Justice Committee on Feb. 6th, 2018

[Sandra Donaldson]

In the United States, once a juror is done with a trial the judge says, “You are free to speak with anyone you wish to speak to about your experience”, so they do have the opportunity. I've conducted a lot of post-trial juror interviews and the jurors, particularly in longer trials or particularly in traumatic trials, become close friends and support units for each other. That support system helps alleviate the need for counselling because they do have someone they can reach out to who experienced the same thing.

There's a movement going around on court reform that is testing whether or not jurors should be allowed to talk about the trial during the course of the trial. Whenever they are in the jury room, they could start to talk about some of the evidence and what they are seeing, with the idea that if it is an interactive, ongoing process, they ultimately have to reach a decision. Of course, the opposite side of that is the concern that there's undue influence by one particular juror or their misunderstanding of the evidence that would affect the verdict.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Bornstein, we heard some evidence in previous testimony that, after a verdict is made in a criminal case, jurors feel like their job is done. They're shown the door, out they go, and they don't know what the resulting sentence might be. They don't know anything more about that case.

Do you think it would be helpful for the court to actually keep them informed about the rest of the matter after they walk out the door, as part of the debriefing process, or is it better to just let things go?

[Dr. Brian Bornstein]

I think that it would definitely be beneficial to give them more information, as opposed to less. The jurors I have talked to have very often had a lot of questions about things, like what the eventual sentence was going to be or why they didn't hear about this sort of evidence. When they've been allowed to talk to the judge in some sort of debriefing afterwards, they can often get those questions answered. They might not be able to do that, depending on whether it raises a legal issue and so forth.

In many cases, one of the things that does bother jurors is not knowing some of the things, like what you are talking about, so I think it would definitely be helpful.

What works against that to some extent is that after the trial is done some of the jurors are just done. For however long the trial has lasted, they've given over a significant part of their lives to dealing with this. They're behind on work. They've had to pay a babysitter for extra time. When I have tried to collect data on jurors after the trial, it's been a pretty even split. About half of them are very eager to talk about it and the other half say they have given their week over to this and they just want to get home and deal with all the other stuff they have to deal with.

Those are going to be competing factors.

[The Chair, Liberal, Anthony Housefather]

It's now Mr. Rankin's time.

I'm sure we'll get more questions from Mr. Trudell and then I'll come back.

[Murray Rankin, NDP, Victoria, BC]

I appreciate that because it was just fascinating. I understand the frustration my friend feels.

I want to start with Mr. Mossey. Thank you for being with us.

Particularly given the realities of Nunavut and remote communities, often I'm guessing that jury trials would take place in Iqaluit and people might come from away. Are there any programs available? Are there unique cultural issues that you have identified in your practice that would help us understand what to do in remote places like Nunavut?

[Mark Mossey]

Thanks, Mr. Rankin. That's a good question.

I would say that the vast majority of our jury trials actually take place in the communities, not in Iqaluit.

I was just canvassing the office before I came in, and we can't remember the last time we had a full jury trial in Iqaluit, but looking at the schedule, we had two back-to-back in a month scheduled for Rankin Inlet.

I think Nunavut is very much an outlier when we're talking about juries, especially when I hear the evidence put forward by my fellow witnesses. In Victoria, Australia, there is a pool of 170,000 people. We have 810 eligible individuals in Pond Inlet to serve on a jury. If we do back-to-back juries in the community and we pool 250 people each time, we expel the entire adult population very quickly.

We're a travelling circuit court. I've put a lot of this in my written brief, so excuse me for any repetition. We have one permanent courthouse in Nunavut, and that's where I'm sitting right now. We travel to the other 24 communities weekly. We do 100-odd circuits per year.

When we go into the community to do a jury trial, we don't have a courthouse. We set up in a school gymnasium, a community hall, or a hamlet office. We put a jury to deliberate in what is not the most ideal of situations, and then, when the verdict is over, the court party gets on an airplane and comes back to Iqaluit.

I found Ms. Donaldson's testimony extremely interesting and fascinating, and it's something I have to follow up on, but to hear that only 10% of jurors experience this extreme stress is something that just doesn't really apply in the Nunavut context.

You'll find a quote in the paper I submitted indicating that in these communities there are sometimes only hundreds of people. There are not thousands or tens of thousands. It's inevitable that those 12 people sitting on the jury know the accused and know the complainant. They may be a second cousin to those people, so to think that they're not stressed or burdened by this on a very high level is a misnomer. Nunavut is an outlier here, much like in a lot of contexts for Nunavut.

I hope I've addressed your question, Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

You have. Thank you very much.

Mr. Trudell, just to go back to the point you were exploring with Mr. Fraser, one idea I wonder about is if one were to, in a sense, find what you called an escape exception to section 649, so that people could talk to a therapist and not violate the jury confidentiality rules. Couldn't one reinforce that by professional discipline with respect to the therapist?

In other words, if you are able, with an amendment, to talk to a therapist after the trial is over and you're experiencing serious PTSD, like Mr. Farrant whom you referenced, then that therapist could be made subject to professional discipline rules if he or she were ever to disclose to anyone for any reason what they had heard at the time. It's sort of belt and suspenders. You suggested an amendment to the section of the Criminal Code, but one could reinforce that with professional discipline requirements.

[William Trudell]

Mr. Rankin, in my other life I spent a great deal of time representing professionals, and there is no question that I would suggest we don't need to amend it because professionals are regulated very strictly. Any doctor who breached the confidentiality of the patient relationship, let alone the Criminal Code, would certainly risk losing their licence.

One of the things we need to pay attention to, in fairness to jurors, is the role of the media. How many cases end when the front page of the media says what the jury didn't hear and all the evidence of the voir dire that a judge has decided is inadmissible is splashed in the newspapers? This is unfair to jurors. It goes back to the idea that they should be told in the beginning that there are going to be things that the judge rules on that they're not going to hear about.

A juror could feel cheated, quite frankly, if they walk out and haven't had a debriefing, and then they read about it in the newspaper. I think that the community has a collective responsibility to respect the jurors and not to make their jobs harder. It's one of the after-effects.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I really appreciated your testimony as well, Ms. Donaldson. I thought it was helpful that you gave us a list of specific recommendations.

The idea that more time would be allowed to have a voir dire to help identify problems that a judge would have, obviously without the jury being present, sounds like a really good idea.

I was concerned about the other idea that you had, however, about steps like a paint gun to limit the impact, using a paint gun rather than showing the horrible pictures that would cause trauma. Isn't it true that sometimes a district attorney in your system would want the visual impact in order to persuade those jurors of the horrible human cost of a particular murder or something? Does that always apply?

[Sandra Donaldson]

That's the rub. Prosecutors or plaintiffs in personal injury cases want to make the evidence as graphic and real as possible because their support is going to come from jurors who feel the pain and identify with the victim. The defence on the other side wants to make it into more of a clinical presentation, use the paint gun situations, remove that element of emotion. Humanly, that's not possible. It does help to reduce, but if the concern is doing harm to jurors—

[Murray Rankin, NDP, Victoria, BC]

But you're not going to tie the hands, in your solution, of a prosecution that wants to get maximum penal consequence from the pictures. This makes perfect sense.

[Sandra Donaldson]

Unless a judge helps to control because of the graphics. The parties have to talk to a judge, and generally they won't come to an agreement. They just have opposing strategies for trial.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you to everyone for providing us with very helpful information.

Mr. Dore, you were explaining to us the uptake of services by former jurors in Victoria. As I think you heard, we have the same challenge in Ontario as well. The anecdotal evidence we are provided suggests that the numbers are very low as well.

When you were devising and implementing the jury support system, was any thought focused on the issue of stigma and how to work one's way around that so jurors feel more comfortable coming forward and seeking help if need be?

[Paul Dore]

We carefully crafted our communications in consultation with the counselling service. We started from a position that we start with in all areas of jury service. We say to citizens this is the last type of conscription available to the state. You didn't choose to be a juror. You were randomly selected from the electoral role. There are some opportunities for you to apply to be excused if you need to be excused. If you are eligible, and you're not disqualified from jury service, then you're obligated to at least show up with your summons.

We go through an orientation that sets out what they can expect. Then we say to them a reaction, call it stress or whatever—I'm not a psychologist—is a normal response to an abnormal situation. Then finally we say to them we won't know if you phone this 1-300 number. We are almost flippant about it. That's probably the wrong word. I don't know if people do. I get a bill from the counselling service that says this is how many hours we did. I don't know who phoned, from what trials. It's only for the purposes of this session that I got the stats. All I can tell you is it was 17 people. Some were from Melbourne and some were from regional Victoria. There are 13 regions. I don't know which of those 13 regions. I think the stigma can be minimized by that sense that it is absolutely confidential, and it is absolutely up to you whether you pick up the phone.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you very much.

Mr. Bornstein, during your testimony, you highlighted the extent to which fatigue or evidence of anxiety could lead to jurors making mistakes. It impairs their judgment. That's very intuitive for us. We can accept that.

Could you perhaps delve into that in more detail and sensitize us as to how much of an impact these things can have on a juror's judgment?

[Dr. Brian Bornstein]

You raise a couple of interesting aspects of what's going on, fatigue being one, but also the stress level. In some of these cases, like Ms. Donaldson was describing, the trial goes on for months or years. Jurors become bored. The first thing you learn when you observe a jury trial is it's not at all like the jury trials on TV; in fact, they're really tedious, even ones that are sensationalized cases. The manner in which attorneys are required to phrase their questions and how the evidence is presented can drag on and on. It's not unusual to see jurors sleeping, at least in American trials. In longer trials, jurors are clearly not paying attention for long periods of time. If they're allowed to have their phones with them, they're on their phones, so many courts now require them to leave the phones in the jury room so they can't do that. Fatigue and boredom are going to work against the ability to process the information, pretty much in the way you'd expect.

The issue of jurors being upset by what is going on is a little trickier, because to some extent that increases their ability to pay attention. If they become more alert because they're shown some interesting pictures of the crime scene, or what have you, they might pay attention a little more. However, that can reach a point where their anxiety level becomes so pronounced that it makes it harder for them to pay attention, or they're paying attention to aspects of it that might not be legally appropriate, so it can become prejudicial in some of those cases as well. We would describe that as an inverted U-shaped function, to use technical language. Up to a point, maintaining interest and having some sort of arousal level can be beneficial, but then past a point it can be counterproductive.

[Ali Ehsassi, Liberal, Willowdale, ON]

My last question is to Mr. Trudell. Given that we are talking about lengthy trials, one of the recommendations we've heard is that if a particular trial is dealing with a horrific case, perhaps we should consider providing breaks along the way. What would your view of that be? Would that throw the administration of justice into disrepute, or is that something you would be in favour of?

[William Trudell]

We've moved to a real energized case management system in this country in criminal justice and in civil cases. I think the national steering committee did a paper on case management. A judge will assess the case—that's what we ask them to do—and decide whether it's appropriate to take breaks. I'm not sure what you mean by breaks, in terms of how long; I don't know what people have said. A judge can work that out with counsel and maybe consult with the jurors, decide that a case is going to take a long time, and therefore not sit on Fridays or something. I don't recommend a three-week break, but certainly shorter days, a four-day week.... If a case is going to take four or five months, a judge is not going to sit every day, hopefully, because it's just not going to work. The jurors are going to lose patience and it's not going to work.

It's a human system, and I really think judges with case management are managing. They know what's coming, that breaks are important, and that jurors want breaks. There's nothing the matter with saying to jurors, “We're going to sit until three o'clock today, or we might...what do you think?”

The foreman or somebody is going to say, “Let's go home,” or “No, we'll sit.”

It's a human thing. It's up to the management of a case. That's what judges are skilled in doing and are being trained to do more often.

[Sandra Donaldson]

I have a small comment on that.

Many trials I've been involved in have had naturally occurring breaks, like a four-day weekend for Thanksgiving or the holidays, or the Jewish holidays in September and October. There are many breaks in a trial. In New Orleans, they break for Mardi Gras, and their court is closed for a week. What's done in some of those situations is that mini-summations are allowed. When the jurors come back, each side is allowed to give a very mini-summation of the evidence that has occurred so far, just to kind of bring everyone back and up to speed with what's occurred.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Now we're going to go to questions from people who haven't yet asked.

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you to all the witnesses here. This is very important. This is the first time, to my knowledge, the Canadian Parliament has focused specifically on the needs and the concerns of jurors. Your testimony here today is very helpful.

First of all, Professor Bornstein, you indicated you have put together a lot of studies over the years. Are these online, something that we could access? Is there a way to get some of that material?

[Dr. Brian Bornstein]

The ones that are not readily available I would be happy to send.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I wonder if we could make arrangements for that. I think that would be very helpful.