Justice Committee on Feb. 1st, 2018

[Rob Nicholson, Conservative, Niagara Falls, ON]

Some accommodation is available after the trial, is there, for them to discuss these confidential issues?

[Prof. Jane Goodman-Delahunty]

Yes.

[Rob Nicholson, Conservative, Niagara Falls, ON]

You didn't mention among the other issues the question of compensation. What is the compensation down there, if any, or does it vary from state to state in Australia?

[Prof. Jane Goodman-Delahunty]

It varies considerably from state to state. Along the lines of what one of the former speakers said, we have recommended that the compensation be increased where it was clearly out of date or where people had to rely on employers as well.

For example, in Sydney, one of the difficulties is that many jurors, if they turn up and are not required to stay beyond 1 p.m., get zero compensation. This was seen as a disincentive as well, so in line with some of the thinking we've heard from other speakers today, we recommended that a respectful sign for jurors would be to compensate them adequately for their time so they're not facing excusal by losing money or bearing a financial burden on top of other burdens associated with jury duty.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for that.

You, Ms. MacDonnell, raised this issue as well. Wouldn't you agree that not only do jurors experience the stress of what they're hearing and the actual court case, but adding to their stress can be the fact that outside of the jury, their home situation is being challenged because they're not getting the resources they need, or the home care, elder care, child care, and all that sort of thing? That, it seems to me, would be a huge stress.

[Prof. Vanessa MacDonnell]

I think it's absolutely true that it's a stress if the potential juror even gets that far, right? One of the concerns is that individuals will seek pre-emptively to be excused. Potential jurors who've received a summons will seek to be excused on the basis that they have child care responsibilities or the like—

[Rob Nicholson, Conservative, Niagara Falls, ON]

They can't afford it.

[Prof. Vanessa MacDonnell]

A lot of the time, either these individuals are excused before they ever show up to court or they show up to court and provide their explanation and they're excused. That obviously is a huge problem.

Then, of course, for those jurors who do end up sitting, this inadequate income supplement is a big problem. There was some mention of travel. This is another significant factor, particularly in Ontario. For example, I believe in North Bay, that one centre holds jury trials, and this is one of the biggest judicial districts in the province. Now, excuse me if I've confused North Bay and Thunder Bay; I'm not from Ontario.

It's a huge problem. It means that people are often required to travel quite some distance not only to have their trial heard if they're an accused person, but also to serve on a jury. This has been one reason among many why there's been a real issue with indigenous people not ending up on juries. We need to think about the cost of requiring people to travel if they need to travel. What's the cost of meals, for example? If a jury is sequestered, there are potential costs associated there, too, so there's a need to think about this closely.

If you don't mind, I may also just pick up on your point about section 649 of the code, the juror secrecy rule. Just putting on my constitutional lawyer hat for a moment here, or my constitutional law professor hat, there's some question about how much of this the federal government can act on and how much will require some collaboration with the provinces.

Certainly one thing that the feds could do that would help support this initiative would be to propose some amendments to section 649. In my view, this could be done fairly narrowly. It depends on how broad you want to go, of course, but you could just amend the juror secrecy provisions of the code to allow individuals to access a counsellor, and of course we already know that these counselling services are confidential. For many of the concerns that animate the juror secrecy rule, such as the desire for decisions to be final, the desire to preserve the integrity of the deliberation process, and preventing jurors from being subsequently harassed, none of those concerns are really at play if you create a narrow exception that allows people to—

[Rob Nicholson, Conservative, Niagara Falls, ON]

You could give us a possible draft for changes to section 649.

[Voices]

Oh, oh!

[Prof. Vanessa MacDonnell]

It would be only a sentence or two.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Good.

[Prof. Vanessa MacDonnell]

It's really not complicated.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Good. If you want to give any thoughts on that, we would be very interested in seeing that.

I know I'm running out of time, Mr. Chair.

Mr. Rodrigue, thank you so much for your comments here and your five points, which we will have to look at and explore.

Ms. Davies, I was intrigued by one report, which I think you said was out of the University of Toronto, about the mental health of lawyers. What was the name of that again?

I'd like to get a copy of that, Mr. Chair.

[Breese Davies]

Sure. I can find it. It's by a professor by the name of Ronit Dinovitzer. She does a lot of research in the U.S. and some in Canada around the mental health of lawyers. I can certainly find a link to that report and get it to you.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I would very much appreciate that. I think that would be very insightful.

[Breese Davies]

The most recent one is an American study of about 12,000 lawyers. It's a very extensive study. I can get that to you through the chair of the committee.

[The Chair, Liberal, Anthony Housefather]

Thank you. We'll circulate it as soon as we get it.

Next, we will move to Mr. McKinnon.

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

I'd like to start with Dr. Kamkar, please. We've heard so much testimony today and through many of the other days of our study about the stresses that arise throughout the whole process of the trial. One of the big things that seem to be needed is the ability to have counselling during the trial as well as afterwards.

My question to you, Dr. Kamkar, is, given the state of affairs now where they can't actually talk about the trial during or after it, how does that affect counselling?

[Katy Kamkar]

Thank you very much for that question. It's very important.

A lot of times, it's not necessarily the content or the details of the trauma. I remind myself I'm providing CBT for trauma almost every day. It's not necessarily the content, but a lot of times, as we talked about, it's about the beliefs around the trauma, and also the stressors surrounding it. In that case, we talked about stress around the deliberation, the outcome, the fear of making a mistake, whether someone is part of the majority vote or the minority vote, the pressure, and the time. There's also, whenever the trial ends, what they hear in the media, the family's opinion, and friends' opinions. People start talking about it. There is people's perception of them. A lot of times, a lot of the stress is not necessarily around the actual content but it's mostly about the perception that they might develop about themselves, and about others, and they're concerned about others' perception of them.

The other thing here—as you mentioned and as I appreciate—is really for us to view it on a continuum. We always look at mental health promotion, prevention, and early intervention. As you said, during the trial and after... a lot of times, there could be things even prior to the trial. To say, you know what, there are some expectations here. We know expectations prior to attending an event are very key to our emotional distress. Having any kind of unhealthy coping for anxiety, especially anticipatory anxiety, and going from their normal life to jury duty with that, but also throughout the trial as well, so if they go through any emotional distress, what could be some key healthy strategies that they could use to better deal with the distress?

Again, we can view it on a continuum and it can maybe help to prevent someone going from mild to moderate symptoms or moderate to severe symptoms—anything, of course, that could help prevent the onset of a psychological disorder, as well as after the trial, for anyone who would need to have access to that. Even knowing that there is access provides a sense of peace of mind as well.

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

Thank you.

Saskatchewan, for example, has provided for up to four sessions and an additional four, if recommended by the therapist, I understand. Is that an approach that you see has...?

I guess I'm concerned by the rigidness, as it seems to me, of that process. Do you think that works for effective counselling?

[Katy Kamkar]

There's always a concern whenever we set any limit. There are significant individual differences. It could be that sometimes after the trial we might deal with normal issues but also with adjustment-related issues that might resolve in about two or three months. Sometimes it could be the onset of panic attacks. If I do not know how to deal with my panic attacks, I might start feeling demoralized. I might start avoiding going to places or returning to my work.

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

Would you say that the prescription for counselling needs to be more open-ended?

[Katy Kamkar]

Yes, to ensure everyone has good access and good care, absolutely.

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

Thank you.