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

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.