluation of the importance and weight of the so-called fresh evidence. So far as opposing counsel are concerned, such precision will enable them to evaluate the extent of the controversy posed by the fresh evidence, and whether, if admitted, it will have to be responded to. A reasonable practice would be to include in the fresh evidence application a draft of the paragraphs to be inserted in the factum, with supporting references, in the event the application is successful. The present application is deficient in this respect. The case is now at the final stage of appeal and as the appellants have chosen to seek the indulgence of the Court to enlarge the factual record, it should have been done in a way that identified in some detail the exact propositions for which the evidence was sought to be adduced, and related thereto the evidence to be relied upon. Neither the Court nor opposing counsel should have to engage in clairvoyance.

Due Diligence

Much of the “fresh” statistics sought to be introduced in this application predates the trial. The applicants seek to excuse the failure to adduce this material at trial on the basis of this Court’s subsequent decision in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, where the Court identified “respect for minorities” as a fundamental constitutional principle. From this starting point, the applicants seek to excuse the omission to adduce the available evidence at trial as follows:

Because the “protection of minorities” submission did not become possible until this Court decided the Secession Reference in 1998, there would have been no reason to tender the statistics in Exhibit “A” to the courts below, which heard the arguments in this case before then.

Such a submission cannot be accepted. The appellate courts bring down decisions in a steady stream. Recent decisions do not authorize a party to relitigate the trial by bringing in evidence that was either withheld or overlooked at the original hearing. Applications for fresh evidence cannot be justified solely on the basis that new jurisprudence has given counsel a new twist on an old argument.

Specific Categories of “Fresh” Evidence

1. Statistics

PSBAA seeks to adduce a breakdown of the student population by faith (Catholic vs. non-Catholic) in both Edmonton and Calgary Separate Catholic Schools in support of its submission that the bulk of Alberta students affiliated with religious minorities attend public schools. It is not suggested that the student profile today is significantly different from what it was at the time of trial. The introduction of these statistics is challenged by the Alberta Catholic School Trustees’ Association, both as to the methodology of their collection and the significance to be drawn. This is a prime illustration of the desirability of having statistical information presented to the court in a timely way through an expert who can be cross-examined on their provenance and significance. If the evidence was important, it ought to have been led at trial. The post‑trial “up-dated” statistics do not provide a bootstrap to get into the record other statistical evidence which, with due diligence, might have been led at trial. Lack of due diligence is fatal to this aspect of the application.

2. The Newspaper Articles

I held in the previous order that the two newspaper articles sought to be adduced by the PSBAA do not constitute “legislative fact”. The two columns represent the opinion of two individuals writing in daily newspapers who may or may not have the underlying facts straight and whose opinion may or may not be valid. The authors cannot be cross-examined. The contents are apparently controversial. No basis has been made out by the applicants for admission of this material. It will therefore be rejected.

3. The Cities @ 2000 Report

This report by the Canada West Foundation consists of 78 pages of argument and related information. The executive summary gives an accurate summary of its content:

Cities @ 2000: Canada’s Urban Landscape begins to explore the importance of cities in Canada by meeting three objectives:

1) Detailing how urbanization has proceeded in Canada within a national, regional and provincial context.

2) Constructing a profile of Canadian cities based on population growth, demographic change, and a variety of social and economic indicators.

3) Constructing a future research agenda to address the issues facing municipal governments.

While the report includes a good deal of statistical information, much of it is said to be “[d]erived by Canada West from Statistics Canada Census Reports, 1966 to 1996” (emphasis added). There is no way of testing either the methodology or the validity of opinions expressed in the report at this late stage of the litigation. There is no affidavit by an author of the report who could be cross-examined on its contents. In effect, PSBAA seeks to use the report in part as untested expert opinion and in part as a general warehouse of unexplained and (in this litigation) untested extrapolations of statistical data. Neither role is a permissible objective of a fresh evidence application.

4. The Interim Report: Education Property Tax Committee

This document was prepared by a committee of members of the Legislative Assembly to assess the education property tax system in Alberta. The document consists of 19 pages highlighting “key issues” that the committee proposes to inquire into, together with a number of comments on process and some interim steps. The report is preliminary in nature. It shows that legislators are pursuing concerns in the area, but such pursuit does not expand or contract the constitutional provisions which are the subject matter of the appeal. This material is too tentative to have any bearing on the outcome of the appeal.

Conclusion

In summary, the evidence offered in this application is controversial. Much of it is not fresh. It is not related in any precise way to the propositions for which it is sought to be adduced, and so far as can be determined none of it could reasonably be expected to affect the result on the matters at issue in this appeal in a significant way. The application is therefore dismissed with costs.