Evidence of meeting #84 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.
5:10 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
I have a question for Dr. Donaldson or Mr. Bornstein.
We've looked at jury support programs provided in a number of provinces and in two states in Australia. Are you aware of any jury support program in any U.S. state, or perhaps provided by a court in the U.S., that is a model or that we perhaps should look to as we consider the range of services and the scope of what a proper jury support program should look like in Canada?
5:10 p.m.
Professor of Psychology, Courtesy Professor of Law, University of Nebraska-Lincoln, As an Individual
It's a good question. None leap to mind. In my experience, it's done very much on an ad hoc basis by individual courts and individual judges. In some cases, there are a few jurisdictions that are experimenting with things like orientation videos or the rates of pay. Some states have raised the level of pay. They're addressing some stressors like that, but I can't think of one that has been more comprehensive in terms of addressing the issue.
5:10 p.m.
Vice-President, American Society of Trial Consultants
Texas has a program. Texas has instilled legislation that has a program such as that. I have a couple of articles that I will forward to the committee on not only a summary of what state courts have concluded and are implementing as changes, but also, to answer your question, the states. I know that New Jersey doesn't have a formal program, but it's something that everyone in the court system is sensitive to. I will send you those articles.
5:10 p.m.
Liberal
The Chair Liberal Anthony Housefather
Mr. Dore, in the state of Victoria, what is the cost to the state of the juror support program, and is there any contribution from the national government?
5:10 p.m.
Juries Commissioner, Court Services Victoria
The answer to the second question is no, and the answer to the first is less than $10,000 a year. We are paying the cost of the hourly rate of a counsellor, which is around $170 an hour, and for some of the promotional collateral such as the pamphlets and those sorts of things. The issue is that it is a tap that may have to be turned on as the uptake is increased.
5:10 p.m.
Liberal
The Chair Liberal Anthony Housefather
I have a second question. You've heard us talk about our section 649 of the Criminal Code, which prohibits discussion of deliberations post trial.
As Ms. Donaldson mentioned, in the United States, there is no such restriction on the jurors. Nobody can compel them to speak, but they have every right to speak, to write books, and to talk about the deliberations. What is the system like in Australia? What are the rights of jurors? Is there an exception for mental health counselling, etc.?
5:10 p.m.
Juries Commissioner, Court Services Victoria
Yes, I wish you hadn't said “write books”, because when I speak to jurors, students, or anybody else, the first thing I say to them is that if their understanding of the jury system in Victoria is based on American TV, they have to get that out of their head. I always say, yes, they can go and write a book, and CNN can interview them, but for us, section 78 of our act sets out a provision that sounds similar to what you have, which is that the deliberations are sacrosanct, that a juror can't discuss the deliberations.
Interestingly, it says, in subsection 78(5):
Nothing [in those previous subsections] prevents a person who has been a juror from disclosing any statements made, opinions expressed, arguments advanced or votes cast in the course of the deliberations of that jury to a registered medical practitioner or a registered psychologist in the course of treatment in relation to issues arising out of the person's service....
It's very explicit.
5:15 p.m.
Liberal
The Chair Liberal Anthony Housefather
That's very helpful. I think we'll look at that very closely. Thank you very much.
Mr. Fonseca has a question.
5:15 p.m.
Liberal
Peter Fonseca Liberal Mississauga East—Cooksville, ON
This is a follow-up to the Chair's question, Mr. Dore, in regard to cost. In terms of compensation costs for the State of Victoria, what would the compensation be for all those wages that you'd make up for all the jurors? That costs the treasury.
5:15 p.m.
Juries Commissioner, Court Services Victoria
Do you mean the actual paying of jurors to be at court?
5:15 p.m.
Liberal
5:15 p.m.
Liberal
The Chair Liberal Anthony Housefather
No, the employers. He was saying that in Australia the employers have to pay the employees during their jury service at their standard wages, regardless of whether they're a CEO or not. That's what he had said.
Sorry, Mr. Dore. I'm just letting Mr. Fonseca know what you said.
Maybe Mr. Fonseca can now revise his question.
5:15 p.m.
Liberal
Peter Fonseca Liberal Mississauga East—Cooksville, ON
All right. I don't know if he would have an estimate on that cost to the employers.
5:15 p.m.
Juries Commissioner, Court Services Victoria
I need to make one clarification. In Australia, there is a Fair Work Act. It states in section 111 that the employer has an obligation to make up the pay of a juror. That act says that this obligation ends after 10 days, but the next section of that act says if a state law is “more beneficial”, then the state law will apply. In Victoria, because of the wording of our legislation around the obligation of the employer, it means that we override the Fair Work Act.
In Victoria, we pay $40 a day for the first six days and $80 a day thereafter, but the employer has to make up the pay. In other states, they'll pay more than $40 a day—I can't quote all the numbers—and then at day 11, they'll pay even more, knowing that the employer doesn't have an obligation to make up the pay.
As for the answer to your question around the cost to employers or to the economy, an economist would have to answer that question. I just can't answer it.
5:15 p.m.
Liberal
The Chair Liberal Anthony Housefather
Is Victoria the only state that has the rule that says after 10 days the employer has to pay?
5:15 p.m.
Juries Commissioner, Court Services Victoria
Well, it's not so much that the 10-day rule says that the employer.... The legislation in Victoria, in subsection 52(2), says:
Despite any inconsistent term in a contract of employment, an employee who has been summoned for jury service and who has attended court, whether or not he or she has actually served on a jury, is entitled to be reimbursed by his or her employer an amount equal to the difference between the amount of remuneration paid under section 51 and the amount that he or she could reasonably expect to have received from the employer as earnings for that period had he or she not been performing jury service.
It's silent on how long that period is, whereas the federal legislation says the obligation to the employer ends at 10 days, but then the federal legislation says that if you can get a better deal under state legislation, you can.
I can only say that in New South Wales, their stated obligation for the employer is not open to interpretation, to allow the 11th day to be the employer's obligation. I don't know if I've answered that succinctly, but each state has varying ways of compensating jurors.
5:15 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
I'm very briefly following up on the Chair's question. I think you quoted from subsection 78(5), where there's an exception to allow a juror to discuss things with a medical practitioner, or whatever the terminology you used was. First of all, what act is that?
5:20 p.m.
Juries Commissioner, Court Services Victoria
It's the Juries Act 2000 (Vic), so it's a Victorian legislation.
5:20 p.m.
Liberal
Colin Fraser Liberal West Nova, NS
Are you aware of any problems, criticism, or any litigation arising from that particular section?