Hon. Brent Cotter: Honourable senators, I rise to speak to Bill S-231, as sponsored by Senator Carignan. I speak in support of the bill with two significant reservations that I hope will be studied at committee.

I see this bill as a contribution to the improvement of the administration of criminal justice in Canada and a contribution to public confidence in law. You all know the challenges: wrongful convictions, wrongful acquittals, et cetera. My remarks are divided into five parts for two reasons: first, to keep me on track; and second, more important, so you can know, perhaps with relief, when I’m getting near the end.

First, an account of law in everyday life. Rod Macdonald, former dean of law at McGill University and now, sadly, deceased, a giant in legal education, wrote an insightful book a number of years ago entitled, Lessons of Everyday Law. He did not use the example I’m about to share with you, but I do want to give you an example of law in everyday life associated with me and my children and perhaps yours. The example is, in a roundabout way, associated with this bill.

When one of my children appeared to have done a bad thing, usually my son, I wanted to find out what happened and perhaps to impose a sanction. I didn’t let him “take the Fifth.” I didn’t require proof beyond a reasonable doubt. Law in everyday life in our household didn’t exactly follow the rules of the criminal law or the Charter of Rights and probably does not in your household either. Unlike that, the criminal law is not quite law in everyday life.

My second point is the criminal law and the frailty of evidence in criminal cases. As we know, in criminal proceedings, various procedural protections are made available to persons accused of crimes. As well, the admissibility of evidence is complicated. The standard of proof for a conviction is high: proof beyond a reasonable doubt. Given the consequences of the finding of guilt and the deprivation of liberty, it is a high standard, justifiably so, and it has been a standard in the criminal law for a very long time. It’s different from what happened in my household, but justifiable, I think.

Most commonly, evidence is introduced to establish a person’s guilt by viva voce evidence — people’s oral testimony based on people’s memories, recollections and veracity. Many research studies have shown the fallibility of people’s memories and how often, even without malice, they fail to observe or misremember the true story.

All of us have experienced this. Let me offer one embarrassing personal example — at least embarrassing to me.

I’m a golfer, but not a very good one. I played golf one time at a very nice golf course, and I had what I thought was, for me, a very good score. Over the years, I recollected that score, and the number got lower and lower as time went on, and I came to believe I had gotten that lower score. Some years later, I encountered the golf score card that you write your scores on, and I was shocked that I had gotten in reality a much higher score than I thought. Human fallibility, I hope.

As well, for the decision maker, the judge or jury in criminal law matters, our ability to detect veracity — whether a person is telling the truth or not — is remarkably fragile. The evidence regarding judges’ and others’ inability to distinguish liars from truth-tellers is striking.

Some years ago, I attended a major judicial conference in Victoria, organized by our colleague, Judge Arnot, as he was known then. One session was dedicated to simulations to identify liars from truth-tellers. I was terrible at it. But I took some consolation, ironic upon reflection, that the judges taking the exercise were just as bad as I was.

Indeed, I have another friend, a former judge, who cynically used to say, “Most criminal cases are decided on a balance of perjury; that is, whoever tells the best lies — and tells them best — wins.”

My point here is not to demean the criminal justice system or judicial decision makers but, rather, to underline the challenges the system presents in getting it right. Part of the fault is not in the stars, but in ourselves and in our own human fallibility.

My third point is David Milgaard and the argument for DNA science.

Most of us are aware of the story of the tragic, wrongful conviction of David Milgaard for murder, and the heroic life he led after he was exonerated. Here is a little bit about that story.

After Mr. Milgaard’s conviction was set aside, he remained in no man’s land: His conviction was overturned, but his name was not cleared. Even the then minister of justice opined during this time, unfortunately and unwisely, that he thought Mr. Milgaard was guilty.

A wide-ranging review was undertaken, but it did not move the needle on the guilt — or innocence — of Mr. Milgaard. In my opinion, we are liable to have been stuck there if not for DNA.

There was a small amount of badly degraded bodily fluid on the clothing of the deceased victim, Gail Miller, believed to be semen from a sexual assault committed upon her, prior to her brutal murder. At the time, it was believed that, given the degradation of the bodily fluid over some decades, there was, at best, a 20% chance of the DNA analysis definitively identifying the perpetrator.

I was the Deputy Attorney General of Saskatchewan at the time. The clothing with the bodily fluid was notionally in my possession. I was urged — strongly in some quarters — that, because of the high degree of likelihood of no result due to this degradation, I should not agree to the DNA testing. I ordered the material to be tested.

Science brought us a definitive answer. The DNA tests, and only the tests, definitively exonerated Mr. Milgaard and led to the conviction of the true perpetrator, Larry Fisher.

Colleagues, I’ve made some good decisions in my career, and I’ve made some bad ones. My decision, contrary to advice, to have that DNA testing done was, I think, the best professional decision I ever made.

I’ll direct our discussion to Bill S-231. While some Canadians may not be aware of this, presently judges are empowered to order the taking of DNA from an adult or youth, who is convicted of certain offences, and have that DNA placed in a data bank. The power to do this has been upheld in the courts.

Building on this process, Bill S-231 proposes to amend the Criminal Code, Criminal Records Act, National Defence Act and DNA Identification Act, with a view to increasing the number of DNA profiles in that bank.

Proponents of the bill argue that increasing the DNA samples available increases the chances that the police will find a match and, in turn, provide meaningful scientific evidence associated with a crime — essential evidence to identify perpetrators.

This legislation would significantly broaden our ability to collect DNA by broadening the list of offences, known as designated offences, for which DNA collection is allowed. It would automatically allow the collection of DNA from all adult offenders and youth offenders convicted of virtually all serious offences under the Criminal Code and other acts — offences punishable by imprisonment of five years or more.

The legislation would also restrict judicial discretion, limiting the circumstances in which judges could refuse to grant a collection order.

In the interests of improving outcomes in the administration of justice, with minimal impairment on the rights of offenders, I support this initiative. I believe it will make a contribution to the quality of investigations and decision making in the criminal justice process, and I believe it will use science — in a good way — to help us get things right more often.

I turn to my final point, which is a qualification, or reservation, I have about the bill — one of two reservations. One is collections on arrest, but I will speak here to familial searching.

While the legislation keeps anonymity safeguards in place under the code and the DNA Identification Act, this bill does go further. In certain circumstances, it allows use of the bank for what is called familial searching, which would allow Canadian police to identify suspects — by the DNA left at the crime — by comparing them with a biological relative whose material is in the DNA data bank. Concerns have been raised about this here, years ago, and, more recently, in papers that have been written.

I have reservations about familial searching. It’s a privacy issue. It has a Big Brother aspect, and that makes me uncomfortable. The Assistant Privacy Commissioner of Canada said in a precise, poignant quote about a dozen years ago: “. . . does being the relative of a convicted offender decrease a law abiding citizen’s right to privacy?” I don’t have a definitive answer on that, but I think it’s an important question for us to study.

I am hopeful that, when the bill is studied at committee, this aspect will also be scrutinized — and that my discomfort will either be laid to rest or confirmed.

The bottom line, for me, is that Senator Carignan’s work in this area, and this bill in particular, will be a positive contribution to the administration of justice. It deserves to be supported and studied at committee in a timely way.

Thank you.

(On motion of Senator Petitclerc, debate adjourned.)

On the Order:

Resuming debate on the motion of the Honourable Senator Klyne, seconded by the Honourable Senator Harder, P.C., for the second reading of Bill S-241, An Act to amend the Criminal Code and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (great apes, elephants and certain other animals).