Justice Committee on Feb. 1st, 2018

[Breese Davies]

If I can just jump in, I agree about not going there as a positive step, but jurors are invited to articulate any undue hardship. I think the only thing you could do in this respect is to ask that the questionnaire that gets sent out in advance include that as a potential ground of hardship, one that the court would be willing to consider, if the juror wants to volunteer the information.

I think you have to respect the autonomy of jurors and not create another exit, because we have such a problem with under-representativeness on juries.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Now we're going to go to what we call our “short snap-around” where the question has to be relatively short and pointed. I would also ask that the answer be brief so that we can get as many as possible from members.

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Mr. Chair.

I have two questions. I will pose them both and then the witnesses can answer.

Mr. Rodrigue, you made reference to the need for pretrial training in certain difficult cases where the evidence might be quite gruesome or difficult to deal with. I think you alluded to two training programs in your testimony. I don't know anything about those programs. Perhaps you could just expand on what the scope of that pretrial training would look like.

Professor Goodman-Delahunty, I was wondering if you could talk about some of the programs, if any, that are in place in various states of Australia.

[Michel Rodrigue]

Thank you, Mr. Cooper, for that question. I'll pass it off to my colleague who is primarily responsible for those programs, and he'll be happy to outline briefly what those are.

[Micheal Pietrus]

Basically these are preventative programs designed to make people more aware of their own mental health and mental wellness and look for signs and indicators. We don't want people diagnosing themselves, but you can tell a lot about changes in mood, sleep, addiction issues, and all of those kinds of things. The more aware you are of these, the easier it is to get help.

At the same time, we provide coping strategies to help you move along that continuum to a much more positive and mentally well state. That is what we're looking to do. If you have that kind of situation, where people are going to be exposed to trauma—again, it triggers some people and others are able to deal with it— but if you're aware, you can seek that early help and support to make sure that it doesn't become a much more chronic issue.

[The Chair, Liberal, Anthony Housefather]

Professor Goodman-Delahunty.

[Prof. Jane Goodman-Delahunty]

With respect to the programs in Australia, I'm not aware of any that are pretrial preventative kinds of training, such as we've just heard about. The services that are available through the jury administrators' offices are more akin to what Saskatchewan appears to have, where there are professional counsellors who can be accessed by individual jurors in situations where they feel stressed.

Generally, we've learned that the mere existence of them needs much more publicity to jurors so that the uptake occurs. There have been barriers to their use, simply because although they were there they weren't very evident to jurors who came on board. A great deal needs to be done to make those more visible.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Mendicino.

[Marco Mendicino, Liberal, Eglinton—Lawrence, ON]

I want to pick up on a point raised by Professor MacDonnell around the sharing of jurisdiction when it comes to many of the ideas we've been discussing today around mental health.

We take some guidance from the Criminal Code inasmuch as where the federal government is directly involved in setting some parameters, when you look at the code you see a lot of guidance with regard to the procedure of empanelling and discharging a jury, but there are also some substantive protections around the secrecy of juror deliberations.

A lot of what we've been talking about today around mental health, allowances, hardships, and some of the recommendations that have been put forward actually find themselves in provincial statutes and regulations. My question to you is—you can answer, and then perhaps others can weigh in—for the purposes of this committee's deliberations, as we get our heads wrapped around this collectively, where is the appropriate entry point for the federal government in navigating around the shared jurisdiction of this important issue?

[Prof. Vanessa MacDonnell]

I haven't done a detailed federalism analysis of this issue. I know, though, that Breese has some things to say about the potential spending aspect of things, so I'll leave her a moment.

The way it tends to be framed is that we tend to talk about everything up until the point of empanelment, which tends to be dealt with by the provincial Juries Act. I guess even part of the process of empanelling the jury is where the federal jurisdiction kicks in, with the Criminal Code provisions on peremptory challenges and challenges for cause. A lot of what we're talking about strikes me as being a provincial matter, like you said, the kind of thing you'd find in the Juries Act.

Certainly on this question of juror secrecy, I think that's absolutely a matter for the federal government. Ontario and Saskatchewan recently rolled out these programs. These programs are being implemented provincially, so my sense is that you're talking about collaboration when it comes to a lot of these things, with the feds and the provinces playing an important role.

Maybe, Breese, you want to say something about the spending dimension.

[Breese Davies]

Obviously this is a point of intersection between federal and provincial jurisdiction, where you're talking about the administration of justice. A lot of this, a lot of what we've talked about, has to do with the administration of justice, which is a provincial power, but obviously you also have cost-sharing agreements between the federal government and the provinces. Those have changed over time. We've seen an historic reduction in the federal contribution for things such as legal aid and all of that sort of thing.

My caution is that to the extent that you are going to encourage provinces to do this, which may be all that you decide you can do on a particular issue, that you want to collaborate with them and encourage them to do this as part of their jurisdiction.... I caution that if you encourage them to do it in a particular way within a finite package of financial resources, they will do this at the expense of another part of the system, and almost inevitably that will be at the expense of legal aid funding. Almost inevitably, funding to legal aid and defence counsel is the easiest thing to cut, because nobody's going to be up in arms about that. Other things often get priority.

If you want this to be something that happens across the country, I would encourage you to also think about sharing in the funding of it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

This is a question for Professor Goodman-Delahunty.

You mentioned that New Zealand is a leader in this field. I don't know what you were referring to. You said that about the greater awareness of the conditions in the jury room and so forth. Did they have a counselling support program or the like that led you to conclude they were a leader? What did they do that makes you say that?

[Prof. Jane Goodman-Delahunty]

I was referring specifically to their use of deliberation aids in the form of fact-based question trails, or decision trees for jurors to use to facilitate the decision-making process and not to any other aspect of juror support or counselling.

[Murray Rankin, NDP, Victoria, BC]

Lastly, you said that 20% of Australian jurors take you up on these programs that are available. You said that a general debriefing is positive. What does a general debriefing include? Is that just a conversation with a counsellor at the end?

[Prof. Jane Goodman-Delahunty]

Those are two different things. The counselling service—and those statistics are some years out of date, but they're the most recent we had.

The debriefing is a different process. That is simply a discussion, in open court usually, between the judge and/or someone else. Mostly in the Australian context, it has been judges who have implemented that system of their own volition to provide jurors with closure. That would not necessarily involve a counsellor.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Thanks, everybody, for joining us today. It's been very interesting.

I have a practical question for the folks from Saskatchewan. We heard testimony earlier on in our study about some challenges that jurors were facing at the courthouse itself. Professor Goodman-Delahunty touched on some of the things that can be done to make it more comfortable for jurors, even something as simple as having a window that opens, or a more collaborative atmosphere for jurors.

We heard earlier in testimony that there were issues even with regard to the parking. Sometimes jurors were arriving at the courthouse at the same time as perhaps the victim's family or others who were in the courtroom. I wonder, from the Saskatchewan experience, whether any thought has been given to that, and whether the aim is to make jurors as comfortable as possible.

[Glennis Bihun]

I'm happy to elaborate a little bit on other things going on in Saskatchewan.

The rollout of the juror assistance and support program is really one initiative that's part of an overall review of our jury management system. That overall review certainly includes taking a deeper dive into some emotional supports along with those financial supports. It certainly goes towards education. It certainly goes towards taking a look at the information we have available in our summons packages. It also can certainly take a look at some of those comforts with regard to facilities.

Specifically with regard to parking, we are able to provide parking when jurors have been selected and are participating on a jury itself, so that's something that's allowed for as part of the reimbursement expenses that exist in our regulations.

[Colin Fraser, Liberal, West Nova, NS]

And do they have their own entrance into the courthouse, or are they interacting with people who they may be nervous being next to?

[Glennis Bihun]

I would say that it varies. Saskatchewan has the good fortune of having many beautiful and traditional historic courthouses in our nine judicial centres and that's something to be very proud of. You can appreciate that sometimes what comes with that, particularly as a number of different matters are proceeding at the same time, with some of the complexities of the cases, is that we are finding ourselves experiencing those difficulties.

I'll ask Mr. Miller to address it given his particular experience, as a sheriff, and what he has experienced in those situations.

[Warren Miller]

Specifically, if you're speaking of the Victoria Avenue Court House in Regina, there are only three areas of entrance or exit at that building, so we have to coordinate the egress of accused persons, jurors, witnesses, families, and the public through those three entrances, obviously trying to limit contact wherever possible.

The facilities themselves present challenges but we do our best to manage those.

[Colin Fraser, Liberal, West Nova, NS]

Thanks.

[The Chair, Liberal, Anthony Housefather]

My question is to Professor Goodman-Delahunty. It's a comparative law kind of question.

Ms. Goodman-Delahunty, you've been hearing us talk and opine about section 649 of the Canadian Criminal Code, which restricts jurors from talking about deliberations of the jury post-trial. You talked about your experience from Washington, in the United States, where they don't have such a restriction.

Can you tell us whether in Australia it is federal or state law that would govern that, and whether there would be a distinction between New South Wales and Victoria, etc., and whether there would be any restriction or not?

Based on your accent, I'm guessing you're from South Africa, probably Johannesburg, so I'm asking also whether you know what it is in South Africa as well.