Justice Committee on May 31st, 2022

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Welcome to meeting number 20 of the House of Commons Standing Committee on Justice and Human Rights.

Pursuant to the order of reference of Wednesday, May 18, the committee is meeting to study Bill S-206, an act to amend the Criminal Code (disclosure of information by jurors). We will also go in camera to discuss the travel plans for this fall and to adopt a budget.

Today's meeting is taking place in a hybrid format pursuant to the House order of November 25, 2021. Members are attending in person in the room and remotely using the Zoom application. The proceedings will be made available via the House of Commons website.

For those on Zoom, you have the choice at the bottom of your screen of floor, English or French audio. For those in the room, you can use your earpiece and select the desired channel.

I'd now like to welcome our witnesses. First we have Mr. Michael Cooper, member of Parliament for St. Albert—Edmonton, who is also a member of this committee. We also have Mark Farrant, founder and chief executive officer of The Canadian Juries Commission.

Mr. Cooper, it's at your discretion. You said you wanted only five minutes, but you have up to 10.

Mr. Farrant, it's the same for you. It's however succinct you want to make it.

I'll let you guys take it from there.

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

Thank you very much, Mr. Chair and members of the committee. It's an honour to be here, as the House of Commons sponsor, to present Bill S-206.

Three years ago, I appeared before this committee with Mark Farrant to testify in relation to my then private member's bill, Bill C-417, which was substantively the same as Bill S-206. Just as Bill S-206 has received unanimous support at all legislative stages thus far, Bill C-417 passed the House at all legislative stages in the House of Commons with unanimous support, but unfortunately did not make progress in the Senate due to the call of the 2019 election. I'm hopeful that this will not be the case with Bill S-206.

This legislation is a straightforward piece of legislation. It seeks to implement a key recommendation of the unanimous report of this committee on juror supports, a study that I had an opportunity to participate in as a member of this committee. More specifically, Bill S-206 carves out a narrow exception to the jury secrecy rule, whereby former jurors who are suffering from mental health issues arising from their jury service can disclose all aspects of that service, including the deliberation process, with a medical professional bound by confidentiality.

As it currently stands, section 649 of the Criminal Code makes it an offence for a former juror to discuss any aspect of the deliberation process with anyone for life. There is but one narrow exception, relating to an investigation or criminal proceedings in relation to a juror for obstruction of justice.

During our committee's study on juror supports, we heard from a number of former jurors, including Mark Farrant, who was a jury foreman in a gruesome murder trial. All of these former jurors had gone through difficult trials, been exposed to horrific evidence and suffered from mental health issues—in some cases, PTSD, and in some cases for decades after. These former jurors are not alone. Thousands of Canadians each year take up the summons to serve on a jury, and many of them go through difficult trials and suffer from mental health issues as a result.

The deliberation process, as we heard at the study around juror supports, is one of the most stressful aspects of jury service, if not the most stressful. After all, it is where, as a juror, you are sequestered with other strangers and have to go through difficult evidence, sometimes again and again. There is enormous pressure to make the right decision, having regard for the gravity of rendering a verdict in terms of potentially putting someone away for life, as well as seeing that justice is done.

It begs the following question: If one who is suffering from mental health issues arising from jury service cannot talk about what may be the core of their injury, how is it that they can get the full help and support they need? That is what we heard at this committee four years ago when the committee undertook its study. It was that, indeed, the jury secrecy rule can be an inhibitor for jurors in getting the full support they need. It makes them unable to talk about what is the core of their injury or could be the core of their injury, as well as creating difficulties around having full and frank discussions with medical professionals.

That is where this bill comes in. It carves out a narrow exception, all the while protecting the integrity of the jury secrecy rule. There are many good reasons for the jury secrecy rule, including respecting the finality of a verdict, protecting the privacy of former jurors, and protecting the sanctity of the deliberation process. This carve-out would not impact any of those objectives, because, again, any disclosure would be post-trial, in a strictly confidential setting. This is a common-sense piece of legislation that is much needed and will go a long way to supporting juror mental health in Canada.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Cooper.

Now we go to Mr. Farrant.

[Mark Farrant, Founder and Chief Executive Officer, Canadian Juries Commission]

Thank you, honourable committee chair and members of the committee, for inviting me here today.

My name is Mark Farrant. I’m the founder and CEO of the Canadian Juries Commission, a national not-for-profit organization supporting and representing Canadians serving on jury duty and coroner's inquests.

Jury duty is an essential component of our Canadian democracy and our justice system. Entrenched in our Canadian Charter of Human Rights and Freedoms, the right to a fair trial and the right to be tried by a jury of one's peers are something to cherish and protect in these times of global unrest and uncertainty. Every year, thousands of citizens answer a summons and step away from their families and workplaces to attend a trial, observe evidence and deliver a verdict, often in difficult and disturbing cases.

For some, jury duty is a rewarding experience in which jurors take pride in supporting the justice system and their communities in court. For others, jury duty is extremely challenging and even life-altering. While jurors are addressed as officers of the court and judges of the facts, jury duty is not a vocation. Jurors represent the conscience of our society but have no preparation for their experiences in court, no special training and, indeed, no foreknowledge of the trial or its contents.

First responders and jury members are bookends of the justice system. Jurors deliver the verdict for the very same crimes answered by first responders and investigated by police. Jurors are exposed to the same graphic evidence of human cruelty, violence, homicide, sexual assault and unspeakable acts. Jurors do not have the opportunity to turn away from evidence and, indeed, must often view it over and over again. This is the burden of jury duty, along with the task of reaching a verdict based on facts and evidence.

Unlike first responders and other actors in the courtroom, jurors do not have access to evidence-based treatment, counselling and support networks to process the experience, or the necessary professional training to manage disturbing testimony and physical evidence. We now understand the toll these crimes have on those working in public safety and our courts, resulting in PTSD, depression and significant mental illness.

Collectively, Canadians have worked hard to destigmatize mental health and promote treatment. We have established programs to support first responders in their healing, respecting the important work they perform for our communities. Jurors are in many ways the most vulnerable to trauma and, sadly, receive the least amount of support compared to others in the courtroom.

Jury duty is a civic duty, but it's not a duty to suffer, yet many jurors have reported difficulties post jury service in accessing adequate support, especially in jurisdictions offering no post-trial support at all. In some cases, clinicians have been reluctant to treat former jurors due to the jury secrecy rule and the threat of legal repercussions. The jury secrecy rule also has prevented jurors from having free and open discussions within the confines of therapy.

Deliberation is the most stressful component of jury service, according to former jurors, with many describing it as one of the most difficult experiences of their lives, above other common life events. Jurors have reported experiencing intense feelings of shame, guilt and remorse from delivering middle-ground verdicts in difficult trials. Jurors have reported grieving for decades because of their verdict—a decision that in many cases was the only one available, given the evidence—but these same jurors have been unable to process this experience and move beyond it due to the jury secrecy rule.

How can we unpack psychological trauma and develop coping mechanisms if jurors are unable to discuss the very thing causing them harm? This refutes the very foundations of psychology and mental health practices.

Committee members, Bill S-206 represents a very narrow exception to section 649 of the Criminal Code that would go a long way to improving juror mental health and making a measured difference in the lives of jurors long after their jury service. This is a long-overdue investment in jury duty that will both improve Canadians' willingness to participate in jury service and build confidence in the justice system.

We owe jurors our thanks for their service. We also owe them every means possible to move beyond negative experiences in court and to return to their lives and families.

Thank you, committee members, for inviting me here today to speak with you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Farrant.

Now we'll go to our first round of questions.

Just in the interests of time and some efficiency, we'll do five-minute rounds for the first round, then four for the next two and then two minutes for the next, if that's okay. I've already spoken to Mr. Cooper. It's just an efficiency of time if we can do that.

We'll begin with Mr. Morrison for his five minutes.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Thank you, Mr. Chair, and thank you to the witnesses. I have some hard questions for Mr. Cooper, but I'm actually going to start off with Mr. Farrant.

Mark, I want to thank you for coming today and for helping us with identifying PTSD, especially in jurors. I had a long career in the RCMP, and PTSD is a silent disease that is really hard to recognize. In fact, it's usually ignored. In policing, the belief is that you get tough, so you can handle it, but that's not true at all, actually. Even though I've seen lots of horrific things, there are a lot of people, and it affects everyone differently. Everyone is unique. To have our jurors, who we rely on—you are right—for democracy, feel afraid or suffer for years is just unacceptable.

I applaud this. I'm very happy you're here today, and I thank you for your struggles to help others who are going to go through exactly the same thing.

One of the questions I have is how you feel we are going to be able to encourage people to come forward to get the help. A lot of people are probably afraid to come forward because they're embarrassed that something at a trial bothers them.

[Mark Farrant]

Thank you for your kind remarks.

We've seen justices on the bench, once the verdict has been delivered and the jury is thanked and excused, actually delivering that message themselves. Justices are now slowly coming forward, especially in provinces where support programs are available, to remind the jury that those programs exist, encouraging them to talk about the experience and not be embarrassed about it. It's not universal, though. Not every justice does that.

The Canadian Juries Commission has been working with the National Judicial Institute on that basis, and we're hoping to come forward with some programs specifically for justices, to remind them that jurors experience trauma and that justices play a role in encouraging support post trial.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

How do we encourage previous jurors to come forward? How do we go back in time and just check up on some of the jurors who haven't had this opportunity?

[Mark Farrant]

A lot of it is advocacy and work in the public sphere. Two weeks ago we were very pleased to have the first-ever jury duty appreciation week in Canada. That's an opportunity to thank jurors collectively, and to provide them with support and encouragement. That's an opportunity to thank jurors past and present from decades ago for their service, and an opportunity to again talk about mental health and its importance.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

Great. That's awesome.

Mr. Cooper, this may be a harder question.

This to me is way overdue. I can't even imagine why we haven't gone down this road historically, knowing some of the traumatic incidents that people have had to deal with. What's taken so long to get this far?

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

To some degree, I think there was a lack of awareness, at least on the part of parliamentarians. The juror support study that we conducted was the first of its kind. Never before had a parliamentary committee undertaken such a study. It was in the course of that study that we really heard compelling testimony, from Mark and from other former jurors, that really highlighted some of these challenges.

It was in the course of the study that we heard from witnesses who talked about the jury secrecy rule and specifically cited the Australian state of Victoria, where such an exception exists and has been implemented quite successfully. This bill would implement the same exception that exists in the state of Victoria, in Australia.

[Rob Morrison, Conservative, Kootenay—Columbia, BC]

I want to thank both of you for being here today. To me, it's nothing but a positive to move forward for Canadians, for jurors and for helping people with PTSD.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Morrison.

Next I'll go to Madame Metlege Diab for five minutes.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much, Mr. Chair.

I have to agree with you, Mr. Morrison, on this one.

Mr. Cooper, I want to congratulate you for sponsoring this. I really do.

Mr. Farrant, thank you very much for your advocacy. As someone who practised law for 22 years before I went into provincial politics, I had a number of people come to me who were scared to death when they got the letter in the mail that they would have to go and be on a jury. They had no idea what that meant. This was before they even stepped into a courtroom. Most of these people had never been in a courtroom in their life; they were trying to figure out how to get themselves out of this, whether they had to do this, and all of that. I have never had the occasion for anybody to come back after though. I can only imagine the horrific things they would hear at some of the trials. Just from listening to you now, I know this is a no-brainer, but I have to confess that it's not something I would even have thought about.

For those who preceded me, Mr. Cooper and whoever else in the last number of years, really, congratulations, because this is what we are here for as parliamentarians—to improve the lives of Canadians, and in this case of the jurors whom we really need.

Mr. Farrant, you talked about provinces that offer support programs. Quite frankly, I don't know which ones do or don't. What can you see after the passing of the bills? What are a couple of things you would like to see provinces and territories and perhaps the federal government do to support jurors?

[Mark Farrant]

Thank you for your comments. They're greatly appreciated.

We've been advocating for a national standard for post-trial support for jurors, as it is a federal mandate that jury duty be administered by the province. Thus no one should have to look over the fence at the province next to them and wonder why they have juror supports in that province and why their own province has nothing to offer them. That's a terrible scenario to be in. I've spoken to jurors who have experienced that. Ontario, through the leadership of Yasir Naqvi, in fact, has instituted the Ontario juror support program. Saskatchewan, B.C. and Alberta have established juror support programs. There are many provinces that have nothing at all or have very cumbersome means of achieving support, such as having to go and acquire counselling on one's own. Anyone can understand that accessing mental health supports is very difficult. We know there are waiting lists and, especially if you're experiencing trauma from doing your civic duty, that's a difficult situation to be in.

A national standard would be appropriate, as would not restricting the number of sessions that are available to a juror. Some of those programs offer only four sessions of counselling, some an additional four. Anyone who has been through therapy would understand that sometimes in four sessions you're barely even unpacking the problem, let alone getting to a solution and coping mechanisms. Thus you're sent out the door not having any structure or any follow-up and still left with a nagging issue. PTSD is a very complicated disorder. It's not something that can be solved immediately in four sessions. It requires cognitive behavioural therapy. It requires a number of sessions.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Let me get one more point in, if I have a few seconds. It can be for either one of you. I really appreciate what you talked about. You had a jury duty appreciation week in Canada for the first time. When I heard that, I thought that was a really good thing to do, because most people are scared to death when they get that letter and are asked to do that.

Perhaps, Mr. Cooper, there's something we as parliamentarians can do to raise awareness and encourage people that it's a good thing and not to be scared, but at the same time that there may be help for them if they need it at the other end.

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

Thank you very much, Ms. Diab, I very much appreciate your very kind comments. This bill will actually increase confidence, I believe, in people who are summoned, since they will know that they will be able to get the full help they need and they won't be inhibited by the jury secrecy rule. From the standpoint of encouraging participation, I think this bill is a step in that direction.

[Lena Metlege Diab, Liberal, Halifax West, NS]

Thank you very much to both of you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Diab.

Next we will go to Mr. Fortin for five minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Mr. Cooper and Mr. Farrant, thank you for being here.

Mr. Cooper, I know your talents as a parliamentarian, and there is no doubt that this bill is in good hands. I thank you for that.

I think this is an important subject. In our society, the role of juries is important.

I am pleased to have already spoken with Mr. Farrant and to see that he is here to testify before the committee and to shed light on various aspects of the bill.

Of course, I join my colleagues Ms. Diab and Mr. Morrison in their comments about the importance of your role and the need to recognize the essential role of jurors in our society. Jury appreciation week is a good thing, but I think we could go further. We could do more in terms of recognizing the people who agree to serve society in this way. All that to say, I agree.

For my part, I have a few questions. I wouldn't say they are reservations, because I understand the idea of being able to consult a health professional. I have no difficulty imagining that it can indeed be traumatic to be on a jury.

Mr. Farrant, you have served as a juror before. You've had the experience. I'm not going to ask you to tell us how traumatic it can be, because I think everyone here is already convinced of that. However, I would like you to tell me what is important for a juror. I understand that, afterwards, there is consultation, help and recognition. However, when you sit on a jury, there is a rule that everything that is said remains confidential, precisely to allow the members of the jury to feel comfortable expressing their point of view. The reason for choosing 12 jurors is precisely because we want them to think as a team. We don't want one person to decide on the guilt or innocence of an individual, but we want it to be the result of a reflection initiated by 12 people. This reflection must therefore necessarily be completely free and open.

Here is what I fear. If the members of a jury can consult a health professional afterwards, this opens a breach of that secrecy, which I think is of paramount importance for a jury to function or fulfil its role properly.

I wonder what effect this breach would have on the members of a jury. As a former member of a jury, how do you react to sitting around a table with 11 other people knowing that one of them could potentially repeat your words to a therapist?

Doesn't that worry you?

[Mark Farrant]

Thank you very much for your kind comments.

I don't think this bill would impact the jury's ability to deliberate as instructed, both through the charge from the justice and through the rules of the court. Jurors follow instructions to the letter, and they take their role extremely seriously. The idea that they might reflect on their mental health and the ability to disclose their deliberation after the fact isn't going to affect their decision-making process in the back room, in my estimation.

Jurors are deeply committed to the process. They are deeply committed to following the charge that is presented to them. That is on top of.... One of the stressors that they experience is their deep commitment to the practice. That's why deliberations tend to go five days or longer. It's because of that commitment.

It sends a message to them that the system that they are supporting is also supporting them after the fact.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I think my time is up, Mr. Chair.

[The Chair, Liberal, Randeep Sarai]

Thank you, Monsieur Fortin.

I think Mr. Garrison is next.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you, Mr. Chair.

I have nothing to add to this debate and think we need to get moving. However, I know that one of my colleagues has parental responsibilities that sometimes constrain his schedule, so I'd like to give my time at this point to Mr. Naqvi.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

Thank you very much, Mr. Garrison. I really appreciate it.

Mr. Farrant, it's good to see you again. Thank you for being here and for your steadfast advocacy on this, which is really inspiring.

Mr. Cooper, thank you very much for carrying the torch on this in the House of Commons. I very much appreciate it.

Mr. Farrant, I'll ask two questions of you.

One is, can you share with us your analysis of the American experience? Are there lessons we can learn from there in how juries are treated? I'm sure they probably differ from state to state, but are there things that Americans are doing that could be helpful insight for us here in Canada when it comes to providing supports for jurors?