THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY
EVIDENCE
OTTAWA, Thursday, February 15, 2024
The Standing Senate Committee on Social Affairs, Science and Technology met with videoconference this day at 11:30 a.m. [ET] to consider Bill S-252, An Act respecting Jury Duty Appreciation Week.
Senator Ratna Omidvar (Chair) in the chair.
[Translation]
The Chair: Honourable senators, my name is Ratna Omidvar. I am a senator from Ontario.
[English]
I am the Chair of the Standing Senate Committee on Social Affairs, Science and Technology.
I’d like to begin by welcoming members of committee, witnesses and members of the public watching our proceedings. Before we begin, let us do a quick round table of introductions from our colleagues, starting with the deputy chair, Senator Cordy.
Senator Cordy: Hello. I’m Jane Cordy, a senator from Nova Scotia. Welcome.
[Translation]
Senator Cormier: René Cormier from New Brunswick.
[English]
Senator McPhedran: Marilou McPhedran, senator from Manitoba.
Senator Dasko: Donna Dasko, senator from Ontario.
[Translation]
Senator Mégie: Marie-Françoise Mégie from Quebec.
[English]
Senator Osler: I’m Gigi Osler, senator from Manitoba.
The Chair: Thank you, colleagues. We will continue our consideration of Bill S-252, An Act respecting Jury Duty Appreciation Week. We have witnesses in person and by video conference. First, we have Mr. Dan Cozine in person. Thank you very much for coming to grace us with your presence. Second, we have Mr. Patrick Fleming by video conference. Thank you both for joining us today. We’ll begin with opening remarks from Mr. Cozine, followed by Mr. Fleming. You’ll each have five minutes for your remarks followed by questions from committee members. Mr. Cozine, the floor is yours.
Dan Cozine, as an individual: Good morning. I wish to extend my sincere gratitude to the Senate of Canada, and in particular, the Standing Senate Committee on Social Affairs, Science and Technology, for inviting me here today. I’m from Regina, Saskatchewan, Treaty 4 territory, traditional land of the Métis.
The journey to appear before this committee today began in a courtroom in Regina on January 18, 2016. The trial for the two accused was for the murder of a 4-year-old and attempted murder of her 2-year-old sister. There were three incredibly tough weeks. At the end of three weeks, and immediately after the judge’s instructions for deliberation, I was selected to leave because there were more than 12 jurors. I was not able to participate in deliberations. After a very brief thank you from the judge, I was escorted out the back door of the courthouse. Those three weeks were all for naught.
What followed was months of counselling, during which I was diagnosed with PTSD. I reached out to a stranger, Mr. Mark Farrant. This led me to advocate through written letters to Mr. Ralph Goodale, then-MP for my home riding of Regina-Wascana and then-Minister of Public Safety; then-Minister of Health Dr. Jane Philpott; and then-Minister of Justice Jody Wilson-Raybould. All were sympathetic to the plight of jurors, but stated — and rightly so — that justice is administered provincially and they could be of no help.
As it pertains to today’s subject, Bill S-252, An Act respecting Jury Duty Appreciation Week, I will share that my first phone call with the head sheriff of the province, the person in charge of juries, left me dumbfounded. I asked a simple question: What support do jurors have post-trial? His answered, “I’ve never thought about if it.” If the head of juries in the province had not thought about it, what knowledge and appreciation would the general public have? Through advocacy, and with the help of Mr. Farrant, I’ve been proud to be a key part of creating Saskatchewan Juror Assistance and Support Program, which began on December 1, 2017, nearly two years after that trial.
Mine was one of “12 angry letters” referenced by the Honourable Senator Lucie Moncion, a former juror herself, in her speech on November 30, 2022, advocating for a national strategy for jury support. She spoke passionately about being a former juror and the need for jurors in Canada to be recognized.
Thousands of citizens across Canada participate as jurors and play an integral role in the justice system. These people should be proud of this service, and some are. However, many like me have been traumatized and may feel forgotten. They do not forget. Even long after trials are over, when appeals come up or sentences end for those convicted, all those days in a jury box come flooding back.
This is why I respectfully ask this committee to declare the second week of May each year Jury Duty Appreciation Week. This will give many a renewed sense of pride and much-deserved recognition and gratitude, which mental health professionals know is a key part in coping with, and recovering from, trauma.
I have been an educator for nearly 25 years and come from a family of educators. As the principal and leader in my school, I’m constantly looking for ways to recognize the good works of both staff and students. I know the power that a simple act of appreciation can have for a child or teacher. It can provide the positivity and determination needed to work hard and achieve. That is one part of this week. The other functional benefit of Jury Duty Appreciation Week is education.
I walked into a jury box having no idea what I was in for. I learned so much about the justice system and the professionals in the courts, from police, lawyers, doctors, coroners and even the judge. It was such a valuable learning experience. The public has a very negative point of view when it comes to being on a jury. This is a week that can potentially change that. This week can highlight that while it can be a difficult task to undertake, it can be a rewarding one — one of service to country and the justice system and of learning. This week can also educate employers that do not, or in some cases cannot, work with employees to help with pay, benefits and time off to act as a juror and potentially time off post-trial to recover. The act we are discussing here today will be of great benefit to the justice system, as it will allow for more information to be shared about juries, their function and their importance.
I felt I was alone; now I know I was not. In recognizing jurors for a week each May, thousands of citizens across this country will know that they are not alone, but rather supported and appreciated by Canadian citizens and the Government of Canada. I’m excited that we are beginning to appreciate and support jurors and recognize that being a juror is important and something to be proud of.
I thank you for your time today and welcome any questions you may have.
The Chair: Thank you very much, Mr. Cozine. Mr. Fleming, the floor is yours.
Patrick Fleming, as an individual: Good morning, and thank you, Madam Chair. Thank you, honourable senators, for inviting me here today to discuss my experience serving as a juror and to express why I feel that Jury Duty Appreciation Week is needed. I appreciate this opportunity.
I served as a juror nine years ago in a trial that consumed my life for over 10 months. It was a graphic first-degree murder trial involving a young woman who hired four accomplices to execute her parents in her family home. Thoughts of this crime still linger in my mind after all these years.
The evidence I saw and heard was truly horrific, but I don’t want to expose the Senate to those details because they are too graphic. The video evidence, images and horrific 911 call still haunt me today.
As a foreman on this trial, I can still see and hear myself reading the guilty verdicts to all the accused. While the guilty parties received their just verdicts for their horrific actions, I can still hear the screams of the family and friends of the accused in a packed courtroom as I read their guilty verdicts.
Jurors take their responsibilities seriously and deliver verdicts that impact both the victim and the accused, but jurors also have to live with the verdicts as well.
Almost a year of my life was spent in court, in addition to the time spent sequestered for deliberation. After a brief thank you from the judge, I returned home. However, something was different in me. Something didn’t feel right. Being home, I thought I would have feelings of relief and find peace, but that was not the case.
This experience made me feel alone. Although I was surrounded by my loved ones, I felt isolated. I pulled away from my wife, family and friends during and after the trial. I could not put into words what I was going through emotionally. I had many confused and overwhelming feelings. To this day, I struggle with daily triggers from that trial.
I had to prepare myself to return to work the very next day. I knew it would be difficult because my co-workers viewed my absence as a vacation. They had no idea what I was going through nor did they care. Unfortunately, I missed a promotion and several training sessions while serving as a juror. I found it difficult to concentrate on my job. I knew I was in need of help, but at the time, the courts did not offer any assistance. I felt I desperately needed to talk to a professional, someone who could help me work through my thoughts and feelings. With encouragement from my wife, I eventually sought help at my own expense.
Jurors are civilians that did not choose this path for themselves nor are they trained to deal with this type of situation. Being a juror is a monumental job that has had a major impact on my life and the lives of my family. I strongly feel that jurors should be acknowledged and appreciated for the sacrifices they make to perform their civic duties.
I remain proud of my jury service despite the impact it had on me personally. I’m proud to have volunteered my time to raise awareness of juror mental health and the need to support jurors. I’m extremely proud to give back to my community as a Peer Supporter, providing help and support to jurors like myself. I’m hopeful that this program will be made available to support jurors across Canada.
Jury Duty Appreciation Week can and will shed a positive light on jury service. Not all jurors’ experiences are necessarily negative. A number of jurors that I’ve spoken to over the years have had a positive experience. Being a juror is an interesting process. You get to peek into our judicial system and realize how important your role in that process is. I feel Jury Duty Appreciation Week is necessary, not only to build awareness of jury service and the activities of jurors, but also to acknowledge and celebrate those who have already served.
The experience of being a juror never leaves you, nor should the appreciation from our government. Jury duty is the last and only mandated civic duty left in Canada. I’m very proud to have served as a juror and encourage others to participate in the process.
Thank you, Madam Chair and honourable senators, for the opportunity to share my experience. I wholeheartedly hope that you will support Bill S-252, An Act respecting Jury Duty Appreciation Week. Thank you.
The Chair: Thank you, Mr. Cozine and Mr. Fleming. I think I speak for the entire committee when I say thank you for your service to our country.
Senator Cordy: Thank you so much for being here with us today, and, Mr. Cozine, I used to be an elementary school teacher for many years before I came to the Senate. It is a great job.
Thank you for sharing your experiences because I’ve never been on jury duty. I know people who were, but nobody ever engages or asks, “How did you feel afterwards?” You both spoke about how when the trial is over, it’s, “Thank you very much for your service,” and away you go; everybody goes off in different directions. You don’t even have a day for follow-up to talk to one another about what happened.
If this bill is passed, what impact will it have on future jurors — people who may be asked to sit on a jury? Do you think they will go in more prepared? Do you think it will make an impact?
Mr. Cozine: Thank you for the question. It’s a situation in which a random citizen can be chosen, and the preparation is really non-existent. In my trial, jury selection was finished at 11:30 in the morning. The trial started at 1:30 that afternoon. None of the 14 jurors on my trial had a clue about what they were getting into.
You have people who will say to jurors like me, Mr. Fleming and others, “I would do anything I could to get out of it.”
I believe that’s because they don’t know what it is. I believe they’re fearful, maybe about the traumatic things that are coming, but also because there’s such an unknown about what is going to happen over the next weeks or months. So a week like this, with some education about what juries do and some of the processes that are undertaken when you’re on a jury might alleviate some of the general unknown about what happens when you are selected for a jury. Even jury selection itself is an interesting process. It might be a little different in different places, but some education about what is going to happen might include: You get your summons, and here is what the process is going to be, rather than a note on the back saying, “If you don’t come to jury selection, you’re going to be fined $5,000 and maybe put in jail.” That’s a threat that most people don’t want to receive. If there’s some education about jury duty, maybe people will be more likely to take it on with an open mind, knowing some of the facts going into it.
Senator Cordy: Mr. Fleming, as a follow-up, I know that you can comment on what I just asked, but you also spoke about jurors not being trained and how you left and then went back to work the very next day. First, should it be the case that after the jury is selected, there’s a period of training and explanation? It’s too late then, they’re on the jury, but at least jurors would have a sense of what they may be facing. Second, we heard from others who said when they needed counselling afterwards, it was their own money that they’re paying with. Some people are fortunate enough to have a health plan that would cover this, but that’s certainly not everybody.
What things do you think could be done to temper some of the circumstances in which you found yourself following the trial?
Mr. Fleming: Thank you for the question. I believe educating the public is the key to this. Jurors have no idea what they are going into. They have no idea how to dress or act appropriately. I believe that with education, we can let our citizens know how to prepare for this type of service. This is a mandated service, and we should be able to educate the people who are going forward as jurors. I truly believe that with education, we’ll have more positive results and outcomes from jury duty. I believe that there should be a short debriefing after a jury closes a case; that would help tremendously as well.
Senator Cordy: Would it also help if jurors were able to talk with one another? Because you finish the trial and you all go in different directions. You have both seen that following a trial, everybody on the jury would not necessarily have the same feelings, but they would all have some feelings.
Mr. Cozine: After you leave, you don’t know if you can contact anyone on the jury or talk about anything that has been said. It just happened that one of the jurors had a child at the school that I went to the following year, and I saw him come in the door one of the first days of school with his young child, and we saw each other and said, “Hey, how is it going?” Then there was this awkward pause, because we know each other because of this but can’t say anything about it. So you could just have a day to debrief afterwards, when the trial is over and everything is said and done. For the jury, the next day, the 12 or 14 jurors could be together in a room. They could speak a little about what they can say and what they can’t, or what they were thinking when they were talking about this or that during deliberations. Maybe they can even share a bit of humour in terms of asking things like, “Can you believe this or that was said?” As a cohort, they may be able to heal together. Even if it’s just a day, even if it’s just a morning, it would be a time when you could say to the people you sat with, “Whoa, that was a lot.” When I saw that dad walk in with his child, it was amicable. It was good. I’m the principal of the school. His child goes there. It’s great. He’s a good parent. But we know each other in a different way and we cannot speak of it, and that’s tough.
Mr. Fleming: Thank you. I find it is very difficult for jurors to expose themselves. The deliberation process is very difficult. You will not necessarily connect with the people who served on the jury with you. It’s very difficult to discuss how you feel among people who have experienced the exact same case. I find that it needs time to circulate. You do not necessarily need to talk to a juror who was on the case you were, but possibly to other jurors from different cases. Just because you’ve been on the same case doesn’t necessarily mean you all have the same feelings. You don’t necessarily want to expose your weaknesses to your peers within that room.
Senator Osler: Thank you both for appearing here today and for your service.
There’s a mental health term called “vicarious trauma.” I don’t know if you’ve heard of it, but that’s what I’m hearing and feeling from both of you. One way vicarious trauma is defined is as “The emotional residue of exposure to traumatic stories and experiences of others through work . . . .”
My question is for both of you. Perhaps we’ll start with Mr. Fleming. Since your time serving as a juror, have you seen any improvements in pretrial and post-trial mental health supports for jurors?
Mr. Fleming: Thank you for the question. There is a small program that allows jurors four sessions. It is available to all jurors and it is very helpful for us. Jury duty reaches into your soul and finds your weakness and attaches itself to it. It’s very hard to let those feelings go. You never know when they will surface. You may not think you have a situation going on, but it does find a sensitive area in you regardless.
Senator Osler: Thank you. Mr. Cozine?
Mr. Cozine: Pretrial education in Saskatchewan has changed slightly. One day, I was lucky enough to randomly get a second jury summons in the mail. You can imagine the feeling in the pit of my stomach when I saw that. I didn’t have to do that trial, by the way, but I was slightly encouraged when I opened the letter and found it had the Saskatchewan pamphlet for post-trial jury support. Just that small thing is helpful. You get your letter and get butterflies in your stomach immediately. These letters go out to many hundreds of people. It is something to have, so they can know that if they are selected for a jury, if they’re 1 of the lucky 12 — or 14, in my case — there is something for them after.
That was a step forward, at least in the province of Saskatchewan, for sure.
To Mr. Fleming’s point, even events like today can be linked to our talk about vicarious trauma. I know this is true for myself, just hearing Mr. Fleming’s story. As he pointed out, jurors on different trials can share. Although they may not have been on the same trial, they have some shared experiences, even in things like this meeting today. I hope for him that there’s a bit of a healing process that comes with something like today.
Again, I thank you for having us, and I thank Mr. Fleming for appearing as well.
Senator Osler: Thank you both.
Senator Cormier: It’s my turn to thank you and express my deepest appreciation for your courage in agreeing to testify before us today. I don’t want to bring you back to these experiences, but I understand you’ve been left on your own without support.
You’ve answered a bit of my question already, but how would you have liked to have been accompanied concretely before and after your traumatic experience? Can you tell us what kinds of actions, approaches and support the justice system should have provided to help you be prepared for this job and overcome the impact of the trial? How will this legislation help jurors who will face the same challenges that you faced? The question is for both of you. Mr. Fleming, you may start.
Mr. Fleming: Thank you for the question. I believe education is the key to this. We all struggle as jurors, but if we received some information pretrial, that would slowly release some of the emotions in us. We would not be as stressed or as full of anxiety. As the courts continue with these trials and educate us further, this will help us tremendously.
After the court dates, maybe a better debriefing could be given. Having a Jury Duty Appreciation Week would certainly make us feel a lot better, too, knowing that our part means so much to the government and that our services are actually needed.
Mr. Cozine: Thank you for the question. I’ll start where Mr. Fleming ended. A “Jury Duty Appreciation Week” through the Government of Canada would be a good step for many jurors.
As I said, my jury selection finished at 11:30 a.m. and the trial started at 1:30 p.m. Basically, we had the lunchtime to figure out how to get out of work and what to do. You phone your significant other as you leave the courthouse and drive straight to work to figure out how you can arrange that extended amount of time off in a very short window.
Could it have been different? Fine, the afternoon starts at 1:30, but from 1:30 to 4:30, you could be with your sheriff or your bailiff, and he could explain some of the processes that will come about over the course of the trial: Week one will look like this. Week two might get into this. Week three will go this way. The accused will sit here in the courtroom. Here is what we will do if a ruckus occurs in the gallery because some of the victims’ families are upset. That happened in our trial and everything immediately shut down. The judge hit her gavel. The bailiff said, “Get out of here.” The jurors said, “What are we doing?” If you have a little forewarning for some of those things, then a little less anxiety is created, as Mr. Fleming said, from the things that can happen during the trial.
Certainly, they can say, “You know what, folks? You will see some ugly things here. We can’t get away from that, but in order to help you alleviate some anxiety, here are some of the processes we will go through.” Then those things are not always part of the anxiety.
Senator Cormier: I have one other question for both of you. I’m troubled that there’s no assessment of the psychological capacity of the jurors. I don’t know if that is the correct term in English. There’s no assessment of or services for that. Should there be a kind of priority for the justice system to assess the capacity of the jurors to go through this experience and to help them afterwards? If so, what kinds of services would you need?
Mr. Cozine: I have had this conversation frequently with family members — with my wife. You’re chosen randomly by your health card number to come for jury selection. You walk up to the front of the room and if both lawyers say yes, you are on the jury. That’s it. What about the person who has trauma-induced issues or is suffering from other mental illnesses that are not apparent? That is partly why I think they chose 14 jurors for ours, namely, because there was going to be some attrition. I think they knew that going in. They could have told us that beforehand.
I don’t know the process for doing that. I don’t know how you would be able to choose and then vet people and then maybe six can’t be part of it so another jury selection is needed. It would be wonderful if they could. I don’t know how that would hold up the justice system, the trial, court dates and things like that. I’m not exact sure.
Senator Cormier: Do you have something to add, Mr. Fleming?
Mr. Fleming: I think having ongoing mental health support at the end of your case would be beneficial. Jurors knowing that they can access mental health afterwards would be key, to let jurors know that if they do fall in a trap and need professional help, the courts and the government will provide that help for them.
It’s a very complex question. It may be a bit out of my expertise, but mental health support and awareness from our government are key here.
Senator Cormier: Thank you.
Senator Burey: Thank you so much for being here and sharing your testimony with us. We feel it. I’m a pediatrician, so I understand it maybe a bit more. I spoke last week about having a trauma-informed cultural justice system. I think this bill is putting us on a path where we really see each other.
During that process, we hit on some of the challenges, barriers and problems around things like having a diverse jury pool. In some of your comments, you mentioned those who got out of it. In medicine, we do ethnographic studies where we follow someone along and to try to find out, at each process point, how we can improve the process. Could both of you speak to improving the process to have a more inclusive jury pool so that people are not trying to find ways to get out of it?
Mr. Fleming: Thank you for the question. When I was being selected as a juror, I sat in a chair for over two months listening to probably over 1,100 excuses for why people could not serve as jurors. The reasons ranged from one side of the spectrum to the other. With more education, I believe we can have a more diverse panel of jurors and people won’t want to get out of jury duty. Maybe they’ll be more enthusiastic about participating in the judicial system.
Mr. Cozine: Thank you for the question. It’s an important one to ask when we’re talking about juries and representation on juries.
Our jury was made up of 14 people. There was one Indigenous person on it; the two accused and the victims were also Indigenous. In our system, I don’t think that was representative or an example of a “jury of your peers.”
It is important to have representation. We see it in our schools all the time, namely, primarily white teaching staff with many Indigenous children and many children who are newcomers from other countries. That is starting to change a bit, but that example lends itself to discussion of the justice system, where the randomness of jury selection can sometimes mean less representation than there should be on juries.
The point that I have tried to make to a lot of people about serving on juries is that you need good people to make good decisions. That lends itself to the previous question about mental health, but also to good people making good decisions that aren’t doing their best to get out of it. A week like this, as Mr. Fleming just mentioned, is important in education, to tell people they should be on a jury. We need good people to be on juries. We need representation in juries. It should not be your first instinct to get out of it.
We were told the randomness of it is because it is based on your health card number. That can literally be anybody. Does a week like this lend itself to the lawyers, when they are selecting the jury, being more aware of representation and things like that? A week like this could even educate the lawyers and the courts themselves about finding more representative juries.
The Chair: Thank you.
Senator McPhedran: Thank you very much. I’m going to go back to the term “vicarious trauma” that was raised by Senator Osler, a doctor, because I’d like to expand upon it. To the extent that you are comfortable sharing with us — I appreciate there may be some boundaries here — what can you suggest to us about jurors’ families? Clearly, you have individual experiences and have been generous in sharing those with us. What about families? Should more be done to anticipate the impact of those around a juror or living with a juror?
Mr. Cozine: Thank you. That’s a very astute question because my wife, though amazing and brilliant, should not be the one trying to counsel her husband every day when he comes home. That’s not her training. She is there to support me and did so every single step of the way. However, one of her first questions to me when it was all over was, “So, who do you contact to get support?” She meant not only for me, because it changes you, but for her to not have to bear the brunt of my ill health at that point.
Concerning vicarious trauma, you go home after seeing and hearing some pretty awful things. As a juror, however, I can’t tell her what I just saw or heard, but I need her help. It becomes very stressful on families. At that point in time, I did not have a child. I do now. She is 5 years old. If I were on a jury now, as a father, where it was a murder trial of a 4-year-old and the attempted murder of her 2-year-old sister, I think about how difficult that would be and then going home and relating to your own children. At school, I became very mistrusting of anything involving kids’ injuries. If a kid comes to school one day with a bump on his knee, what happened? He had a bump on his knee. After going through that, though, I have staff and kids at school that are saying I’m different. That’s not for them to have to deal with. So, yes, vicarious trauma and help for families are important. How that juror support could extend to families, I don’t know. That is basically in its infancy. They are trying their best to support the juror.
If you support the juror properly, then, hopefully, the family isn’t taking the brunt of it. But, yes, it was a tough three weeks and many months after. Thank you for that question.
Senator McPhedran: Thank you.
Mr. Fleming: Thank you for the question.
It’s very difficult living with a juror. My wife would back that up. It’s almost 11 months into my case. My family and friends did not know how to address me. All they saw was me slowly isolating myself further and further away. I believe if jurors have more education, they can transfer that education to their home life and their friends and possibly be able to discuss this.
Jurors hide this. They don’t disclose it. They will not come forward and start talking about it. They don’t want to admit that they might have a problem. Nobody likes to admit that they might be having a mental health issue. It’s for family and friends to recognize. Maybe with education for our family and friends through Jury Duty Appreciation Week, we can shed new light on this. They can be educated and will know how to deal with jurors who have come through some very graphic and disturbing cases.
Senator McPhedran: I want to say thank you. I know you have already been thanked, but I would also like to link your service to strengthening our democracy and add that to my thanks.
Senator Dasko: Thank you to our witnesses for coming to speak with us today. I have been listening to the discussion. When we talk about Jury Duty Appreciation Week, we are talking about a public-facing initiative. At the same time, we’re hearing about the experiences of individual jurors, which are separate from the public-facing initiative.
I know how complicated it can be to raise public awareness of anything. It’s often related to the amount of resources spent on public campaigns. I’m not exactly sure what this initiative will involve with respect to resources. That’s just a bit of a contextual comment on my part.
Mr. Fleming, you, in particular, spoke about the need for public education and so on. What do you think should be the key messages to the public? Beyond appreciating jurors, which is a wonderful goal and motive, should we be communicating to the public how tough this is? That may lead to people being turned off from their own potential service. Or should we be presenting a positive picture which, in fact, might be counterproductive if people present themselves and then find out how difficult it is?
What do you think should be the messages to the public? I’m hearing about how challenging the role of juror is. Do we want to tell Canadians that? That is my question. What do you think should be the key messages in communicating this initiative? Do you have any thoughts?
Mr. Fleming: Sending a positive message to our citizens is key to that, because nobody wants to do anything on the negative side of things. We can bring a positive light to this as well. We can further educate them. We can let them know that help is there for them and the government appreciates their civic duty.
Part of the problem is that the Canadian public doesn’t really feel that our government is supporting jurors. We can change that. We can put a new light on that. There is negativity around it. The pay, the protection, the security, maybe babysitting services for the jurors — those all add up. With a positive light, maybe we can take some of that negativity away.
Mr. Cozine: It’s a very good question, and the answer can go a lot of ways. I balance the positivity of being a juror, all the good parts, all the learning and growth that can come from being a juror, with blunt honesty about how tough it can be. What’s the balance there?
Something like Jury Duty Appreciation Week needs to weight the positive side more. People already know well how tough being a juror can be for a variety of reasons. It could be the content of the trial itself or all the unknowns that go with it. The honesty part is, maybe in a bad way, already out there. We can change the narrative. “You know that, yes, some things about jury duty are tough, but here are all the good things and the service that you get to do.” It’s a civic duty which many people won’t ever get to be a part of. I say “get to” rather than “have to.”
There are many other ways to serve your country. If I could go back to when I was 18 years old and could have become an RCMP officer, maybe I would have done that. There are other ways to do it, but for the vast majority of citizens, jury duty is a way to serve your country. Jury Duty Appreciation Week can spin — I’ll use that word, “spin” — that duty in a more positive direction, and that is an important educational piece.
The Chair: Thank you. We will have one last question from the sponsor of the bill, Senator Moncion. She will have the last word, so I will ask my small question now.
Mr. Cozine, I heard you say you were on jury duty for three weeks. Mr. Fleming, you said you were on jury duty for a full 10 months. Please explain how your employers reacted to your absence from work and whether their HR policies covered your salaries while you were performing public service.
Mr. Cozine: My employer is a school division, serving children and the humanities, in the way education does. They were exceptionally good to me. As I said, I drove from jury selection straight to our school division board office. I walked in and said, “I was selected. What do I do?” The superintendent of HR brought me into her office and explained what they were going to do and how they were going to do it. Our contract includes judicial leave, which is a fully paid leave. Many employers do not have that, but I was very lucky to have that.
I can’t remember which senator asked about support, but some health plans can provide support. Our health plan did cover some counselling. However, with some counsellors costing $150 an hour, some plans do not get you very far, but there was some coverage for me.
I think the trial being quite publicized in Regina — it was a very high-profile case — the people that I work with, being teachers around kids every day — as Mr. Fleming said, you try to go back and want to get back to normal, and immediately teachers were asking, “How was that? How did that go?” That’s not what a juror needs.
So finding the stamina to handle those questions and not be grouchy with your fellow staff can sometimes be tough. I genuinely believe that was a lot more a matter of people caring, wanting to help and just being genuinely curious rather than it being “Let’s ask Dan a bunch of questions so that he reacts” or something like that. It was never that. My employer was very good to me and very supportive. I’m so lucky to have had that. Many do not. Post-trial, I had some room for counselling as well.
The Chair: Mr. Fleming, in a previous panel, we heard from a juror that co-workers sort of brushed off the absence from work as taking a holiday. Because you were gone for such a long time, what was the HR policy of your employer, and how did your co-workers treat your absence?
Mr. Fleming: Thank you for the question. Yes, 10 to 11 months was a very long time to be away from my workplace. It all started off as a five- to six-month trial, and then as the trial proceeded, I had to keep walking into HR and handing them a new letter for extensions. It was very awkward. I was fortunate that my employer paid my full wage, as I worked for a municipality, which was very good.
But to be honest, I think they were concerned about when I was going to be coming back. They didn’t ask too many questions. I felt like a new employee again because I was away for so long. My co-workers weren’t very supportive. As I said earlier, they viewed it as a vacation. I came back to work, and my work load was enormous because I had been on vacation for almost a year, which makes requesting vacation for the future very difficult.
We did have in place mental health support through my workplace, and I will admit that I did access it. But it took 24 hours for someone to get a hold of me, and they didn’t know how to handle the situation. So really, my workplace mental health support was not very beneficial for me at all. I had to go seek it outside of the walls of my corporation.
The Chair: Thank you, Mr. Fleming.
Senator Moncion: Thank you. For my colleagues, I invite you to look at the preamble of Bill S-252. There you’ll find all of the issues brought forward by our two witnesses today on what the bill intends to do.
My question is related to the House of Commons report entitled Improving Support for Jurors in Canada. The report was released back in 2018, and I think both of you participated in its preparation as witnesses. It was the first time this topic had been addressed in Parliament.
Why do you think parliamentarians hadn’t looked at the issue of jurors’ welfare before? What do you think are the impacts of parliamentarians’ delayed awareness of these issues? What are the impacts of these delays on the justice system?
Mr. Cozine: Thank you. Those are big questions.
When reflect on my phone call with the bailiff about him never having thought of it — the person that is the head of the juries didn’t think about supporting jurors post-trial — I don’t put a lot of blame on parliamentarians for not knowing, unless they themselves, like you, were jurors.
From the little I know of politics, it seems that things coming up and governments changing comes with the territory. A bill comes up and then maybe a government changes or a minister changes, and the sliding scale of importance gets lost.
I have no way of knowing if this was ever brought up previous to that time. But being a witness about this in Parliament, the genuine shock on some of the faces of parliamentarians when you are talking about it — and at that point, I had more time to talk and there were more details about what had gone on. But the genuine shock of the parliamentarians during that told me that, even when you have politicians — well-educated, smart people in government — there is a lack of knowledge in many areas. There was a lack of knowledge for pretty much all of them regarding jury duty and what it means.
So thank you for bringing this bill up, because, as Mr. Fleming and I have said, the education part to this is not just for the person who might be a juror; it is for employers to know what jurors are going to do, how long they might be away and how they can support them. It’s for government officials and parliamentarians to understand more about what jury duty is and how it can be supported in a positive way.
Being a teacher, to me, education is the key to everything. Teaching people who might not know, through no fault of their own, is a huge factor of this.
Senator Moncion: It’s the same as being a senator: Unless people have walked in our shoes, they don’t know what we do. They actually assume we don’t do anything.
Mr. Cozine: Part of coming here today was not knowing what I was getting into, but I know one person here and one on the screen know where my shoes have been. Thank you for that.
Senator Moncion: Good. Mr. Fleming?
Mr. Fleming: Thank you.
I believe if the government isn’t aware of the situation, there is no way to address it. We have campaigned with the “12 angry letters.” We have talked to senators. We have talked to so many people. We have volunteered so much of our time — hours and years — to address the situation. I believe the government just wasn’t aware of the heavy impact and burden that this civic duty has on the general public.
I believe that when we brought these topics up, we opened Parliament’s eyes on this, and they realized that the general public is providing a very good, honest service to our community, and serving our judicial system so well, and we have no acknowledgement of what they are going through.
The new bill will help bring awareness to this, and I believe that when we spoke with the government and exposed this, we opened eyes. I feel that the government wasn’t really aware of how heavy a burden this is on Canadian citizens.
Senator Moncion: The report that came out of the House of Commons Standing Committee on Justice and Human Rights was an excellent one. I heard you in focus groups and read your comments in the report. Thank you.
The Chair: Thank you, Mr. Fleming and Mr. Cozine, for letting us walk in your shoes for a little bit. I reiterate our appreciation for your public service, even though it has taken a real toll on your lives — we can see that. Hopefully, this testimony and this effort will improve the path for others following you.
Colleagues, we now welcome in person Jolene Hansell, Director, Ottawa Region, Criminal Lawyers’ Association; and Patrick Baillie, psychologist. Thank you for joining us today.
We will begin, Ms. Hansell, with remarks from you — five minutes, please — followed by Mr. Baillie. We will then go around the table with questions from senators. Ms. Hansell, the floor is yours.
Jolene Hansell, Director, Ottawa Region, Criminal Lawyers’ Association: Thank you. Good afternoon, everyone. I’m honoured to be before you today representing the Criminal Lawyers’ Association.
Juries play a vital role in the criminal justice system. In most cases, the defendant has the choice to have a trial by judge and jury, but for the most serious crimes, murder being one, jury trials are the default.
Jurors are charged with a fact-finding mission. They review physical evidence, listen to witness testimony and draw inferences based on that evidence. Their role requires them to assess the credibility and believability of the witnesses before them and also the reliability of the evidence that they hear.
After considering all of this evidence, the jurors draw conclusions about whether the Crown has proven their case beyond a reasonable doubt and, depending on the facts of the particular case, whether any defences are available. Has the identity of the person been proven? Is self-defence available for the defendant? Are they not criminally responsible on account of a mental disorder? Is duress available? Were they acting under duress?
This fact-finding mission often requires jurors to draw common-sense inferences about human behaviour. That’s why it’s so important that our juries are representative of our Canadian population and the individuals that come before the court. Black people, Indigenous people and people of colour are overrepresented in the criminal justice system but are under-represented as jurors in cases with these defendants.
It’s tremendously important that eligible jurors fulfill their civic duty. This bill provides an opportunity to recognize the vital role that these jurors play in the system, and to thank them for showing up to play that vital role. It also provides an opportunity to educate others to do the same and, by consequence, to help increase representation on juries. By providing supports to jurors who participate in this process, we can help to encourage others to continue to play this vital role in our democracy.
Thank you for hearing my submissions this afternoon.
The Chair: Thank you, Ms. Hansell. Mr. Baillie, the floor is yours.
Patrick Baillie, Psychologist, as an individual: Thank you and good afternoon. My appreciation to the committee for the invitation to present to you today.
I want to begin with a short analogy. Speaking as a psychologist at the doctoral level, we have research that shows that people have many fears in life. One of the greatest fears is public speaking. In fact, the fear of public speaking exceeds the fear of death, leading to the joke that is sometimes told about how at a funeral, most people would prefer to be in the one in the casket than the one giving the eulogy. The analogy to a trial is that jury duty poses a similar anxiety provocation for people to the point that some would prefer to be the accused rather than sitting on the jury.
What this legislation proposes is simply an acknowledgement and appreciation of the role jurors play in our system. The federal government has a relatively limited role in the jury process apart from those provisions that exist within the Criminal Code. As an aside, I would like to acknowledge my appreciation for the changes that were recently made to allow jurors to talk about even the deliberation part of the process with a registered mental health professional. That was excluded previously, and as a psychologist, I’ve had a number of jurors come and seek me out for therapy. It had always been an impediment that they weren’t allowed to talk about that particularly difficult part of it.
Apart from those Criminal Code provisions, the responsibility then falls to the provinces to make sure that jurors are being appropriately taken care of. We know from the 2018 report from the House Justice Committee, which was previously referenced, that there have been multiple shortcomings in the ways that provinces have been addressing that. There has been a lack of compensation. In some provinces, you have to serve for two weeks before you see any compensation. In Alberta, the compensation still sits at $50 a day, minus expenses such as parking and child care, with no other necessary remuneration for additional costs — even meals. I recently spoke to a former premier and a former justice minister, who both said, “I thought that had been taken care of.” It hasn’t. Something like an acknowledgement of the responsibility that goes along with jury duty would be an important step to reminding provincial governments and citizens across the country of the duty they have.
Individuals have, as I said, sought me out for counselling and treatment afterwards. There’s nothing in this bill that is going to make a change to that. However, it does lead to that public education. You heard the previous panel — Dan and Patrick — talking about the value to members of the public if they know in advance what it is they’re getting into and for employers to know the responsibilities that their employees are going to be taking on.
As was discussed in the previous session, unionized employees often have it written into their contract that they’ll continue to receive their salary while they’re away from work, sometimes for a fixed period of time. So we end up with juries that are often made up of pensioners or union members and therefore not necessarily representative of the community. Therefore, we have to let employers know about their responsibility to take care of their employees, let governments know about their responsibility and express to citizens, both those who have served on juries and those who have not, the responsibility that goes along with serving on a jury.
The letter arrives in your mailbox. You open it up, and it says you’re compelled to present on this particular day. The first reaction most Canadians have to receiving that letter is to say, “How can I get out of this?” If we don’t appreciate the roles that jurors play in our system, then we risk ending up with trials that don’t fairly represent the population and don’t provide a person with a jury of their peers. Then we end up with multiple problems within our system.
I support this piece of legislation. I wish the federal government would look at going further. If we go back to the 2018 report, there were recommendations for a number of initiatives the government could have taken. You heard last week from Tina Daenzer and Mark Farrant of the Canadian Juries Commission — with which Patrick and I are both involved — that the House of Commons Committee on Finance unanimously recommended financial support for the ongoing mandate of the Canadian Juries Commission. That has not been followed through.
So while this piece of legislation before you today is symbolic, there are multiple other steps that can be taken to show our genuine appreciation for jury duties.
Thank you for the opportunity to present here today. I look forward to your questions.
The Chair: Thank you very much, Mr. Baillie and Ms. Hansell. We will go to questions from my colleagues.
Senator Cordy: Thank you both very much. You’ve brought a different perspective. We’ve heard from people who have been jurors; we heard from the sponsor, who herself was a juror. Thank you very much for bringing a different perspective to it.
Ms. Hansell, you said that Black and Indigenous under-representation on juries has to be addressed. Dr. Baillie, you also spoke about that. You also spoke about some of the challenges that we’ve heard about from those who have been on juries — the attitude of co-workers who believe they’re really on vacation and not really working, as well as child care costs. It’s always a challenge when it’s a provincial and territorial responsibility. We’re looking at it from a federal perspective, but it’s different in different provinces and territories, and child care alone would eat up any of the money you would get from serving as a juror. Certainly, if you’re on a jury in the city, the cost of parking your car in downtown Halifax, Ottawa or Toronto would be significant. As I said earlier, some do receive a salary and some don’t.
I think we’d all say we must make changes, but how do we do that from a federal perspective? It’s almost like health care, where the feds give a lot of money but the provinces make the decisions, or it’s like child care, where the feds are hopefully just going to be — there’s a bill that got the agreement of all the provinces and territories, but it always complicates it and muddies the water. How do we deal with that?
Ms. Hansell: It’s always challenging when you have two jurisdictions. We’ve seen collaboration. Daycare is a great example of collaboration between the federal government and the provinces. One of the classic means of doing that is the federal government earmarking or tying the money specific to the provinces — requiring that it be used for a specific purpose. That’s one way to go about it.
But it’s absolutely a challenge. I think you’ve hit the nail right on the head to talk about some of the costs associated with it. A judge will ask a pool of jurors if there’s any reason they can’t be a juror, and there are the statutory requirements. But then the judge also has a stand-aside power, and if it’s going to cause undue hardship to the person standing in front of them for employment or child care obligations or if they’re a single mother, the judge may decide to exercise that power, stand that person aside and go to the next juror. That’s because we want to create a jury of 12 people who want to be there and participate in the trial. That’s in the interests of justice.
There are other difficulties that can derail the trial, even from a scheduling perspective. I think you’re exactly right that this issue needs to be addressed, and it’s a complicated one. However, it’s not something that is unprecedented in other contexts.
Senator Cordy: Mr. Baillie, do you have anything to add to that?
Mr. Baillie: I would simply echo some of the comments Ms. Hansell has made. There are ways for the federal government to incentivize the provinces and establish national standards, as was recommended in the 2018 report, like paying jurors minimum wage. There are ways that provinces can be encouraged, pushed and cajoled into taking those steps. Again, the Canadian Juries Commission has the support of the Finance Committee. The Finance Committee specifically recommended $20 million over 10 years that would allow for that organization to do things like the Peer Support program and the education of sheriffs and bailiffs so they can be flagging the mental health concerns that may arise. There are ways to enact guidelines — maybe even something stronger than guidelines — and there are ways to encourage the provinces to be involved, even if it doesn’t involve the kind of arrangements we have in child care and health care.
Senator Cordy: How do we make it so that people are not afraid to be on a jury? I have listened to and read in the newspaper reports of a trial that’s going on in my home province, and my reaction is that I’m glad I’m not on that jury. I’ve learned so much over the past few meetings about jury selection and juries. People who have been on juries go back to work the very next day without any counselling and maybe with co-workers who are saying, “Well, how was your vacation?” Some have only received money that may or may not cover their expenses for parking, lunches and that kind of thing.
How do we educate the public about the importance of jury duty without scaring them so that they’d never want to be on a jury?
Ms. Hansell: The first step is understanding what exactly it is to be a juror. If you haven’t done jury duty, it’s this amorphous concept. You understand you’re in a trial, and you’re hearing evidence, and the jury secrecy rule prevents anyone from talking about it afterwards. So you don’t really get a true understanding.
But there are some basic principles in terms of some of the things that I’ve described as to what the job of a juror is. At its outset, it might seem incredibly difficult and intimidating to hear this evidence, and you have to make a decision about what you are doing with an individual’s life in your hands, and it’s an incredibly important responsibility that we’re giving jurors in that context, but what we’re asking of them, fundamentally, is to listen to the evidence as it comes out, think critically about it and make assessments about whether they believe the person sitting in front of them is telling the truth, based on the questions they’re asked and the answers that are given. Some of those things are things that we do in our everyday lives in terms of our communications with other people.
So the stakes are very high in this context for the defendant, absolutely, but I think jurors need to understand the concept of a jury and that their job is to find the facts, not to understand all the details and nuances of the law. The judge will give you that information, and the lawyers are there to help you navigate through the information and to point out the relevant pieces that you should be paying attention to. I think maybe that can help them to understand the task that they’re undertaking.
Senator Cordy: Mr. Baillie?
Mr. Baillie: I see a number of levels, and if I go back to a question that was posed to the previous presenters, Dan Cozine and Patrick Fleming, about how you frame public education. I was listening in the background, and I don’t think that we should spin it as positive or negative; we should tell people what the facts are. We say that it is your responsibility to appear on this date. There’s a selection process. Some people may be removed from the jury pool during that process, and then you’re going to be asked to listen to the evidence — as Ms. Hansell has said — and use your common sense in evaluating that. You’ll be given some legal direction on that, and then here are the supports that are available afterwards.
I don’t think it’s either sugar-coating it to portray it as a positive experience or emphasizing the challenges. There are some people who look forward to the opportunity to serve on a jury. There are, I would suggest, more people who are looking for ways to avoid taking on that responsibility. The public education has to be neutral but informative and say, “This is what we do.”
I think the more critical piece is how we’re going to support those jurors who then take on that responsibility, financially and in terms of their employment status. We keep talking about — and I admit that I talked about it myself — the idea of unionized workers, but what do we do for those self-employed people who are now put in a position of sitting on a jury?
I had a juror who came to me after a particularly gruesome trial and what she had to do, because of being self-employed, was to spend her days from 9 a.m. until about 3 p.m. on jury duty and then go do her business in the evening until approximately 10 p.m., because she needed to be able to maintain the business during the course of the trial.
If we don’t provide accurate information to people about what this is going to entail and don’t support them afterwards, it’s not surprising that we end up with this negative view of how people don’t want to be participating in juries.
The Chair: Thank you, Mr. Baillie.
Senator Osler, I’m going to give Senator Moncion the floor, because she needs to leave, with your permission.
Senator Moncion: I have a question for Dr. Baillie and a question for Ms. Hansell.
The first question, to Dr. Baillie is this: What are the specifics of jurors’ experience that make the delivery of health care and services different than delivering care and services to other groups?
Mr. Baillie: Thank you for the question, senator, and for your ongoing support for the multiple issues that we’ve brought to you over the last few years regarding jury duty. Obviously, your personal experience has assisted you in understanding the concerns that we bring forward.
Let me back up one step. Most of the provinces now have in place some kind of mental health support for jurors. Unfortunately, as Mr. Fleming indicated in the previous session, that’s limited to four sessions with a therapist. Any treatment for post-traumatic stress disorder is going to be significantly longer than that.
First off, you need to have a psychologist or a mental health therapist, a registered professional, who is able to deal with the trauma-related element. This is not supporting somebody who is going through marital difficulties or needs some advice on how to care for their teenage child. This is providing support to a person who had a traumatic experience.
It’s a very particular traumatic experience. They didn’t witness the car accident. They didn’t witness the crime, but they’ve had this vicarious trauma that you were talking about in the previous session. How do you deal with post-traumatic stress disorder with somebody who has been vicariously exposed? And now it’s within the realm of the justice system. What am I allowed to talk about and what responsibilities do I have for this individual? Accessing proper supports has been a problem.
The people who have come to me are in a province where those mental health supports are available, but they end up coming to me, because they say, “I talked to this counsellor, and they had never dealt with this before.” Or they say, “I called a 1-800 number, and it took them days to get back to me,” and they’ll be told that all of their sessions will be over the phone.
You don’t do trauma-based counselling over the phone. You don’t do this kind of specific work in any way other than through developing a healthy, positive and professional relationship that needs to be ongoing with a particular client.
Again, unfortunately, Alberta has had more than its fair share of gruesome trials over the last few years. Some of those jurors have kept in touch with each other. Some of those jurors have kept in touch with me. Four sessions are not going to do it, and four sessions with a generic mental health counsellor are not going to do it. We need to make sure that specific resources are available on an ongoing basis.
Senator Moncion: Thank you, Dr. Baillie. I know you’ve been instrumental in getting a lot of this work moving ahead, too, so thank you also for the work that you do.
Ms. Hansell, you mentioned jurors are on a fact-finding mission and are responsible for reviewing graphic evidence and testimony. How do you view the relationship between ensuring the mental health and well-being of jurors and the health of our justice system and democracy? Do you think the legal profession is doing enough to recognize jurors’ contributions and in how they work with people who are called to be on jury duty to make them understand what is going to be coming their way?
Ms. Hansell: Just to make sure that I understand your question, is it about the contributions of the legal profession as it relates to jury duty or more about the nature of the evidence that the jurors are hearing in the courtroom, or both?
Senator Moncion: Well, both, because being a juror, you will be exposed to graphic evidence. How do you work with this, and how does the system see it?
Ms. Hansell: What is maybe often not known is that there are checks and balances in terms of pretrial motions that can filter some of the information as it’s coming to the jury. Information that is perhaps highly prejudicial or graphic that is not necessary for the jury, there might be a pretrial motion that provides an internal screening mechanism for that.
It’s hard to speak in generalities, because they are very fact specific to the certain kinds of cases, but what the justice system is ultimately concerned with is making sure the jury has all the information it needs to properly decide the case but not information that would be distracting in terms of dealing with the central issues. Sometimes some of the nature of the material might be too far outside of what they need in order to —
Senator Moncion: How does that relate with the consciousness of the legal system when it’s at work with the trauma that a juror can get from looking at all of this? What is the awareness level of —
Ms. Hansell: I think there is pretty good awareness around this. There’s even trauma that exists as it relates to lawyers dealing with the files and these materials. It’s a pretty natural extension that it relates to jurors.
Right now in the justice system, there are those checks and balances, but providing additional supports to jurors afterwards is a good thing in order to make jurors feel safe and competent in the job that they are providing for the time that they are in court. It’s in the interests of justice that jurors know they are going to have the necessary supports afterwards in order to fulfill the job that they are being asked to do as their civic duty.
Senator Moncion: There is more awareness today than there was 20 years ago, maybe even 10 years ago, about the well-being of jurors after their service. Are the courts more aware of the trauma after the fact now?
Ms. Hansell: I can’t speak specifically from the courts’ perspective. I think generally there is more awareness as it relates to mental health, and that awareness and those conversations around mental health in the legal profession extend to this context.
Senator Moncion: Thank you very much.
Senator Osler: Thank you to both witnesses for being here today. I have a question for each of you. I will start with Dr. Baillie. Is there a consistent trauma-informed approach or set of practices with respect to jury duty services in Canada? If not, could a consistent trauma-informed approach or set of practices better equip jurors to manage vicarious trauma?
Then for Ms. Hansell, once Dr. Baillie is finished: How do you envision associations like yours contributing to the proposed Jury Duty Appreciation Week? Dr. Baillie?
Mr. Baillie: Thank you, Senator Osler. No, there are not national standards, and that goes to the issue of the quality of mental health supports that are going to be provided to jurors after they have completed their trials. I think that’s another opportunity for the federal government, in concert with the Canadian Juries Commission, to assist in providing some of those guidelines. Vicarious trauma is a different kind of experience.
However, sometimes the trauma becomes a little bit more than vicarious when we’re talking about gruesome events. An example that I have often referred to is from one particular trial in Alberta. The victims of a homicide had been hung on a meat hook, and that meat hook was then passed around the jury during the trial. That’s a little bit more than just hearing about a story. That’s now tangible. So without proper guidelines as to how you do trauma counselling for individuals that have had this bizarre — again, Ms. Hansell mentioned pretrial motions to try to avoid that kind of thing — experience of handling a piece of evidence that was part of this homicide, we end up risking not being able to appropriately address pieces to it.
Again, I appreciate the change that was made very recently to allow jurors to talk about deliberations, because for many jurors, you sit through the trial, weeks and weeks of evidence, and you are specifically prohibited from talking about it outside of the courtroom. You can’t talk to friends and family, but you can’t talk to the other jurors either, and so you may have listened to a particular witness and thought, “I don’t believe a word that they are saying,” and then you get to the deliberation process and find out that other jurors had a very different read on that witness, and so now we start debating which pieces of evidence will be accepted and which will not. And I have had jurors from trials that have had 8 to 10 days of deliberation. That’s argument. That’s debate. That’s emotionally salient, just as much as what happened in the courtroom. And so allowing jurors the opportunity to talk about those things becomes an important part of treatment.
But we have mental health professionals who don’t know that that change came into effect and that jurors can now talk about that part of the process. Again, starting with the education that goes along with having a Jury Duty Appreciation Week is an important part of the process, but ensuring that we are providing adequate supports with trained professionals has to be there.
Ms. Hansell: Yes, the contribution for associations like the Criminal Lawyers’ Association is really on the education front. We have a unique added value to be able to help the general public understand what is generally involved with respect to being a juror. That’s probably the added piece, and along with that, training on what other resources are available to people who are jurors.
Senator Osler: Thank you.
[Translation]
Senator Cormier: I’ll put my questions to both witnesses in French. Thank you for being here and for your presentations.
We’ve heard an awful lot about the mental health of jurors who take part in courses. Here are my questions. Ms. Hansell, first, what criteria do lawyers use when selecting jurors? Second, do you think lawyers could be better equipped to detect jurors’ mental health challenges during the selection process? Those are my questions for you.
Here’s my question for Mr. Baillie. It sounds as though the justice system is not well equipped to handle jurors’ potential mental health issues — or, at least, it doesn’t properly equip jurors. In your view, could or should our justice system carry out more or better consultation with provincial psychologists’ associations to create better programs to support jurors?
I gather that you’re consulted when a juror needs services, but should there be greater collaboration and closer ties between provincial justice systems and psychologists’ associations?
[English]
Ms. Hansell: In terms of the question about lawyers’ criteria for the selection of jurors, the jury selection process itself is set out statutorily in the Criminal Code. Since the abolition of peremptory challenges, lawyers have very little choice in the actual individual jurors. Once you get to the jury pool, unless there is a reason to exclude someone, it can be the first 12 to 14 people who sit on the jury. Some of the questions that arise might be with respect to a challenge for cause that is kind of worked out in advance. There may be a particular question a juror might be asked to determine if they have a bias against Black individuals or Indigenous individuals. They will be asked the question. The judge will decide if there is a bias to excuse them on the basis of that challenge. The judge also has stand-aside powers that can be exercised in terms of excusing jurors.
Absent that, as long as they meet the statutory criteria, lawyers really can’t decide if individual jurors should be on or off a jury. The framework is statutorily set out, and it actually happens quite quickly.
Senator Cormier: In terms of perception, when you speak to someone and you ask someone to become a juror, do you think that there is an influence that comes from the perception that the lawyer has of the person? Do you understand what I mean?
Ms. Hansell: There would have to be an articulable basis to excuse them from being on a jury. But the questions that the jurors are asked are usually extremely limited because you don’t want to breach the privacy of the individual person. You might know the nature of their employment generally, such as if they are in education. Sometimes if they say they are in law enforcement, there might be a question as to what avenue of law enforcement. They are usually asked if they know any particular witnesses that might be called, because that would be a conflict. But inquiries into individual jury members are very limited and proscribed by the statute.
Senator Cormier: Okay. Thank you.
So Mr. Baillie, about the —
[Translation]
— psychologists’ associations.
Mr. Baillie: Thank you for the question, Senator Cormier.
[English]
I would like to be able to answer in French, but my answer does get into some legal issues.
Statutorily, as you are likely aware, there are regulatory bodies for the professions in each province and then there are collegial bodies. The regulatory bodies have been reluctant to prescribe particular education, and so advocacy with the government is limited. They see their role, typically, as being the enforcement of existing statutes. For the associations, the collegial bodies, there may be an opportunity to advance understanding of the responsibilities that go along with jury duty, but, again, it’s the separation between the education side versus the regulatory side. Most provinces have a continuing professional development requirement. However, members are not dictated in terms of what areas they need to be looking at. So there may be some ethics courses that you need to take, but it’s from a menu of courses rather than a particular prescribed course.
If I may, I would like to use a bit of my time to go to a question that you asked in the previous session about the capacity of individuals to serve on a jury — and Ms. Hansell may want to respond to this as well — in that I think there are challenges that were identified by the previous panellists in doing that, but it raises this important issue. You heard Dan say, when he got his second jury summons, he had the sensation in the pit of his stomach of “Am I going to go through this again?” I think it would be relatively easy for us to implement some screening for the mental health of potential jurors. There are widely recognized, well-validated questionnaires that can be used in the same way that we often have jury questionnaires on things such as whether they know the people involved in the trial. It may take five minutes to have somebody fill out one of those questionnaires, and then we can say that an individual has a particular vulnerability and we don’t think it will be healthy for them to be participating in this process.
So, no, I don’t want to get into any in-depth analysis of the intellectual capacity of the individual to understand legal instructions, but for those individuals who have that vulnerability or who have had previous traumatic experiences, we need to be sensitive to that and give them the opportunity to take themselves out of the process.
Senator Cormier: Thank you to both of you.
Senator Burey: Thank you so much for your work. Welcome to our committee.
My question revolves around improving the diversity of jurors so that people can really have more access to justice. I would like to aim this question at both of our witnesses. Do you think that this bill could improve the diversity of the jury pool, and if so, how? I know we spoke about education and financial barriers. But speaking to a barrier of comprehensive data collection already which, because of the secrecy, was not being done, do you think that collecting more data and data analysis related to the experiences could improve the diversity of the jury pool? Would that give you information that could improve that?
Ms. Hansell: Having data is helpful, at the very least, in terms of the jury composition and makeup as a starting point. Without data, my comments are anecdotal from sitting in courtrooms and seeing the makeup of the juries that are there. There have been intervenors before the Supreme Court on different cases that have discussed the representation issues, which are well documented. But unless we see it playing out, we don’t really know how things like challenge for causes or stand-aside powers might affect jury selection. Even the screening tool that was just proposed, I worry that that would further limit a pool of candidates. We have to be very careful about the screening-in and screening-out processes for jurors to not limit that pool such that it continues to be a disproportionate representation.
In terms of the benefits that this bill could provide, jurors knowing that they are going to have supports afterwards might be something that removes a barrier for them at the outset of jury duty. To the extent that we can try to eliminate some of those barriers for participation in jury duty, whether it’s employment related, whether it’s child care related, that increases the pool. The social science evidence would suggest that those barriers are also disproportionately impacting different sections of the population, in particular Black people, Indigenous people and people of colour.
Senator Burey: Thank you.
Mr. Baillie: I’m a data fiend, and I love the notion of getting more information so that we can have evidence-informed decisions, and so gathering that data becomes an important part of making good choices and policy moving forward.
This legislation, to be candid, is a first step. It’s important in that it shows the federal government’s commitment to acknowledging the responsibilities that go along with serving on a jury. However, it is a small piece of the comprehensive overhaul that I think needs to take place so that we ensure that juries continue to be representative of the population, that those people who serve on juries are supported during and after the process and, as we have mentioned repeatedly, that the education of the public, employers, governments and individuals happens on an ongoing basis.
I don’t think there is anything in this particular piece of legislation that is going to lead to a substantive change in the composition of juries, but it is an important first step that allows us to eventually get to that point.
Senator Dasko: Thank you. Well, I actually have a data question as well — surprise, surprise. I also have another question. I think Ms. Hansell is probably the best person to answer this, but we’ll see.
When polling companies poll Canadians on a random basis, they are able to identify by asking people in the sample whether they have served on a jury, so you can say “yes” or “no.” So when it comes to asking those people questions, what kinds of questions can they answer given the fact that there is a requirement of at least some sort of secrecy or confidentiality about the trial itself? Are they able to answer questions about their overall experience, about the challenges they had or anything about their experience?
Ms. Hansell: I’m hesitant to give a firm answer without grabbing my Criminal Code — the most lawyerly answer ever, right? But the jury secrecy rule is very absolute in terms of any communications about any details related to the trial. Generalized comments, I worry — it would be hard. When asking a question directly, it might be hard to frame a question in a way that doesn’t elicit a response that would breach the jury secrecy rule.
Senator Dasko: So — without getting into any aspects of the trial — asking questions about the difficulty or ease of being a juror or about the experience of being a juror, in any way, without any details, are you saying you don’t think that’s possible?
Ms. Hansell: I’m not a pollster, so I don’t know exactly how those questions could be phrased. My concern would be that you might get an unsolicited answer that breaches that jury secrecy rule.
Senator Dasko: But if you gave people specific codes and asked them to answer “yes,” “no,” “strongly,” or “somewhat” —
Ms. Hansell: You would have to ask the question to someone who is more familiar with that kind of polling, as to whether or not you could marry the two.
Senator Dasko: So you are not sure whether, in fact, they might be breaching something if they answer such a question.
Ms. Hansell: Yes.
Senator Dasko: Yes. Okay. I keep thinking about great ways to collect data on jurors. This is one way to do it, if it’s possible.
I have another question as well, and I think Dr. Baillie answered part of that question already. This is a broad-brush question about the kinds of programs that are available pretrial and post-trial across the country. I believe Mr. Baillie understood that most provinces already have post-jury programs to assist jurors who may have had difficulties with the trial. I think that’s what you said earlier, Dr. Baillie.
My next question is to you, Ms. Hansell. What about the pre-programs? That is, informational and mental health information, the pre-programs before people become jurors? To what extent do they get both types of information? That is, the kind that you were talking about, namely, the role of a juror and all of the things that you said. To what extent do those programs exist across the country? Are jurors learning about their role in this way before they are part of a jury, including about mental health challenges that might arise?
Ms. Hansell: I can’t speak specifically to what exists across the country in terms of the exact pre-programming. However, I can speak anecdotally from my own experience. When jurors get a summons, the information that they receive is to come to this court at this time and then to do this step in this way. Information is released at the relevant moments as to how the steps in the process go, but I think there are two pieces of this puzzle. The first is educating the jurors who have received the summons about the entirety of this process, from start to finish.
Senator Dasko: Yes.
Ms. Hansell: I’m not sure that there is a comprehensive program to deal with that. It may be that some jurisdictions have kind of ad hoc bases for those things, but I think the education needs to come one step before that and to the population more generally, to educate them on the role of the juror before they receive the summons and experience that “How do I get out of this?” response. They would gain familiarity with the system.
I teach public constitutional law. A civics class is offered in high school in Ontario that covers some of these things, but it’s quite inadequate in that it’s half a semester and they are covering a broad range of topics. By the time they have turned 18 and are potentially getting a jury summons, it has fallen out of their heads in terms of how these things work.
Senator Dasko: Of course. I think it’s difficult to achieve that kind of awareness, but I’m talking about when people get the summons. Do they get information about not only the process of a trial but also the possible mental health challenges?
Ms. Hansell: I’m not aware if that information is given at the outset with a summons. Their summons just includes the date to come to court.
Senator Dasko: What about when they show up?
Ms. Hansell: I’m not aware of that. It’s possible it may exist in some jurisdictions in some courthouses.
Senator Dasko: In fact, it may or may not exist.
Ms. Hansell: Yes. I cannot answer that.
Senator Dasko: Thank you. That is good.
The Chair: The last question falls to me. I have been interested in determining federal levers for action. I have asked about HR policies that cover the pay for jurors. It makes this far more doable if at least their base salaries are covered.
Has anyone thought about using the EI system to compensate for jury duty when the employer is not able to do so? That seems to be a reasonable path to explore. I would like to hear your responses.
Mr. Baillie: It’s an interesting idea. Thank you, senator. I have a bit of concern about the application process in that this individual will now have to identify that they will be serving on a jury, whereas we maintain strict confidentiality about the names of individuals who have served on a jury. I’m sure there is a way to address that. Of course, there are multiple delays within the EI process. That requires some legislative changes, for example, to ensure that eligibility starts on day one.
I would also point out a complication that arises. My then-84-year-old mother received a jury summons in Toronto. She attended a court over the course of five days while she was in the pool for a number of potential trials but was never actually called over the course of those five days. Technically, she never served on a jury, but if she had been a 55-year-old employee, she would have missed five days of work. How do we go about documenting that? Again, it’s a complication within the process that we could probably reconcile. Overall, I think it’s an interesting suggestion for those individuals who would be eligible. It’s certainly better than the compensation that’s being offered in many provinces at this point.
The Chair: Perhaps the Canadian Juries Commission should work up a proposal on that matter.
Mr. Baillie: Thank you. That’s a good suggestion.
Ms. Hansell: There might be practical complications for the EI system itself.
The Chair: Of course.
Ms. Hansell: In particular, in terms of the ultimate goal of a more diverse jury pool and a more diverse jury, you will have different impacts on EI with people who maybe access it regularly, such as seasonal workers or people who might be taking paternity or maternity leave. That all comes out of the same pool of money. I would worry about how that mechanism might cause an inadvertent consequence to the jury pool itself. EI is a system that you pay into and then you get something back out of, so you have to be paying into it. That may also have a direct consequence on the potential makeup of the system or the people that might be able to access money over other people. I think it’s a good idea generally, but I would be cautious of any limitations that it might have with regard to representation of the jury pool.
The Chair: Anything to do with EI is incredibly complex; I understand the complexity. But I also have a great deal of empathy for people who are deprived of their wages because they are doing a civic duty. We heard from witnesses earlier that this is the only form of civic duty that we are mandated to undertake because we do not have a national youth service program or anything else. This is the one thing that Canadians are called upon to do. We should do it with pride and with a degree of comfort and security. That’s maybe another bill to think about.
Colleagues, on your behalf, I wish to thank Ms. Hansell and Dr. Baillie very much for your insight into our inquiry on this bill. This brings us to the end of this panel and to the end of our study on this bill.
I want to provide you with a quick update as to what happens when we return from our non-sitting week at the end of February. We will be proceeding to clause-by-clause consideration of this bill on February 28. Please have your observations ready. You will get a note from Emily about the observations. I am sure there will be observations in the making.
You will also be receiving, colleagues, a copy of the draft report of our study on Canada’s temporary and migrant labour force tomorrow, and we will be reviewing the draft report at our meetings on February 28 and 29. This has been a labour of love for us. It’s a long report, so I’m glad you are getting the non-sitting week to study it because we want to move forward with publishing it.
(The committee adjourned.)