THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, February 8, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met this day with videoconference at 11:31 [ET] to consider Bill S-252, An Act respecting Jury Duty Appreciation Week.
Senator Ratna Omidvar Chair in the chair.
[Translation]
The Chair: My name is Ratna Omidvar. I am a senator from Ontario and the Chair of the Standing Senate Committee on Social Affairs, Science and Technology.
[English]
I would like to begin by welcoming members of the committee, witnesses and members of the public watching our proceedings. We should go around the table briefly and introduce ourselves to our audience starting with Senator Cordy on my left.
Senator Cordy: I’m Jane Cordy, senator from Nova Scotia and deputy chair of the committee.
[Translation]
Senator Cormier: René Cormier, from New Brunswick. Good morning.
[English]
Senator Burey: Sharon Burey from Ontario.
Senator MacAdam: Senator Jane MacAdam from Prince Edward Island.
[Translation]
Senator Petitclerc: Chantal Petitclerc, from Quebec.
[English]
Senator McBean: Senator Marnie McBean, Ontario.
Senator Dasko: Senator Donna Dasko, senator from Ontario.
[Translation]
Senator Seidman: Judith Seidman, from Quebec.
[English]
The Chair: Today, we begin our consideration of Bill S-252, An Act respecting Jury Duty Appreciation Week. Joining us today for our first panel is our colleague Senator Lucie Moncion, from Ontario, who is the sponsor of this bill. Thank you for joining us today, Senator Moncion. We will begin with opening remarks by you followed by questions by members of this committee. You know how this works, the floor is yours.
Hon. Lucie Moncion, sponsor of the bill: Colleagues, thank you for the opportunity to address the committee today on Bill S-252, An Act respecting Jury Duty Appreciation Week.
Every year, thousands of Canadians are called upon to fulfill jury duty. In 1989, I was one of them. I had been summoned and selected to serve as juror number one on a first degree murder trial. This experience had tremendous impacts on me and my family.
While I felt isolated for a long time, I’ve come to realize over the past few years that numerous former jurors share a similar experience.
[Translation]
Here are a few examples of the difficulties frequently encountered by jurors.
Jury duty can be mentally taxing, even leading to symptoms of post-traumatic stress disorder, or PTSD.
Lack of financial support, particularly for those less well off, is a major stress factor and has a negative impact on jury representation and diversity.
Employers often underestimate the challenges faced by employees summoned for jury duty, and the support they provide proves insufficient.
Provincial and territorial compensation is inadequate and does not cover the lost income and expenses associated with jury duty.
After the trial, jurors are expected to resume a normal life as if a trial had not taken place, as if they had been paid for a vacation of several days or even weeks, without regard to their state of mind or mental health.
[English]
Colleagues, conversations about removing these barriers for a more inclusive and equitable jury system are imperative. Bill S-252 would serve as a foundation for the fostering of more supportive environments. Based on my experience, conversations with former jurors and stakeholders and the insights provided by the other place’s Standing Committee on Justice and Human Rights in their report entitled, Improving Support for Jurors in Canada, I have come to understand that leadership at a federal level and nationwide support for jurors is not only essential but also desperately needed.
As senators, we have the privilege of introducing bills to proclaim a national week. Bill S-252 is the next important step to propel jury duty issues to the forefront once a year.
Signalling federal leadership would encourage collaborative efforts of organizations, courts and provincial and territorial governments in implementing the recommendations outlined in the report, and would reflect the scope and significance of these citizens’ contribution to the Canadian justice system. In a nutshell, Bill S-252 proposes that Jury Duty Appreciation Week be recognized annually in Canada during the second week of May. It’s a very simple and straightforward proposal.
[Translation]
The preamble provides a context for understanding the purpose of this bill: it recognizes that thousands of Canadians serve as jurors every year, and that jury duty is a crucial part of our justice system and democracy. This recognition fosters a sense of value and importance that could help jurors feel recognized for their contributions.
The preamble also draws attention to the link between the well-being and mental health of jurors and the proper functioning of our justice system. Indeed, anyone charged with a criminal offence punishable by at least five years’ imprisonment has the right to be tried by a jury.
Finally, it states that the bill must serve to educate, inform and engage citizens, organizations, the justice system and provincial, territorial and federal governments, promoting awareness and understanding of the complexities associated with fulfilling this civic duty.
[English]
I will now briefly touch on the role of the federal government with respect to jury duty. Justice is a shared jurisdiction. The 2018 report Improving Support for Jurors in Canada envisions the federal government leading a coordinated, evidence-based approach to juror support. For this position, the Minister of Justice and federal government had the core of each recommendation aligning with the intent of Bill S-252.
To illustrate, the report recommends federal funding and the sharing of best practices with provinces and territories. Moreover, it underscores the significance of raising awareness about the potential impact of legal proceedings on the mental health of jurors, proposing training programs for judges, coroners and judicial officials.
It is crucial for the federal government to fulfill its responsibilities concerning jury duty, and the bill provides an effective means to do so while respecting the administration of justice by provinces and territories. I trust this has provided a helpful introduction to the examination of legislation by the committee, and I would be pleased to answer any questions you may have. Thank you.
The Chair: Thank you very much, Senator Moncion. We have heard you in the chamber a number of times on this issue, so we’re well aware of what you are proposing.
Let me kick off by asking you a question: Why a week? Why not a day? Why not a month, and why May?
Senator Moncion: Why a week? Because in a day, you don’t have enough time. We find there isn’t enough time to bring the issues to the forefront of people being aware of what is happening within the jury system in Canada.
When you become a juror, you get to be on jury duty, you have no idea what you are getting yourself into. I remember I was 31 years old in 1989, and I was a mother of two small children at the time. I was called to go to court and be chosen or be picked for jury duty. I had absolutely no idea how it was done. I had no idea what it would entail. My employer did not know what this would entail for consuming time and all this.
Having a week gives time to look at all of these issues and bring them to the forefront with different advertisements and different items that can be used to bring awareness to what jury duty is.
The other part of your question was “why May?” In some jurisdictions in the United States, that week is already recognized and has been for a number of years. In other states, they recognize one day here, one day there. For us, it’s aligning with what is being done in other jurisdictions and comparing to the United States.
The last answer on this one would be that, often, like us in the Senate, we try to wrap up our files before the summer. It’s one of the situations with the courts where they try to end trials during the month of May. So it brings all of these items together so that jury week could be a valuable time to bring awareness and to recognize that week in May.
The Chair: Thank you, Senator Moncion. I suspect each one of us around this table has been a juror. It’s an expression of citizenship. It’s a valuable experience, and no doubt we’ll have lots of questions for you.
Colleagues, as usual, you have five minutes for both question and answer. The first question goes to the deputy chair.
Senator Cordy: I’ve never been on a jury.
Thank you very much for bringing this bill forward. When I first heard that you were bringing it forward, when you spoke and said you would be speaking on it two days hence, I thought, “That’s nice, but what does it really mean?” Then I heard your speech, and I started thinking about people I know who had served on juries. Some were certainly more challenging than others, hearing about things that you would never envision happen in our society, but they do. So thank you very much for doing that.
What do you think having a week will mean to Canadians who have served on a jury and to Canadians who have not served on a jury? What will that mean to Canadians overall — those who have and those who haven’t served on juries? How will it make things better? As a former teacher, perhaps I should ask this: How will it educate them about what is going to happen?
Senator Moncion: Thank you for the question. It’s an important one.
The first thing I will say is that the next panel you will have will be from the Canadian Juries Commission. I had the privilege, at some point, of sitting on focus groups that they were doing with former jurors. A common thread among former jurors is that they have no way of expressing our concerns and feelings. We have to keep the secrecy rule. We were not, until recently, allowed to speak to a psychologist or psychotherapist because most of them did not want to handle our cases because of mistrials that could happen.
So for them, being on a jury and hearing the story from others brings a connection between us. We find that we’re not the only ones who feel like this and what we are feeling. It is different situations, like being afraid to go back to work, walk the streets or watch violent movies. To this day, I cannot watch violent movies. I find that the ease of killing that you see in movies is not associated — it’s a disconnect from when you see a real person. Anyways. These pictures stay with you. So that’s the first thing I would say to people who have been on jury duty: The pictures stay with you.
For people who have not been on jury duty, they don’t know what it is. Employers don’t know what it entails. With providing information — and then once you become a juror, what is it going to mean in terms of time and cost? There are costs associated with the work that you’re going to do. We need to give information to people on mental health and access to justice. It’s also to promote our judicial system and how it works. People are not aware.
If you are not a lawyer, a judge or not associated with a court, you don’t know how it works. So there’s information for people who have never been jurors, and then there’s the information for people who have been jurors on jury duty as well as how they can share information among each other. I think that’s important.
Senator Cordy: I’m pleased. I remember when the change came through where people could at least speak to a medical professional. Before that time, I can’t imagine what people were going through, not being able to talk about it to family or a professional. So that’s a positive thing.
Do you think this will help us to go one step further so that people will have a better understanding that what they’re undergoing is actually a pretty normal process for anybody who has been on a certain type of jury?
Senator Moncion: Yes.
First, the secrecy rule was just related to what was being discussed in deliberations once the jury was sequestered, but what was happening was that psychologists and psychotherapists would not want to deal with any former juror because of that secrecy rule. We could talk about everything except what happened in the deliberation room. But because they could not see the difference between how we were feeling and what the connection was, they were refusing, systematically, to meet with anyone who had been a former juror. That’s the first thing.
The second thing is awareness. It’s bringing awareness to how it works in Canada and awareness to what it entails. For people who have been former jurors, it’s the awareness that they’re not the only ones who are suffering the way they are suffering. For Canadians who have not been there, you have to make a conscious decision to be a juror. You are not given that opportunity when you go to the courthouse and are selected. At 31 years old, I had led a sheltered life here in Ottawa. I had never been close to the police or anything judicial. I was a mother of two young children, and I was juror one, selected. I sat there and said, “Okay. What now?” It starts, and I can’t get out of it until the end of the trial. It was a six-week trial. For me, it was extremely long.
Senator Seidman: Thank you very much, Senator Moncion. I have not been a juror, but my mother was. I remember the trauma because she also led a sheltered life. She had three young kids, and she suddenly found herself in a murder trial that went on for weeks. I remember how difficult it was. There’s no question about that. So this touches a bit of a nerve because it brings back those memories for me.
If I understand correctly, this week would be a time for public awareness and education, not only to help people who have been jurors but also to make potential jurors more aware of what they’re about to face. It’s extremely valuable that somebody knows what they’re about to face if they become a juror, but in bringing those issues to the forefront, would it then also have unintended consequences such as in deterring people from becoming jurors? It might not necessarily be a bad thing, but it could potentially create undue worry on the part of people to take on that responsibility.
Senator Moncion: Thank you for the question, and it’s a very good question.
There are a lot of people who should not be jurors because of different reasons. Some don’t have the financial means to be jurors. Once you are a juror, even though your employer has responsibilities toward the employee who is being called for jury duty, some might be impacted in their work environment in many different ways. That’s one thing. For people who don’t have the financial means, this could make their situation even worse.
People with prevailing mental issues could be impacted even more by jury duty. At some point, you need to be able — and the system doesn’t give you this opportunity — to make a conscious decision.
When I went to the courthouse the first day, I think there was about 35 people. Before I was chosen — and I was the first one to be chosen — there were about 30 people — men, women, doctors and what not — who were getting up to the microphone and saying things like, “I can’t be selected because I’m going hunting for a week; I can’t be selected because my work environment doesn’t permit it.” All kinds of excuses were provided, and the judge would say to them — to the hunter, for example — “Sit down.” To the one who said their professional situation didn’t permit it, he would say, “Sit down.” For family issues, like me — and I didn’t get up to provide any excuse — you were getting a, “Sit down.” Whatever your situation, you were being told to sit down. But what that did was that when the lawyers were choosing the jurors, they were not choosing the people who had gone up and given an excuse. Then when I was chosen, I said to myself, I should have given the excuse of being a mother of two small children. But I didn’t.
Being on jury duty was a tremendous experience. Although there was post-traumatic stress disorder, or PTSD, just by being a juror, you get to understand the judicial system at a level that I would never have had the opportunity to learn because I did not study law. There are good things about being on jury duty, but there are also consequences.
What happened over time is that the system has created victims because if you suffer from PTSD — and PTSD doesn’t appear the first day, it appears within a few months of you finishing the work. You become a victim of the system. I think that our judicial system doesn’t want to do that, but it’s been doing that for years and years.
I think there is a point where we have to understand how the system works and how it affects different people. I’ll give you another example. Judges, lawyers and clerks all have access to mental health professionals in their work environment. Jurors were the only ones who didn’t. We had to live with all of these items. Awareness and unintended consequences; there’s quite a list.
Senator Seidman: Thank you. That in itself was an educational experience for all of us, so thank you for that.
When you talk about financial consequences — and I think it’s important. You can imagine someone having to leave their work for six weeks on an important trial and not have their salary. The point I want to make is that there are provincial discrepancies around this. I know that jurors in Quebec receive $103 for every day or half-day of service. In Ontario, it’s different, the first ten days are unpaid. Jurors in B.C. receive $20 a day for the first — just to show that there are very big discrepancies. Would this piece of legislation somehow attempt to deal with that? I’m not sure how if you just have an awareness week.
Senator Moncion: I think it would bring awareness to it. Just so you know, when I was on jury duty in 1989, the Ontario amounts that were provided then are still the same amount today. For the first ten days, you received nothing, you got $40 a day after 39 days of sitting and then you were receiving $142 after that. I was lucky enough to have an employer who had provisions for jury duty, but the money that I received, I had to pay back to my employer. The expenses that I had, I had to pay out of my own pocket. Getting to the courthouse, babysitting fees, whatever I had to pay, that came out of my own pocket. That is, what, 35 years old now? For the past 35 years — and maybe longer — this hasn’t changed very much in Ontario.
Having provinces compare and understanding that there’s a cost associated to people who become jurors is important. I find that $40 a day for someone who doesn’t have the means is — and I’m not saying that we should be getting paid a lot of money to be on jury duty, but we have to fine the right balance and it should be about the same across the country.
Senator Seidman: Again, it’s eye opening to listen to this. Hopefully, if we’re being educated just in one meeting sitting here with you, this kind of approach would be a huge opportunity to educate the public and maybe have some kind of advocacy, in fact, for people who are going to become jurors. Thank you, it’s important. I appreciate it.
[Translation]
Senator Cormier: Thank you, Senator Moncion, for such an important bill. I’d like to begin by saying that you’ve shown how our personal experiences can serve all Canadian citizens. I find it a learning experience both for us as senators and for all citizens, and I thank you already for that.
Of course, this awareness week is extremely important. Indeed, what we’ve been hearing since the beginning of our conversation, and what we heard at the second reading stage and in your presentation, is that there is an awareness and education objective. There’s also an objective of training and funding, so it’s important to work with federal and provincial responsibilities. In fact, you said the following in your speech at second reading:
The annual recognition of jury duty would help encourage and promote ongoing and timely conversations between the federal government, the provinces and territories and the various stakeholders about the importance of improving support for jurors across Canada.
Here’s my question, which is fairly broad: on the day this week becomes official, what will be the priority work to be done, who should do it and how should it be done, knowing that you’re a very organized senator? I’ll say this: we often oppose awareness days or national days to recognize one thing or another, but the real challenge is: who will take charge of this, where will the funding come from, and how will the federal government act in relation to this awareness week? If you had a work plan to table, what would it be, in a nutshell, to take into account all the issues that have been raised by your bill?
Senator Moncion: Thank you so much for your question. Senator Cormier, we’re not waiting. The work has already been underway for several years. We started working on this file about five years ago. The first step was the recognition that jurors could talk to a health professional.
The next group of witnesses you’re going to meet will be people who are part of the Canadian Juries Commission, which has a comprehensive training program. These people are already working with the Department of Justice. The commission’s situation is still predicated on the funds needed to set up programs and do comprehensive work. So the work has already begun. The people who are doing this work are doing an exceptional job. They’re also going to tell you about their situation, because they too have been jury members. There are programs already in place in British Columbia. Other programs are in the process of being established with the Canadian provinces. These are training programs available online.
We worked with the Department of Justice to fund the inception of these programs. The awareness week has been running informally for two years now. We’ve already started to raise awareness. The tools are increasingly specialized. The publicity surrounding the work done by the commission has also been heard in Europe, and there are European countries that are asking for an overview of the program and what is being put in place.
As far as the program is concerned, there is a component for jurors when they are called for jury duty. There’s also a component for commissioners. When you’re in court, jury members are looked after by commissioners, so commissioners also have training, to know how to help jurors understand the environment they’re in, and to have indicators and tools if a juror doesn’t seem to be doing well. A whole program is being developed and continues to progress.
In terms of a work plan, I’d say these people will be able to tell you where they’re at. Rather, their biggest challenge is associated with funding their initiatives and the public relations work they’re doing all over the provinces.
Senator Cormier: Thank you very much for this information. What is the position of the Canadian Bar? In your speech at second reading, you said that Jury Duty Appreciation Week is already recognized in Canada by various stakeholders and the federal government. Could you tell us more about these stakeholders? Like the American Bar Association, does the Canadian Bar Association formally recognize this week?
Senator Moncion: That’s a good question. I don’t want to mislead you. I think the Canadian Bar Association is aware… I know they’re aware of the problems associated with jurors leaving courtrooms and not being well. I couldn’t tell you how much knowledge there is within the bar. I invite you to ask your question of the next group, who will be much more knowledgeable, as they work directly with the bar to implement this part on the recognition front.
Senator Cormier: Thank you. I have one last question for you, as a member of an official language minority community. Are you confident that, with this awareness week, jurors from official language minority communities will have access in both languages? You know the challenges we face in the justice system.
Senator Moncion: This is part of the funding conditions and everything associated with the documents that were developed.
Senator Cormier: Very well, thank you.
Senator Petitclerc: A huge thank you, Senator Moncion, for all the work you do. I’m not going to repeat what my colleagues have said, but thank you very much.
When we think of this bill, we think of an educational aspect, raising awareness. I sense that we also want it to have very concrete and quantitative impacts. Are we sufficiently aware of the potential impact on jurors at present? For example, do we know what kind of stress, anxiety and mental health challenges they face? It’s hard to quantify. Do we have a basic picture? If not, could this week help find all those tools that, I expect, can then justify the creation of programs that are essential?
Senator Moncion: The basic picture, concretely, if you ask me for numbers and all that… We don’t have that information, because it’s never been calculated or retained by the courts. When you get to court, you become a juror, then you leave the court, and the last thing the judge tells you is not to talk about it. If you do, you can be found guilty of disclosing confidential information. That’s the last message we get. We jurors don’t even know if they kept data on how many men or women were on the jury. I never called the court back to say that I was feeling off balance, so I was never questioned. That was 35 years ago. Is it still like that today? Some trials have received a lot of media coverage. I don’t think this information was quantified.
When we started talking about the deliberative secrecy rule, little voices piped up all over Canada, and people started saying: me, me, me. When the commission was created, many of the professionals on the board, like psychologists, weren’t interested in treating people with post-traumatic stress that was associated with jury duty, and they didn’t have any statistics to provide either.
Your question is excellent, because we need to have a basic picture of how many Canadians may have been affected. The first basic picture we could draw up would involve going back 50 years to find the number of Canadians who served as jurors in Canada, to know how many people we’re talking about… I think we’re talking about millions of Canadians. We might not be talking about 35 million Canadians, but we might be talking about 1 million or 2 million Canadians.
There have been a lot of trials over the last 50 years. Each time, there is an impact on 12 people. If you do the math, that’s twelve people a year for 50 years… We could try to obtain some statistics to be able to identify those who suffered from post‑traumatic stress or… Some will finish a trial and have no problems, but we can’t say. There were 12 of us at the trial I was on as a juror and I can’t tell you if the single mother was affected by that. I don’t know if the government employee who was there was affected either. I only know my own situation.
Senator Petitclerc: Can we go so far as to say that if we had a little more data like this, it would be a key tool? When we go to a government to say we need money for this program… We need to be able to quantify certain aspects to establish programs, have treatment and simply check up on people.
Senator Moncion: Your question is extremely important. Awareness is growing, and the courts have been aware for a long time. At the federal and provincial levels, people in the justice system are well aware of the problems this system creates for Canadians who are not defendants.
They’re well aware of it, because when asked about training tools, they say they want and need them. Now that the tools are or will be available, we could count how many people use these tools to determine that our system is really being used. When I talk about the people using them, I don’t just mean jurors, former jurors, commissioners, those being trained to serve. We could collect a lot of statistical data from the moment people start using the system. When someone is called for jury duty, or when they fill out the form, they could go and see and that would give us a better idea of how many Canadians are affected or using the tools. It would be proactive, not reactive.
Senator Petitclerc: Thank you.
Senator Mégie: Thank you, Senator Moncion. I think this is extraordinary work, because it’s an area that’s never been addressed in general. I think it’s really great.
I saw the best practices you had found, that the whole team had found for training Canadians. At first, I thought about the question the senator asked you: won’t there be a deterrent effect afterwards? Then I told myself it’s a good thing that people will get this training. However, have you planned to count the jurors based on those who have received the training, or is everyone eligible to receive the training because anyone can be summoned for jury duty?
Isn’t the fact that someone has received the training likely going to have a somewhat positive effect on things? Are judges or lawyers likely to select them when they go in? Do you feel that could have an impact?
Senator Moncion: Thank you for your question. It can have an impact. I’m going to make a distinction. There are “training” components and “information” components. The “information” components are available to all Canadians. The “training” components are available to a specific group.
So you wouldn’t necessarily have — if you go to the website, you have access to everything. If you are called for jury duty, then you would receive information about —
If I’m not mistaken and like I said earlier, that’s a good question for next group of witnesses. I’ve been told there will be a QR code. You scan the QR code to access the tools available in a database.
Once jurors complete their duty, they would receive a QR code giving them access to training. So you would have access to information when you are summoned for jury duty, and when you finish serving on a jury you would have access to training modules. I’m saying this, but the next group will be able to tell you about it with greater certainty, because they worked on the modules.
When you’re called for jury duty, even before you’re called, you know that they use the electoral lists to establish who will receive a letter. You’re given a form to fill out where you are asked various questions, and you have to send that back in. On the form itself, it says you are required by law to fill out the form and if you don’t send it in by a certain date, it’s a violation and you can be charged for it. So there are many legal constraints associated with that first step.
Then, when you are called, they send you a letter — that’s how it was for me back then, but they may do it differently today — and they say you must come to the courthouse on a certain date. It doesn’t matter if you are having surgery that day or you have something else planned, you’re told you must show up on a certain date at a certain time. You go and you wait. Thirty-five years ago, I walked into the room, I was there with 300 people, we were all sitting together, we didn’t know each other, and we waited for the people there to start the selection process. You will receive that information in your letter. The next step is training for a category of jurors, and then there’s another category for commissioners and another for other groups with a job to do in court.
Senator Mégie: I’ve heard that some people’s mental health has been affected; when you come out of the trial, the judge tells you that you mustn’t talk about it.
What kind of feedback did you get from those people? If you have mental health problems, you go see a doctor, and they ask you questions to find out where it came from, when it started. If you tell them it’s been since you were a juror and say nothing more because you aren’t allowed to say more, what happens then? What’s the best way to lift the veil of secrecy? Do we need a law or a motion?
Senator Moncion: I’ll start with the last part of your question, then I will come back to the first part.
With respect to lifting the veil, the bill has been approved by the Senate and the other chamber to lift the veil of secrecy over deliberations.
Now, some people who suffered from post-traumatic stress disorder have found various ways to cope with their stress or found a healing process.
I’ll tell you my story to let you know how far it all went and how I dealt with the issue, because it ties in with your question.
The trial ended on a Saturday morning. I remember, I walked into the courthouse, and I had a three-year-old and five-year-old, and those kids had not seen me for five days. I had no contact with my children or my husband. All communication with my husband had to go through the commissioner. I arrived on a Saturday morning, I had just walked out of the courtroom, the judge had just told me that I couldn’t talk about the trial. My kids arrived and ran towards me and hugged me, and I started crying. We left all together as a family. That Monday, I flew out to northern Ontario. I went back to my professional life. Two days later on a Monday, I had to travel to another city, as if nothing had happened.
I arrived there and I was there all week, then I went back home on the weekend. I got home, I had all of that inside me and I couldn’t talk about it. It was right before Christmas. I had all these bad feelings and on Christmas day, let me just say that the volcano erupted and my husband told me, “You’re insufferable, I’m leaving.” On Christmas Day. I said, “No, you’re not the one with the problem, I am.”
So I realized that I had a problem to address, but I didn’t know where to go for help. Many jurors have gone through that, but no one knows it. My husband and I resolved our issues; we’ve been married for 40 years and he’s managed to put up with me all those years.
Then — about a decade down the line — I realized I was having trouble managing one part of it. I had this rage inside me, and that anger can surface at any moment and be uncontrollable. My husband told me that I needed to go for treatment. So I met with a psychologist and he said he couldn’t help me because the situation was related to my role as a juror.
So I went on from there, thinking I had to find a solution. I did a program and became a psychotherapist. When you become a psychotherapist, you do your own psychoanalysis. I never let on that I was a psychotherapist; I won’t start analyzing everyone, but I completed the program, and that’s how I came to understand how it all started and fixed the issue. That’s why when I got here, the fact that I had gone through all of that made it possible today to — first, the anger is gone; I guarantee you, it’s left me. I’m talking about feeling enraged. I can get angry, but the other, more violent side related to the rage, that part is gone. I dealt with that and many other things.
I assume that many jurors are dealing with situations like mine and were part of trials that were far more horrific than what I experienced. People need to talk about all of that. My kids were too young to remember it. That’s how those types of situations play out.
When we get to talking about awareness… When you haven’t been allowed to talk about it and you can talk about it today and explain how you dealt with your problem or how you haven’t been able to deal with your problem. All in all, the problem is that it’s your problem, not the Canadian justice system’s.
Senator Mégie: Thank you, Senator Moncion.
[English]
Senator Dasko: Thank you, senator, for sharing these thoughts. It’s an incredible experience you had. It sort of raises questions for me about other people in the criminal justice system. The courts, the justices must have this too, but that’s not my question.
Senator Moncion: They have access to help from their employer.
Senator Dasko: Oh, so they have that. That’s obviously a different situation.
My question is going in a completely different direction. Now for something completely different.
I just recently learned that it’s possible to achieve these days of recognition through motions in the federal Parliament. I’m not sure if that is possible to achieve that in a motion in the Senate, but then there is the route of taking a bill, which you have done.
Now, I just want to go back. I was looking at the chart that we got that tells us about days of recognition. Black History Month, which is February, was achieved through a motion in the House of Commons in 1995 and a motion in the Senate in 2008, which raises the question: Why did it take this chamber 13 more years to recognize that? Let’s set that aside.
You’ve chosen to take the route of a bill, which takes longer, obviously, because you have to present it to the Senate and then you have to take it to the other place, and then there is the potential of motion. Is the outcome different? Are days recognized in a different way if they go through the different procedures? Why did you decide to go this route when perhaps another one might have been possible? I want to throw that out there for you.
Senator Moncion: Thank you for the question. Taking the route of a bill brings it permanency. Taking the route of a motion doesn’t guarantee permanency. That’s the difference, I would say, between a motion and using a bill. To change this recognized week, you would need to bring another bill and to say that we no longer recognize it. Because some of these items are extremely important for the well-being of Canada as a country in recognizing Black History Month, reconciliation and all of these things, motions are fine and can be used, but we’re looking at more permanency here because this could very easily be kicked out.
The other reason is because it would be recognized by legislation, there is also funding associated with doing the work this way. This is one area where I think it’s also important. The challenges that the commission has had so far is with funding because of the federal, provincial and territorial jurisdictions. Who’s going to finance this? Who’s going to pay? Who’s going to help? With the permanency of this bill, we hope that there is going to be funding that is available for this to move forward. The judicial system hits Canadians no matter where you live, the province or the territory, whether federal or provincial.
Senator Dasko: I think that answers my question. Is it possible to proceed via a motion just in the Senate? Do you know if that’s possible?
Senator Moncion: It would be possible. If I’m not mistaken — and this is from memory — I think we did have the motion go through a couple of years ago. That’s why we’ve been recognizing the week for a couple of years, but now we’re looking at permanency.
Senator Dasko: I see. So you’ve actually taken that as a step.
Senator Moncion: Yes.
Senator Dasko: Thank you.
Senator Burey: Thank you so much, Senator Moncion, for sharing this so deeply and in such a moving way. It brought me to tears.
Senator Moncion: It was unintended.
Senator Burey: That is the point of it. This is what serving on a jury does. This is a very important bill. I foolishly walked in thinking this is just a jury duty bill, but I’m brought to tears.
I have a couple of comments and a question. Having been involved in awareness campaigns during my career for weeks and months, I really salute you because I know the value. This will change the narrative. It will change policies, and when we change policies, we change outcomes. For me, this is an opportunity for a whole-of-society ownership of democracy. I salute you for that.
The next comment is something we’ve been talking about — of course, coming from pediatrics and behavioural health — trauma-informed care. This has permeated the medical field now, and it is so interesting and so wonderful to see now that we’re having a whole-of-society approach to trauma-informed cultural justice so that we can have a more just justice. I think this is really important.
Those were my comments, but the question is about the bill paving the way for further legislative changes. You did briefly speak about financial changes and financial consequences of serving on a jury, like the secrecy prohibition previously, which was changed legislatively. Could there be other legislative changes that could potentially impact the financial strain on jurors? Is there anything that you think now because of raising the awareness, showing the value, all the things I’ve said, could there be any legislative financial impact of this? Not for the bill, but looking further down the road.
Senator Moncion: First and foremost, thank you for the comments you made. That was a great conclusion.
Second, yes, but I would say when you’re looking at financial changes, it is difficult for us as legislators to go that route because of the provincial aspect of the judicial system.
A bill like this brings awareness. People start talking about this. People who are called as jurors might find ways of getting out of the system because of financial barriers and all kinds of situations.
So yes, there could be changes in other aspects of the legislative system. I’m not sure, though, about the financial aspect. What we are looking for is to bring this awareness and have provincial and federal governments look into putting more money into these kinds of programs. Thank you very much.
The Chair: Colleagues, this brings us to the end of this panel. Let me congratulate you, Senator Moncion, for your commitment to this issue and for your testimony. It is always very interesting when a personal experience finds its way into legislation that will likely affect, as you said, 1 million Canadians. Thank you very much.
For our second panel, we have in person Mark Farrant, Founder and Chief Executive Officer of the Canadian Juries Commission; and by video conference Tina Daenzer, Chief Financial Officer and Chief Operating Officer of the Canadian Juries Commission. Also online is the Honourable Patrick LeSage, former chief justice of the Ontario Superior Court of Justice. Welcome to all of you, and thank you for joining us in person and online.
We’ll begin with opening remarks from Mr. Farrant to be followed by Ms. Daenzer and the Honourable Mr. LeSage. Everyone has five minutes. Try as best as you can to limit your remarks to that because we will have lots of questions for you subsequently. Mr. Farrant, the floor is yours.
Mark Farrant, Founder and Chief Executive Officer, Canadian Juries Commission: It is a pleasure to be here with you here today to support Bill S-252. My thanks to Senator Moncion for sponsoring this bill and for her continued commitment to supporting the mental health of Canadians on jury duty and at coroners’ inquests.
The Canadian Juries Commission is a national not-for-profit organization representing and supporting jurors across Canada. In 2014, I served as a juror on a graphic first degree murder trial that changed me and changed the course of my life.
As I’m sure you’re aware, our calendars are marked with a number of special events and occasions honouring the professions and front-line service providers working so hard to keep us safe, healthy and protected. It’s important to recognize their contributions and sacrifices by marking an occasion in their honour and shining a spotlight on their achievements and service, and to ensure these men and women are adequately supported in turn. Jury duty appreciation week would be an opportunity to say “thank you” to jurors past and present for their enormous service to the community and their important contribution to the justice system. Without jurors, there would be no justice. A week designated to thank and honour jurors is long overdue in Canada.
Each year, thousands of jurors step away from their jobs, families and daily life to assume one of the most important civic duties remaining in our democracy: observing evidence in a criminal or civil trial or on a coroner’s inquest and determining a verdict. Jury duty is one of the core responsibilities of citizenship, and the right to be tried by a jury of one’s peers is enshrined in our Charter of Rights and Freedoms and the Criminal Code.
Jury duty appreciation week is an opportunity to recognize the sacrifices jurors make to support the justice system and their communities, and to say thank you, but it’s also a time to remind Canadians of the importance of jury service and raise the profile of this important civic responsibility.
The Canadian Juries Commission has been tracking the support for jury duty over the past four years, and the results are troubling. Only 19% of Canadians are willing to serve on a jury. That’s lower than willingness to donate blood or volunteer in the community. Worse, only 9% of Canadians are actually familiar with and understand what jury duty actually is, with very few understanding the duties of criminal or civil juries and even fewer understanding a coroner’s inquest jury.
We have not invested in jury duty directly in decades, and it shows in the low opinion data and low willingness to serve. While jurors perform an enormous service to our community and justice system, we’ve not done our best to support them during and after their jury service. Far too often, we hear stories of employees being mistreated in the workplace because of their jury service or employers believing that jury duty is something like time away from work or a vacation rather than understanding the importance and value of jury service. Employees have talked about reprisals in the workplace, open hostility and lack of support from managers and office staff. Duty to the office over jury duty is entirely the wrong message to send to employees. Jury duty appreciation week is an opportunity to remind us all of our civic responsibility and our duty to uphold this important pillar of our democracy.
Juror mental health is at the core of the Canadian Juries Commission’s mandate. For many, jury duty is an extremely rewarding experience with jurors acknowledging their positive contribution to the justice system and their community, but we recognize that jury duty is not easy for everyone. It can be an extremely stressful experience. For some, it can be life-altering, impacting one’s mental health, resulting in depression, anxiety, PTSD and worse.
Ten years ago, jury duty mental health was barely a concept, something that was not talked about and it was even discouraged. Today, juror mental health is a priority for many provinces and territories, and the commission is proud to be delivering programs and services to support jurors directly, such as our pilot project in British Columbia.
Jury duty appreciation week is also an opportunity to remind jurors about mental health, to acknowledge their lived experiences and to offer hope and support. Jury duty appreciation week must be added to our calendar of special events and occasions and be held high among the other front-line services and professions we already acknowledge and celebrate.
Thank you for inviting me here today to support Bill S-252.
The Chair: Thank you very much, Mr. Farrant.
Tina Daenzer, Chief Financial Officer and Chief Operating Officer Canadian, Juries Commission: Thank you, honourable senators, for inviting me here to take part in this discussion today in support of Bill S-252. First, I’d also like to thank Senator Moncion for sponsoring this bill.
My name is Tina Daenzer, and I’m currently the Chief Financial Officer and Chief Operating Officer of the Canadian Juries Commission. I’m also a past juror who served on one of Canada’s most horrific murder trials, which left me forever changed. Many of you, like most Canadians, probably are unaware of how doing your duty can affect your life and your mental health, so today I want to explain why the simple act of showing appreciation and the passing of this bill is so important.
One of the biggest issues surrounding jury duty is the fact that most Canadians are highly unaware of how the process actually works. How would you? Unlike Americans, once the trial is over, Canadians never speak about it. We’re sworn to secrecy. Unless you’re part of the legal community or have been summoned, most Canadians put very little thought into serving on a jury. In fact, I’m pretty sure that the first reaction most people have when they get a summons is, “How do I get out of this?”
That summons can set off a firestorm of stressful thoughts. Do I have to take time off work? What will my boss say if I get selected? Can I be fired? Will my company continue to pay me? What about child or elder care? Who will pay for my transportation and parking? How long will this take — weeks or months? The questions are endless, and the anxiety is very real.
If you are selected, it’s not like on TV. The process is unlike anything you’ve experienced before, and it can be extremely stressful. Even if the trial doesn’t present graphic or disturbing evidence like the one I took part in, emotions still run high as you’re holding a person’s life in your hands. Think about those who have been found guilty only to be exonerated years later. Imagine the guilt a juror must feel for that decision, even though it was based on the evidence presented.
Jury pay is still woefully inadequate in order to ensure a truly well-balanced jury panel. In fact, in Ontario, it has not changed since I sat on the Bernardo trial in 1995. The initial ten days are unpaid until the tenth day, when you receive $40 per day. Millions of Canadians work in minimum wage jobs or in the gig community, which means that they are financially unable to participate in the jury process. If we truly want a jury of our peers, then we need to ensure that every Canadian can participate.
Mental health support for jurors is still non-existent in some provinces, leaving those who take part left to pay out of pocket if they’re seeking counselling. We should not be asking our citizens to do their duty at the expense of their mental health without support.
We have seen some improvements in those areas over the past couple of years. Since its inception, the Canadian Juries Commission has worked hard on behalf of citizens to improve the jury duty process through working directly with the Department of Justice and the various provinces across the country, but there is still so much work to be done.
If the job of sitting on a jury is so important to our entire legal system, why are the people selected so underappreciated in both adequate pay and mental health support? Many studies have shown that recognition in the workplace boosts engagement, attracts better employees, helps employees find meaning and reinforces the positive. As a country, we should all want that not just for employees but also for those who are chosen as jurors. We must ensure they feel supported and appreciated, and at the end of the trial, they can walk away feeling like it was a rewarding and enriching experience.
Thank you for your time. I truly appreciate it, and I hope you’ll help get this bill passed.
The Chair: Thank you very much, Ms. Daenzer.
Hon. Patrick J. LeSage, former Chief Justice of the Ontario Superior Court of Justice, as an individual: It’s an honour to be invited to attend here today. As far as an opening statement, I think anything I had to say has already been articulately expressed by the two preceding speakers. I think I have very little to add other than to perhaps reiterate one small part, and that is that our justice system is or should be really based on community values. The jury is that connector that our justice system has — a very direct connector — to community interpretations and views. They are not their personal views, but their application of the laws in our country.
I’m a big fan of jurors. I have dealt with hundreds of jurors and hundreds of jury trials, both as a prosecutor and as a judge, over a period going back 60 years. I’m not current on very recent changes that have occurred, but I am current with the experiences that the two preceding speakers have mentioned, and I agree with everything that they have said.
That’s my opening statement, thank you.
The Chair: Thank you very much to our witnesses. We will now proceed to questions from senators. Senators will have roughly four minutes for your questions, and that includes the answer from the witnesses. It is helpful if you could identify who you are directing your questions to and whom you would like to answer first in case you want all witnesses to respond. I will also request my fellow committee members to ensure that you speak clearly and slowly during this panel when asking your questions.
Senator Seidman: Thank you to all our witnesses for being with us today and presenting information that is clearly new for all of us and eye opening to a great extent. And that’s troubling, actually.
I’m going to address my question to you, Mr. Farrant, and the thing I find troubling is that there is no data, and, in fact, you are presenting to us now the beginning of some data collection, which is reassuring.
What I would like to know is are you aware of any projects going on right now where there is an attempt to collect data on the effects and the outcomes on jurors because that would be extremely helpful in future programming, advocacy work and financial help.
I’d like to know if there is anything ongoing now that, perhaps, there is some recognition that the work needs to be done.
Mr. Farrant: Thank you for the question.
It’s extremely challenging to conduct research with jurors because of lack of access to jury members because of the structure of the court. So researchers, academics and health practitioners are not permitted to interact with jury members. You can’t approach them. The media are not allowed to approach jury members. They’re anonymous and sworn to secrecy, and their identities are secret. That’s an important provision. That’s an extremely important provision in our justice system.
Sadly, we’ve heard of cases where individuals leaving the courthouse are followed to their cars by members in the gallery. Jurors have talked about their safety and security — real fears. This isn’t fiction. This is, “I have been followed to my car; I’ve been followed to the bus stop; somebody is following me home in their car.” It’s really important that we maintain that level of security and secrecy, but that proves a challenge for academic purposes to launch studies.
There’s an attempt in the United Kingdom now to undertake such a study, but they’re in the same position as we are with the lack of access and lack of contact.
We’ve conducted a lot of research with past jurors. It’s focus group driven, which is very rich and has revealed very cogent data, but, again, it’s not quantitative; it’s qualitative.
Senator Seidman: I think Senator Moncion talked about this, and you alluded to programming modules and things that you are doing, which gives you access to jurors, and they’re no longer anonymous, presumably.
Mr. Farrant: The jurors that participated in our studies came to us through our network, and so these are people who have raised their hand and said, “How can I participate; how can I help?” Over the years, we have developed a cohort of jurors.
When we undertook our grounded theory approach to develop the program that is now live in British Columbia — it’s our pilot program; it’s twofold. One is a peer support network that we’ve developed, so we are training former jurors in peer support. It’s one of the pillar recommendations of the Mental Health Commission of Canada to invest in peer support and to provide peer support to front-line workers to combat ill mental health and suicide outcomes in front-line workers, and we took that recommendation to provide a complementary program. In some cases, it will be there in jurisdictions that have no post-trial mental health support. So it’s meant to be a national program.
The other part of our program is our court support training program, and that is training the B.C. Sheriff Service in a holistic online training program about what it’s like to be a juror from the moment a summons appears in your mailbox through each trial stage. There’s a section on integrity and the balance of support and duty. Mental health conditions are explained, and then there are a series of scenarios. The B.C. Sheriff Service cohort that has gone through the training has said not only is it excellent, it’s the best training they’ve received in their career in the service.
Senator Seidman: It’s a bit of a catch-22, right, if you can’t support people because they can’t be identified and you can’t follow up with them to see how they’re doing in their lives because they can’t be identified, so it presents serious challenges to bring the kind of programming that is necessary maybe all through the process and following the process of being a juror.
I wonder, is there an opportunity to — and I think maybe your program that you’ve developed that you just spoke about would go some way to doing that, but is there a way to develop programming in combination with the justice system with people who are already in that environment and working with the jurors? I mean, it’s obvious they need to be sensitized as well to potential impacts on the juror.
Mr. Farrant: That’s why we identified the constables, court officers and sheriffs as the first group who interact with the jurors on a daily basis. They’re key contacts. They’re the people who check them in in the morning and manage them throughout the trial. They’re the ones actually talking to jurors by name, in some cases. They form a relationship over the trial, and so they’re the best-positioned individuals to provide support and comfort.
We’re not training them to be therapists, but we’re training them to identify when a juror is crying in the back room or is experiencing distress and how to manage that scenario in that moment so that the work can continue.
That’s why post-trial support programs like our peer support program is made available to them after they’ve been dismissed. They can speak to a juror who has an understanding of what it’s like to be a juror, who has been there and has a common experience. That’s the beauty of peer support; you’re talking to someone who gets it and who understands it.
Provinces have put in place post-trial support programs run by the province — British Columbia, Saskatchewan and Ontario. We are very proud to have played a role in seeing those programs developed, but there are a limited number of sessions that are available and it’s not consistent province to province either. That was one of the recommendations in the report of the Standing Committee on Justice and Human Rights, that it be a national standard.
Senator Seidman: I’m listening to you, and I’m thinking that there is a way to collect data. It will be anonymous data, but there is a way to collect data based on your programs. The sheriffs who see the jurors on a daily basis, who — I’m just thinking there are ways to build in data collection on the effects, even if it’s anonymous.
Mr. Farrant: Sure.
Senator Seidman: This bill and the kind of work you’re doing might serve, ultimately, in providing the evidence-based data, which would result in certain kinds of services to jurors who desperately need them.
I hope that you’re going to find that opportunity and use that opportunity to collect the kind of data that could be used.
Mr. Farrant: We have, and thank you for the comment and the question.
We routinely present to individuals in the justice system using the data that we have, using the focus group data that we have that talks about those experiences. We have very concrete evidence of the long-term effects of jury duty, what it’s like ten years after your jury service and what it’s like when the case is retried. It’s devastating to individuals to learn that their case has been retried because of an error that was brought up, and that comes roaring back to you ten years later, you’re suddenly retriggered and unable to manage the situation. We have that data.
Senator Seidman: I truly commend you for the initiative and for the work you’re doing, and I think it’s important to raise awareness among all of us, including legislators, of the impacts of jury duty.
Thank you.
[Translation]
Senator Mégie: I’m going to ask my question in French. Earlier you spoke about jury duty; when people go back to work, in their work environment, they may face outright hostility and even reprisals.
Is it because they were off work and, as a result, the workload became too big for the others, or is it because the public agreed or disagreed with the verdict and people reacted by levying reprisals?
[English]
Mr. Farrant: Thank you for the question.
To the last point of the question, very often, it’s not related to the verdict. Most employees, when they’re serving on a trial, do not talk about the trial and perhaps don’t communicate what the trial was that they served on, especially when a trial reaches a middle ground verdict or one that the public, let’s say, don’t agree with. That’s another trauma for jurors because a jury that delivers a verdict that is manslaughter — the jury doesn’t own the evidence, the process and they don’t manage the presentation of evidence. They weigh the evidence against the law. That was the decision that was reached based on the evidence that was put in front of them. The jury is doing their job. That’s the job, and that’s the result. But jurors do feel a sense of angst and grief sometimes because of that. They rarely say, “I sat on that trial” or connect themselves to that trial.
Certainly, to the first part of the question, employers are aggressive and angry about a trial that extends to four months or longer. I know jurors who have been on 11-month and 18-month trials. You are away from work or you might be working on top of that. That’s the case for many jurors. The expectation is “I’m proud of you that you’re going to be doing this work, but you’re going to get your job done, right?” So jurors are working two jobs. They’re doing their duty during the day, and at night, they’re burning the candle at both ends making sure their work is done and submitted. Some are even going to the office after court closes. That was my case. I went to the office and worked until 2:00 a.m. to be back in court the next morning to assume my role in a four-month trial.
[Translation]
Senator Mégie: Thank you. I have a clarification question for Ms. Daenzer. I understand that you specified that non-disclosure — the right to secrecy — was still legally required in Canada. Can you tell me if it’s still required in the United States, or is that no longer the case?
[English]
Ms. Daenzer: I honestly don’t know if it’s always existed in the United States, but when there are big trials in the news and the jury is released, you see them commenting on camera about the entire process, the decision and all aspects. Here, that doesn’t happen. Like Mr. Farrant said, the identity of jurors is secret. The media is not allowed to approach them unless a juror says, “I have something to say,” and then that name becomes public.
[Translation]
Senator Mégie: Thank you.
[English]
Senator Cormier: My question will go to Mr. Farrant or Ms. Daenzer.
I think Senator Seidman asked a question to Senator Moncion about the unintended consequences of this bill if it’s adopted. Do you want to speak to that? Do you feel that there could be unintended consequences? That is my first question.
Second, neither the importance of jurors to the justice system nor their risk of adverse mental health outcomes are unique to the Canadian context. In addition to the several American states that formally recognize jurors, how are jurors’ contributions and services recognized in other international jurisdictions? Would it help us to understand the issues if we know what’s happening elsewhere?
Mr. Farrant: Thank you for the question.
In terms of unintended consequences, I don’t think that willingness to serve on a jury — it could get worse, but it’s already very low. Historically, it has been low for years and decades, and that comes from the lack of investment in jury duty. So those narratives about wanting to get out of jury service have come from discussions in the community based on how awful the experience was, in some ways. We haven’t done a very good job of communicating the important civic duty that jury duty is or the good experiences that many jurors have. Many jurors come out of jury duty feeling like they have contributed to the justice system. They come out of jury duty feeling like they have done something for their country, and they talk about it for years afterward: “I served on a trial, and I feel very proud to have done that.”
Those are the narratives that we want to share with Canadians. That’s the approach we want to have. When we think about jury duty, it’s not, “How am I going to get out of this?” It’s, “I think this would be an interesting experience, and I want to contribute.”
Again, there are Canadians who do; when the summons arrives, they are looking forward to it and are interested. However, there are a vast number who are not and who worry about how it will impact them and their job. “I’m so afraid to tell my employer about this; I don’t know how they’re going to react; I know how they’re going to react and it’s not going to be good.”
In terms of recognition, we’ve had great conversations with the states of California, Texas, Missouri, Florida and New York where jury duty or juror appreciation week is in place in many of those states. It’s not at the level that I think even they would like to see it. It’s a piecemeal approach; it’s not nationally recognized. The federal courts of the United States do recognize it as well, but there’s really not a lot anywhere else in the world.
Senator Cormier: What are the main financial issues for you after this bill is adopted? Where should the money be put in terms of priorities?
Mr. Farrant: For this bill, it’s funding; funding is the main problem. We have a plan to launch initiatives with Canadian workplaces. We want to speak directly to employers across the country about the importance of jury duty. We want to connect to them to remind them that it’s their responsibility and their obligation to support employees when they serve on jury duty.
This is the last mandatory civic duty left in our society. There is nothing left. We don’t conscript for the military and voting is not mandatory, but jury service is.
We want to speak to schools. We have an education platform. When we speak to teachers, they are excited about it and say that their students would love this. We want to do it in the right way, that students use technology and engage with digital platforms.
We want to promote it to Canada. We have had a “thank you, jurors” campaign now for the last two years. We were very proud that prominent Canadians volunteered their time to contribute to our campaign in the past.
But it’s a matter of funding. It’s funding that will see these programs materialize.
The Chair: I have two questions. Let me pose my first question to the Honourable Patrick LeSage.
We heard from Mr. Farrant that when and if this bill becomes law, constables, court officers and marshalls will play a role in jury appreciation week. You’re a judge. Can you tell us what role judges should play, if any, in appreciating the work of jurors in this proposed week?
Mr. LeSage: It’s delicate, but there are ways we can at least assist.
One of the delicate things is that if a person is mentally upset, substantially and significantly, during the course of a trial, the question is: Can anybody in the court structure recommend that they go and talk to a psychiatrist or psychologist, whomever. The risk in that is that, at the end of the day, people might ask whether that person’s vote on the verdict their vote or the vote of the psychologist or psychiatrist.
Having said that, it is so important that the court structure recognizes this issue, accepts that it is a very real problem and at least be in a position to provide some sort of assistance to them. I was directly involved in that almost 30 years ago. What I did was to arrange — it was all privately done with a group of psychologists and psychiatrists who would donate their time to come and speak to the jurors after the trial. Now, that may be too late, but the other issue is that one has to be very careful about giving treatment or advice during the course of the trial. That’s delicate.
In that case, through the goodness and charity of the psychologists and psychiatrists, we had arranged that the jurors would see these people immediately after the trial and, in fact, before they left the courthouse. They weren’t forced to do this, it was voluntary. We had two separate rooms, and what went on there was totally confidential. So the jurors, all 12 of them, after the verdict was delivered, I went into the jury room and told them that we had this available. They seemed to be very grateful for that. I made it very clear that we would have no involvement, the court structure, in the sense of tracking or treating.
That was a pretty rudimentary structure at that time long ago, but there has to be a way that, at the very least, the jurors can have available to them, at no cost to themselves, psychiatric and psychological services. That can be done, but that isn’t the whole answer. It’s certainly part of the answer.
I do admire and respect both what Mr. Farrant has been doing and what Ms. Daenzer has been doing is their involvement in this issue over the years. It’s moved quite a ways, but it moved from nowhere, from nothing, to where at least there is some hope at this point. But there still has to be a structure created — and don’t ask me how one does this — where the jurors are aware very early on that psychiatric assistance can be available.
The Chair: Thank you very much.
Mr. Farrant, I have been a juror. I was sequestered for two weeks. I worked for an enlightened employer and there was no financial penalty to me, although it was a difficult process.
I want to ask you whether you have a sense of the human resources landscape of employers and whether or not you believe there is a trend line of embracing in human resources policies the last civic duty. I really take that to heart because we also do not have a national youth service, as some of us think we should. We have jury duty. I wonder if you have a sense if businesses — let’s start with big businesses — are embracing of the civic duty.
Mr. Farrant: Thank you for the question. It is a very interesting question, and we’ve done some work and investigation in this area. Embracing jury duty and celebrating it is almost non-existent. In workplace human resources modules, in any of the human resource practices or any of the online “know your employer” portals and those types of things, jury duty is not there at all. There might be a small line that says your salary will be maintained on jury duty, and that’s it.
In some cases, there is a note on an employee portal that talks about a narrative like Bob did his civic duty but also worked overtime with the company to get his work done, and we’re so proud of Bob for continuing to support the company in getting his work done. There is no mention of celebrating his service and no celebration of the company’s commitment to support jury duty.
When you talk to human resources professionals directly, some of them scratch their head and say they don’t even know, they have to go and look. There is a lot of investigation there. That is among established, well-respected companies across the spectrum.
There are a lot of start-up companies who have grown substantially in two or five years that had never thought about jury duty and never even thought that they should have a policy around it, and then when they look at the letter of the law, they realize they don’t have to do that much. They could, and do, put that employee on short-term disability because they’re not obligated to maintain their pay. That’s the law in every province except Newfoundland and Labrador. It’s illegal to terminate an employee for serving on a jury, but they’re not obligated to maintain their salary. That is a provision of the employer doing that as a best practice.
The Chair: There is a lever that the federal government has over federally regulated employers. I leave that as a suggestion for you.
[Translation]
Senator Petitclerc: My question is for you, Mr. Farrant, but obviously I’d be happy to hear from the other witnesses.
I listened to you and it seems to me that several things that can be done while a juror is serving, and by that I mean that’s when they have contact with them even if their identity is kept secret, and they can provide them with services and tools.
Will it remain a big challenge to wonder if they can check on them once they go back home? It seems to me that’s a time of great vulnerability should they need it, a few weeks or a few years later.
Regarding your focus group, you said earlier that people raised their hand. What happens with those who, for whatever reason, don’t raise their hand? Is it even realistic to think that we might somehow be able to check on these people to ensure they don’t have particular needs a few weeks or months down the road? Will that always be a serious issue, since their identity is kept secret?
[English]
Mr. Farrant: Thank you for the question. We’ve recently conducted focus groups, we’re very pleased to be working directly with the Ontario coroner’s inquest unit and we did some focus groups with near and present former jurors. We were very proud that there was an agreement with the inquest unit to follow up with jurors directly and connected them for a focus group. But that’s unique and was an agreement with the inquest unit, it’s not the case with criminal and civil trials.
Following up with jurors is extremely challenging because there is no provision, no law in place and no mechanism to follow up with them after they’ve completed their service. The mechanics of that decision are foreign to me too in terms of exactly who would have the power and authority to see that through.
The information gap at the front end is a challenge for jurors as well. Many jurors talk about still being extremely nervous about what’s really expected of them on day one. “I have a lot of questions and I can’t find the information.” We have built and modelled an information app that would be available to all Canadians in multiple languages, not just English and French, but multiple languages, in Indigenous languages as well, and would be able to toggle based on the region you live in and provide you with the information about jury service in the province that you reside in.
We’ve also talked about the possibility of there being maybe a day zero, not a day one, but a day zero where the jury is educated on what’s expected of them. There are questions, “What do I wear to court? I don’t know. I assume I have to dress up for it.” But simple questions that still we cannot find answers to.
Again, we’re not opinionating jurors about the trial they’re going to be viewing, but certainly about what’s expected of them and what the process is. Again, there is a gap province by province by province, inconsistency on where that information is available or even if it’s available at all.
[Translation]
Senator Petitclerc: Ms. Daenzer, as we were told earlier and have been for several years — you said it yourself — when you finish your duty, you’re told to keep it secret and that’s it. In your opinion, is that still how things go? Are people a little better equipped, be it with a phone number or something else, or are they still being told, “Thank you, and keep the secret”?
[English]
Ms. Daenzer: Yes, basically. It’s still “keep it a secret” pretty much. But as Mr. Farrant mentioned, there are basically four sessions of counselling now provided in British Columbia, Ontario and another couple of provinces. But the pilot project that we launched for the peer-to-peer support program coincides with those four sessions so that at the end of the trial we have also created a pamphlet that the sheriffs would then give to each juror that would give you the information about the peer-to-peer support program. You can keep that and contact us two months later, five months later. There is no stipulation for that program in length of time or number of sessions because, as Mr. Farrant said, if someone comes up for retrial or parole, this can trigger something. Somebody can then automatically go to the website, log on and then make an appointment with a peer support person and discuss the emotions that they’re feeling.
The Chair: Thank you very much.
Senator Burey: My question is for the three witnesses, Mr. Farrant, Ms. Daenzer and Justice LeSage.
You said, Mr. Farrant, only 19% of Canadians are willing to serve. I think that was very important for us to hear.
Ms. Daenzer, you talked about the financial impact, and I think we have also talked about the varying human resources policies — Senator Omidvar, about possibly provincial and federal legislation.
Justice LeSage, you talked about the importance of community.
I would like to know — and we have talked about this in this session — because I want to use a specific word: How would or could this bill lead to a more inclusive jury pool? Because I think that is probably what you want to happen, but how could this bill lead to a more inclusive jury pool?
Ms. Daenzer: I’ll answer quickly. Thank you for the question. It’s a great one. It’s one that we always talk about.
As you know, many of the people who are standing trial often come from marginalized communities and the Charter says you have the eligibility to be judged by a panel of your peers. If half of the population cannot even afford to be there, what you wind up with sitting on the jury is a bunch of old, retired teachers who have the time and people who work in the corporate world because they’re continuing to be paid. We need to change that if we want juries to truly reflect the population, and the only way we can do that is by having the provincial governments automatically increase the jury duty pay from day one to reflect minimum wage.
Senator Burey: Thank you.
The Chair: Senator Burey, do you want more witnesses to weigh in or are you mindful of my stress?
Senator Burey: I am mindful of your stress, Madam Chair, but they could give written responses.
The Chair: They could certainly give written responses.
Senator Dasko: My question is to Mr. LeSage and Mr. Farrant.
Senator Moncion earlier said, “Some people should not be jurors.” I would like to pursue that for a moment just to try to learn to what extent people who might have some sorts of trauma — I mean, given the issues with jurors and the experiences they go through, to what extent does the system permit people who have issues, whatever they may be, to exempt themselves or to not be selected as jury members? I think, for example, people who are squeamish like me, I mean to be confronted with a situation in a court where you might be subject to visual graphics or whatever.
To what extent does our system permit people to be exempted from jury duty because of these potential issues? Mr. LeSage, could you comment on that, please?
Mr. LeSage: That’s a very good question. The fact is that a person can at jury selection at the outset — and bear in mind I have not been in a courtroom for several years, but I was in and around one for 40 — before the selection occurs, in my day at least, we always asked people if there was some pressing reason why they could not participate. So people could get up and they could say, “I suffer from schizophrenia, I’m bipolar,” but that’s more than kind of an awkward way of doing it.
At one trial in which I participated — I think this could be done more often — it was the Bernardo trial, what we did is we gave all the potential jurors a questionnaire and we asked that very question. Would you feel incapable or hindered because of your health situation, mental or other — I don’t think we used the words “mental or other.” The fact was the persons were able to then write — it was written. That all came to the judge and to the defence and Crown. The result was that for a significant number of persons in that case, I was simply able to, as a judge, look at the Crown and defence and say, “You’ve read Mrs. Jones’ response, do you not think she should be excused?” I may not say “do you not think,” but “What do you think?” Immediately, the counsel would say, “Yes, they should be excused.”
That was a way of doing it. It’s an extra procedure, but it worked, and it worked very well. Many of the people that were excused were excused without them having to disclose why they were asking to be excluded.
Senator Dasko: Mr. Farrant, is that the way you understand that it still happens?
Mr. Farrant: That is my understanding as well, yes, that everyone has an opportunity to disclose their narrative and reasons why they would not be able to serve in a graphic case. More often than not, they are dismissed on those grounds, too.
Senator Dasko: Thank you.
The Chair: Senator Burey, would you like Mr. Farrant or Ms. Daenzer to answer your question because we’ve been given grace by our interpreters for just five more minutes.
Senator Burey: Would you mind, Mr. Farrant? It’s about the inclusiveness of the jury pool and the bill.
Mr. Farrant: Well, the bill will go a long way to remind Canadians coast to coast about the value of serving on a jury and the value of participating in the justice system and representing your community. This is the opportunity for you to represent your community directly in the justice system, and that’s a message that we don’t hear too often and that’s an important one that we want to disclose to Canadians.
Jury pay underpins that. If we have identified systemic racism in the justice system, which we agree exists, simply raising jury pay automatically gives a financial opportunity for people to serve. Jury pay is less than minimum wage. It’s roughly $5 an hour in Ontario. That is what you’re making at the $40 mark. That doesn’t pay for bills. That doesn’t cover lost income. It barely pays for your parking and your lunch.
Senator Burey: Thank you.
Senator McPhedran: I’m very mindful of the time, so I’m not going to launch into a complicated question.
I want to thank Senator Moncion, our witnesses today and those that have been involved in this project because more than anything, to my ears, this is really about our democracy.
Mr. Farrant, you mentioned the obligation as a civic obligation, but the contributions and the health of our entire legal system is predicated on the jury system. I want to express huge gratitude and hope that we can frame the understanding of this in terms of the higher functioning of a more inclusive democracy.
Mr. Farrant: Thank you. I appreciate the comment, and I’m very grateful for it.
The Chair: I wish to thank all our panel members and our witnesses for your testimony — Ms. Daenzer, the Honourable Patrick LeSage, Mr. Farrant — and, of course, our gratitude to Senator Moncion for providing us with this opportunity to weigh in on a matter that does not receive the attention that it should, and it did so today.
Thank you very much.
(The committee adjourned.)