Canada (Attorney General) v. Bedford, 2012 ONCA ... - York University

Page: 61parties, she did not engage in a separate admissibility inquiry, but insteadfactored the considerations relevant to the exercise of her “gatekeeper” functioninto her ultimate assessment of the expert evidence: para. 352. The applicationjudge can hardly be criticized for following the approach agreed upon by counsel.The appellants have failed to show that the approach taken by the applicationjudge could possibly have prejudiced their case.[137] The second processing error alleged by the appellants also relates to theapplication judge‟s treatment of the expert evidence.They contend that theapplication judge failed to adequately explain why she accepted the evidence ofcertain experts and rejected the evidence of others.Counsel submits thatbecause the expert evidence was crucial to the findings underlying the s. 7analysis, the application judge‟s failure to adequately explain her evidentiarypreferences prevents effective appellate review of her s. 7 analysis.[138] This submission proceeds from the erroneous premise that if more couldhave been said to explain why a decision was made, then what was said must beinadequate. It is clear from our review of the entirety of the application judge‟sreasons that she understood the thrust of the expert evidence and she carefullyassessed it. The application judge was aware of the general limitations on all theexpert evidence, as well as certain specific problems associated with theevidence given by particular experts. As she repeatedly indicated, her findingswere ultimately based on the entirety of the record. Her detailed review of that