Justice Committee on Dec. 6th, 2017

[Dr. Patrick Baillie]

We're asking people to all of a sudden become experts in criminal testimony, in evaluating the quality of the evidence that's put in front of them. Also, as my colleagues have pointed out, jurors don't have the option of looking away. They can't take a 15-minute coffee break in the middle of somebody's testimony.

I think that minimum wage is an absolute minimum, and we need to be looking at something significantly higher than that. If you assume $15 an hour in a regular day—because I don't really expect people to go to work after they've served on jury duty—then you'd be talking in the range of $100 to $120 a day as an absolute minimum.

If I may, I'll give you just a quick biography. I've been a psychologist working with the Calgary Police Service for 22 years, and I've been working in an outpatient forensic program for 25 years. Because of the outpatient forensic program, I had judges who said to me, “If you want to understand how to think like a lawyer, you need to become one.” Being a doctor wasn't enough. I went back and did law school afterwards, just for fun, you know—

[Voices]

Oh, oh!

[Dr. Patrick Baillie]

I'm a psychologist and a lawyer, hence part of the reason why I see this from a number of different perspectives. I've also been privileged to have conversations with judges and lawyers over the years about how these cases impact on them, and then more recently with jurors who sought me out because of the amount of media attention that's been brought to this issue, frankly, and the opportunity to discuss it.

I think the supports that we need to put in place begin with the finances, but as my colleagues have suggested, it's something that needs to continue afterwards, and four sessions within a two-month period simply isn't enough.

[Rob Nicholson, Conservative, Niagara Falls, ON]

They might not have the symptoms for two months.

[Dr. Patrick Baillie]

As Dr. Lee suggested, it could be years later that the individual develops the symptoms. As Mark told you, it was months later that family members noticed that he just wasn't getting back to being his regular self. Mark's advocacy on this has been absolutely instrumental in getting people to pay attention to it.

Finances are part of it, but having qualified evidence-based therapy from qualified therapists on an ongoing basis is critical.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Yes.

[Dr. Patrick Baillie]

I did a CBC segment a couple of weeks ago. The director of the Alberta program was invited to participate in the conversation. She said that over the last two years that the program has been in place, they've had about 20 jurors access the program.

Well, even if you assume the four-session maximum for them, even if you were paying the therapists $200 an hour, that would be a $16,000 bill to run the program for the entire province. For a minister to suggest that this has significant cost implications, they're not paying attention to the mental health of the jurors.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Ms. Leclerc, you've made a very interesting suggestion to us, and it's one that is right up our alley: making a possible recommendation to change the Criminal Code.

I don't know of any other information that somebody could get that they would never be able to discuss with anybody else. Your suggestion—and I'm hoping we will move forward on that—is to look at that section of the Criminal Code and say, “Just a second—it is possible to share that information with somebody in the medical profession.” Thank you very much for that.

Did you have any other comments on that?

[Marie-Eve Leclerc]

Not particularly, but perhaps Ms. Lonergan does.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I can tell you what I was going to ask you, Ms. Lonergan. You said there are a number of different measurements on PTSD and a number of different studies there. I wonder if you could explain that just a little more.

[Michelle Lonergan]

As a trauma researcher, I found it quite daunting to review this literature. Many research studies that are out there use validated measures of post-traumatic stress disorders. I approached this paper by saying, okay, I have a specific question: I want to know to what extent jurors meet PTSD diagnostic criteria or exhibit symptoms following gruesome evidence. Those were pretty much my search terms.

What I ended up finding was that although a lot of the studies employed standard measures of post-traumatic stress disorder, many of them were modified to such an extent that I was reading them and asking what they meant. When you want to compare this to other PTSD populations, it becomes uncomparable.

Or, for example, they would report prevalence statistics of the diagnosis of PTSD, but you would have no idea of how long the symptoms had been lasting. Some research omitted criterion F from the PTSD diagnosis, which refers to functional impairment: your inability to function at home, at work, or at school. Some studies said the prevalence was 10% of PTSD, but they didn't take into account...they just decided to not measure that. I was like, well, are these people experiencing symptoms to the severity of their lives being disrupted, or is it manageable?

There were just a lot of questions that this literature brought up. If I were to redo it, if I were to do it myself, I would supplement these measures they've used, which are often self-reports in which people rate on a scale of one to whatever how much they experience this. I would supplement that with clinician-led evaluations of post-traumatic stress disorder, using gold standard measures. Many measures can be used to give you an accurate idea of what the issue really is.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. McKinnon.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Chair.

I'll start with you, Dr. Baillie. First I want to say that I agree with Mr. Nicholson. This evidence has been very powerful, and it agrees one hundred per cent with all the other testimony we've heard. It's very helpful to hear the same themes coming before us again and again. I think it gives us a really good idea of where we should be going with this.

One of the things that have come up many times is the idea of having counsellors available to jurors during the trial, and the concern there is that in some way they might influence the decision.

Dr. Baillie, you mentioned designated service providers after the trial. Are these the same people or would they be psychologists at large? Would that person be related to the court system in some way and be some sort of officer of the court? Perhaps you could comment on those points.

Anyone else can feel free to respond as well.

[Dr. Patrick Baillie]

I think the questions are related. When I refer to a designated service provider, I think it's important that whoever is providing the treatment services understand the unique position they're in. If they're talking to a juror in the midst of a trial process, which frankly could be happening with any psychologist—the juror may be in a regular course of therapy and have a session on Wednesday afternoon after their court date and be talking about a stress they're experiencing—we need to make sure that the psychologist does not in any way influence the proceeding.

I've had trials where I've had contact with judges in the middle of the trial about what we could be doing to provide support to those jurors during the trial. I think the support needs to simply be generic, in the sense of reminding them about some of the symptoms that they may be experiencing, and, as Dr. Lee said, understanding that some of those symptoms are normal experiences and don't necessarily lead to the diagnosis of post-traumatic stress disorder.

As Ms. Lonergan pointed out, there are four symptoms of post-traumatic stress disorder, but you get the diagnosis only when those symptoms are causing marked distress or clinically significant impairment in social, occupational, and other important areas of functioning.

As you can tell, I may have used that phrase a few times in my life.

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Oh, oh!

[Dr. Patrick Baillie]

You can help people with the symptoms without getting into why they may be experiencing those symptoms and without needing to talk about particular pieces of evidence. During the trial process, there are ways of providing assistance, but again, if that responsibility is put onto a psychologist or a therapist who is not part of the legal system, they may not know that having a conversation about what the juror saw the day before is problematic. I think the designated provider applies to both the in-trial supports as well as the post-trial supports.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Would counselling during a trial reduce the likelihood of developing post-traumatic stress? In talking with first responders, I've heard about the need for pre-PTSD therapy as well. Would this fit into that category?

[Dr. Patrick Baillie]

Again, there are the three parts, as Dr. Lee suggested. Providing some education prior to the start of the process as sort of a stress inoculation approach can be an important part of reducing the symptoms of PTSD.

I do the recruit screening for the Calgary Police Service. We would be concerned about somebody being hired into the police service who has had previous traumatic experiences. Similarly, somebody serving on a jury may be much more vulnerable to experiencing symptoms of trauma if they've had that pre-existing condition themselves. I'm not saying that you exclude them from the process, but that kind of educational information may be of assistance to them, as would be that ongoing support, so that they understand that the symptoms they may be experiencing are normal, and so that if they became abnormal—that marked distress or clinically significant impairment—we're providing supports to them down the road.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

Dr. Lee, would you like to respond?

[Dr. Vivien Lee]

In terms of counselling during the trial, you're right: we don't want to have someone potentially biasing jurors. What we can do first of all is the education, and we can normalize some of their reactions.

People experience things and think they shouldn't because no one else seems to, and then they feel like an alien. It's about having to normalize that a lot of what they're thinking is normal, and it's also about helping them to incorporate some healthy coping skills, even just things like deep breathing, telling themselves it's okay, and letting themselves engage in some self-care and trying to relax a bit. Things like that I know sound very obvious, but people don't see them in the middle of such a stressful circumstance, and they think, “This shouldn't be affecting me.” It would be about focusing more on self-care and healthy coping during the trial.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you.

Would anybody else like to respond to that? Mr. Kyllo?

[Greg Kyllo]

Yes. I agree with my colleagues, and I think it actually provides an opportunity for illness prevention.

We've talked about substance use and addiction. As Dr. Lee mentioned, a coping mechanism that's unfortunately very normalized in our society is to say, after a long day of jury duty, “I need a drink”, or something stronger, right? This is a very maladaptive way of coping with this type of stress and can be progressive and lead to significant illness.

As has been said, having those supports during the trial can normalize the reaction to this really dangerous environment but also can provide other options, rather than the normal coping mechanisms that many of us might not see as being unhealthy. Not only can that be done in a professional way so as not to bias an outcome, I think, but it can produce better jury deliberations and outcomes because people are more capable of showing up and having a good perspective in the process.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. MacGregor.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you, Chair.

I want to reiterate previous comments. To all the witnesses, the fact that you came to the committee and offered such concise, clear testimony and all had specific recommendations makes it very difficult for us to ask questions, because you've really done our work for us.

I want to echo what Mr. Nicholson said, especially to you, Dr. Baillie. When you come to a group of legislators and you have a clear recommendation to amend a statute of Canada, that is right up our alley. Thank you for referencing section 10 of the Divorce Act, because that's something we can use as a model. I notice that the way subsection 10(2) is written, it seems to use fairly direct language, such as “the court shall”.

[Dr. Patrick Baillie]

Yes.