Go ahead, Mr. McKinnon.
Evidence of meeting #81 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.
Evidence of meeting #81 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.
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thank you, Chair.
I believe my question will be for Mr. Zaborowski. It goes to the aspect of counselling.
We've heard throughout this whole study of the importance of pretrial preparation to inoculate jurors against the stress they might encounter, post-trial debriefing so they can decompress and be prepared for what to expect, and then ongoing counselling after that. We've also heard many people speak of the need for counselling during the trial, both in the case of traumatic evidence and also in the case of the interpersonal relationships during deliberations.
My question relates to the nature of counselling that might occur during the trial and whether you believe that it is likely to influence the outcome of the decision.
I guess fundamental to this question is that I don't know how counselling works, so if you can educate me a little bit on that, it would be helpful.
4:55 p.m.
As an Individual
I've been the recipient of counselling over the years. I've never led or been a therapist myself, but as someone who has had counselling service, I could see how, if my emotions were disregulated by the tension in the room over a period of days, just having someone to discuss those emotions with, whether it was related to the people in the room.... We've heard that some jurors don't get along with each other. It could be related to a past experience that's now resurfacing, perhaps prior trauma that I've had that's now appearing amongst the tension of the deliberation.
If there are opportunities for jurors to be able to access someone to.... If the constraints of section 649 were still there, then maybe the content of what's being discussed would not be on the table, but certainly the processing of the feelings and the emotions might be a place for that to be released to clear the mind so that you could come back to the deliberation itself.
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I'm not sure I'm hearing this, but are you saying that counselling could be undertaken in such a way that the counsellor would not be influencing the decision of the juror—that it deals with emotions and how they react to the data and to their circumstances, not how to interpret the data?
Would that be appropriate?
4:55 p.m.
As an Individual
Again, I'm not an expert in this, so I would perhaps defer to Dr. Jaffe, who's perhaps the therapist in the room at this time, but I believe that you could talk about your feelings without necessarily affecting the deliberation. I have never been on a jury, but that would be how I think it would go.
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thank you.
Perhaps, Dr. Jaffe, you'd like to respond to this as well.
4:55 p.m.
Professor, Faculty of Education, Western University, As an Individual
Is that with regard to counselling during the jury deliberations or during the trial itself, if jurors have a crisis? I just want to make sure I understand the question.
4:55 p.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
It's both, actually. It seems to me that during the course of the trial, before they get to the process of deliberations, they're encountering a lot of stressful circumstances, with a lot of traumatic data in some cases. They may need counselling at that time. Even after that, once they get into deliberations, there's the whole aspect of the intensity of the deliberations themselves.
5 p.m.
Professor, Faculty of Education, Western University, As an Individual
I think it would be good for jurors to have access to ongoing services as needed. It would be ideal to have somebody who's designated to be available to debrief afterward, but also to be available on a crisis basis for jurors. There would have to be clear guidelines that you're not getting into the evidence itself—what jurors believe or don't believe—but more into the trauma triggers.
The research suggests that whether you're a juror, a judge, or an old psychologist, you'll be more triggered by certain cases. For example, if you were sexually abused in childhood yourself and you hear accounts from a victim, you might be triggered about your own childhood history. If you are hearing evidence from a 10-year-old girl, and you have a 10-year-old daughter, you might be triggered. Some jurors will be more sensitized than others to some information and evidence.
I think we need counsellors who are especially skilled to deal only with the jurors' reactions and to stay away from the quality of the evidence or whether something is accurate or not. I'm sure defence lawyers are watching this testimony, and being very.... I think they'll be very concerned if we're getting into the evidence itself, rather than the impact of the evidence.
5 p.m.
Liberal
5 p.m.
NDP
Alistair MacGregor NDP Cowichan—Malahat—Langford, BC
Thank you, Chair.
Dr. Chopra, when I was asking Ms. De Moura about the impact that income security has on our jury pool and whether that's an accurate representation of society at large, and also on the remuneration that jurors receive, I saw you nodding in agreement. Did you have anything you wanted to add on either of those points, based on your experience?
5 p.m.
Chopra Koonan Litigation Consulting, As an Individual
Yes. I think that this remains a problem in the United States as well. It drastically affects the jury pool when you have employers who aren't paying and you have trials that are lasting weeks, months, and years sometimes. The pool of people who can actually serve becomes very, very small. I think increasing juror pay not only sends the message that it's a valuable service but also broadens the pool to give a more thorough cross-section of the community.
I've also heard recommendations to provide for child care. We have a huge number of jurors who have child care issues, who could serve but have to be able to pick their child up from school at three o'clock. Having state-funded or government-funded child care agencies is another example of how you could make jury service easier on potential jurors.
5 p.m.
NDP
December 11th, 2017 / 5 p.m.
Liberal
Iqra Khalid Liberal Mississauga—Erin Mills, ON
Thank you, Chair.
Thank you to our witnesses for their very compelling testimony today.
Ms. Chopra, you touched on the jury selection process, and I wanted to know a little more about it. I looked at the recommendations you provided in your briefing. When it comes to aligning the person who is most responsible for ensuring the safety and then the mental well-being of jurors, do you think counsel in any case has a role to play—maybe from the beginning, from the point of jury selection, up until their closing remarks? Do you think there is a role for counsel to play with respect to that?
5 p.m.
Chopra Koonan Litigation Consulting, As an Individual
I hear two separate questions. There's the jury selection question: do you have a role, if you think somebody is going to have a mental breakdown because of the nature of the case, to ask to remove that juror? That's one question.
The other question I have a quicker answer to, which is in terms of considerations throughout the trial process. Jurors I spoke with asked that there be a greater sensitivity, on both sides, to what is being presented. With regard to things like timing the gruesome evidence right after lunch, don't do that. Prepare jurors by saying something like, “All right, you're going to hear some really graphic evidence, and I want you to be prepared for it”, although you can never fully be prepared for it, as Ms. De Moura has mentioned. As a lawyer, there's a need to be sensitive to the idea that while you may have seen a piece of evidence a million times and have become desensitized to it, that's not the case for everyone who's going to be seeing it. I think being compassionate when presenting the evidence is important on both sides.
Going back to the jury selection aspect, I don't know if counsel has a responsibility. I would think, as somebody representing a client, that I wouldn't want to risk having a juror who has a potential to have a mental breakdown because of a similar life experience in the past. I would probably recommend challenging that juror. However, I don't think we can put the attorneys in the position of having to ensure the well-being of jurors, because their primary responsibility lies in defending their clients. I think that would be a tough position to put the attorneys in.
5:05 p.m.
Liberal
The Chair Liberal Anthony Housefather
I have a question for you.
By the way, I thought your article was very interesting, and your submission as well, just like the other witnesses.
In terms of section 649, you proposed that we should create exceptions to section 649 and have the general rule remain. However, what I also understand from reading and listening is that you feel all the presumptions that lead to us having section 649 there, as a general rule, are not really necessary.
Why are you proposing to create exceptions to 649, as opposed to simply removing the general rule on the prohibition and leaving it as it is in the United States, where a juror is free to discuss the case after trial but is not compelled in any way to do so?
5:05 p.m.
Chopra Koonan Litigation Consulting, As an Individual
That would absolutely be my initial recommendation. It would be to change it so that the restriction is lifted. However, in the interest of knowing how things sometimes work within government, I'm suggesting baby steps.
That absolutely would be my initial recommendation, but if that's not palatable in the first round, then maybe we could start to slowly change it.
5:05 p.m.
Liberal
5:05 p.m.
Liberal
The Chair Liberal Anthony Housefather
Does anyone else have any questions?
If not, let me thank the witnesses again. You were incredibly helpful.
Tomorrow is the first day of Hanukkah, so I'd like to wish everybody a very happy Hanukkah, a very merry Christmas. This is our last meeting until the new year, so have a great new year, everyone.
The meeting is adjourned.