Honourable senators, I rise today as the critic for Bill S-212, an act to amend the Criminal Code regarding the disclosure of information by jurors.

I gave a speech on this bill on February 6 in the previous Parliament. My intervention today will be relatively brief and will reiterate the importance of this amendment to the Criminal Code and argue for its relevance in the context of the COVID-19 pandemic.

It should be noted from the outset that this proposed amendment to the Criminal Code has the consensus of legal experts, mental health professionals and MPs of all political stripes on the House of Commons Standing Committee on Justice and Human Rights, who participated in drafting the report entitled Improving Support for Jurors in Canada. Also, in the Forty-second Parliament, this bill, which then went by the number C-417, was passed by the House of Commons.

The purpose of Bill S-212 is to implement the fourth recommendation of the twentieth report of the House of Commons Standing Committee on Justice and Human Rights.

Right now, the secrecy rule for jury deliberations prohibits jurors from disclosing any information pertaining to their deliberations to anyone. The amendments to the Criminal Code under Bill S-212 would create an exception to the secrecy rule to allow jurors who suffer from mental health problems related to their experience to disclose information about the deliberations to a mental health professional. The bill provides that the exception applies only after the deliberations have been completed, to ensure the integrity of the secrecy rule.

In the report of the Lamer Commission of Inquiry, published in 2006, Justice Lamer identified the principles underlying this rule. He specifically mentioned fostering free and frank debate among jurors, protecting jurors from harassment, censure or recrimination at the hands of convicted persons and their families, and ensuring the finality of the verdict.

In doing so, he highlighted the need for any amendment to the jury secrecy rule to strike a reasonable balance between the objective and respect for these principles. Therefore, extending the exception to deliberations, while consistent with the objective of improving the lives of jurors, would risk compromising these principles, in addition to violating the constitutional rights of accused persons. The consensus among legal scholars is that the rule can be modified to provide a very specific exception without compromising its substance or functionality.

Bill S-212 provides that much-needed balance. In her testimony before the committee in the other place, Professor Vanessa MacDonnell, a member of the Criminal Lawyers’ Association, echoed this sentiment. She explained that introducing a very narrow exception to the juror secrecy rule would in no way undermine the underlying principles of that rule. The state of Victoria, in Australia, was a trailblazer in this area, having introduced an exception to the juror secrecy rule in its legislation.

The House of Commons Standing Committee on Justice and Human Rights used Victoria as its inspiration in making its recommendations and recognized from the start that the regulation of juries falls to the provinces and territories, which have jurisdiction over the administration of justice. Nonetheless, this jurisdiction is limited when it comes to criminal law, which is a federal jurisdiction. This explains the depth and scope of Bill S-212, which amends a very specific section of the Criminal Code while respecting the division of powers.

That said, a concerted approach that fosters collaboration between the different levels of government and the relevant organizations is required here. To make a real difference, the proposed bill must be accompanied by other measures to assist jurors in Canada.

I am thinking of the third recommendation of the report from the other place, about offering debriefing sessions after the deliberations. The federal government could provide funding on its own initiative by exercising its spending power to support the administration of provincial and territorial programs as part of the implementation of the report’s recommendations.

The federal government could also provide funding to organizations that support jurors’ mental health, to ensure that they have the means to implement these recommendations.

The secrecy rule for jury deliberations prevents jurors from accessing mental health services. Mark Farrant, a former juror and president and CEO of the Canadian Juries Commission, shared his story with me. He suffers from post-traumatic stress as a result of his juror experience, and he has repeatedly been denied access to the services of a mental health professional. At the end of my speech, I will read some excerpts of Mark’s testimony in the other place as part of the study of this bill.

Health care professionals are fully aware of this rule and have adapted their practices at the expense of the well-being and mental health of former jurors.

When a legal regime ends up denying access to essential health services, that is a big problem. The law, not the profession, is to be blamed for this bizarre situation. This experience, shared by former jurors, is just one example of the flaws associated with excessive latitude regarding the jury secrecy rule.

Jurors can develop anxiety, post-traumatic stress, depression and even problems with interpersonal relations. However, in most provinces, the well-being of jurors is not taken into account.

Let me give you some examples of what a person may be subjected to as a juror. Jurors may be exposed to disturbing evidence. They may experience stressful situations by rubbing shoulders with the accused at the entrance to the courthouse or in the parking lot. They may develop a sense of guilt, unable to come to the desired verdict expected by the victim or his family, or become a victim of the media’s relentless harassment by coming to a verdict that would not render justice to the injured person.

In addition, jurors can be sequestered for a long period of time, sometimes weeks. During this period, they lose access to their support system, be it their family or friends, and feel guilty that they often leave their spouses or children alone for several weeks. These situations can explain why some former jurors develop mental health problems. In fact, when it comes to scientific evidence of the impact of jury duty on people’s mental health, Dr. Patrick Baillie, who testified in front of the Justice Committee, confirmed that we know that some evidence points to the occurrence of post-traumatic stress, to symptoms of anxiety, depression, anorexia, sleeplessness and other forms of nervousness. With respect to the deliberation process specifically, research has shown that it can be the most difficult and stressful part of jury duty.

How can jurors manage those mental health problems appropriately at the end of a trial when the judge’s final instructions include a reminder that they cannot discuss their deliberations with anyone?

Right now, our courts are creating victims, the jurors, and denying them access to the means of remedying the harm they have suffered while performing a civic duty. Other members of the justice system, such as judges, lawyers, clerks and staff, have access to psychological support programs. Jurors get nothing.

Many also agree that the jury secrecy rule makes it hard to study the impact of jury duty on individuals’ mental health. The jury secrecy rule literally prevents progress in this area, leaving jurors themselves to shoulder this enormous burden virtually alone.

The COVID-19 pandemic has intensified mental health needs. Even so, the administration of justice continues, which means that the courts continue to hold trials, and the accused’s right to a jury has not been taken away.

The difference now is that the pandemic is exerting unprecedented pressure on everyone who is essential to the proper operation of our justice system, including jurors.

Back in June, a spokesperson for Minister Lametti said that health and safety concerns are at the forefront for jurors serving on a trial during the pandemic. However, what we are missing here is the concern regarding mental health specifically. How can those concerns be at the forefront when jurors are legally forbidden to speak openly to mental health professionals about the struggles they experience as former jurors?

The purpose of Bill S-212 is to address this issue. The bill is a first step in enabling former jurors to get the help they need.

I want to point out that Bill S-212 is tackling a problem that transcends partisanship, namely the mental health of jurors in Canada. Jury duty is the cornerstone of our justice system. Besides being a civic duty that is sometimes crucial to ensuring the accused’s fundamental rights, forming a jury is one way to introduce the public’s perspective into the machinery of justice and ensure that civil society is represented in court to some degree.

However, serving on a jury should not negatively impact the mental health or well-being of jurors. Any situation that allows former jurors to express themselves helps with healing.

By expressing themselves verbally or in writing, jurors would have an opportunity to describe the psychological damage they sustained after experiencing events that put them either directly or indirectly in situations where they became victims.

Before I conclude, as I said before, I would like to read testimony that was given by a juror who attended the Justice Committee in the other place:

In January 2014, I was selected as a juror in a first-degree murder trial in Toronto, Ontario. Like a lot of Canadians, I had no experience with the criminal justice system prior to the events of 2014, nor had I even really been in a courtroom. I served as foreman in the deliberations and ultimately delivered the verdict in court.

The trial involved the graphic murder of a young woman, Carina Petrache, by her on-again, off-again boyfriend. She was attacked one morning in the rooming house apartment they shared. Her throat was cut from ear to ear. She was stabbed 25 times and was ultimately set on fire as her murderer attempted to set fire to the basement unit in a vain attempt to bring the building down in flames. His arson efforts failed, and Carina, mortally wounded, was able to vacate the unit, only to die of her massive injuries en route to hospital.

The accused also suffered horrible wounds stemming from the fire, suffering burns to 90% of his body, leaving him grossly facially disfigured and disabled due to amputations. He spent 12 months in a medical coma before being charged. In the courtroom, he was a living ghoul, a reminder of the brutality of the attack, and he spent many hours staring down jurors in an attempt to intimidate and shock.

The trial lasted four months and was made complicated by an NCR defence, which is known as “not criminally responsible.” Hours of testimony from the coroner detailed the graphic murder, including dozens of autopsy photos of the victim, descriptions of her significant and superficial wounds, and articulation of the defensive wounds on hands and feet, which suggested that the assault was excessively violent and unrelenting.

The macabre police video provided a walk-through of the crime scene by moving about the burned basement unit where the assault took place, moving up the burned stairwell, and following a trail of the blood of the deceased, complete with blood splatters, bloody handprints and footprints, and pools of blood up and down the hallway and in the bathroom. Testimony from the fire and emergency response officers on the scene was harrowing and disturbing, especially the testimony of a seasoned fire captain who broke down on the stand, stating that this was the worst thing he’d ever had to endure.

The accused was ultimately found guilty of second-degree murder. The accused later hanged himself at the Toronto West Detention Centre prior to receiving his sentence.

In court as a juror, I took all the evidence in silently, as was my role. As jurors, we ingest the evidence and the facts. We do not interact with it. We are not afforded an opportunity to look away or raise our hands and say to the courtroom, “Turn that off; I’ve had enough.”

I remember a particularly brutal image being left on our screen during closing arguments for 45 minutes and wondering why this was even necessary. This image was not in any way going to influence my decision-making. At the time, I understood that any stress or sleeplessness and anxiety was my burden to bear in this particular role . . . . It’s part of the job, I reminded myself.

As a juror, you are extremely isolated. You cannot communicate with anyone in any form about the events in court or even really with other jurors. I would leave the court in a trance, not remembering even how I got home. I would stare blankly into space during meetings at work or at home while my three-year-old daughter tried desperately to engage with me. My then pregnant wife, who had such an engaged husband during her first pregnancy, now had an emotional zombie in me, unable or unwilling to communicate.

I expected these feelings to subside as I left the courthouse on the day the verdict was delivered. I expected to experience a period of re-acclimatization as I re-entered my life, and then I would be fine. I expected there would be a thorough discharge and debrief prior to being dismissed, and that perhaps a counsellor would be present who would direct us to services or mental exercises, or indeed talk to us. There was nothing.

My feelings didn’t subside. They intensified and deepened.

This is for real, colleagues. This is a real story. These are real people. There are a lot of other cases, but I want to talk about Tina Daenzer. Tina was a juror on the Bernardo trial. She was there for a long time. She witnessed very ugly and harmful things that happened to young girls. She had to watch videos. That was 25 years ago. That person is still living with the impact of being a juror on that jury.

The other one I want to speak about is as awful, if not even worse. It’s about a little 8-year-old girl who was murdered. She was raped. She was beaten and she was killed by an aggressor. I don’t want to name his name because I don’t think publicity should be made for these people. It was awful. There were people who had to sit and follow that trial all the way through.

Once they leave the courtroom, they have no resources. They have no one to speak to. They have to go back to their lives. It happened to me, and I’m glad mine was not as bad as what I have read to you here or as the Bernardo case or the case of that little 8-year-old.

You have to remember that the court system right now in Canada is creating victims. We have nowhere to go to find the help that we need. While I’m speaking to you, you can’t see it but I am shaking because it has always bothered me.

To conclude, I would like to ask the following question. We have known for a long time about the psychological damage suffered by jurors when they exercise their jury duty. Why did we wait so long before discussing and legislating the well-being of jurors? Is it because the law of silence no longer holds for jurors or because mental health issues are stigmatized and relatively new to the political arena?

Most of the witnesses heard by the Justice Committee in the other place made statements in a personal capacity since there was no organization or lobby to oversee the interests of the jurors at the time. They had the burden of mobilizing to assert their rights and explain the problems associated with their experiences. Since then, thankfully, the Canadian Juries Commission was created, and the jurors are no longer alone on this journey.

Madam Speaker and honourable colleagues, by supporting Bill S-212, we can help Canadians who are called to serve on a jury to have a better experience as jurors and to survive the act of doing their civic duty.

And as they say, Your Honour, I rest my case. I thank you for your attention.

Thank you for the question, Senator Boisvenu.

Absolutely, and I hope that all our colleagues, those who are here and those who are joining us virtually, will agree to refer this bill to the Legal Affairs Committee as soon as possible.