Criminal Code
Bill to Amend--Second Reading--Debate Adjourned
December 1, 2021
Moved second reading of Bill S-206, An Act to amend the Criminal Code (disclosure of information by jurors).
He said: Honourable senators, I am proud to rise today to speak at second reading to Bill S-206, An Act to amend the Criminal Code regarding disclosure of information by jurors, which I introduced in the Senate last week.
This bill is close to my heart, much like Bill S-212, which I introduced in the previous Parliament. This bill seeks to implement an important recommendation made by the House of Commons Standing Committee on Justice and Human Rights.
In its report entitled Improving Support for Jurors in Canada, which was released in May 2018, the committee issued a number of recommendations, including recommendation number 4 regarding a more lenient secrecy rule for jury deliberations. It states, and I quote:
That the Government of Canada amend section 649 of the Criminal Code so that jurors are permitted to discuss jury deliberations with designated mental health professionals once the trial is over.
It is important to remember that that recommendation was supported by all committee members during the Forty-second Parliament, regardless of political affiliation. The report was based on an eight-day study of the issue.
On October 29, 2018, the member for St. Albert—Edmonton, Michael Cooper, introduced Bill C-417 in the other place. That bill was unanimously passed and sent to the Senate, but it died on the Order Paper when Parliament was dissolved in September 2019.
Bill S-206 is exactly the same as Mr. Cooper’s Bill C-417. I would like to remind you that this bill amends the Criminal Code to provide that:
. . . the prohibition against the disclosure of information relating to jury proceedings does not apply, in certain circumstances, in respect of disclosure by jurors to health care professionals.
It is unfortunate that has taken nearly four years and four attempts for a bill to be introduced that would prevent law-abiding citizens, who sacrifice their time and often put their health at risk to fulfill a major role in our justice system, from becoming victims of that system because the system prevents them from getting help. Criminal charges could even be brought against them if they were to do so. That is a strange way of thanking those who are simply fulfilling a duty required of them by our country.
Section 649 of the Criminal Code states that any juror who discloses any information relating the proceedings of the jury in their lifetime, even to a mental health professional, is committing a criminal offence.
That section must be made more lenient in order to protect the health of those who often come out of that experience traumatized by what they have read, heard or seen.
We all know that protecting the mental health of jurors is a matter that transcends political allegiances. This bill will help build a more humane justice system, and it is our duty to move it forward so as to limit the suffering of these men and women who are simply doing their civic duty.
Colleagues, I ask you to vote to refer Bill S-206 to the Standing Senate Committee on Legal and Constitutional Affairs immediately after Senator Moncion’s speech, so that we can study it as soon as possible and send it to the House of Commons to be passed.
This bill deals with an important, non-partisan issue, and it has already been studied extensively in the other place. There is no need to waste any more time before passing it.
As Mark Farrant, a former juror and CEO of the Canadian Juries Commission who now advocates for the rights of jurors in Canada, said:
Jury duty is the cornerstone of our justice system. Jurors are often exposed to disturbing and graphic evidence. It is fair to say that jury duty has not kept pace with the increasing demands of our modern world, and it has been my mission to ask for change. This bill, which is a simple amendment to the Criminal Code, will make an enormous difference to jurors seeking support long after their trials have concluded.
Several former jurors have become what I would call victims of our justice system. It is unacceptable that this same justice system sentences them to suffer in silence from a mental health perspective. It is absolutely immoral.
Being a juror in a criminal trial can be one of the most stressful experiences in a juror’s life. I met with Tina Daenzer, a juror who served on Paul Bernardo’s murder trial. She told me about the post-traumatic stress suffered by those who wanted to serve justice by becoming a juror.
Consider the women and men who have to review the evidence at criminal trials for very violent crimes against women or children, heinous murders committed in domestic disputes, violent sexual assaults, organized crime settling scores and so forth.
There is no training that adequately prepares these women and men for jury duty. You may be called by chance to fulfill this very demanding duty, and it will make you a victim of the justice system.
Jurors go through these troubling and devastating experiences without any psychological support and, even worse, with an obligation to remain silent and live with the trauma without having the right to ask for help. Silence is the prison of victims.
Jurors are left to fend for themselves, plunged into the macabre world of crime for the length of a trial. They are sequestered and must deliberate for days, and then they are sent home with no support or assistance to resume their normal lives, as if nothing had happened.
That is exactly what this bill seeks to change by establishing a limited exception to the secrecy rule so that former jurors who suffer from mental health issues resulting from their jury duty can speak about all aspects of these responsibilities to a health professional with peace of mind.
The integrity of the secrecy rule will be protected because, once again, the juror will be disclosing information in a strictly confidential setting after the trial, to a health care professional who is also bound by professional secrecy. This exemption would allow former jurors to discuss essential topics with a health care professional to get the support they need and deserve. I don’t see how anyone could be against this amendment to the Criminal Code.
I am confident that there will be unanimous support for the amendment proposed in the bill to finally allow jurors to legally access the care they need.
I also want to point out that crime is steadily rising in Canada, which means the justice system needs more and more jurors. Statistics Canada’s report on homicide in Canada shows that there were 743 homicides in 2020, an increase of 56 homicides over the previous year, and that there were 864 attempted murders. Trials for murder and attempted murder are not the only crimes that require juries. Anyone charged with a criminal offence in Canada may be tried by a jury.
As a result, because of the increase in the number of trials in this country, we need to do everything we can to ensure that the bill moves forward quickly in the Senate. This is a national emergency for all those who will do their civic duty and for all former jurors who are watching right now and are anxious for the Senate of Canada to do its part by passing this bill and quickly sending it to the other place.
I would like to once again thank Senator Moncion for her unwavering support and especially for her contribution to this important cause, which affects her personally because of her experience as a juror. Even though 30 years have passed since that difficult experience, it still affects her life. We are privileged to be able to pass such a bill, which is endorsed by one of our own. That is proof that there is a reason for this bill. Senator Moncion said, and I quote:
During the last Parliament, legal experts, mental health professionals and members on both sides of the House of Commons supported this bill because its merits transcend partisanship. In view of the interest generated by the proposed change, I believe it is vital that this legislation move through the Senate in the spirit of cooperation.
I would like to thank Senator Moncion for humbly sharing her experience with us so that we can better understand how important and urgent it is for us to take action.
Esteemed colleagues, it’s with that same awareness and sense of urgency that I ask you to pass this bill at second reading so it can go to committee as soon as possible.
Thank you very much.
Honourable senators, I rise today as the critic for Bill S-206, An Act to amend the Criminal Code regarding disclosure of information by jurors.
As you know, I’ve spoken on this topic twice in previous sessions.
The legislative amendment proposed by Senator Boisvenu has strong support that transcends political and partisan allegiances. The House of Commons Standing Committee on Justice and Human Rights has already carried out a thorough study of the proposed amendment to section 649 of the Criminal Code, and it also studied Bill C-417, the precursor to Bill S-206. As such, I am confident calling for the rapid passage of this bill through the Senate.
In 2018, the Justice Committee responded to testimony from numerous former jurors, jurists and health professionals by recommending the creation of an exception to the jury secrecy rule.
This rule prohibits jurors from disclosing information about the jury’s deliberations to anyone at any time. The scope of this rule is very broad as it covers any information that a juror could disclose, including emotions, feelings of frustration, helplessness, fear, anger and confusion, and negative thoughts associated with difficult interactions with other jury members. The bill would put an end to the suffering and silence by allowing jurors to disclose information about the deliberations to a mental health professional.
Let me now speak on the main subject matter of this legislation: the well-being of jurors. From a legal point of view, jurors are part of a special category of people who are denied complete health care. This bill aims at improving the mental health of former jurors, because everyone’s mental health matters.
Jurors may be exposed to disturbing evidence. They may experience stressful situations by rubbing shoulders with the accused at the courthouse or other jurors with whom they may not get along or agree. They may develop a sense of guilt, unable to come to the desired verdict expected by the victim or their family, or become a victim of the media’s relentless harassment by coming to a verdict that would not render justice in the public’s opinion.
Jurors can be sequestered for long periods, sometimes weeks, losing access to their support systems and feeling guilty that they often leave their spouses or children alone for several weeks.
Dr. Patrick Baillie, who testified in front of the Justice Committee, said that with respect to the deliberation process specifically, research has shown that it can be the most difficult and stressful part of jury duty and can lead to anxiety, PTSD and depression.
Mark Farrant, CEO of the Canadian Juries Commission and former juror, who also testified in front of the committee, said that jury duty is a civic duty, but not a duty to suffer psychologically.
People who serve as jurors can develop anxiety, post-traumatic stress and depression and even have problems with their interpersonal relationships. Yet there is no consideration for well-being and mental health in the juror experience.
I would like to share with you the results of a Canadian Juries Commission study of panels of jurors who had served at murder trials. Although it is not exhaustive, this information will give you a better understanding of the impacts of a juror’s experience, and I quote:
Most jurors reported being dismissed with cursory words from the judge.
Almost all of the jurors spoke of a troubled and difficult transition back into civilian life.
Some are unable to return to work for months or years; some quit their jobs.
Some take months — or a year — before their friends and family feel they’ve returned to even a semblance of normality.
Some continue to agonize and process their part in the trial long after the event.
Many experience ongoing feelings of isolation and abandonment, which for many have never gone away even years after the end of their service.
They speak of:
. . . lack of empathy, sympathy, understanding, or consideration from work/employers, friends, and family, who simply have no idea and cannot grasp the depth of the experience they’ve suffered.
Many believe the experience has marred them for life. They will never be the same again or feel they’ve “gone back to normal.”
As one Ontario juror said:
And I was a wreck. I was crying. I was expecting to be happy because I was done with it, but I was a wreck. All of this just kind of unleashes afterwards. It’s not at all what you expect. I expected to be relieved, and instead I was left with a whole new set of lingering emotions that I had to deal with on my own that I did not foresee at all. And the court . . . your job is done, get out.
The secrecy rule for jury deliberations can prevent jurors from seeing a mental health professional. Mark Farrant, a former juror and CEO of the Canadian Juries Commission, has post-traumatic stress from his experience as a juror. He was turned down many times by mental health professionals before he was able to get help. Mark was suffering in silence, but he was systematically being denied help. That is incredibly unfair and worrisome.
Health care professionals are understandably afraid to provide services to former jurors, knowing that their client could violate the secrecy rule and end up with a six-month prison sentence or a $5,000 fine, or both.
This experience, which is shared by many former jurors who have been denied access to the services of health care professionals, illustrates the major flaws associated with the scope of the rule. When the Criminal Code ends up denying access to essential health services, that is a big problem.
How can jurors manage their mental health problems appropriately when the judge’s final instructions include a reminder that they cannot discuss their deliberations with anyone?
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 investigators, judges, lawyers, and clerks, have access to psychological support programs. Jurors get nothing.
The very nature of the rule makes it hard to study the impact of jury duty on individuals’ mental health. Jurors are left to shoulder this enormous burden virtually alone. The consensus among legal scholars is that the rule can be modified to provide a very specific exception without compromising its substance or functionality.
In the report of the Lamer Commission of Inquiry, published in 2006, Justice Lamer identified the following principles: 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.
Because it would apply only after the deliberations, the exception to the rule proposed by this bill respects the principles identified by Justice Lamer in his report. Bill S-206 provides that much-needed reasonable balance.
Professor Vanessa MacDonnell, a member of the Criminal Lawyers’ Association, testified before the committee and stated 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 in its legislation. The Standing Committee on Justice and Human Rights used Victoria as its inspiration in making this recommendation. In its report, the committee recognized from the start that the regulation of juries falls to the provinces and territories, which have jurisdiction over the administration of justice.
To make a real difference, the proposed bill must be accompanied by other measures to assist jurors in Canada. A concerted approach that fosters collaboration between the different levels of government and the relevant organizations is required here.
We must work on implementing the recommendations from the Improving Support for Jurors in Canada report, which gives an overview of what a comprehensive reform of the Canadian jury process would look like. I suggest that you take a look, colleagues.
In particular, I suggest having a look at the third recommendation in 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. This report warrants the attention of the government and parliamentarians because we have not yet done enough on this.
The pandemic has put and is putting unprecedented pressure on various key players in the justice system, including jurors. Despite that pressure, certain rights inherent to the administration of justice remain. Individuals charged with an offence still have the right to be tried within a reasonable time under paragraph 11(b) of the Charter, and delivering a verdict within a reasonable time is crucial for public safety and victims of crime.
The Supreme Court ruling known as the R v. Jordan rule imposes limits on the amount of time an accused person can wait for trial. The COVID-19 pandemic pushed many cases past the 18- and 30-month Jordan deadlines because the courts deemed that the delay was justified under the “exceptional circumstances” exception.
Coming out of the pandemic, in what many would call a mental health crisis where many also face socio-economic challenges with inflation rates that make it difficult to make ends meet, we can project that jury duty will not be top of mind for Canadians. Public opinion and potential lack of willingness to perform jury duty will become a problem for the functioning of our justice system if issues such as the well-being of jurors are not addressed in a timely manner.
There was a young lady, a business owner, who told my husband that she had received a summons for jury duty. I told my husband to tell that young lady to find every way out of it. She is a business owner and she cannot afford to be on jury duty for a long period of time.
According to a poll by the Canadian Juries Commission, Canadians rated jury duty lower in terms of civic importance than donating blood or volunteering within the community. These opinions are a direct result of decades of underinvestment in jury duty across the country and an inadequate legislative regime that doesn’t concern itself with the psychological well-being of jurors during and after a criminal trial.
Parliamentarians have a duty to individuals charged with a crime, to victims of crime and to the principle of public safety to provide the courts with the necessary support. Fulfilling that duty begins with paying special attention to the well-being of jurors.
It’s clear that Bill S-206 tackles a problem that transcends partisanship, namely the mental health of jurors in Canada. Besides being a civic duty that is crucial to ensuring the accused’s fundamental rights and the victims’ well-being, forming a jury is one way to introduce the public’s perspective into the machinery of justice.
Currently, jurors are becoming collateral casualties of the justice system, and the Criminal Code is perpetuating their suffering. Jury duty should not come at the expense of the mental health of the citizens summoned to perform it. I know from personal experience that this bill is absolutely necessary and essential for former jurors who suffer in silence. As Senator Boisvenu mentioned, in 1989, when I was a busy working mom of two young children, I was summoned to jury duty at a first-degree murder trial. I spent nearly two months in court. The trial ended on a Saturday. The following Monday, I flew to Val Gagné in northern Ontario to convert a bank’s computer system. I was picking up my life where I had left off two months earlier. But I was not the same person anymore.
As a result of that trial, I suffered from post-traumatic stress disorder, a condition that has affected every aspect of my life, including my family.
Mental health used to be stigmatized and is a new reality in the political arena. We now know too well and cannot ignore the psychological damage suffered by jurors when they exercise their jury duty.
I would like to warn you, honourable senators, that the next part of my speech contains graphic details.
Just ask yourself in what state you would be if you were shown graphic pictures of a 6-year-old child tied to a chair with duct tape, the duct tape covering the child’s face and nose, and learning that this malnourished child died of asphyxiation? What about this other 8-year-old girl who was raped and murdered with a hammer? What about watching videos of two girls, 14 and 16 years old, being repeatedly raped and shown pictures of their bodies found in a ditch?
Now, try to rationalize and ask yourself why did this happen? Who does that? How can someone be so evil to even think of doing this to anyone?
You are a decent person when you come into court. You are confronted with atrocities. You know what? It stays with you. Every time you hear of a murder, you cringe. You remember. I could go on, but I’m certain you get it.
The law of silence no longer holds and the secrecy rule needs to be changed.
Colleagues, Bill S-206 is not a government bill. It’s a Senate public bill that has been extensively studied in the House of Commons and has wide support among MPs as the previous versions of this bill passed unanimously.
Now this bill needs to be sent to committee and studied in the Senate so that it can be returned to this chamber, adopted and sent to the other place expeditiously.
This is the fourth time this bill is being introduced in the Senate, and I sincerely hope that it is the last time and that it will be passed in the Senate and in the House of Commons as soon as possible.
Madam Speaker, honourable colleagues, supporting Bill S-206 will allow us to help the Canadians who are summoned to jury duty to better experience and survive this civic duty. Let us discuss this issue and refer the bill to the committee for study. Thank you for your attention.
Honourable senators, I would like to take part in the debate for a moment to note that the topic we are discussing here is very important. I would also like to congratulate Senator Boisvenu, the sponsor of this bill, as well as Senator Moncion, who described her experience as a jury member. I would like to add a few comments, so I will adjourn the debate for the balance of my time.
