Justice Committee on May 31st, 2022

[Mark Farrant]

In some ways, Canada is actually the leader in post-trial support and mental health support. In most American states, there is no support at all for jurors post trial, and every state is very uniquely different in the way it manages jurors.

Canadians have taken leadership in improving jury pay in many provinces. Jury pay in the U.S. is substantially lower—in some cases, it's $6 to $10 a day for jury service—which is feeding some of the reticence and resistance to responding to a summons in the U.S. In many states, people aren't even showing up in court. They're not even in the courtroom. In some cases, the sheriff has had to go to houses to knock on the door to canvass and find out why they weren't coming to court.

Obviously, jury secrecy is very different in the U.S. from the way it is here. I think, from the research that we've conducted in focus groups and from talking to jurors, that Canadians appreciate their ability to have privacy, which is afforded under the jury secrecy rule, in the sense that they're not questioned by the media and there isn't scrutiny on the decision. That has an added benefit to the jury, in the sense that they're protected and can return to their lives. Their identities aren't disclosed, and that is very much appreciated.

[Yasir Naqvi, Liberal, Ottawa Centre, ON]

My final question to you would be.... This is an important step and, hopefully, this bill will pass at committee and in the House and will eventually become law. I'm sure the Canadian Juries Commission has a fairly lengthy list of things to do. What needs to happen next to provide for appropriate support for jurors?

[Mark Farrant]

We're very pleased and honoured to be working with the Attorney General of British Columbia and the B.C. Supreme Court through funding from the Department of Justice on our juror support pilot project.

We are training B.C. sheriffs, who manage jurors on a day-to-day basis. We're training them on self-care, resiliency skills, the juror experience, the journey of the juror and identifying the stresses. Many people just don't know or understand the juror's experience. We're providing B.C. sheriffs with that training to support the jury in court and to provide subtle supports. This means that after a difficult day in the courtroom, the sheriff can provide some empathy and support so that the jury can come back the next day and continue that work.

It's not opinionating the jurors or intruding on their objectivity; it's providing them with empathy and support.

We're also developing a peer support pilot project. We're training former jurors who have lived experience and have been through the system and been through graphic trials to provide empathy and support to jurors as an alternative and complement to the post-trial support programs that are there now.

Our goal is to nationalize those two programs, in addition to some of the other work that we want to do. We hope that Canadian jury duty appreciation week will be a designated event in the calendar so that all Canadians will celebrate jury duty and thank jurors for their contribution.

[The Chair, Liberal, Randeep Sarai]

Thank you.

We'll now go to Mr. Brock for four minutes.

[Larry Brock, Conservative, Brantford—Brant, ON]

Thank you, Mr. Chair.

Thank you, gentlemen. I will start off with my colleague, Mr. Cooper.

It's a proud moment for you, Mr. Cooper. It's a proud moment for me to consider you a colleague. Tremendous work went into this private member's bill. You should be very proud of your advocacy on this issue.

I want to ask a couple of questions, just so I have this clear in my mind. I took a look at the language under the new exception to the jury's secrecy rule. There is a phrase that gives me a bit of concern. Perhaps you can shed some more light on it. With respect to the concept of speaking to a medical or psychiatric official or a therapist, or to getting counselling after the completion of the trial—I wasn't here four years ago when this was debated and discussed—can you provide some sense as to the legal definition of that? We all know that after verdict could mean after trial, or is it after sentencing? Quite often there's a significant passage of time between verdict and sentencing. What was contemplated, and how are we to interpret that language in this bill?

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

Thank you, Mr. Brock, for that question. I believe, in answer to it, that what is contemplated is after the verdict.

[Larry Brock, Conservative, Brantford—Brant, ON]

It's after the verdict. Okay. That's good to know.

The second question is a follow-up for my colleague Mr. Morrison in terms of the retroactive perspective of this legislation. There's no limit as to whether or not we're talking about current jury composition. Was it contemplated that any past jurors from decades ago, who are still suffering and who now find out about this new piece of legislation, could now take advantage of it? I see that Mr. Farrant is acknowledging that by shaking his head.

[Mark Farrant]

I would anticipate that that would be the case. The idea is that we've spoken to jurors who for 20 years have been suffering with this sense of shame and guilt about an acquittal that it was impossible to make go any other way, and they take a sense of personal ownership for it. They are reticent to talk about it and unable to talk about it because of the secrecy rule and because they take their responsibilities very seriously. When Canadians are told not to discuss something from within the confines of court, they don't. They don't talk to their spouses about it. They don't talk to co-workers about it. They don't talk to anybody about it.

[Larry Brock, Conservative, Brantford—Brant, ON]

I think that's what distinguishes our system of justice from that of the Americans. You've identified what I have always believed: We have a paltry remuneration system here in Canada, but the system in the United States, with the few pennies they receive, still pales in comparison. It's no wonder that the moment there's a verdict, they're looking for the press; they're looking for a publicist; they want to talk about the evidence; they want to make some money off of it. There are professional people who want to be on juries. In my view, that doesn't make for an effective justice system. I come from a 30-year career as a lawyer, the last 18 of which were as a Crown prosecutor, and I think that's what makes the Canadian judicial system so special: It starts literally the moment the judge gives instructions. I could see in their faces how serious and how solemn this oath is.

I can only sympathize, and I was really touched, Mr. Farrant, when I read a bit more about your story. I just did a Google search and read about the case you were involved in, the struggles you went through and clearly the help that you received professionally at CAMH. Now, the strong advocacy you're doing is just tremendous work. It's so important that we as parliamentarians use whatever tools we have in our tool box to offer that assistance. This is certainly a step in the right direction.

This is for both gentlemen. Four years ago, was there any sort of discussion about advocacy or learning opportunities for the judiciary, the lawyers, the Crowns and the defence counsel, or ways they could assist juries in the process as well?

[The Chair, Liberal, Randeep Sarai]

Unfortunately, we're out of time. If you have something, you can add it really quickly.

[Mark Farrant]

Under this bill, no, there weren't discussions along those lines, but we are working with the National Judicial Institute. We've done some plenaries with them, and we have every reason to believe that we will be producing some educational programs for justices and other actors in the courts.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Brock.

We have Madam Dabrusin for four minutes.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you.

This is actually a pretty big day. I'm a bit emotional about it when I think about where we started, Mark.

First, a big thank you to you for all the work you did. It's a message that advocacy matters.

You've been tireless. I met you many years ago when you started working on it. Since that time, you've put together the commission and you've worked with Michael, and I'll give a big shout-out to Michael for making this day happen to get this bill.

Really, I think there's a message for people, for anyone who is watching, that advocacy matters. You took this and you've really made a difference. Thank you for that.

You talked a little earlier about some of the next steps. We saw that with the provinces and the work you were doing with the provinces, but there was a big study that was done by the justice committee as well a few years back. What would you be prioritizing as next steps that you would like to see for juries from the federal level?

[Mark Farrant]

Thank you very much for your comments. It has been a long road, hasn't it?

The report had 11 recommendations, and this bill was derived from that report. In fact, the Canadian Juries Commission was born from that report. We took it upon ourselves because there was limited action on some of the other recommendations. We took it upon ourselves to advocate directly with the provinces.

Certainly, we know that there's a responsibility at the federal level to provide resources to the provinces to assist them in such things as raising jury pay. Raising jury pay is the best catalyst to improving diversity and representation on juries in this country. If we're talking about systemic racism within the justice system and identifying barriers, simply raising jury pay will almost overnight allow people who were otherwise shut out of the justice system the ability to afford to serve on a jury.

Even the recommendation made all those years ago at $120 per day is now actually out of date because of rising inflation and the cost of living. That figure now should probably be $150 a day. I think jury duty should be talked about in the meeting of the premiers. I think there's a responsibility to bring that discussion forward, because it is the last mandatory civic duty left in our country. There is nothing else. It's the only civic responsibility we have left.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you for that.

I really don't have much more to add. I will say that there are very few times that you get a table that is basically asking very kind questions and being really supportive. That's a sign that this is a bill that I'm hoping.... We have, I think, two clauses to get through after this. Hopefully, that will go very quickly and we can bring it back to Parliament quickly and really just help shepherd it through, but from the sounds of it, you have a lot of support around this table, and that's a great thing to see.

Thank you.

[The Chair, Liberal, Randeep Sarai]

Thank you, Ms. Dabrusin.

Now we'll go to Mr. Fortin for two and a half minutes.

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

Thank you, Mr. Chair.

Mr. Farrant, thank you again for being here, but I have these same questions to ask and I don't have a lot of time. It's hard to get through all of this in five minutes and two and a half minutes, including questions. So I'll ask my question of Mr. Cooper, if I may, Mr. Farrant, since he worked on Bill C‑417, the forerunner of this bill, so to speak, and on this one.

I haven't seen many instances where the negative effects of such bills have been discussed. I don't want to be a spoilsport, but there are always two sides to a coin. We know that in Quebec, the Professional Code, among other things, requires professionals, therapists and others to keep secret the discussions they have with their clients. This might seem to be watertight, but there are cases where the professional may be allowed to disclose what the client or patient has said to him. For example, if they are being sued by a patient who decides that they have had bad service, if the law allows them to do so, or if they want to prevent an act of violence, such as when someone talks about suicide, the professional may disclose what they are told, even when it has been done in confidence. These are extreme and rare cases, but it is a possibility. This is what I called a possible breach of confidentiality earlier. I am concerned about this breach, and I ask you to reassure me.

Have there been any studies, to your knowledge, Mr. Cooper, of the effect that this possibility has had on jurors, who must be able to rely on confidentiality to express themselves freely? Are there really any studies on this issue?

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

Based upon the experience in Victoria, it has worked well. As the committee understood it, no issues have arisen from this exception in the state of Victoria.

With respect to the stakeholders who appeared before this committee at the time, there was unanimous support for it from former jurors, from members of the bar, including the defence bar, and from mental health professionals. This is one of those few bills, as Ms. Dabrusin pointed out, for which there is seemingly unanimous support from parliamentarians and from all stakeholders, so—

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

I'm going to have to interrupt you, as I only have a few seconds left.

I understand that it's unanimous, but no study has been done to see if jurors will feel less comfortable and confident, correct?

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

As Mr. Farrant said, from his experience as a former juror, he doesn't believe this will impact upon the ability of jurors to deliberate, but what it will do is ensure that former jurors who are suffering will be able to get the help they need.

It's not just about disclosing the deliberation process to a medical professional. It's sometimes the uncertainty about where the boundaries lie. Medical professionals sometimes are even reluctant to take on former jurors as clients, because of uncertainty around the jury secrecy rule. This bill helps clarify that—

[The Chair, Liberal, Randeep Sarai]

Mr. Cooper—

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

—and will help former jurors in that regard.

[The Chair, Liberal, Randeep Sarai]

Mr. Cooper, thank you.

Thank you, Monsieur Fortin. Just for the record, I gave you four minutes. I never cut you short.

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

Thank you.

[The Chair, Liberal, Randeep Sarai]

I want to thank Mr. Cooper and Mr. Farrant, and especially Mr. Cooper. It's quite the honour when—