Hon. Pierre J. Dalphond: Honourable senators, I rise today to take part in the debate initiated last week by our colleagues Senators Boisvenu and Moncion on Bill S-206, which proposes an exception to the criminal offence committed by jurors who fail to meet their obligation to keep the jury’s deliberations secret.

I would like to begin by discussing the importance of trial by jury in criminal law. The principle whereby serious charges must be decided by members of the community dates back to ancient Greece. In Athens, a person could only be sentenced to death or exiled from the city following an assembly held before more than 1,000 citizens, who were then called upon to vote by placing a token in an urn. They would cast either a token with a hole in it or one without, depending on whether they thought the accused was guilty or not.

Rome had a similar institution. In England, the role and composition of the jury evolved over the centuries. The concept of a jury composed of 12 people and led by a judge was imported from England as soon as Canada became a British colony.

The jury system thus existed long before Confederation in 1867. The first Criminal Code of Canada, adopted in 1892, codified the various criminal laws and practices and, of course, recognized the right to trial by jury for the most serious charges. It even decreed, in certain cases, the obligation of holding a trial by jury.

In a 1980 report entitled The Jury in Criminal Trials, the Law Reform Commission of Canada, a commission many of us would like to see reconstituted, recommended maintaining the jury system, which it described as, and I quote, “. . . a fundamental institution, a veritable ‘rock of ages’ in our system of criminal justice in Canada.”

The commission looked at studies and investigations and concluded that juries have a good understanding of the cases before them, even when these cases are complex, and that a jury is a good way of infusing community values into a trial, to ensure that the enforcement of laws is just in certain cases. Take, for example, the decisions of four different juries in the cases associated with Morgentaler that led to the legalization of abortion in Canada.

It should come as no surprise that, in 1982, the constituents chose to include, in section 11 of the Canadian Charter of Rights and Freedoms, the right to trial by a jury when the maximum penalty is at least five years.

[English]

Honourable senators, in practice the majority of criminal cases in Canada are tried by one judge alone, mostly a provincial judge. However, trial by a judge of a superior court and a jury is a right of the accused for the most severe criminal offences. The accused in those cases may opt out of a trial by judge and jury and choose to be judged by a judge alone — an election done most of the time for various reasons.

Moreover, jury trials are mandatory for offences mentioned in section 469 of the Criminal Code, which include murder, conspiracy to commit murder, treason, intimidating Parliament or a legislature and other offences. Unless both the Attorney General and the accused consent, the trial must be one with a jury.

To those listening to us today, I would like to say that jury service is a critical component of our judicial system. If one day you are summoned to attend the courthouse for jury selection, please seriously consider this important public service.

The task might appear daunting and you may initially be unhappy or reluctant about being summoned for jury service, but please consider that, according to research conducted in 2016 by Professor Cheryl Thomas from the School of Judicial Studies at University College in London, U.K., the overwhelming majority of persons who served on a jury found jury service to be a positive, not negative, experience.

When she appeared before the House of Commons Justice and Human Rights Committee in the course of its study on the jury system on February 8, 2018, Professor Thomas further explained:

When asked to describe their experience of jury service, the highest results were for such positive descriptions as educational, interesting, and informative. The lowest results were for such negative descriptions as depressing, confusing, boring, and worrying. Only a minority said that the experience was stressful.

Furthermore, her research shows that 81% of those who served on the jury said they would be happy to serve again if summoned.

[Translation]

I now want to talk about section 649 of the Criminal Code, which this bill would amend.

The 12 people selected to preside over the fate of the accused — or 6 people, in Yukon and the Northwest Territories — are placed into an unfamiliar system, and when they are presented with the evidence, they are often presented with a real human tragedy. Once everything has been said, including the lawyers’ arguments, these individuals are sequestered to deliberate the fate of the accused. These discussions are held behind closed doors and can sometimes last several days. At the end of the process, a guilty verdict can only be reached if the 12 members of the jury arrive at a unanimous decision.

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Pursuant to section 649 of the Criminal Code, enacted in 1972, what is said in camera must be kept secret, under punishment on summary conviction, which may lead to a term of imprisonment of up to two years less a day or a fine of not more than $5,000, or both. However, everything presented to the jurors in open court is public and can be discussed with a health care professional.

Commenting on the secrecy rule for jury deliberations, the Supreme Court of Canada had this to say in 2001 in R v. Pan:

The common law rule of jury secrecy, which prohibits the court from receiving evidence of jury deliberations for the purpose of impeaching a verdict, similarly reflects a desire to preserve the secrecy of the jury deliberation process and to shield the jury from outside influences.

As for the main policy consideration raised to justify maintaining the secrecy of jury deliberations, the Supreme Court gives the following explanation:

 . . . confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. . . . This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime.

Our colleagues, Senators Boisvenu and Moncion, have proposed adding an exception to the prohibition that would allow jurors to discuss the entirety of their experience during a trial, including the deliberations with their 11 colleagues, with a health care professional, and only a health care professional, a person bound by professional secrecy.

I fully support this proposal, which is based on one of the recommendations issued by the House of Commons Standing Committee on Justice and Human Rights in its unanimous May 22, 2018, report entitled Improving Support for Jurors in Canada.

I would add that an identical bill introduced by MP Michael Cooper was passed by the House of Commons but did not make it to the Senate until April 2019, where it died on the Order Paper.

I’ll turn now to support available to jurors once they have completed their assignment. As I indicated earlier, the right to a jury trial exists only for the most serious offences, including crimes against the person, such as sexual assault, serious injury and murder.

Our colleagues emphasized the fact that jurors can be traumatized by the pieces of evidence in these cases, which may be — in fact, almost always are — gruesome. That’s undeniable. I myself, as an appeal court judge, had to handle hundreds of criminal cases. The facts in some of those cases were so disturbing that I will never forget them.

I recall in particular the case of a 6-year-old child who was tortured and killed by his father’s new partner while the father was away for two weeks. The autopsy report, the photographs, the paramedics’ reports and some of the testimony was so shocking that I had to take breaks while reading the file. I experienced moments of horror, and I cried several times.

[English]

I completely understand that trauma may result from being exposed to days of disturbing evidence.

Many of you will remember the 1995 jury trial presided over by Justice Patrick LeSage of the Ontario Superior Court, which led to a sentence of life imprisonment for a man convicted of the kidnapping, torture and murder of teenagers in St. Catharines, Ontario.

In 2016, then-retired Justice LeSage said in an interview:

I had been a judge for many years by the time that trial had started, but I still find it disturbing, so I thought many others who haven’t had the experience that I’ve had will find it disturbing.

He added that he sought counselling after the case and believes that it should be an option for all jurors. As a matter of fact, in that trial he ordered the Province of Ontario to provide such assistance to the jurors.

Under our constitution, the provinces are responsible for the administration of justice, including criminal justice, while Parliament has exclusive jurisdiction on criminal law, including criminal procedure. The constitution of lists of potential jurors and their compensation fall under the jurisdiction of the provinces.

While serving on a jury, jurors are entitled to financial compensation and lodging when sequestered. These measures vary from province to province. For example, in New Brunswick, jurors are compensated at the rate of $40 a day. In Quebec, it is $103 per day.

The issue of post-trial support for jurors also falls within the provincial jurisdiction. Here again there are variations across Canada. For example, in Ontario, jurors can receive up to four one-hour counselling sessions for free after they complete jury duty through the Juror Support Program. In Quebec, regulations allow the presiding judge to order access to psychological support for up to six consultations at the rate of $65 per hour. In each province, things vary. Maybe the time has come to get a national scheme or program to bring some uniformity to the support offered to jurors.

In conclusion, I invite you, colleagues, to support this bill and send it to the legal committee before we adjourn for the winter break. It does not address all the challenges jurors face post trial, but it will remove one barrier of access to proper professional assistance when needed. Thank you. Meegwetch.

Senator Dalphond: I guess so, yes.

Senator Dalphond: I would personally be prepared to proceed to third reading, but I do not want to impose it on my colleagues. What needed to be said was well said by both Senator Boisvenu and Senator Moncion. I believe that my comments may have been helpful to those who did not understand exactly what was at stake.