Justice Committee on Feb. 26th, 2019

[The Chair, Liberal, Anthony Housefather]

Good morning, everyone.

It is a pleasure to welcome everyone to the Standing Committee on Justice and Human Rights for our study of Bill C-417, An Act to amend the Criminal Code (disclosure of information by jurors).

It is a great pleasure to welcome our colleague Michael Cooper, as well as someone whom we've all heard from before, Mark Farrant, to talk about this bill, which stems from a study done by this committee. I want to thank both of the witnesses for agreeing to testify and for helping to bring forward this important bill.

I'll now turn the floor over to Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair, and thank you to all of my colleagues on the justice committee.

It's a privilege to have the opportunity to appear before you to discuss my private member's Bill C-417, which would amend section 649 of the Criminal Code to carve out a narrow exception to the jury secrecy rule so that jurors suffering from mental health issues arising from their jury service can get the help they need.

Before I get into the substance of the bill, which I think all members of the committee are fairly familiar with, let me take the time to thank all members of the committee for your support at second reading. In particular, I would like to acknowledge a former member of our committee, a former vice-chair, Alistair MacGregor. It was Alistair who initiated the study that we as a committee undertook on juror supports, which resulted in a unanimous report with many important recommendations, this bill being one of the key recommendations. Had that study not taken place, this bill would not have been produced, and we would not be here to discuss and consider this bill before a committee.

I want to again convey my appreciation to Mr. MacGregor, as well as to Mr. Rankin, who was my main seconder and stood with me when I introduced the bill. I'd also like to acknowledge Mr. McKinnon, who very early on when I introduced the bill got on board and was a co-seconder. Finally, I'd like to extend my thanks to you, Mr. Chair, for your advocacy and your work to get the government's support for the bill, which we were able to achieve at second reading, and to all members of the committee for your support and engagement on this issue.

The substance of this bill deals with the jury secrecy rule. As you may be aware, the jury secrecy rule—other than in a narrow instance where there's an issue relating to obstruction of justice—prohibits a juror from discussing any of their experiences or any aspect of the jury deliberation process for the rest of their life.

There are many good reasons for the jury secrecy rule, but it's a problem when former jurors are suffering from mental health issues. We know, and we heard, that the jury deliberation process can be one of the most stressful, if not the most stressful, aspect of jury service. To prohibit a juror from speaking with a mental health professional about their experiences, and indeed for it to be a Criminal Code offence to do so, inhibits a juror from getting the help they need.

In terms of the stress that jurors face at the time of a jury deliberation process, I think it's important to cite the evidence of Tina Daenzer, who, almost 25 years ago, sat as a juror in the Paul Bernardo trial. A quarter-century later, she is still suffering from mental health issues due to the horrific evidence she was exposed to during that trial. What Ms. Daenzer stated has already been presented to our committee, but I think it's worth reading into the record again:

After the Bernardo trial ended, I was only sequestered for one evening, and basically I got the question, “What took you so long?” You can't answer that. You can't discuss what the other people in the room would like to do or not like to do...Again, you've seen the evidence and you've decided that the person is guilty, but...you are still sending that person to federal prison for the rest of their life. You shouldn't feel guilty, but somewhere deep down you still do. Talking through those things could be quite helpful.

What Bill C-417 simply does is to carve out a narrow exception to the jury secrecy rule, namely, that former jurors who are suffering from mental health issues arising from their jury service and are seeking mental health support as a result can disclose their experiences to a mental health professional who, due to professional standards, is bound by confidentiality.

In essence, Bill C-417 on the one hand allows jurors to get the help they need by being able to talk about all of their experiences with a mental health professional, while at the same time protecting the integrity of the jury secrecy rule.

As I had mentioned at the outset, there are good reasons for the jury secrecy rule. They include the finality of verdict, protecting the sanctity of the jury deliberation process and ensuring the privacy of jurors. None of those considerations are impacted by Bill C-417 because, again, this would be post-trial in a strictly confidential context.

This is a straightforward bill that I believe will go a long way to helping jurors get the help they need. I will leave it there, but before I do I want to acknowledge Mark Farrant, who very courageously came before our committee along with other jurors. They told their stories and really put into context to give us the full picture of how their lives have been changed forever.

Mr. Farrant has been, of course, a tireless advocate for better supports for jurors. He was supportive of this bill. The bottom line is that former jurors shouldn't have to suffer needlessly for doing nothing more than their civic duty. We owe it to them to be able to remove unnecessary barriers for them to get the help and support they need, so as best they can get on with their lives and become healthy once again.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Cooper.

I'll ask Mr. Farrant to give his two cents on the bill.

[Mark Farrant, As an Individual]

Thank you to members of this committee for once again inviting me to speak here today. I would like to thank this committee and its members who listened to the concerns of ordinary Canadians and acted upon those concerns.

We're here because former jurors from across the country, having served in difficult and disturbing criminal trials, have suffered from their experiences in court and in the course of serving their civic duty. Some have suffered for years, even decades, after the verdict had been delivered. Exposed to unspeakable evil, graphic images, disturbing testimony, difficult and challenging legal charges, and the challenges of deliberation, jurors have developed forms of anxiety, depression, insomnia, extreme stress and PTSD. Worse still was that many of these jurors had no access to support after their jury service or found it extremely difficult to come by, often deepening their trauma.

These jurors voiced their concerns, shared their stories, many of whom had never spoken about these events before, and asked their government to intervene so that Canadians serving jury duty in the future could receive adequate mental health support to be able to return to their lives, their employment and their families.

I am again extremely thankful for this committee and the extensive study it undertook on jury duty and mental health. It is one of those recommendations from this committee's report that lead to Bill C-417.

As a former juror, I'm not the same person coming after that trial as I was going in. I left the courthouse stunned after a four-month trial and a gruelling five-day deliberation. I couldn't settle back into my life, my work, my routine. I was bombarded by trial images constantly throughout the day, regardless of where I was or what I was doing at the time. Completely unable to sleep, I would sit like a zombie, and if I slept at all, I was subject to traumatic nightmares. I knew something was wrong with me. I knew this wasn't normal.

When it finally came time for me to confront my mental health issues, I was shocked that there were no services available for me at the time in Ontario, because it needed a judge's order. I was shocked also that my EAP program, from one of this country's largest employers, would not provide me with services because of the legal conflicts they felt existed in my role as a juror. I was further shocked that many psychologists and psychiatrists were also unwilling to take me on as a patient because of the perceived legal repercussions.

Mental health is a chief concern of Canadians, and the stigma surrounding mental illness is slowly beginning to be shed through effective public health communication, activism and grassroots social acceptance. Canadians are beginning to understand that their mental health is as important as their physical health and are encouraged to seek assistance when the need arises.

Core to effective psychological therapeutic practice and counselling is free and open exchange between the patient and the practitioner. The root cause of the injury is discussed and addressed in a means that is safe, and in a place of trust.

How then can an injured juror receive effective treatment, if they are bound by secrecy from discussing the very source of psychological injury stemming from jury service, and barred from obtaining services with this provision in the first place?

Members of the committee, Bill C-417 is vitally important to Canadians serving jury duty. I've often said that jury duty is one of the most important remaining civic responsibilities expected of Canadian citizens. Indeed, it is likely the last mandatory service remaining since the abolition of military conscription.

I've also said that Canadians have a conflicted relationship with jury duty. Many see it as an inconvenience, a burden and a major disruption rather than accepting the important responsibility that it is.

Any reform to jury duty improves Canadians' confidence in the system and reflects positively....

Members of the committee, I am extremely grateful for Bill C-417, as it constitutes an important reform which removes a significant legal barrier impacting Canadians after their jury service.

While I celebrate Bill C-417, I would be remiss if I did not draw attention to the remaining recommendations published in the committee report "Improving Supports for Jurors in Canada”. I am hopeful that those findings too will form the basis for legislation in the future.

Thank you once again to this committee for the invitation to appear before you today and for your great work.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Farrant, for your advocacy and leadership on this issue. I think that without you, this would not have happened.

I also want to recognize that we had a witness before us when we were doing our study on jurors, Mr. Paul Dore, who was the jury coordinator for the State of Victoria in Australia. This amendment is modelled after what is in the code in Victoria.

Mr. Dore, thank you also for being here. It's nice to have a witness from across the world with us.

Colleagues, we're going to go to questions now. As opposed to doing the normal six minutes, why don't we see who has questions?

I'll just recognize people if they have a question.

Ms. Duncan.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Yes. Thank you very much. Of course, I wasn't part of the committee when you reviewed this.

I certainly also want to thank Mr. Farrant. It's very brave of you to come forward, and it must be reassuring to have something actually happening to your need.

I have to share that for many years my partner was a criminal defence lawyer. I know what those files look like. It's about time that this measure were taken, so thank you to Michael Cooper, and thank you for recognizing my colleague. He's very reassured that when he participates and brings forward ideas, something actually happens. He's very grateful to you, Mr. Cooper.

My first question would be for Mr. Farrant—in fact two questions that you could answer together. One, it will not be fair. What will happen with this amendment is that we're simply amending the code so that, in fact, those who may be suffering from serving as jurors can seek medical treatment or counselling. The cost of that is, by this report, generally to be borne by the provinces and territories. My first question to you would be this. Do you believe that the burden still falls on you to try to now get the provinces and territories to put up the dollars, or are you confident that the federal government is delivering on the recommendation that they should approach the provinces and territories?

My second question for you, Mr. Farrant, is, do you think there will also be a need now for the federal Department of Justice to educate the medical and counselling professionals? You mentioned in your testimony the difficulties you faced when you tried to seek assistance, as they were nervous because they didn't think that would be allowed.

I'm just wondering if you'd like to respond to those two questions. Actually, I'd also welcome responses by Mr. Cooper to those questions.

[Mark Farrant]

On the first question, there are provinces now that have a juror support program in place, albeit these are limited in the number of sessions the ministry of the attorney general of that province provides to the juror.

In Ontario, for example, there's a toll-free counselling line available to jurors to call—a sort of triage. At that point, they're given four one-hour counselling sessions and then an additional four, if required, after that. In other provinces, like B.C. and Saskatchewan, there are similar programs. Quebec reimburses the individual for counselling sessions. Unfortunately, in other provinces there's little or nothing available to the juror through the province.

One of the recommendations in the justice committee report was that there'd be universal counselling available, in the sense that it's between the clinician and the juror to establish the length of time and the number of sessions required for that individual to get better. There would not be a time limit on that. I'm looking for leadership from the federal government, and perhaps this committee, to further compel that issue to ensure that provinces are providing adequate funding, and that there's a stable level of sessions and the like across the country, so that no juror is looking over the fence and saying, “Well, why is it that they have counselling and I don't, and I've been through this graphic, gruesome trial?”

To the second question, I think obviously there is a leadership role of educating the ministries, the Crown, and practitioners about the trauma and the responsibility that jurors have coming out of a courtroom and the like. Ordinary Canadians who've never had any experience with the criminal justice system are sitting down and undertaking huge responsibilities and seeing horrible evidence. For the most part, they come through it unscathed, but there are many who don't. I think there is a responsibility to provide better education to medical practitioners and the like.

I hope that answers your question.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Ms. Duncan, just to pick up on the kinds of juror supports we have across Canada, they're in their relative infancy. They've come about in the last decade or so, and it's a patchwork. Some provinces have better supports than others, whereas some provinces have no supports at all. It underlines the need for federal leadership. Without federal leadership, we're not going to see the type of movement that, frankly, jurors deserve in terms of supports and to make the many key recommendations in this report a reality right across Canada. To that end, it was a recommendation of our committee that the federal government provide the provinces and territories one-time funding to implement the recommendations of this report.

In terms of the issue of medical practitioners and the need for awareness, first of all, we did hear during the study that, right now, the jury secrecy rule sometimes spurs confusion from medical and mental health professionals about what they can and can't discuss. Sometimes that has resulted in certain mental health professionals being unwilling to treat or work with a former juror.

Hopefully, the passage of this bill will help simplify it, and in terms of providing the various professional associations with the information necessary so they can get up to speed with this change, perhaps one thing that will help is an amendment that is being proposed by government to provide a 90-day period upon royal assent, hopefully within that time. The purpose of it is to get the provinces and territories and the professionals involved up to speed. That will be helpful.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to go to Mr. Fraser, and then Mr. Barrett.

[Colin Fraser, Liberal, West Nova, NS]

I'll be brief, but I thank Mr. Cooper for bringing this forward. Obviously it was helpful that it came out of a unanimous report by this committee.

Mr. Farrant, thank you so much for all the advocacy you've done on juror supports. We really appreciate at our committee the advocacy you've done, which has resulted in this bill being here today, and also understanding that there's more work to do.

I'll just go for a moment to something specific coming out of Mr. Cooper's comments that I think is important. That is, there are reasons that the juror secrecy rule is in place. This provides a narrow exception for someone to speak to a mental health professional if need be, and that mental health professional is then duty-bound by their professional code of conduct and confidentiality. It preserves the integrity of any discussions that happen in a jury room when they're in deliberations, and ensuring full and frank discussions so that nobody can worry about potential further consequences or criticisms of anything they may say.

Mr. Farrant, just from your point of view, in all the work you've done in advocating for various things that have to do with juror supports, do you think the exception as written with regard to health care professionals will do enough to ensure the confidentiality of those discussions?

[Mark Farrant]

I think so. I think it will.

I think jurors have a very clear understanding of what is expected of them coming out of the courtroom in terms of secrecy and their responsibility to honour and maintain that secrecy. The difficulty that many faced was in contracting mental health or professional health services because of the fact they had been a juror and practitioners were unwilling to take them on.

Let's face it. Deliberation can be an incredibly challenging and difficult procedure, and there's no doubt that jurors experience a great degree of stress, anxiety and health issues. I know of individuals who went to the hospital for health reasons, such asa heart attack and angina, soon after a case concluded.

The jurors understand that responsibility, and the way this bill is written reflects that.

[Colin Fraser, Liberal, West Nova, NS]

You raise a good point as well that although much of the evidence we heard in our study on juror supports had to do with perhaps graphic evidence and the like that made it extremely difficult for jurors, sometimes it's the deliberative process itself, aside from the actual evidence, that makes it difficult for a juror to deal with an outcome or to deal with perhaps difficult personalities that might exist in that dynamic. This would help in that event as well.

[Mark Farrant]

Certainly. To your point, it's not necessarily the traumatic and graphic images—in some ways, those are obvious and they do stick with you—but the procedure itself and the legal challenge. I know of a juror who felt incredible guilt and anxiety because an acquittal was the result of the trial. That is justice delivered. Jurors are judges of the facts, and the facts in that case did not meet a conviction. That's a fact; that's what happened.

That is justice delivered, but that individual and individuals on that case still felt enormous guilt and enormous anxiety. It stayed with them for years because they felt that they hadn't delivered justice, even though they had by the confines of that trial. After hearing the outcries of victims and families in the courtroom, they internalized all of that. It was very difficult for them to be able to find somebody to talk to and to work through that pain.

So it comes in different forms.

[Colin Fraser, Liberal, West Nova, NS]

Thanks, Mr. Chair.

Thank you and congratulations, Mr. Farrant, for your work. I look forward to more of the recommendations becoming part of the law.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Fraser.

Mr. Barrett.

[Michael Barrett, Leeds—Grenville—Thousand Islands and Rideau Lakes, CPC]

Mr. Farrant, thank you for sharing your difficult experience with this committee throughout the process. I wasn't part of the initial process, but I was following it prior to my election, and it's great to see it at this stage today. Mr. Cooper and all the colleagues you mentioned should be commended for moving the ball swiftly down the field on this.

Section 649 of the Criminal Code prohibits jurors from discussing the contents of jury deliberations, and the Supreme Court of Canada has stated:

The common law rule [of jury secrecy], in combination with s. 649 of the Code, helps to ensure that jurors feel comfortable freely expressing their views in the jury room and that jurors who hold minority viewpoints do not feel pressured to retreat from their opinions because of possible negative repercussions associated with the disclosure of their positions.

Mr. Cooper, is it possible that the new exception to the secrecy rule proposed in Bill C-417 would affect the integrity of the deliberative process in a negative way? Could you explain that?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I don't believe it would, for the simple reason that this would be in a strictly confidential context in which a juror could go to a mental health or medical professional who is sworn to secrecy. As I indicated in my testimony, the bases upon which we have the jury secrecy rule would not be impacted because of that.

[Michael Barrett]

The bill stipulates that they be able to seek health care following the completion of the trial. What triggers the completion of the trial? Is it on the delivery of the finding of the jury, or is it following sentencing? If it's following the sentencing, what form would the notification to the jurors take?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

It would be upon their being dismissed as jurors. That would be the end of the trial.

[Michael Barrett]

Okay. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Barrett.

Mr. Boissonnault.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you, Mr. Cooper and Mr. Farrant, for being here.

I think this is one of those examples of how the system is supposed to work. You have an issue, a member of Parliament brings it to committee, the committee studies it and another member of Parliament sees an idea and opportunity to amend the code. Good for you, Michael.

Thank you, Mr. Farrant, for your advocacy.

My question is on that issue of advocacy in particular. I know there's some complexity with the money issue, because these are provincial-territorial matters. We can do a one-time transfer. Then does the money actually go to the issue you're asking about? That is an active conversation that we can continue to have here inside the federal government and keep pushing our colleagues to see how we can make that happen.

How can advocacy groups—juror advocacy groups, in particular—communicate the good news of this bill passing, should we be able to get there?

[Mark Farrant]

I'll certainly be talking about it as much as I can. There are a host of jurors behind me, many from whom you've heard. Every day, jurors approach me through social media or through correspondence to thank me and to voice their concerns because cases continue to be presented in court. We continue to see difficult cases in our courts. The questions and recommendations that sit within that committee report are still live and still active. As long as we continue to have dialogue, continue to talk about the importance of those recommendations and continue to move them forward, I think we'll still be having a conversation. I'm certainly going to be the one to communicate the good news of this bill when it is passed.

[Randy Boissonnault, Liberal, Edmonton Centre, AB]

Thank you.

Mr. Cooper, do you see any means for the advocacy groups and other related organizations to be sending out the good word about this private member's bill?

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Absolutely. Certainly. Mr. Farrant and others are very much engaged on this issue. The 90-day period will also provide some time to not only get former jurors familiar—and the broader Canadian public—but also, more importantly, the professional associations and the provinces and territories.