R V Bingley and the Importance of Scientifically-Guided Legal Analysis

25 Pages Posted: 17 Jul 2017

See all articles by Jason Chin

Jason Chin

Sydney Law School

Helena Likwornik

University of Toronto - Faculty of Law

Date Written: July 10, 2017

Abstract

In R v Bingley, the Supreme Court considered a controversial subjective methodology used by police officers trained as drug recognition experts (DREs) pursuant to the Criminal Code. At issue was the admissibility of these experts’ evidence. A 5-2 majority held that Parliament conclusively established the reliability the DRE program’s methodology and the DRE’s qualifications to perform that methodology, and thus trial judges may not exclude DREs for those reasons. Bingley is problematic on multiple fronts. Most fundamentally, the Majority’s statutory interpretation was insensitive to the science behind the drug recognition program. Their analysis put this subjective methodology on the same footing as objective forms of evidence, like breathalyser analysis, where human judgment and bias play almost no role. More broadly, the Majority’s decision comes in light of recent findings that several forensic scientific disciplines are not as reliable as they purport to be. The Majority’s reasoning seemed largely driven by concerns about judicial economy, and in particular the worry that evaluating DREs would take too much court time. In response, we provide a more scientifically rigorous but less time-consuming way for trial judges to scrutinize DREs.

Keywords: Drug Recognition Expert, Law, Psychology, Criminal Law, DRE, Forensic Evidence, Law and Science, Science and Evidence, Psychology and Science, Daubert, R v Mohan, Mohan, Law and Psychology, Bingley, R v Bingley, Canadian Evidence Law, Expert Evidence Law, Scientific Evidence Law

JEL Classification: K14

Suggested Citation

Chin, Jason and Likwornik, Helena, R V Bingley and the Importance of Scientifically-Guided Legal Analysis (July 10, 2017). Queen's Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2999947

Jason Chin (Contact Author)

Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Helena Likwornik

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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