Science in the courtroom: The mouse that roared
| Author | The Honourable W. Ian C. Binnie |
| Pages | 95-120 |
95
g September 2008
Science in the cur:
THE MOUSE THAT ROARED
THE HONOURABLE . IAN C. BINNIE*
[I]f matters arise in our laws which concern other sciences and faculties,
we commonly call for the aid of that science or faculty which it concerns,
which is an honourable and commendable thing. For thereby it appears
that we do not despise all other sciences but our own, but we approve of
them and encourage them … 1
e live in an age dominated by science and technology. The
question I want to address is whether the courts are doing a
proper job of resolving disputes in which an appreciation of
such technical matters is necessary. The litigation of scientic and techno-
logical issues– symbolized perhaps by the mouse in the courtroom, whether
it be the Harvard Mouse2 or the Stuart Little mouse, a rodent with human
brain cells3 or, even worse, the mysterious Schroedinger’s cat, which can be
* The Honourable Mr. Justice W. Ian C. Binnie is a member of the Supreme Court of
Canada. This article is based on the Viscount Bennett Memorial Lecture delivered
at the Law School, University of New Brunswick, on October 5, 2006. Justice Bin-
nie expresses his thanks to his law clerks, Emilie Taman and Maia Tsurumi, for
their indefatigable research into these issues.
1 Buckley v. Rice Thomas (1554), 1 Pl. Com. 118, 75 E.R. 182 at 184, Saunders J. [Buckley].
2 Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45.
3 The London Times reported on 2 September 2006 that scientists at Stanford Univer-
sity in California are introducing human brain cells into mice. Stuart Little, you will
recall, is the mouse that can talk and had human parents, but was still a mouse and
96 • The Honourable W. Ian C. Binnie
shown by physicists to be simultaneously alive and dead4– is a prospect that
leaves much of the legal community justiably shaking in its Luddite boots.
But however daunting, the task of making courts more science friendly
is important to sustaining the legitimacy of courts as dispute resolution
institutions.
Science disputes are hitting the courts at an increasing velocity. In
cases involving tort, environmental, intellectual property and criminal
law, the admission and use of expert scientic or technical testimony
is often crucial to the outcome. These cases frequently raise policy con-
cerns that collide. For example, there have been very interesting disputes
dealing with customized bacteria used to ght oil spills and other pollu-
tion, where scientists have designed a bacterium that has no counterpart
in nature. But of course, once the pollution is eaten up, the bacteria keep
on reproducing. If a court does not understand exactly what was modi-
ed and what the consequences of unleashing such organisms into the
environment are, how can it determine legal questions related to lia-
bility and remedies? From a scientic standpoint, one of the solutions
to the problem of natural reproduction is to build into the organisms
a so-called “suicide gene,” so that at a certain point the bacteria simply
die. That sounds like a good idea, but then Monsanto came along with a
genetically modied soybean containing a suicide gene and critics said,
“This is contrary to the Competition Act because you’re forcing the farmer
to go back to Monsanto every year to buy seed.”5
Recently, a group of scientists visited the Supreme Court of Canada.
They told us that nanotechnology6 will create the next big wave of
the Times’s headline read: “A human brain trapped inside a mouse’s body– Not a
good idea.” A Stanford law professor responsible for overseeing the legal and ethical
aspects of the Stuart Little experiment was quoted as saying, “Frankly, if we made
a mouse that had a fully human brain, I would be concerned.” When you have fully
human children suing their parents in the United States for wrongfully bringing
them into the world, I suspect Stuart Little might have a winner of a lawsuit.
4 Schroedinger’s cat is a creature that inhabits the wonderland of quantum physics.
You and I may think that a physical object has one state. The book is either open or
it is closed. You may be surprised to hear that quantum physicists do not agree and
can prove by the principle of “super position” that a physical object can be both– at
least at the molecular level.
5 See Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902.
6 A nanometre is a billionth of a metre. A sheet of paper is about 100,000 nano-
metres thick. Using various new techniques, in particular something called a
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