JUST Committee Report

Mr.Anthony Housefather, MP
Chair, Standing Committee on Justice and Human Rights
Ottawa, Ontario, K1A 0A6

Dear Mr. Housefather,

On May 22, 2018, the Standing Committee on Justice and Human Rights presented its report, Improving Support for Jurors in Canada, and requested that the Government table a comprehensive response to the recommendations found therein. The Report identifies measures to improve support for jurors that fall under two themes: measures that the provinces and territories can put in place; and measures the federal Government can undertake.

On behalf of the Government of Canada, and pursuant to Standing Order 109 of the House of Commons, I am pleased to respond to the Committee’s unanimous report. I would like to thank the Committee for its comprehensive study of the various stressors faced by jurors and the important, concrete recommendations it makes to protect jurors’ mental health and wellbeing. The Government of Canada agrees that meaningful support to jurors, who play an essential role in the Canadian justice system, is needed to ensure that they can effectively perform this civic duty and limit negative consequences.

While the Report noted that juries can also be constituted for civil actions and coroners’ inquests, much of the testimony given at Committee was set in the context of criminal proceedings. In this context, supporting jurors is important not only for the jurors themselves, but also for the legal proceedings in which the accused is involved, and for the proper administration of justice writ large.

As the Committee’s Report highlights, different elements of the experience of jury duty can lead to stress, including the financial hardship of missing work, the weight of the decision jurors have to make, challenging group dynamics (including conflict), and the potential exposure to disturbing information and evidence.

The issue of juror support falls within provincial and territorial jurisdiction given their responsibility for the administration of justice. As the Report notes, many provincial and territorial jurisdictions have enacted legislation providing financial compensation for jurors, and some have put in place psychological support programs for jurors, but the scope of these supports varies widely. Federal responsibility over criminal law includes criminal procedure, and Part XX of the Criminal Code contains certain procedural provisions related to juries, as well as the offence in relation to disclosure of jury deliberations. The Government of Canada recognizes the importance of supporting jurors in their duties and is committed to working with the provinces and territories to improve support measures for jurors, and facilitate the sharing of best practices between jurisdictions.

Provincial and Territorial Juror Support Measures

The Report recognizes that many of the possible steps that can be taken to support juries lie within provincial and territorial jurisdiction. These include providing jurors with information about their duties and the process before the proceedings begin, debrief sessions and psychological support after proceedings conclude, offering adequate financial compensation, ensuring an optimal physical space for jurors, and increasing awareness of jurors’ mental health needs among justice system professionals. The Government of Canada agrees that it is important to ensure that jurors have adequate support, and are thereby able to perform their civic duty without suffering hardship. This is important for the wellbeing of individual jurors, but also for the criminal justice system in general – adequate supports can help ensure that juries are representative and competent, characteristics that are essential if a jury is to properly exercise its key role in the criminal justice system.

The Government of Canada also agrees with the importance of federal, provincial and territorial collaboration in achieving meaningful results to support jurors and welcomes the Committee’s request that I share the practices it recommends with my provincial and territorial counterparts as soon as possible. To that end, the Committee’s Report was shared with provinces and territories and will be raised with my counterparts at the Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety in the fall of 2018.

Some recommendations included in the Committee’s report could have financial implications for provinces and territories should they decide to implement them. The provinces and territories are best placed to make decisions on the implementation of recommendations in those areas.

Federal Measures

The Government recognizes the importance of ensuring that our juries are representative of the communities in which they serve. The Committee noted that representativeness is impacted when persons cannot afford to serve on a jury because they would suffer financial hardship. A recent study presented to the Canadian Judicial Council notes that persons selected for civil juries in some Ontario cities are predominantly white and higher income earners. The federal Government has taken steps to address jury representativeness within its sphere of responsibility through Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, which I introduced on March 29, 2018. Proposed changes include abolishing peremptory challenges and allowing a judge to decide all challenges for cause and to stand aside jurors to maintain public confidence in the administration of justice.

The provinces and territories play a key role in the criminal justice system through their responsibility for the administration of justice. However, ensuring that the system works effectively nonetheless requires concerted attention by the federal government, which is responsible for the criminal law and which, through existing criminal justice funding initiatives, demonstrates federal leadership by supporting the development and implementation of Canadian best practices. For example, the Department of Justice Canada manages the Justice Partnership and Innovation Program, which supports activities that seek to respond to changing conditions that impact Canadian justice policy.

The Committee’s Report also noted the importance of increasing judges’ awareness of jurors’ mental health needs, and recommended federal funding to the National Judicial Institute (NJI) in this respect. Justice Canada provides the NJI with annual funding in support of various programs, but recognizes that the judiciary itself is responsible for judicial education. The NJI provides training to judges at arm’s length from the Government. The Government agrees with the importance of raising awareness and knowledge about the impact of jury duty on jurors’ mental health, and to that end commits to explore the possibility of funding for judicial training about juror’s mental health needs with the NJI.

Federal responsibility over the criminal law includes criminal procedure and offences in the Criminal Code. Section 649 of the Criminal Code prohibits jurors from disclosing information about what took place in the jury room that was not subsequently disclosed in open court. The section was enacted in 1972 to ensure that the jury room is treated as a confidential forum. As noted by the Supreme Court of Canada in R v Pan (2001), the rationale for secrecy of jury deliberations includes the promotion of frank debate by jurors, the assurance of finality of verdicts, and the protection of jurors from reprisal. While section 649 of the Criminal Code does not prohibit discussing one’s emotions during jury deliberations or the proceedings, or the evidence that was presented in court, it prohibits the disclosure of information such as opinions expressed, arguments made and votes cast during jury deliberations.

The Committee is of the view that section 649 of the Criminal Code creates an obstacle to fulsome discussions between jurors and mental health professionals and recommends an amendment to section 649 of the Criminal Code that would allow a juror to discuss jury deliberations with registered mental health practitioners in the course of treatment, similar to what is provided in the Australian State of Victoria’s Juries Act.

Both the Supreme Court of Canada and the Steering Committee on Justice Efficiencies and Access to Justice (an independent committee composed of federal and provincial Deputy Ministers, representatives from the judiciary and the bar) in their 2009 Report on Jury Reform noted the importance of considering amendments to section 649 to allow academic research into the jury deliberations process. More recently, the difficulty in undertaking academic research on juries was highlighted in numerous media reports on issues related to jury representativeness, which required researchers’ physical attendance in courtrooms to note ethnicity and other characteristics of jurors.

I am committed to examining jury-related issues, including section 649 of the Criminal Code, with provincial and territorial colleagues as part of my ongoing review of the criminal justice system, which would apply a Gender-based Analysis Plus approach to identify potential differential impacts.

Conclusion

The Government agrees on the importance of continued collaboration with provinces and territories to ensure that adequate supports are provided to jurors. Juries are a vital component of our justice system, as are the individual jurors who serve on them in performance of their civic duty. Ensuring that they are adequately supported before, during and after their service is an important objective to maintain public confidence in juries, minimize the impact that jury duty has on jurors’ lives, and help ensure jury representativeness in various ways. The Government will continue to work closely with our provincial and territorial partners to encourage the sharing of best practices to ensure that jurors in Canada are adequately supported for their immensely valuable service.

Respectfully,

The Honourable Jody Wilson-Raybould, P.C., Q.C., M.P.

Minister of Justice and Attorney General of Canada