Law Times

Law Times • January 22, 2018 Page 5 www.lawtimesnews.com Hard to seek peer support Study on traumatized jurors raises issues for lawyers BY DALE SMITH For Law Times OTTAWA — The House of Commons justice and human rights committee has under- taken a study on counselling and mental health supports for jurors, but defence lawyers have largely been unrepresented in the hearings. Defence lawyers say that while the study on jurors is needed, it also points to sup- ports that both jurors and law- yers need after traumatic tri- als, especially because stigma around mental health issues makes it hard for both groups to seek peer support. "All defence lawyers recog- nize how challenging emotion- ally a trial can be for anyone," says Lisa Jørgensen, a partner with Cooper Jørgensen in To- ronto, and a board member with the Criminal Lawyers' Associa- tion. "Obviously, we think it would be good to get additional support for jurors." The ongoing study — Coun- selling and Other Mental Health Supports for Jurors — has heard that some jurors can be subject to trauma in cases that rely on horrific images and evidence, which can manifest itself as post-traumatic stress disorder. It also says most provinces have a lack of counselling sup- ports after trials take place. "The objective of the study is to identify the various sources of stress arising at every stage of jury duty — from the selec- tion of prospective jurors to serving on a jury and taking part in deliberations — in or- der to propose concrete recom- mendations and ensure that all jurors have access to necessary psychological support services," according to information from the committee. Briefs submitted to the com- mittee also point to the fact that most provinces under- compensate juries and that only Quebec and Saskatch- ewan compensate at levels that exceed the province's mini- mum wage. Ontario offers the second-lowest compensation rate to jurors in comparison to minimum wage. Defence lawyer Kim Scho- field, of Kim Schofield & Asso- ciates in Toronto, says the issue of jury compensation is in dire need of modernization, because that can contribute to the stress that jurors face. "The compensation they get is just laughable," says Schofield. "There has to be much more emphasis on the disruption of people's lives and the effect that it has, both mental health wise and financial." Lawyers say that different measures are taken to try to protect jurors from traumatic content. For example, Jørgensen says that, typically, lawyers will try to black out parts of photos in evidence that aren't relevant and could be further trauma- tizing to jury members, or they will try to limit the number of images or evidence that would be troubling to see, without compromising trial fairness or hiding the truth from juries. She also says that lawyers will try to warn juries in advance that some of the images may be disturbing, so as not to catch them off guard. But, she says, concerns around trauma are not unique to jurors, because everyone in the courtroom — including Crowns, judges and defence lawyers — all see things that can be haunting. "If the government is going to put funding toward support for jurors, I think that funding should be extended so that all justice system participants have equal access," says Jørgensen. Schofield says lawyers, too, need mental health profession- als trained to deal with their particular circumstances. "The things that we see we can't talk to most people about," says Schofield. "Obviously, there are issues of [solicitor-client] privilege, too. Can I say, 'This is the case I'm working on and I'm having trouble?'" Schofield says she thinks mental health support for law- yers is an issue that the law soci- ety should be tackling and that there is a place for mental health awareness as part of continuing legal education hours. Defence lawyer Anne-Marie McElroy, of McElroy Law in Ot- tawa, says she would prefer that the law society's member assis- tance program be more easily available to access. "We're the people who need to be strong for our clients," says McElroy. "We don't often give our- selves the space to deal with the issues that come from the work." McElroy agrees that lawyers don't tend to speak about men- tal health issues openly and that they will often resort to "gallows humour" as a coping mecha- nism. "Everyone who does defence work goes through various stages of difficulty when you're dealing with this sort of subject matter," says McElroy. Jørgensen says that, within the defence bar in particular, there is a stigma against showing emotional vulnerability, espe- cially when there are trials that revolve around things such as murder or child sexual assault. "There's not a lot of collective support for people to say, "I had a trial that really shook me up and I couldn't sleep,'" says Jør- gensen. "You never want to be the lawyer that acknowledges wor- rying about that." Mental health issues can have wider impacts on the jus- tice system, says McElroy. If jurors become over- whelmed during the course of a trial and it prevents them from sitting, she says, that can add to delays in proceedings. "If one juror is sick or not able to be there, that can throw a wrench into the whole sched- ule," says McElroy. "Jury trials are pretty expensive because they take longer than a trial in the Ontario Court of Justice or a judge-alone trial in the Ontario Superior Court." Jørgensen says that lawyers should be working to reduce the stigma of dealing with trauma. She has had a few experienc- es with other defence counsel and Crown lawyers about how difficult some trials have been. "Those conversations are good, because they at least ac- knowledge that if you're having those feelings, you're not 'not tough enough' to be a defence lawyer — you are just a person who has normal responses to things that you see," says Jør- gensen. Committee chairman An- thony Housefather, a Liberal MP from Montreal, says the committee has not heard from groups representing defence lawyers, but it has reached out to the legal community for input, as well as reaching out to hear best practices from countries such as the United States, Aus- tralia and New Zealand. He also adds that they are looking at whether they should recommend amending the Criminal Code prohibition around juries being able to dis- cuss what happened during de- liberations. "I don't see us advocating for the state to support the defence attorney, given that they're not really someone who's on the government's side, but in the event that there are defence lawyers that wish to appear, I'm happy to hear them," says Housefather. He expects the committee to hold three more hearings in February on the matter before concluding to begin drafting its report, which will then be for- warded to federal Justice Min- ister Jody Wilson-Raybould and provincial attorneys general with recommendations for best practices in an attempt to pro- voke discussion. LT NEWS Lisa Jørgensen says lawyers will try to warn juries in advance that some of the images they encounter may be disturbing, so as not to catch them off guard. Each year, the Law Society proudly recognizes Ontario lawyers and paralegals who have made outstanding contributions to the legal professions. Nominations are now open for the 2018 Law Society Awards for all five categories: • The Law Society Medal – for outstanding service • The Lincoln Alexander Award – for community service • The Laura Legge Award – for leadership • The William J. Simpson Distinguished Paralegal Award – for outstanding professional achievement • The J. Shirley Denison Award – for significant contributions to access to justice and/or poverty law issues Who will you nominate? Last Call for Nominations! Deadline: January 26, 2018 Submit your nomination today! More information at: www.lso.ca/awards-nominations Untitled-1 1 2018-01-17 10:05 AM

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