Justice Committee on Feb. 1st, 2018

[The Chair, Liberal, Anthony Housefather]

I'm sorry to cut in, Mr. McKinnon, but you mentioned Saskatchewan's programming and expressed some concerns about the finite limit. Maybe you want to ask Saskatchewan about that.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Yes, absolutely.

Saskatchewan, could you tell me what the basis is upon which you chose four sessions? It seems to be fairly arbitrary and maybe rigid.

[Glennis Bihun, Executive Director and Inspector, Court Offices, Court Services, Ministry of Justice, Government of Saskatchewan]

We certainly recognize that it's a starting point. Mr. Miller mentioned how we based our starting point a lot on the experience of what other jurisdictions were doing.

The other dynamic we considered is that we appreciate that this is an opportunity to provide jurors with support and to assist them in getting to a good space after their experience as a juror, but we also very much recognize the need to bridge the support provided through the program to some longer-term supports that may be necessary for mental health support. There's very much a recognition of the need to bridge. This program of course isn't in place and can't incorporate those longer-term needs for mental health.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you.

Would the Mental Health Commission like to comment on this as well?

[Micheal Pietrus, Director, Mental Health First Aid Canada and Opening Minds, Mental Health Commission of Canada]

From the research we've seen that's evidence-based and the programs that we work on with first responders and within the general workplace, it's certainly very important to make people aware of changes. Oftentimes, people may experience things and not know what actually is going on. They may not even associate them with mental health issues.

If you know in advance and you begin to see changes, as Dr. Kamkar was talking about, in terms of the continuum.... You go from that unexpected wake-up call in the morning at three o'clock before you deliver an important presentation or paper or something of that nature to all of a sudden not sleeping for weeks. That really begins to create all sorts of changes within the individual.

The importance of early intervention, of being able to be aware of changes that you're experiencing that could be related to the work you're doing as a juror, is very important in then seeking help. Otherwise, you may not know for quite some time afterwards that you really need help and that you are experiencing mental health problems or the onset of a mental illness. It's a very slippery slope, and it can occur very quickly.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We're moving on to Mr. Rankin right now because we're out of time for this questioner.

Don't worry. I'm sure he'll give you a chance, Ms. Davies.

[Murray Rankin, NDP, Victoria, BC]

I have so many questions. This is such an interesting group of presenters. Thank you very much.

Ms. Bihun or Mr. Miller, just to go chronologically, I have a question for you, please. You live in a province where there's a very large indigenous population. We've already heard Professor MacDonnell talk about the Ontario experience, where you have very large areas and people will no doubt travel a great distance in order to be on a jury.

Have you given any thought to specific concerns about aboriginal or indigenous culture and perhaps the need to address special needs, given their remote location and so forth? They have no one to talk to about their experience when they're cloistered in a hotel room far away, and then they go back to the community and there's nobody there because they're miles from any counselling services. Has that entered into your deliberations?

[Glennis Bihun]

Yes, absolutely. Certainly, over the years as we continue to review and address concerns that may arise periodically on the overall jury management system, a key group in Saskatchewan that we seek advice and counsel from is an elders forum. On a number of occasions over the years we've sought their advice and have made changes in regard to that advice. That's certainly something we're committed to continuing to do in the go-forward.

[Murray Rankin, NDP, Victoria, BC]

Ms. Davies, I have two questions for you.

The first is that you tantalizingly told us that you had a case where juror supports were provided, yet you didn't, I don't think, tell us about any experience, positive or negative, that you might educate us upon.

My real question is on how you talked about the need for others in the courtroom to have counselling services where required. I was fascinated by that.

I was thinking, though, that in the defence bar, I really appreciate that the one in four lawyers with mental health issues and especially women and racialized minorities are finding themselves in the defence bar without the benefits of the state system that might be available to a crown counsel. I very much respect that. In my province of British Columbia, there's a very effective program the law society offers free for members of the law society, and it deals with mental health issues, drug addiction, alcohol, etc. I wondered whether that wouldn't be a sufficient place to go and just maybe make it more robust in funding.

Lastly, if you're a defence lawyer, some of what you might be particularly traumatized by, ironically, could be things you can't talk about because they're subject to solicitor-client...you have evidence from your client that is really traumatic and you can't share it with anybody because you're their lawyer.

I'd like it if you could address some of those questions.

[Breese Davies]

The first question was what case was I involved in. It was the coroner's inquest into the death of Ashley Smith, in which there was videotaped evidence of her in custody. She was the 19-year-old who died in Grand Valley Institution. There was a lot of videotape evidence of her acting like a normal 17-year-old, joking around. There was video evidence of her being forceably injected with medication, and ultimately, there was a video of her dying, because they had been ordered to videotape her. There was also lots of very difficult evidence. The process was different, because it was a coroner's inquest, so nobody's liberty interest was at stake, and there is a bit more flexibility around how you can deal with jurors in those cases. On an ad hoc basis, the coroner, Dr. Carlisle, who was the adjudicator on that case, provided support to the jurors throughout the process and afterwards. We know that the jurors took him up on that offer. We knew very little about it, for obvious confidentiality reasons, but we also know that it continued after the case was over.

That's the only case I've been involved in.

There are unique challenges to trying to do it during the hearing, particularly in a criminal trial, because you don't want someone external to the jury interfering with their deliberative process. I think that's a real challenge in terms of providing support during a criminal trial, because you do want them to be the decision-makers and to receive the instructions from the judge. That was the case I was involved in. I don't know how successful they would say it was, but it was certainly reassuring to all of us who were involved. Also, certainly during that case, I, out of pocket, had mental health supports that I relied on during that process to deal with any issues in a pre-emptive way.

[Murray Rankin, NDP, Victoria, BC]

Is there no law society help for you?

[Breese Davies]

I might have been able to go through the law society. The law society program in Ontario is quite restricted. I did it privately because there was also the matter of juggling schedules, and a lot of what the law society provides, at least in Ontario as I understand it—although I would invite you to get other information from the source—is a lot of over-the-phone counselling and counselling by email. So for me, that wasn't the sort of thing I would have benefited from.

I think there are real restrictions in terms of what is available through the member assistance programs, and they're not consistent across the provinces. Some are better than others. I think my recommendation would be to extend these benefits to people who don't otherwise have access to them. That restriction might be limited if there was a robust support system from the law societies in the province, or it would be available in other provinces where there isn't one.

The last question was about privilege. That's something we have to navigate, absolutely. We would have to respect privilege in any discussions that we have with anybody, but as Dr. Kamkar said, you can talk about the issues without disclosing privileged information.

Often the information that is traumatizing becomes part of the public record. Once it becomes part of the public record—

[Murray Rankin, NDP, Victoria, BC]

I'm talking about when it doesn't.

[Breese Davies]

Right. In fact, defence counsel would be restrained in what they could disclose to a counsellor, and they'd have to be governed by their obligations in terms of privilege, and that would limit the ability. The other thing I think is important is having access to supports that are in person if that's what they need. It's really important to connect people with resources that will work for them as opposed to saying here's a phone number you can call.

[Murray Rankin, NDP, Victoria, BC]

I really appreciated, Mr. Rodrigue, how you helpfully summarized the five recommendations that MHCC made. Numbers two and four were kind of linked. One was that if it's a dramatic case, you should arrange for mental health professionals during the trial, and then of course you said, understandably, that section 649 of the Criminal Code might need to be addressed so people can access professional help. They're very much linked, because you can't do one without the other.

Do you have any thoughts about that and how it might work?

[Michel Rodrigue]

There are other experts around the table who may have more specific ideas.

Around the actual services, the important part is for the individuals to have access to prevention. If you're going to be listening in on very traumatic experiences and those are going to be related during court, you should have access to pretrial training so you get to build resiliency. Then, throughout the case, you should have access to counselling.

There's one area where we are trying to expand because we know have challenges in terms of access to mental health services across Canada, and we are trying to be very creative. We are now trialling a program in Newfoundland and Labrador using e-mental health therapies. In Great Britain, those have been demonstrated to be as effective for mild to moderate depression as face-to-face counselling. There's also an encouraging element, which is that we could be very creative in how we are able to offer these services to jurors.

I'll leave my comments at that and perhaps open it up to others if they want to address it specifically.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair, and thank you to all of the witnesses for coming in today and for all of your compelling testimony.

If I may start with you, Professor Goodman-Delahunty, you spoke about perhaps debriefings by judges to jurors to give them that closure. We did hear testimony previously about this need for closure, which a lot of jurors expressed was so important to them. We also learned that some provinces do it and some judges do it, but it's not something that's across the board.

What is your opinion? Do we need to provide training for judges? If a kind of national action plan were to be created for providing that support to judges, how important is that training piece for judges, and then, building on what Ms. Davies and Ms. MacDonnell said, perhaps moving it to all administrators of the justice system? Can I have your comments?

Then I will ask both of you to comment on that as well.

[Prof. Jane Goodman-Delahunty]

I think there are some judges who are going to be more comfortable with that kind of role and others who are not. It seems to me, in looking at the literature on this topic, that there really are two different models, some where judges have been present but have successfully turned over the facilitation or the debriefing to someone with facilitation and mental health counselling expertise, while the judge is available to fill in on some of the legal aspects. There are other judges who are comfortable doing that on their own, but who may nonetheless benefit from some training.

I don't know that it's imperative that a single type of model be adopted, because I think there will be individual differences with the judges as well. I think what's important is to provide that opportunity.

Some judges simply undertake to have their offices follow up with the jurors and let them know, for example, when a sentencing proceeding may eventuate. It is of much interest to many jurors, particularly if they've participated in the decision on guilt, to know what the follow-up will be so that they are not left simply with the sense of being participants and then being abandoned as the case goes forward. Sometimes jurors do want to attend those follow-up proceedings as well. That sort of facilitation is what many judges feel more comfortable with.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Ms. Davies.

[Breese Davies]

I can tell you what my experience is, which is that it is completely inconsistent. I know some judges do debrief with the jury and give the follow-up information, so for some trials I've been involved in, a number of the jurors showed up for the sentencing hearing. For some trials, none did, and I doubt that there was any debriefing at the end.

You've heard the evidence from jurors about what would be helpful or not helpful, but to the extent that that is going to become part of the process, I think that training judges on how to do that and providing them with support if they do not feel comfortable doing it would be important. If someone else is going to do it, if you're going to have a facilitator, you still run into the section 649 problem, because there may well be discussion in that debriefing that would run afoul of section 649. The one thing that does happen in every jury trial I've ever done is that, at the beginning of the trial, the very first thing jurors are told is that it's a criminal offence to disclose the contents of their deliberation, and usually the very last thing they're told before they leave the courtroom is, “Thank you for your service. It's a criminal offence for you to discuss the contents of your deliberations.”

That is absolutely the clear message, and so I think you need to do something to help jurors navigate what that means. I think if I were a juror completely untrained, I would think that I couldn't talk about any of it with anybody ever in any context. When they are trying to navigate some psychiatric symptom as a result of the trial process or this or that and figure out what's captured or not, I think the message would be that it's all covered, and I don't think they would be wrong in that interpretation.

My experience is inconsistent. If you're going to recommend that this be a consistent practice, I think there needs to be appropriate training.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you.

Following up with regard to section 649 as well, we've heard that the ability to seek counselling not just after but also during.... In your opinion, could there be some colouring of opinion of a juror who could go through the potential process, and in that case, are we having an additional juror just by virtue of a juror seeking counselling during that time of a trial?

[Breese Davies]

I think that would be the concern, that you need to preserve the integrity of the decision-makers, and when there are 12 of them, you need to make sure that the decision is the decision of those 12. There are criminal offences of tampering with juries and interfering with juries. I'm not suggesting counsellors will do that, but given that we have it as a criminal offence, we're obviously concerned with intentional interference, but I think we also have to be worried about unintentional interference with the deliberation process.

I think it's a much more complicated question, in terms of the fairness of the trial and fairness to the accused, to provide supports on an individual basis. That's not to say you can't provide education around the possible symptoms and issues. Education is one thing you can provide. I think providing individual counselling to jurors through the process, which permits them to talk about deliberations, runs a real risk of creating unfairness in the jury process that you won't ever be able to measure. You would never be able to measure whether it's unfairness to the crown or unfairness to the accused, because it would be in a confidential environment.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

My last question is to both of you as well.

Something that came up a lot when we heard from jurors was that the same testimony or evidence or viewing of evidence in a trial affected jurors differently, and whether they need the counselling or not really depends on the individual person and how they internalize what they've seen.

Is there room, then, when it comes to the actual process of selecting the jury, to set in some measures to really allow people to opt out if mental health is a concern to them, or can the onus fall on the lawyers who are going through the jury selection process and the judge too, to ask those pointed questions when they're selecting the jury?

[Prof. Vanessa MacDonnell]

It's a very interesting and complicated question.

With few exceptions, we have resisted any kind of jury vetting on the front end. In the U.S., there is a very extensive voir dire system where potential jurors are asked a number of questions by the lawyers about features that might have a bearing on their jury service. We have not gone that route for all sorts of reasons—for reasons of juror privacy but also because we sort of have to assume that jurors are in a position to serve.

If we start asking too many questions, it's problematic. On the one hand, it might make sense to say, “Well, maybe we should consider asking jurors if they think they might be impacted.” With that type of inquiry, the rationale might come from a very good place, but then, of course, the flip side is the significant risk of stigma, the significant risk that, all of a sudden, we're looking for a particularly mentally fit type of juror, and that kind of inquiry is a lot darker.

Occasionally, there are questions about whether we should question jurors about their competence. There have been some very high-profile cases in the past. In the U.K., for example, it came out after a trial that there was obviously not a basic understanding on the part of jurors of the legal concepts, and those things can have a potentially devastating impact.

Again, the idea of asking jurors...of measuring their competence in advance, can go south very quickly. This kind of questioning raises a lot of difficult questions. I'm a skeptic.