II.  The Scope of Appellate Review

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 [# 5]     The burden on the appellant is to persuade this court that the trial judge's findings of fact were based on palpable and overriding error.  The test is set out by Ritchie J. in Stein v. The Ship "Kathy "K" (1975), 62 D.L.R. (3d) 1 at 3-5 (S.C.C.) as follows:
 

I think that under such circumstances the accepted approach of a Court of appeal is to test the findings made at trial on the basis of whether or not they were clearly wrong rather than whether they accorded with that Court's view of the balance of probability.

These authorities are not to be taken as meaning that the findings of fact made at trial are immutable, but rather that they are not to be reversed unless it can be established that the learned trial Judge made some palpable and overriding error which affected his assessment of the facts.

      The Court of Appeal took the position that because of the nature of the evidence in this case, which consisted of expert testimony and documentary evidence, the court, to use its own words, was "almost in the position of conducting the trial de novo and making our own assessment of the evidence".  I cannot agree.  The limits to the scope of appellate review of the findings of fact by a trial court, which were affirmed by this court in Stein v. The Ship "Kathy K" (1975), 62 D.L.R. (3d) 1, [1976] 2 S.C.R. 802, 6 N.R. 359, and other decisions, also apply in my opinion to the review of the findings of a trial court based on expert testimony ...

 [# 6]     The second stage of the trial judge's analysis - his determination of the scope of the respondents s. 35(1) rights on the basis of the facts as he found them - is a determination of a question of law which, as such, mandates no deference from this court:  See R. v. Van der Peet [1996] 2 S.C.R. 507 ["Van der Peet"] at 566.