Justice Committee on Feb. 8th, 2018

[Murray Rankin, NDP, Victoria, BC]

I was thinking as you spoke that brochures left in a jury room don't really do very much, but that maybe the kind of downloads that we've heard about from the CSA witnesses, combined with a link to a telephone line, could be a way of comprehensively reaching out and making clear that it's not just about suicide but, as you put it, a juror helpline and website, if you will. That might do the trick.

[Prof. Cheryl Thomas]

I think that's a very good idea. What we've found from research in relation to the juror notice is that if it is simply left in the jury lounge, it is not half as effective. The point is that it is given to only jurors who are sworn onto a jury and, in effect, given to those individual jurors by the judge when the judge is providing his or her opening remarks to the jury. This makes jurors feel that this information is much more important and much more accessible.

[Murray Rankin, NDP, Victoria, BC]

I have a final question, please, for Ms. Hannaford-Agor, if I may.

I had the impression, when you related your experience from the Center for Jury Studies at the state court level, that the problem might not be as significant as we might think. It seems that, yes, stress is cumulative, but I came away from your remarks thinking that maybe it wasn't as big a problem. According to one of our researchers, Mr. Alain Brunet at the Douglas Mental Health University Institute, his research led him to conclude that between 10% and 15% of jurors who were exposed to gruesome evidence suffer from post-traumatic stress.

For the United States, does that seem about right to you, that kind of ballpark figure of the jurors suffering from symptoms associated with PTSD?

[Paula Hannaford-Agor]

I apologize. For some reason, the lights are going crazy.

[Murray Rankin, NDP, Victoria, BC]

We can still see you some of the time.

[Paula Hannaford-Agor]

Just to answer your question, I'm quite struck, because that was our experience, too, that about 10% of jurors actually experienced high levels of stress. I think the similarity in those percentages is quite telling. The symptoms might not clinically be PTSD, but certainly similar or at least a mild form of PTSD.

I think it really comes down to what types of cases we are seeing. In the United States, we've had a rather dramatic decrease in the number of cases that go to trial. On the criminal side, there are plea bargains or plea agreements, and on the civil side, many of them are just settlements, particularly in court cases. Today I don't have statistics on this, but I suspect that jurors are actually being exposed to much less traumatic cases than they were 20 years ago when we first did our study.

So the incidence of juror stress may not be as severe as it was 20 years ago, but for those cases that do take place, particularly capital trials or the cases with very gruesome evidence, probably about 10% of the jurors would still experience that type of stress.

[Murray Rankin, NDP, Victoria, BC]

Thank you very much, all of you.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you all very much for joining us today.

Ms. Hannaford-Agor, if I could start with you, I'm sorry to see that it looks like your room is quite stressful when we're talking about stress here today. I hope you'll be able to manage through the rest of my questions without too much more drama.

You talked about a debrief after the trial and possibly having a psychologist come in to give everybody some idea of what they've just been through. In practice, do you think it would make sense for that to be mandatory for the jurors to have to go through, or is that too much of an obligation to put on them? As we know, everybody experiences these sorts of things differently and perhaps some people can walk away fine, whereas others need a little bit more attention or perhaps even counselling.

I am wondering what your thoughts are on that, whether it should be mandatory or not and what that might look like.

[Paula Hannaford-Agor]

That's been one of the big drawbacks and criticisms of the debriefing after trial: that jurors, particularly after a long trial or a trial that's been particularly difficult, are usually exhausted and just kind of numb from the experience. As to having that debriefing immediately after the trial, many of them can't appreciate it, and they walk away from any of the benefits. They'd really rather not be there.

Typically, it's maybe a couple of days later or a week or so later when they realize that, yes, that case is still bothering them. They're still thinking about it a lot, maybe having nightmares about it, and finding that their blood pressure is up. They realize at that point that they need some additional help, as opposed to immediately after the trial.

[Colin Fraser, Liberal, West Nova, NS]

If I can turn to another issue, then, we've heard from some jurors who already have testified for this study that when they were done, they felt like they were just shown the door, basically, and it was a matter of, “Thank you very much for your service”. If a guilty verdict was rendered, they weren't kept informed about what happened the rest of the way through for sentencing in a criminal matter, or whatever else might arise. Do you have any comments on that and on whether it would be helpful for jurors to be given the option of being informed about the rest of the case after their job is done?

[Paula Hannaford-Agor]

Actually, a lot of state court judges now make a point of meeting with the jurors after the trial is over, not in a semi-formal environment but an environment that is less formal than a courtroom, first of all just to say, “Thank you for being here”, and also to answer any questions they may permissibly answer. There are some things that they obviously cannot discuss with the jurors, but jurors have a lot of questions. What we've heard from judges who routinely do this is that they have an opportunity to learn a lot from jurors, and jurors really appreciate the extra acknowledgement by the judges of their participation.

Typically, those judges will also give them some ideas about what to do if they encounter difficulties after trial, particularly if it's been a difficult trial, and will say to them that they can contact the court. Many jurors will say they would like to know what happens with a case. If there's going to be a sentencing in a couple of weeks or a couple of months later, jurors would like to hear more about what happens to the case, so efforts will be made to send out notices of hearings and things.

As well, in this country, because we do have the first amendment and media often contact jurors, particularly in high-profile cases, they're told what to expect from the media and told that they don't have to talk to the media, and they're given just some tips on how to work through some of those issues post trial, such as difficulties with employers, for example, who were not happy about people who had to serve, especially on long trials.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

That leads into the next question I was going to ask of Professor Thomas. In Canada we have a prohibition in the Criminal Code against jurors speaking about the conversations, discussions, and deliberations that happened while on a jury. I know that it's different in the United States, but in the U.K., as you mentioned, there is the jury secrecy rule.

Based on what we're hearing in this committee, we're debating perhaps making an amendment to section 649 of the Criminal Code of Canada, the jury deliberation rule, to allow an exception, like they do in Australia, for discussing the jury deliberations with a person for therapeutic purposes or mental health counselling. Do you know if that discussion has happened in the U.K.? What are your thoughts on an exception like that to the usual rule?

[Prof. Cheryl Thomas]

Yes, that has been discussed to some extent here. We have exactly the same rule prohibiting revelation of anything that was said or done in the jury deliberating room.

In relation to counselling, the approach here is that there's confidentiality between therapist and patient. That's generally seen to cover the issue. It comes up in relation to the Samaritans as well. Of course, with the Samaritans that's a completely confidential discussion. The individual Samaritan will never know the identity of the person calling, and the person calling will never know the actual identity of the Samaritan. In effect, the issue of breaching disclosure that could be prosecuted wouldn't actually arise in either of those instances, because they're covered by confidentiality.

The only exception we have at present to the prohibition on discussing what happens in the deliberating room is for the purposes of an investigation into any misconduct that might have occurred on the part of the jury. Until the recent act, that was also covered, so the court was actually prohibited from inquiring into possible misconduct on the part of the jury.

[Colin Fraser, Liberal, West Nova, NS]

Confidentiality doesn't necessarily obviate, though, the criminal sanction the person may face if they're the one breaching the law. I'd be a little concerned that the individual would not necessarily be aware of that, and that even if they read the Criminal Code, they still might think they weren't allowed to talk to someone else for therapeutic purposes. So I'm not sure that entirely covers it, from my perspective.

[Prof. Cheryl Thomas]

No, it doesn't cover it from a purely legal point of view. What I'm saying, though, is that the practicalities of pursuing that here is not the main source of concern. The main source of concern here has been that jurors actually understand what their legal responsibilities are and that they have a means of discussing their experience of jury service in a confidential way post trial.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much. That's very helpful.

[The Chair, Liberal, Anthony Housefather]

Members, we'll now go to short snappers. If you have a shorter question, feel free to put your hand up and I'll recognize you.

I'll ask the witnesses to give a bit shorter answers to these questions.

Mr. Duvall.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Thanks very much. I'm sorry about coming in late. I'm just filling in here.

I've listened to some of my residents in Hamilton, where I come from, and one of their issues when it comes to jury duty is the amount of compensation they get, or the amount of money they're losing by serving. The compensation they get for jury duty is very, very little. They want to be good citizens. They want to do what the government asks them to do in the court system. However, they have expenses—it could be travelling, it could be child care, it could be a loss of wages—that create big hardships for them.

I'm wondering if the witnesses can give us anything on this issue. Do they think there should be fairness for everybody, so that whatever loss of wages people incur might be reimbursed, and any expenses?

I don't know who wants to answer that.

[The Chair, Liberal, Anthony Housefather]

Ms. Hannaford-Agor, please go ahead.

[Paula Hannaford-Agor]

I can weigh in a little bit. In the United States about eight states have enacted legislation that requires employers to compensate employees who are summoned for jury service with their regular wages for a certain period of time. Typically it's about three to five days, so up to a week of jury service. That is enough to cover probably about 90% or 95% of most the trials in the United States. That actually puts the burden on employers, largely because they are deriving the benefit of the justice system by virtue of their corporate citizenship. That's been the justification. There are eight states right now who have done that.

Arizona, in addition, has put in place what they call the “lengthy trial” fund for cases that last longer than five days. Jurors are reimbursed their regular wages up to $300 a day, which is enough to cover everyone except the highest-income jurors. They are compensated out of a fund that comes from civil filing fees. I think it's a $15 charge for filing a civil case in Arizona. It goes into this fund, which has basically been self-sustaining. It allows jurors to be able to serve on much longer trials, including trials of a month long or several months long.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Thank you for that answer. Just to follow up on that, because I heard you say they have different methods in different, why is it not universal right across the country?

[Paula Hannaford-Agor]

It's the United States, and states' rights are important. The federal law just basically does not get involved in state rules about employer compensation.

[Scott Duvall, NDP, Hamilton Mountain, ON]

Okay. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. It's the same as in Canada; it's provincial.

Can I just ask Professor Thomas one question related to the Samaritans? Is there a contract, then, between the Government of the U.K. and the Samaritans to do this? Do they have any special training on jurors? How does that work?