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September 15, 2011: Justice Ian Binnie photograph at the Supreme Court in Ottawa. (Dave Chan/DAVE CHAN/The Globe and Mail)
September 15, 2011: Justice Ian Binnie photograph at the Supreme Court in Ottawa. (Dave Chan/DAVE CHAN/The Globe and Mail)

Transcript

Justice Ian Binnie's exit interview Add to ...

Junk science was one of your bugbears? You are concerned about the quality of evidence and experts?

I think its essential that people who bring their problems to the court go away, particularly if they lose, confident that the court has understood what the problem is and therefore have reached a rational conclusion, however much they might disagree with it.

In scientific matters, I did a lot of work in intellectual property when there was scientific evidence led – sometimes in easy and sometimes in difficult issues of science. In some cases, the science was unsettled, but the judge has to make a decision. Where scientists fear to tread, the judge has to say, as far as I’m concerned, this is the answer.

I think it’s important that the courts appreciate that the adversarial system may not be the best way of getting at scientific proof by having two experts stand up, a month apart, and give totally contradictory views of what the science says. It puts the judge in an extremely difficult position.

There was a great case in England where the judge was confronted with, I think, tranquillizers. Two great fat reports were written in algebra. A judge who had spent his entire life doing car crashes came down on one side and was denounced by the entire scientific community, including Lancet, the medical journal, for having totally messed up. Well, was it the judge’s fault? I don’t think so. I don’t think it was presented to the judge in a way the judge could digest and reach a reasoned conclusion.

But I think its the responsibility of the judges to say: ‘Look, if you’re not spontaneously going to come up with a way of presenting this information in digestible form, then we are going to have a pre-trial seminar; we are going to have the experts in the room and I’m going to get the lawyers out of the room, and we’re going to have a discussion about what the science is all about. Then, you are going to tell me what is the narrow range of disagreement. Where is the real problem here?’ And then we will go into court and argue about it. We’ll put all the defendants experts and all the plaintiffs experts in the box at the same time, and they can have a giant argument in front of me. I guarantee you that the experts will be much more circumspect when they have Dr. So-and-so with an opposing point of view sitting next to them, rather than if they know that Dr. So-and-so isn’t going to come to the trial for another month.

In other words, you have to bring about this collision of perspectives in a way that is clear to the judge that’s clear what the problem is, and then the judge can resolve us.

As it is now, in some of these patent cases like ones I was involved in, the judge said: ‘Well, I believed such and such an expert because he gave his answers in a straightforward way and he wasn’t shifty-eyed.’ That’s the way you might describe a witness to a car crash, but it has absolutely nothing to do with whether the expert was talking rubbish or not.

At the court, we had a very interesting day a while ago – a day on nanoscience. This was arranged through somebody, a physicist. A number of nanoscientists got together to describe what they are doing, including a Nobel Prize-winning physicist. It just blew us away what these people are doing. This had nothing to do with a particular case.

We ought to open up our horizons and learn what the rest of the world is up to. We had a Nobel Prize-winning physicist talking about quantum mechanics and quantum computers and how you can actually construct subatomic particles to facilitate, for example, medical procedures to prevent scar tissue from forming using nano technology.

I think all of us were stunned at the contrast between the complexity of what they do and what we do. Here we are, wheeling around in mortgage remedies, yet these guys are holed up in laboratories at the absolute frontiers of human knowledge. There are going to be patents on nano technology that are going to be in dispute and come before the court, and the contending parties will want to believe that the judges understand what their issue is.

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