Evidence of meeting #80 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was jurors.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Marie-Eve Leclerc  Ph.D. Candidate, As an Individual
Michelle Lonergan  Ph.D. Candidate, As an Individual
Greg Kyllo  National Director, Program Innovation, Canadian Mental Health Association
Vivien Lee  Psychologist, Centre for Addiction and Mental Health
Patrick Baillie  As an Individual

4:30 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

I also note that section 627 of the Criminal Code allows for a judge to “permit a juror with a physical disability” to have those kinds of supports. When we make the recommendation to the Minister of Justice to have that clear amendment to the Criminal Code, are you in favour of using the more direct form of language that is in the Divorce Act, for example?

You touched on that too, Ms. Leclerc.

4:30 p.m.

As an Individual

Dr. Patrick Baillie

Without getting into the specific language, I think it's important to give jurors the opportunity to talk about all of the aspects of the trial.

There's one point that I don't think has been brought up so far in this process, not just today but at all. In the Derek Saretzky trial, as in many trials these days, more than 12 jurors were empanelled, but the trial concluded with 14 of them. The code requires that two of those jurors be randomly excluded from the process before the deliberations start, and one of the jurors was quite vocal in the courtroom and outside in saying that this was a travesty, that “you make me sit through all of this testimony and then you kick me out of the room before I have a chance to participate with my colleagues in the deliberation process.”

One of the recommendations that I made in a letter to the minister a couple of months ago was that there's nothing magical about the number twelve. To exclude those two witnesses and to say that makes it easier to come to your unanimous verdict suggests that you somehow randomly picked the two dissenters, who would have been obstructing a unanimous verdict anyway. Why not allow all of the people to participate in the process? The language we use about allowing people to discuss the deliberations is a recognition of the challenges that are inherent to deliberations, but we also have the challenge of those people who get kicked off a jury before they're even allowed to conclude the process.

December 6th, 2017 / 4:35 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

I also appreciated your earlier comments about how in some cases we are paying jurors less than the minimum wage, less than some teenager at McDonald's is making. Look at what they could potentially be exposed to and the total involvement in a court case. As you said, they can't turn away. They have to give everything their careful consideration.

Dr. Lee, in your testimony you came up with some figures that really made me sit up and take notice, such as, for example, the fact that Canada loses $6 billion in lost productivity each year due to mental health and that for every dollar invested we see a $4 return. We saw similar statistics when this committee was studying access to justice. Making those investments in legal aid takes care of a whole host, a myriad, of associated problems.

One of the things we're struggling with is that the administration of justice is a provincial jurisdiction, but the federal government's duty is the Criminal Code. Also, we made a recommendation that we take a specific amount of money out of the Canada social transfer and dedicate it right to legal aid.

Looking at the financial side of things, I'm really just trying to nail down a specific recommendation that we can make to the justice minister. Would you like to see something similar, where we have dedicated federal funding to make sure the provinces have a fairly even standard across this country?

4:35 p.m.

Psychologist, Centre for Addiction and Mental Health

Dr. Vivien Lee

I think so, especially if it's proportional to the number of people in each province who would be serving on a jury. This is as long as it's not a fixed amount. When things are starting out, it can be more of a pilot. If you're finding that it might help to put more money into, for example, counselling services during the trial as well as evidenced-based treatment afterwards, you might have to tweak that just to see what works in the long term. It might take a while to see what the optimal amount is.

I do think this is something that should be across Canada. Why should some people in Ontario—it is wonderful that we have access to this now—get support after serving on a jury when someone in the next province doesn't have that?

4:35 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Mr. Kyllo, do you have any other comments? Some of your testimony talked about the investment, that if you treat it early, you can mitigate problems later down the line. Do you have anything else you'd like to add under the same vein of questioning?

4:35 p.m.

National Director, Program Innovation, Canadian Mental Health Association

Greg Kyllo

About the one dollar invested and the four, that really speaks to mental health promotion and illness prevention. There's a real opportunity here, specifically where there is trauma that will be experienced by certain people going through this process. It's a really good investment. Probably Dr. Lee and I and others could provide more specific data to back that up for you so that those recommendations can have that evidence. It would be really prudent, yes.

4:35 p.m.

NDP

Alistair MacGregor NDP Cowichan—Malahat—Langford, BC

Thank you.

4:35 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Fraser.

4:35 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you very much, Mr. Chair.

Thank you to all of the witnesses for being here today and for your excellent presentations. It is very much appreciated.

Dr. Baillie, in your testimony you talked about the fact that it's pretty difficult to go through a really long jury trial and not have the ability to take a break or a mental health pause. I'm wondering if you know of any other jurisdiction in the world that uses a jury system where the opportunity is available for jurors to take a break.

4:40 p.m.

As an Individual

Dr. Patrick Baillie

It's an excellent question. I'm not aware of any such jurisdiction. I can refer back to the Garland trial, when Mr. Justice David Gates, on his own decision, went out of his way, after some of the more difficult days of testimony, to suspend proceedings for that day and give jurors the next day off. He took two breaks during what was a five-week trial. My concern for those much longer trials would be coordinating the court schedule and giving the opportunity to jurors to take a longer break.

To go to the specifics of your question, I'm not aware of that being built in anywhere else.

4:40 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

We heard in previous testimony, from an earlier day in this study, that some of the former jurors found it difficult to not have any closure on the matter. After they deliberated and there was a conviction, it went on to a sentencing hearing. They weren't included or made aware of what the result was. Are you familiar with this sort of criticism from former jurors, and what do you think we could do about that in terms of a recommendation?

4:40 p.m.

As an Individual

Dr. Patrick Baillie

I think there are two parts to the process. I'll again use the Saretzky trial as an example. Mr. Saretzky was found guilty, but there was the issue of parole ineligibility. Because it was a multiple homicide, he was potentially facing consecutive periods of parole ineligibility. Most of the jurors, but not all of them, came back for the sentencing hearing and sat in the gallery. For them, that was something they wanted to see—the end of the process.

Some people may choose to access that, but most of the jurors, and I think all of my colleagues, including Dr. Lee, would comment on the fact that jurors almost unanimously say, “We finished. We gave our verdict. The judge came in, talked to us for a couple of minutes, told us to look after ourselves going forward, and that was it. I got my parking validated and I left the courthouse.” There isn't a sense of closure.

I'll share this because I think it's relatively public information. One of the juries that I had some closer contact with gets together periodically. They go out for dinner together to check in on each other and see how they're doing. Again, it's a small financial cost to them to be able to have that kind of support from other people who have been through a similar process. Wouldn't it be nice if on a three- or six-month basis there was some additional support available to them for their own self-care as well as for, as Dr. Lee suggested, contacting the jurors to see how they're doing more generally?

4:40 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

With regard to the matters themselves that we're talking about, criminal proceedings—

And I noticed, Ms. Leclerc and Ms. Lonergan, that you touched on the fact that obviously there are big differences between certain types of gruesome cases, which I think we all have in mind when we're talking about this sort of program being made available.

I'm wondering, Dr. Baillie, if you can touch on how you would distinguish between certain cases and whether there should be a distinction made in different cases that have extra support or it is just up to the court to do that.

4:40 p.m.

As an Individual

Dr. Patrick Baillie

I think that, as all of us have pointed out, there are some individuals who do a great job of serving on juries and who have no difficulties afterwards, and there are some individuals who are triggered by something that happens during the process, but we can't know in advance what those triggers may be. So, I think most of us have made recommendations about criminal trials, civil trials, and fatality inquiries. It covers a broad spectrum. Even in a civil trial there may be such emotionality in the courtroom that there's a connection for that juror back to the case. So to say that only in homicide trials would we provide this or only in child sexual abuse cases, I think that's simply too restrictive.

4:40 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Ms. Leclerc and Ms. Lonergan, I know it was raised in your testimony. Can you speak to that as well, please?

4:40 p.m.

Ph.D. Candidate, As an Individual

Michelle Lonergan

I think I would agree with Dr. Baillie that it's a very difficult question to answer. I wouldn't necessarily be in favour of segregating who does and who does not get extra services. It could be something that could be open to everybody. As I said, the research generally supports that what we think could cause the most problems typically does cause the most problems. But that being said, other research—for example, one study in 1994—has shown that jurors on criminal trials involving crimes against a person were six times more likely to have major depression, but the same thing wasn't true for post-traumatic stress disorder. There was only one person who had post-traumatic stress disorder and that person was from a burglary or credit card fraud case. The field and the scope of the problem and who is more at risk in what type of trial really aren't there yet to answer that question at all. I think that also brings up the issue of cherry-picking with regard to who does and does not get services. I think there are programs and opportunities and avenues we can look into that would provide cost-effective and therapeutically effective help for any juror who is suffering after any trial.

4:45 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

That's great. Thanks.

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

Dr. Lee, do you want to chime in?

4:45 p.m.

Psychologist, Centre for Addiction and Mental Health

Dr. Vivien Lee

Just to agree with everyone else who has been speaking, I'd be very cautious about pre-emptively picking which types of crimes are likely to be traumatizing or not. To borrow from a different context, I see a lot of people who have been injured in the workplace. Many times it may not look traumatic to an outside person because it's part of their job, and their employer has dismissed it and said that they shouldn't be feeling this and they shouldn't be feeling trauma, but every person is different. Everybody else has been saying that you never quite know what is going to trigger someone. What's traumatic for one person may not be for other people, so, I'd be very cautious about that.

4:45 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you.

Now we'll move to a question round with shorter questions.

We'll have Mr. Liepert, Mr. Ehsassi, and Mr. Cooper and then go back to Mr. Fraser.

Mr. Liepert.

4:45 p.m.

Conservative

Ron Liepert Conservative Calgary Signal Hill, AB

I have just a couple of things.

Dr. Baillie, just as a follow-on to what we were just talking about, I certainly don't need any more convincing, and I would surprised if anybody around this table did, about having better information for jurors as they head into jury duty. It seems as though, according to some of the testimony we've had, when young children are involved, that tends to be much more traumatic. Both trials you referred to, Garland and Saretzky, involved young children. Would you suggest that, maybe as part of that information package or session, if a young child is part of the trial, that fact be specifically addressed?

4:45 p.m.

As an Individual

Dr. Patrick Baillie

Yes. I think the more specific we can make the information without biasing the process, the more helpful it's likely to be.

4:45 p.m.

Conservative

Ron Liepert Conservative Calgary Signal Hill, AB

You don't think that would then come back, as you said earlier with regard to the Saretzky trial—was that the one, in which you said...?

4:45 p.m.

As an Individual

Dr. Patrick Baillie

It's Garland.

4:45 p.m.

Conservative

Ron Liepert Conservative Calgary Signal Hill, AB

They're now using it against ...?