PTSD haunts Canadian jurors, but they aren’t allowed to talk about it

Bill before the Senate would allow jurors to discuss trials with medical professionals
Photo: Courthouse in Jefferson County, Texas. (Patrick Feller / Flickr CC)
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The first time Mark Farrant experienced a debilitating anxiety attack, he tried to push it aside. The 48-year-old had recently served as a jury foreperson for the murder trial of a Toronto woman — a service he explains as “the last mandatory civic duty left in our country” — and he couldn't understand why these fits of fear kept interrupting his life. Rather than fade, as other memories had, the horrific flashbacks of the trial grew in strength. Farrant startled easily and began avoiding social interactions, eventually isolating himself entirely. He soon fell into suicide ideation; life had become too painful. He believed his new son would be better off with no father than a tormented one.

His last-ditch effort was to reach out to a therapist — his infant son, who was born shortly after the trial, deserved as much. There, he was diagnosed with something he hadn’t thought could apply to him: post-traumatic stress disorder (PTSD). The diagnosis saved his life: it assuaged his self-blame and anger over not being able to “just deal with” the terrorizing nightmares, sleeplessness, and flashbacks. He began to feel, at the very least, normal.

After hearing from so many former jurors and their families about unimaginable struggles — mental illness, economic hardship, addiction, suicide — Farrant resolved that post-trial government assistance was critical.

PTSD can arise when an individual witnesses traumatic events — such as when gruesome video, audio, or images are presented in a murder trial — that disrupt the brain’s chemical activity. The stress hormone cortisol “drives abnormal stress encoding and fear processing,” according to a 2011 paper in the journal Dialogues in Clinical Neuroscience. In other words, trauma scrambles our stress response. Further, increased norepinephrine (another stress hormone) raises our blood pressure and triggers other physiological reactions to memories. In PTSD patients, there is a reduction in activity in the prefrontal cortex — the brain region responsible for executive functions, such as saying no to a drink of alcohol. The resulting impulsivity can be seen in the high addiction rates of individuals with PTSD. Research even shows reduced activity in the brain’s hippocampus, the region that monitors and tamps down panic. Another brain region, the amygdala, becomes hypervigilant, impairing the ability to identify whether a threat is real — explaining why Farrant startled so easily.

The visible result of all this brain dysregulation can be stark: uncontrolled screaming at otherwise benign objects, shouting during nightmares, an inability to stop crying, and uncontrollable substance use, and much more. In these ways, PTSD affects the whole family. Fortunately, treatment for the disorder works. Due to what’s known as neuroplasticity, with the help of therapeutic intervention, neurons can regenerate and executive brain regions can come back online.

While in the thick of it, Farrant had assumed other ex-jurors weren’t experiencing similar symptoms, but after his PTSD diagnosis, he began speaking out. He told his story on social media, which led to national media, and quickly afterward, other former jurors got in touch. One of the most vocal was Tina Daenzer, a juror from the 1995 Paul Bernardo trial. Daenzer encouraged Farrant to reach out to retired chief justice Patrick LeSage, the trial judge from the Bernardo case. At this time, access to therapeutic help wasn’t granted to Canadians who served in the courtroom, which Farrant found unjust. After hearing from so many former jurors and their families about unimaginable struggles — mental illness, economic hardship, addiction, suicide — Farrant resolved that post-trial government assistance was critical. No juror should face barriers to treatment, financial — legal, or otherwise. So he wrote a letter.

“One of the most impassioned letters I ever wrote in my life was to the retired justice,” Farrant recalls over the phone. “And he got back to me within a few weeks. He understood the issue, agreed that there was a gap [in coverage], agreed that this was a problem, and gave me the cause, so to speak, to pursue this.” That success spurred a letter writing campaign to attorneys general, first in Ontario, then across Canada. Farrant explained why improvements to both jury duty and mental health treatment were necessary. Again, the response was favourable. Encouraged, Farrant and Daenzer began to lobby provincial and territorial governments “to look for support improvements” or, in most cases, “establish support for people post-trial.” They were raising the profile of jury reform.

This work laid the bedrock for what later became the Canadian Juries Commission, a national non-profit organization “with a mandate of supporting and representing Canadians serving on jury duty and coroners’ inquests in the country,” Farrant explains. Recommendations made by a 2018 House of Commons Justice and Human Rights Committee report on improving jury duty in Canada further galvanized the CJC. A board of directors was formed, bringing together psychologists, litigators, constitutional legal experts, criminologists, Indigenous community members, and former jurors from other landmark Canadian cases.

One of the reasons murder and other graphic trials are so pernicious, Farrant says, isn’t necessarily because jurors are exposed to a litany of disturbing evidence, but because the role of the juror is “non-communicative.” They are not an active part of the trial. “Jurors aren’t engaged in dialogue with the court; they’re not allowed to ask questions openly or discuss things openly. They are ingesting evidence as it comes in terms of both frequency and the material itself.” Because of this, Farrant argues, jurors are the most vulnerable to experiencing trauma in the courtroom.

“An investigator who is poring over evidence can get up, walk away, take a break, then come back,” Farrant says. “In law enforcement, and even Crown and defence counsel, there’s a vocational aspect to what they’re doing that can lead to separation from the material being harmful to them. The jury [members] are not trained. We’re talking about private citizens, performing their civic duty, which is expected of them and encouraged.”

One of the tenets of mental health, Farrant has learned through his own healing, is not to “push emotions down — you need to talk about it,” he says. But the legal duty of silence surrounding trials shatters the CJC’s efforts to encourage jurors to speak about their symptoms to a professional. In Canada, unlike in the U.S., jurors are sworn to secrecy as a result of their service. That silence is entrenched in the Criminal Code through section 649, which states that discussion of details not previously disclosed in open court is a criminal offence. “They’re not to discuss the case with friends and family, and certainly not on social media. So they don’t. We’re good Canadians: when we’re told not to do something, we listen.”

In this legal landscape, Farrant says, that instruction “flies in the very face of wellness and the therapeutic course. It’s sending the wrong message." The ambiguity of that law, he adds, has prevented some clinicians and treatment bodies from accepting jurors because of the potential legal repercussions. “We’ve heard that some clinicians have said, ‘I can't take you on as a patient because it’s illegal for us to talk about these things,’ and other clinicians have tried to work around that provision by strictly talking about emotions and impact without discussing facts, but that isn’t easy.”

Today, the CJC is pushing for an amendment to section 649 so that jurors will be permitted to discuss deliberation within the confines of a therapeutic setting. “For me, as I was getting sicker and sicker — as I was spiralling — I assumed it was my duty to feel this way, and that this was my problem,” Farrant recollects. “I thought, ‘Well, I should probably just suck it up and think of the victims and their families. This is the duty.’ But as I got worse, I kept thinking to myself, something’s wrong, this isn’t right.”

“Mental health, as a whole, is becoming less partisan.”

The Criminal Code amendment is contained in Bill S-212, which is awaiting Senate approval. “This legislation will remove that barrier, ensuring that jurors are able to discuss freely and openly all aspects of the trial in the confines of mental health [care].”

Bill S-212 is ready to move to the committee stage in the Senate, Farrant tells me one evening in late January. “Our understanding is that it is being reviewed concurrently by the Senate legal team to study constitutional and Criminal Code impacts.” He hopes that committee work can wrap up soon. “We are all very concerned the Bill will not survive the current Parliament given the hints of an early spring election, but we remain hopeful,” Farrant says.

He has a basis for these concerns. There have been previous incarnations of the bill: It was introduced once as Bill C-417, which expired in the Senate when the 2019 election was called, and once again as Bill S-207, which expired during the Parliament prorogation in 2020. “Still, there is enormous support for this bill. It was never voted down in its previous incarnations,” Farrant says, adding that it’s merely been a victim of circumstance. “This has been an exercise in dedication and frustration.”

Despite these tribulations, the CJC has seen its successes. Like phosphorescence, the advocacy of Farrant, Daenzer and the tens of others supporting the CJC has slowly emanated across Canada and into the homes of the silently suffering. It’s unearthed and emboldened former jurors “who have stepped forward and said, ‘You know, I lived with this for 20 years,’” Farrant says, “and they finally reached out for help.”

The unflagging mental health advocate believes that funding of post-trial treatment programs, reduction of stigma through educational campaigns, and amendment of unjust laws are all investments with high returns, and he looks forward to seeing what 2021 will bring. “If we're doing a cost-benefit analysis, these have a dividend. If we provide effective treatment through access to stepwise counselling, social work, and career adjustment, that investment pays back ultimately.

“I think we've raised the profile of mental health,” Farrant reflects as our conversation comes to a close.

“Mental health, as a whole, is becoming less partisan. Conversations, storytelling, and lived experiences from all walks of life have contributed to that.”

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