Table of Contents 

Introduction   

Arguments on Appeal  

Sanctity of Jury Deliberations 

Admissability of Gill Diary  

Violation of Attorney-Client Relationship  

Prosecution's Refusal to Share Evidence  
  
Discriminatory Prosectution  

Prosecutor Joseph Bellows, Q.C. responds

Gillian Guess replies to Bellows' response
  
Other Gillian Guess Websites 

Legal Documents in the Case of Regina v. Guess  

During the trial, Ms. Guess began a romantic relationship with Peter Gill, one of the defendants. Ms. Guess and the other jurors were not instructed not to have contact with the defendants.  The prosecution and the judge were aware during the trial of the relationship between Ms. Guess and Mr. Gill. 

Subsequent to the conclusion of the Johal trial, Ms. Guess was charged with obstruction of justice.  The Canadian government claims that Ms. Guess’ behavior constituted obstruction of justice under § 139(2) of the Canadian Criminal Code.  § 139(2) reads as follows: 

Obstructing Justice (2) Everyone who willfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years. 

Ms. Guess was tried, found guilty and sentenced to 18 months in prison.  She is now appealing her case. 

The purpose of this website is to explain what the legal bases for Ms. Guess’ appeal would be under the law of the United States.  Canadian law is the law that actually applies to Ms. Guess’ case. 

Ms. Guess has several bases for appeal.  First, the procedures used in her trial  may have violated Ms. Guess’ rights under the Canadian Charter.  A portion of Ms. Guess’ trial was closed to both her and the press.  Moreover, Ms. Guess’ attorney is not allowed to discuss this portion of the trial with her.  These restrictions may be violate Ms. Guess’ right to counsel. 

Second, Mr. Gill’s trial diary, written by him during his trial, was introduced as evidence against Ms. Guess in her trial.  This evidence may have been improperly admitted. 

Third, Ms. Guess’ fellow jurors testified during her trial.  This evidence may have been improperly admitted. 

Fourth, the prosecution in Ms. Guess’ case refused to share evidence with Ms. Guess’ attorney.  This may be a violation of the Brady Rule. 

Finally, Mr. Gill has not been charged with obstruction of justice for the affair.  Nor has the judge in Regina v. Johal been charged with obstruction of justice for failing to act after being informed of the Guess-Gill relationship.  Prosecution of Ms. Guess coupled with the failure to prosecute Mr. Gill and the judge may constitute discriminatory prosecution. 

Privilege issue: 

At first appearance it would seem that Gill's diary would be protected from 
admission on the grounds of the attorney-client privilege advocated in Rule 
501 of the Federal Rules of Evidence, in that the diary was for all intents 
a trial log maintained by the defendant while being represented in a 
criminal trial.  In other words, given that such entries were shared with 
counsel and employed to presumably assist in his defense, it would seem 
clear that such communications would be protected under both the Rules and 
the common law.  This is because it is well established that information 
conveyed in a privileged communication between an attorney and his or her 
client is not admissible in court and cannot be subject to discovery, even 
though such communication may be highly relevant to a disputed issue. 
Furthermore, it would appear that all of the conditions necessary for the 
existence of privilege were met in this instance - i.e. a genuine 
attorney-client relationship, a reasonable expectation of privacy by the 
client, and a proper existence and preservation of confidentiality. 
However, the attorney-client privilege exists only for the benefit of the 
client, not for third parties that may find such communications damaging. 
As such, the privilege can only be claimed by the client (i.e. Mr. Gill), 
the client's lawyer (acting on behalf of the client), or by others who 
represent the client.  If Mr. Gill had been prosecuted for the relationship 
at issue, the privilege might have been invoked by him successfully to 
exclude the diary entries from evidence; however, it would appear that the 
privilege cannot be claimed by Ms. Guess or by her attorney on her behalf. 
Therefore, because a claim of privilege seems likely to be unavailing in 
this case, the following discussion will focus almost exclusively on the 
more relevant issue of hearsay. 

Hearsay issue: 
Statements made by persons out of court are often relevant to legal 
disputes; however, despite their possible relevance, such statements must 
be excluded from admission if determined to be "hearsay" in nature.  Rules 
801 of the Federal Rules of Evidence provides in part as follows: 
(a) Statement.  A "statement" is an oral or written assertion or nonverbal 
conduct of a person, if it is intended by the person as an assertion. 
(b) Declarant.  A "declarant" is a person who makes a statement. 
(c) Hearsay.  "Hearsay" is a statement, other that one made by the 
declarant while testifying at the trial or hearing, offered in evidence to 
prove the truth of the matter asserted. 

Most importantly, Rule 802 states that hearsay is not admissible except as 
provided by the rules or by other rules prescribed by the Supreme Court 
pursuant to statutory authority or by Act of Congress. As this rule clearly 
mandates, out-of-court statements are inadmissible as hearsay if they are 
sought to be admitted for the purpose of establishing that their content is 
true.  In such circumstances, unless an exception to the rule of exclusion 
applies (as outlined in Rules 803 and 804), a party cannot quote what 
another person said outside of court, and cannot introduce documents 
containing words written outside of court. Given that it remains undisputed 
that Gill's diary consisted of out-of-court statements, the hearsay 
doctrine is invariably invoked as a possible bar to admission, assuming 
that all requirements for the rule existed. 

 The fundamental idea behind the hearsay doctrine is that of reliability - 
i.e. the recognition that having a third party repeat one's words or 
assertions (whether written or spoken) is for the most part a poor 
substitute for a first-person account of such.  In other words, the rule is 
based on the observation that information obtained from a person directly 
is much more likely to be accurate than that derived through an 
intermediary. Therefore, because these reliability problems of out-of-court 
statements are viewed as significant, the hearsay rule acts to restrict the 
freedom of parties in selecting the evidence they wish to present, 
reflecting the general view that exclusion of such evidence is necessary to 
produce the fairest results. 

Nevertheless, a vast amount of hearsay (including diary entries) is allowed 
to be admitted in both civil and criminal trials, because of either the 
purpose such statements are offered for or the fact that the statement 
falls within one of the well-defined exceptions to the hearsay rule.  See 
e.g. Turpin v. Kassulke, 26 F.3d 1392, 1400 (6th Cir.1994)(finding 
admissibility under F.R.E. 404(b) and 403); United States v. Treff, 924 
F.2d 975, 983 (10th Cir.1991)(finding admissibility under F.R.E. 803(24) 
and 804(b)(5)); United States v. Red Feather, 865 F.2d 169, 170-71 (8th 
Cir.1989) (finding admissibility under F.R.E. 801(d)(1)(b)); Greger v. Int. 
Jensen Inc., 820 F.2d 937, 943 (8th Cir.1987)(finding admissibility under 
F.R.E. 803(5)); Seattle-First Natl. Bank v. Randall, 532 F.2d 1291, 1295 
(9th Cir.1976)(finding admissibility under F.R.E. 803(3)). As noted above, 
the judge in the Guess case likewise found the Gill diary entries to be 
admissible - thus it becomes important to determine on what basis such a 
judgment was most likely made, as well as to evaluate to efficacy of such. 
It is my view that there appears to exist only three possible explanations 
for the court's decision to admit the entries: (1) the entries were not 
offered as "assertions"; (2) the entries fell within the "recorded 
recollection" exclusion of Rule 803(5); or the entries fell within the 
"catch-all" exception of Rule 803(24).  As will be seen below, while it 
remains unclear as to whether such exceptions were adequate to support 
admission of the evidence (as reasonable arguments can be made from both 
sides of the issue), none of these possible rationales are very convincing. 
To begin with, it should first be emphasized that the key element of 
hearsay is that it is "offered in evidence to prove the truth of the matter 
asserted"; as such, when an out-of-court statement is relevant without 
regard to whether it conveys accurate information, the hearsay rule does 
not apply.  More specifically, where the relevant issue is that words were 
spoken or written (and not whether the content of such words reflects the 
truth regarding a past event or occurrence), then the out-of-court 
statement may be introduced.  Stated another way, if the statements in 
question are relevant even if they are not an accurate representation of 
what transpired within the writer, then the hearsay issue is inapplicable. 
But if accuracy is essential to the relevance of the statements, then such 
statements must be excluded under Rule 802. 

Applying such logic to the Gillian Guess case, it appears that while the 
Gill diary could have been legally admitted for the purpose of 
demonstrating that a diary was written by Gill, it could not have been 
admitted for the purpose of demonstrating the content of its pages, as such 
would have necessarily reflected on the truth of the matter asserted.  Thus 
while such an argument as to the purpose of the diary entries sought to be 
introduced may have been made by the Guess prosecution (i.e. that the diary 
was not offered to prove the truth of its contents), it should apparently 
have been to no avail, given that its only relevance was in regards to its 
contents.  In other words, because the issue of whether the writings were 
an accurate representation of Gills perception of reality, most notably in 
regards to the development of the Gill-Guess relationship as described 
therein, the entries should have been barred from admission as hearsay in 
nature. 

A second possible rationale for allowing the diary to be admitted into 
evidence despite its hearsay nature involves the hearsay exception for 
"recorded recollections" under Rule 803(5). This rule defines a recorded 
recollection sufficient to be excluded from the hearsay rule as "a 
memorandum or record concerning a matter about which a witness once had 
knowledge but now has insufficient recollection to enable him to testify 
fully and accurately, shown to have been made or adopted by the witness 
when the matter was fresh in his memory and to reflect that knowledge 
correctly."  However, even if admitted, the memorandum or record may be 
read into evidence but may not itself be received as an exhibit unless 
offered by an adverse party. Fed.R.Evid. 803(5). According to this 
exception, a party seeking to admit a document under this rule must 
establish two elements: (1) that the document concerns a matter about which 
the witness once had knowledge but now has an insufficient recollection; 
and (2) that the witness recorded the matter subsequent to or immediately 
preceding the event and the document reflects such in an accurate fashion. 
See generally United States v. Severson, 49 F.3d 268, 271 (7th Cir.1995). 
Although this was apparently the primary reasoning adopted by the Guess 
court in its decision to allow the Gill diary into evidence, it appears 
that it was misplaced given the circumstances at hand.  For one, it remains 
unclear as to whether it was Gills position that he could not accurately 
recall the events and perceptions about which the diary entries were 
introduced.  Without such a position, a proper foundation would not have 
been laid for the diarys admissibility.  See Collins v. Kibort, 143 F.3d 
331, 338 (7th Cir.1998).  Furthermore, even if the prosecution had 
satisfied the admissibility requirements of Rule 803(5), the diary itself 
could not have been received as an exhibit unless it had been offered by an 
adverse party; rather, it could only have been used for recollection 
purposes during Gills testimony. See United States v. Lewis, 954 F.2d 
1386, 1393 (7th Cir.1992). Therefore, if such entries were introduced as 
evidence and made available to the jury in the Guess case (of which I am 
admittedly unsure of due to the currently sealed record of the case), it 
seems clear that this would have constituted error on the part of the trial 
judge. 

The final question that remains is whether the "catch-all" hearsay 
exception under Rule 803(24) was applicable in this case to allow for the 
introduction of relevant portions of Gills diary.  As with the Rule 803(5) 
exception, Rule 803(24) requires that certain criteria be met before 
hearsay evidence normally subject to the rule of exclusion be allowed: (1) 
the statement must be offered as a "material fact"; (2) the statement must 
be more probative than any other evidence which the proponent can obtain 
through reasonable efforts; (3) the admission of the statement must serve 
the general purpose of the Federal Rules; and (4) the statement must have a 
circumstantial guarantee of trustworthiness equivalent to other hearsay 
exceptions. See United States v. Sheets, 125 F.R.D. 172, 176 (D.Utah 1989); 
Fed.R.Evid. 803(24).  Without the existence of all of these criteria, the 
Rule 803(24) exception is inapplicable. 

While it could be reasonably argued that the diary entries were material to 
the Guess prosecution (in that they admittedly had some probative value), 
and that the admission of such statements might have served the general 
purpose of the Federal Rules (which is described under Rule 102 as being 
designed to support the fair administration of justice "to the end that the 
truth may be ascertained"), the remaining two criteria for Rule 803(24) 
application are simply not met.  For one, the diary entries contained no 
more information than that which had already been obtained through 
cross-examination; thus there existed no justifiable rationale for allowing 
them into evidence under 803(24), in that their inclusion was by no means 
more probative than any other evidence already before the court.  In 
addition, the character of the declarant (i.e. Gill, who at the time of 
writing the diary entries was on trial for murder) and the time lapse 
between the writing of the entries and their seizure by the prosecution, 
raises serious doubts as to the possibility of such statements having a 
"circumstantial guarantee of trustworthiness" sufficient to satisfy the 
clear and strict standard outlined by the rules.  As such, it would appear 
that a reliance on this exception to the hearsay rule would likewise be 
unwarranted. 

While determinations of the admission or exclusion of such evidence are 
left to the trial courts discretion, with such decisions being overturned 
on appeal only where there exists a clear abuse of discretion, see United 
States v. Hill, 627 F.2d 1052, 1055 (10th Cir.1980), the above discussion 
clearly indicates that there exists a good possibility that the allowance 
of these entries reflects sufficient error to warrant a new trial. 
 

 Shortly after the acquittal in the Regina v. Johal trial, Gillian Guess 
was investigated by Canadian authorities so as to determine whether she had 
obstructed justice during her tenure as juror in the aforementioned trial. 
Various surveillance devices -  from wiretaps of Ms. Guess and her circle 
of acquaintances to an electronic bug placed in Ms. Guess' bedroom - were 
employed in furtherance of this investigation. The resulting evidence 
obtained was voluminous, and various hearings were held during which the 
legality of the surveillance evidence was contested. These hearings were 
conducted in secret and are sealed; Ms. Guess' defense counsel cannot, by 
order of the court, disclose the content of these hearings to any party not 
present at the hearings. What is most amusing about this order of secrecy 
is that since Ms. Guess herself  was not allowed at the hearings, her 
counsel cannot relate to her what transpired at the hearings.  This sort of 
secret hearing, wherein the court enjoins all those present from disclosing 
the contents of the hearing and simultaneously refuses to offer the 
defendant admittance to the hearing, is unprecedented in Canadian law. 
 Ms. Guess has been given no explanation as to why the hearings were 
conducted in secret. 

Analysis 

The secret proceedings present a plethora of problems, but two issues in 
particular manifest themselves most noisily, with a common strain of 
argument. 

Effectiveness of Counsel 

 The court's order that Ms. Guess' attorney could not share with her the 
contents of the hearings impairs the ability of Ms. Guess to consult 
effectively with and instruct her attorney. Since it is not known exactly 
what transpired at the hearings, it is difficult to comment specifically on 
effects this had on her trial, but it does not seem unreasonable to argue 
that the gagging of one's attorney concerning certain issues of fact and 
law and the corresponding destruction of an optimal (or even satisfactory) 
attorney-client interaction vitiates one's right to a fair trial and 
deprives one of liberty without due process of law. 

 The court's failure to explain officially its depart from precedent seems 
ill-advised. While it is difficult to see why Ms. Guess should not have 
been privy to the secret hearings and then bound by court order to disclose 
nothing, that is not to say definitively there could have been no 
countervailing state concern of sufficient magnitude to overcome Ms. Guess' 
interest in a fair trial.  Perhaps there is some concern or group of 
concerns that might demand secret hearings, but the court certainly owes 
Ms. Guess, the public, and future jurists an explanation as to what -in 
conceptual if not specific terms -- those concerns are and what will 
qualify for the same secret treatment in the future. With secret trials 
being antithetical to the notion of a free and open society, it seems 
reasonable that their use should at least demand an explanation.  In an 
interesting twist, the court may have injured itself, as the lack of any 
explanation for its decision has undermined the court's credibility with 
numerous observers who have suggested that improper pressure on the court 
from certain powerful figures in the Canadian government, as opposed to any 
compelling legal justification, was the real reason for holding the 
hearings in secret. 

Right to Face Accused 

 A time-honored tenet of the common law is that an accused has the right to 
face his or her accuser.  This has traditionally been interpreted to mean 
that a defendant, particularly in a criminal trial, should have the right 
to be present for all elements of his or her trial.  The secret portions of 
the Guess case clearly present a challenge to the sanctity of this 
tradition, as Gillian Guess was not only not permitted to be present in the 
courtroom during the discussion of certain evidence which might have been 
used against her, she was also not even allowed to learn about this 
evidence from her counsel or have it discussed with her. 

 As above, we must consider the issue of what justification can be offered 
for this extreme aberration from jurisprudential tradition.  There has been 
no official explanation for the court keeping secret the evidence and 
proceedings in question.  There might be some precedent and a clearer 
justification for secrecy if there were issues of national security 
involved, but there is no intimation that this was the case.  The implicit, 
albeit unofficial, explanation is that of privacy concerns, and this seems 
extremely unsatisfactory.  In the absence of national security 
considerations, it seems that merely the privacy of one or more private 
citizens must have been at stake.  Where there is protection of the 
interests of the few at the expense of the usual practice of the justice 
system and where the similar interests of other private citizens are not 
protected, the protection seems unjust. 

 Finally, Gillian Guess was not able to offer her insights into the defense 
against the secret evidence.  It is possible that she might have been able 
to offer some personal information or contextual background which would 
have enabled her attorneys to undermine the probative value of the evidence 
against her.  This, indeed, is one of the reasons the right to face one's 
accuser is so important. 
 

[T]he fruits of the [police] investigation which are in the possession of 
counsel for the Crown are not the property of the Crown for use in 
securing a conviction but the property of the public to be used to 
ensure that justice is done. R. v. Stinchcombe (1991), 68 
C.C.C.(3d) 1,7.  At trial, the Canadian government successfully 
refused the defendant access to its volumes of taped evidence. All 
Ms. Guess was allowed to review was a mere 20 hours (out of thousands 
recorded) of the government's tapes. The government defended this 
decision on the ground that those 20 hours were all it would use at 
trial. This denial was a violation of, in the terms of Canadian 
law, her right to make full answer and defence. Settled 
Canadian law, as well as the American decisions which influenced it, 
imposes a general duty [resting on] the Crown to disclose all 
material it proposes to use at trial and especially all evidence which 
may assist the accused even if the Crown does not propose to adduce 
it. Regina v. Stinchcombe (1991), 68 C.C.C.(3d) 1, 11. 

In both the United States and Canada, the prosecution is required to 
comply with a defendant's request for potentially exculpatory evidence 
that is in the sole possession of the prosecution. In the United 
States, such requests are called Brady requests after Brady 
v. Maryland, 373 U.S. 83 (1963), in which the Supreme Court first rules 
denial of such requests reversible error.  Jencks v. U.S., 353 U.S. 
657 (1957) also held that only the defendant is adequately 
equipped to determine the potential usefulness of such 
material. Since that time, Brady requests have become a 
routine and useful tool in the assurance of a fair trial.The U.S. 
Congress later codified these decisions, in part, in 18 U.S.C. § 
3500. 

The Canadian Supreme Court, acknowledging the wisdom of the Brady 
decision, made a similar ruling in 1991: Regina v. Stinchcombe, 68 
C.C.C.(3d) 1.Even before Stinchcombe, similar requests were 
routinely made and granted.They still are, only now compliance 
with such requests are mandated constitutionally.Nevertheless, 
this fundamental rule has been ignored in Ms. Guess's case. 

The Canadian government, in the course of its investigation of Gillian 
Guess, recorded thousands of hours of audiotapes made from phone taps and 
bugs inside the homes of Ms. Guess and several of her family 
members. Over 18,000 conversations, as well as various highly 
personal events, were recorded.All but 20 hours of these 
recordings remain in the sole possession of the Canadian government, 
despite Ms. Guess's requests. The government turned over only the 
portions of the tapes it planned to adduce at trial. No 
consideration was given to Ms. Guess's right to review these tapes in 
order to prepare her own defence. 

This denial of a right considered fundamental to a fair trial, both in 
Canada and the United States, is a denial of due process that should 
bother not only Canadian citizens.For some time now, the legal 
systems of our two nations have developed alongside each other in a 
parallel, but similar, if not convergent, direction. If the 
government of Canada could trample upon the constitutional rights of one 
of its citizens, the threat to fundamental fairness is bound to be felt 
on both sides of the border. While the United States has had high 
profile trails of its own in which the rights of the defendant were 
ignored (e.g., Bruno Hauptmann), its more recent ones have scrupulously 
observed the rights of the accused (e.g., Simpson, Rodney King's 
beaters). While the government may often not like the acquittals 
which result from these careful trials, few would willingly sacrifice the 
protection of due process, and the legitimacy of the trial system, in 
order to punish a merely unpopular defendant. The Constitutions of 
both nations adhere to this belief, and no matter how zealous the 
prosecution, no matter how unpopular the outcome, in fact especially in 
such circumstances, the constitutional rights to due process must be 
protected. 
 

One of the points that we want to analyze is the prosecutorial decision to prosecute Gillian Guess for obstruction of justice, but not Peter Gill. 

The indictment against Gillian stated: "she did willfully attempt to obstruct, pervert or defeat the course of justice by having a personal relationship with Preet Sarbjit Gill, known as Peter Gill, during his criminal trial…at which she was a juror sworn to well and truly try and true deliverance make between our sovereign lady the Queen and the accused at the bar, whom she had in charge and a true verdict give, according to the evidence so help her God, contrary to Section 139(2) of the Criminal Code of Canada and against the peace of our Lady the Queen her Crown and Dignity." 

The Section 139(2) of the Criminal Code of Canada establishes: 
"Every one who willfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years." 
And clarifying this rule, Section 139(3) states: 
Without restricting the generality of subsection (2), every one shall be deemed willfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, 
(a)… 
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or 
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt considerations to abstain from giving evidence, or to do or to refrain from doing anything as a juror." 

If we analyze these rules, it is clear that Peter Gill also could have been prosecuted for having an affair during his trial with one of the jurors. This relationship could be seen as a willful attempt to "obstruct, pervert or defeat the course of justice." In this sense, Section 139(3)(b) shows that Section 139(2) not only refers to the jurors, but also to the people that unlawfully attempt to influence the jurors in their decision. 

What are the legal problems that can be present in a situation in which the prosecution decides to prosecute some one who has possibly violated the criminal law and not others who may have acted similarly? 

The U.S. Supreme Court analyzed this question in Wayte v. United States.1  In this case, the Supreme Court decided whether a passive enforcement policy under which the Government prosecutes only those who report themselves as having violated the law, or who are reported by others, violates the First and Fifth Amendments of the U.S. Constitution. In this case, the petitioner had refused to register with the Selective Service System, and had written several letters to Government officials stating the he had not registered and did not intend to do so. 

The U.S. Supreme Court said:  "In our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute…however, although prosecutorial discretion is broad, it is not "‘unfettered.’ Selectivity in the enforcement of criminal laws is…subject to constitutional constraints" (quoting United States v. Batcheldner, 442 U.S. 114, 99 S.Ct. 2198). 
One of the constitutional limitations to selective prosecutions is the equal protection of the Fifth Amendment’s Due Process Clause for which "the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification….’"2 
An unjustifiable standard to base the decision to prosecute on the gender of the potential defendant. And this is precisely the problem that could be posed in Gillian Guess case. Why did the prosecution decide to indict Gillian Guess for obstructing the jury, and not Peter Gill? What were the differences between these two potential transgressors of Section 139(2) but their gender? 

One could try to give a justification to this prosecutorial decision by saying that the difference between both is that Gillian Guess was the juror and Peter Gill only the defendant in his trial. 
However, one could also say that this difference is not relevant, and that, anyway, it is the prosecutor who made the decision, who should explain the reasons for his decision, and who should disclose his files related to it. 

In Wayte v. United States, the U.S. Supreme Court said that the equal protection standards included in the Fifth Amendment Due Process Clause require that the defendant " show both that the passive enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose."3 

In United States v. Arsmstrong, the Supreme Court established that for a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. 

In Gillian Guess case, there may be a prime facie case about the discriminatory effect of the prosecutorial decision, because the prosecution chose to prosecute the female suspect and not the male one, who was similarly situated in relation to the obstruction of justice offense. 
Consequently, Gillian Guess could be entitled to discovery of the prosecution’s files about the decision to prosecute her and not Peter Gill, because she could show that the Government declined to prosecute the male suspect of the offense. 

Once the Government makes this discovery of its files, the court should decide whether there was a discriminatory intention in the case. And if it finds that there was not only a discriminatory effect, but also a discriminatory intention of the prosecution, the court of appeals should reverse Gillian Guess’ conviction on equal protection grounds. 

 1 470 U.S. 598, 105 S.Ct. 1524. 
  2 United States v. Armstrong, 116 S.Ct. 1480. 
 3 470 U.S. 598, 105 S.Ct. 1524. 
 

Ruling in Relation to Crown Calling Jurors to Testify 
Ruling on Admissability of Peter Gill Diary 
Ruling on Subpoenas of Counsel in Regina v. Johal et al.  

Jury Insturctions for Regina v. Guess  

Notice of Appeal 

  DATED this/Fait le 6th day of/jour de August, 1997, at/a the City of Vancouver/Ville de Vancouver, Province of British Columbia/Province de la Colombie-Britannique. 
 
 

              ;             & nbsp;            &nb sp;              ;             & nbsp;  (Signed, Joseph Bellows) 
            &nbs p;                           &n bsp;            &nbs p;                 Crown Counsel and Agent of the 
            &nbs p;                           &n bsp;            &nbs p;                 Attorney General of Brish Columbia/ 
            &nbs p;                           &n bsp;            &nbs p;                 Agent du procureur general pour la 
            &nbs p;                           &n bsp;            &nbs p;                 province de la Colombie-Britannique

GILLIAN GUESS            &nb sp;              ;             & nbsp;            &nb sp;              ;        ELIZABETH A. ARNOLD 
 

Appearances: 

Counsel for the Crown:            &n bsp; Joseph C. Bellows 
            &nbs p;                           &n bsp;         Diane M. Wiedemann 

Counsel for the Defence:            Peter C. Ritchie 
            &nbs p;                           &n bsp;         Marilyn Sandford 

Date and Place of Hearing:         May 5, 1997 
            &nbs p;                           &n bsp;          Vancouver, B.C. 

Date of Ruling:            & nbsp;            &nb sp;  May 7, 1997 

Introduction 

The accused in this case, Gillian Guess, is charged with wilfully atempting to obstruct justice, contrary to s. 139(2) of the Criminal Code.  Part way through what has turned out to be a preliminary inquiry, the Crown is seeking to call 6 jurors from the jury in Regina v. Johal et al (1995), B.C.S.C. Court File No. CC940998 to testify.  The Defence objects, arguing that the time-honoured common law principle attaching complete privacy to the sanctity of jury deliberations, ought to be relied uppon by the court, and that therefore, the court must rule that their testimony ought not to be received into evidence.  The Crown takes the position that given the specific charge here and the wording of s. 649 of the Criminal Code the jurors are properly competent and compellable to testify in the unusual circumstances of the case, not for the purpose of impeaching the verdict in the Johal case, but because they have relevant evidence to give in rlation to the charge against Guess, their former co-juror.  The Defence submits that s. 649 of the Code does not go that far and that this court ought not to tread where, over the centuries of our hallowed common law, none have dared to go.  Both counsel agree that there are no cases on point to assist and that this is a case of first instance. 

The Charge Against Guess 

The charge as laid, and which I found not to be a nullity in my written reasons dated April 28, 1997, reads in its entirely as follows that: 

THAT, at or near the City of Vancouver, Province of British Columbia, between the 17th day of April, 1995 and the 28th day of October, 1995, she did wilfully attempt to obstruct, pervert or defeat the course of justice by having a person relationship with Preet Sarbjit Gill, also known as Peter Gill, during his criminal trial of Her Majesty the Queen against Bhupinder Johal, Rajinder Kumar Benji, Preet Sarbjit Gill, Michael Kent Budai, Ho Sik (Phil) Kim and Sun News Lal, (Court File No. CC940998 at which she was a juror sworn to well and truely try and tru deliverance make between our sovereign lady the Queen and the accused at the bar, whom she had in charge and a true verdict give, according to the evidence so help her God, contrary to Section 139(2) of the Criminal Code of Canada and against the peace of our Lady the Queen her Crown and Dignity. 

The Criminal Code Sections Relevant to the Offence Charged 

Section 139(2): 

Everyone who willfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years. 

Section 139(3): 

Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or propsed, 
  (a) dissuades or attempts to dissuade a person by threats , bribes or other corrupt means from 
  giving evidence; 
  (b) influences or attempts to influence by threats, bribes or other corrppt means a person in his 
  conduct as a juror; or 
  (c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt 
  consideratins to abstain from giving evidence, or to do or to refrains from doing anything as a 
  juror. 

Criminal Code Section Relevant to Disclosure of Jury Porceedings 

Section 649: 

Every member of a jury, except for the purposes of 
  (a) an investigation of an alleged offence under subsectino 139(2) in relation to a juror, or 
  (b) giving evidence in criminal proceedings in relation to such an offence, discloses an 
  information relating to the proceedings of the jury when it was absent from the courtroom that 
  was  not subsequently disclosed in open court is guilty of an offence punishable on summary 
  conviction.  1972, c. 13 s. 49. 

Is s. 649 of the Criminal Code as framed sufficiently wide in scope and clear as written to permit jurors to testify as to aspects of their deliberations when one of their fellow jurors is subsequently charged as here, with wilfullly atempting to obstruct the course of justice by having a personal relationship during the trial with one of the accused in that trial, contrary to s. 139(2) of the Criminal Code, given the long enshrined principle in our common law that protects the secrecy of jury deliberations? 

The Defence Argument 

The Defence argues that the fact that s. 649 makes an exception for jurors to testify in criminal proceedings when a juror is charged with an offence pursuant to s. 139(2), insofar as it relieves them of the criminal liability that otherwise flows when jurors disclose what went on in jury deliberations, ought not to be construed as making them competent and compellable witnesses for the Crown in the circumstances of this case, given the time-honoured common law principle that hertofore protected jurors and the substance of their deliberations.  Mr. Ritchie admitted that there is no leal authority on point here and that one must resort to various cases over the years that enshrine the sanctity of the jury.  Before reviewing those cases, I note that Mr. Ritchie stressed a number of things the ocurt ought to keep in mind.  Foremost among them is that given the unusual nature of the charge here, and the fact that Guess is charged with breaching her oath as a juror in the Johal et al case, the nature of the evidence to be elicited from the jurors, if they are permitted to testify, goes to the very heart of the jury deliberations in the Johal et al case and Gess’ role in them.  He submits that this is not the more usual case of someone attempting to bribe a juror and fellow jurors being called to testify as to the circumstances surrounding the offering of the bribe.  He has also stressed that going into the jury room by hearing the evidence of some of the Johal et al  jurors is a veritable "Pandora’s Box" and a perilous course fraught with many difficulties including the following: 
(a)  that in defence of his client he will seek to extensively cross examine on all aspects of the jury deliberations in the longes criminal jury trial in B.C., a trial full of complex issues multiple accused, paid informer witnesses for the Crown, allegations of police improprieties (that include Detective Crook, one of the main investigating officers in this case) and countless other matters no doubt considered by the jury; 
(b)  given his client’s last minute change of instructions not to proceed to trial in this court, but to have a preliminary inquiry, he is unable to argue the various sections of Charter that might have impacted on whether or not the testimony of some of Guess’ fellow jurors ought to be received into evidence; 
(c)  that the Crown here is only planning to call six of the jurors from the Johal et al case, and not all the jury members who deliberated with Guess in reaching the verdict; 
(d) that the jury in the Johal et al  case is entitled to have the privacy of their deliberations respected, and to bring aspects of those deliberations into open court in this case make s the jurors vulnerable to censure and potential recriminations for their various roles in the deliberations, and deprives them of their anonymity and privacy; 
(e)  that a possible outcome of calling members of the jury is to disrupt the finality of the verdict in a highly celebrated and hard-fought case where six men were acquitted of murder in relation to the deaths of Jimsher and Ranjit Dosanjih; 
(f)  that the decision to permit the Crown to call some of the members of the jury in this case will impact on the outstanding Crown appeal to our Court of Appeal in Johal et al where to date, counsel for the Crown, have apparently assiduously refrained from any reference to jury deliberations, despite the Crown in this case having taken statements from various jurors; and 
(g)  that the jurors, if called, will have no one to represent their interests except the court, unless the court grants standing to a lawyer retained by Guess’ defence counsel to interview the various jurors the Crown seeks to call. 

Turning to the legal authorities argued by Mr. Ritchie they may be summariezed as either old cases of first principle in relation to the sanctity of jury deliberations and verdicts, and more recent cases where one party in a criminal case, usually the convicted accused, is attempting to impugn the jury verdict of guilt for a variety of reasons, or where the exhortations of the trial judge to the jury are impugned.  There is clearly no reported case in Canada even remotely similar to the unusual circumstances of this one, particularly since the amendments to the Criminal Codein 1972 that brought us the present s. 649. 

Starting with the early English cases, the sanctity of the jury’s deliberations and its verdict, is first and foremost.  In Onions v. Nash(May 1, 1819) 7 Price 203, 948 the court declined to set aside a jury verdict when the failing party alleged in an affidavit friendship and certain expressions of "partiality and prejudice" between the successful party and a juror, stating that "it would be a very dangerous precedent to set aside a verdict, upon such grounds as were now offered…"  In Everett v. Youells (April 24, 1833) 4 B. & D. 680, the court held that the delivery of food to a juryman after the jury was shut up to consider their verdict was not a ground for setting aside the verdict, if the refreshment was not supplied by a party to the cause and unless it was supplied to a juryman who was holding out, either of which were the case here.  The court agreed there that they could not receive statements from the jury to "shew on what grounds they acted."  In Sir John Morris, Bart.and Another (June 4, 1842) 10 M. & W. 136, 414 where two jurymen slept and dined at the house of the defendant during the trial the verdict in favour of the defendant was not avoided.  Failing a verdict not supported by the evidence or an obvious corrupt motive, Lord Abinger, C.B. stated, "…here it is alleged to be the concurrent opinion of all parties, that there was neither corruption nor favour.  If the public are to form an opinion, let them understand that this was a case in whhich all ipmputation of influence and favour was entirely disclaimed." 

Moving to this century in Canad the Defence has referred in sumbissions to a number of Suprem Court of Canad and Canadian appellate court decisions relating to the sanctity of jury deliberations and verdicts in various circumstances.  In Danis v. Saumure, [1956] S.C.R. 403, the Supreme Court of Canada held that a civil jury verdict in which the defendant was found not to be negligent when he struck the plaintiff, a pedestrial with his car, but the jury assessed damages for the plaintiff’s injuries, was not perverse.  The Supreme Court declined to receive affidavits from nine of the jurors purporting to show that the findings of the jury were not those they intended to make.  The judgment of the majority was delivered by Kerwin C.J. who reviewed the relevant law and stated in part: 

Statements or affidavits by any member of a jury as to their deliberations or intentions on the matter to be adjudicated upon are never receivable.  Halsbury (2nd ed.) Vol. 19, p. 317 note (I)…As early asw Vaise v. Dlaval [(1785) 1 T.R. 11] an affidavit of a juror that the jury, having beeen divided, tossed up, and that the plaintiff had won, was rejected.  Lord Mansfield said: 

The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanour: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means. 

By way of contrast, in a most recent case, R. v. R.M.G., [1996] 3 S.C.R. 362 where the trial judge exhorted a hung jury to consider the public expense of a new trial, the inconvenience to all participants, the hardship to the accused and the complainant, and suggested that the minority might wish to reconsider what the majority were saying, a guilty verdict being shortly thereafter rendered, the Suprem Court of Canada held that such an exhortation was improper and ordered a new trial.   There Cory J., writing for the majority, said at paragraphs 13 to 15: 

The jury system is clearly a significant factor in many democratic regimes.  This is emphatically true in Canada.  T is extrememly important to our democratic society that jurors as representatives of their community may make the decision as to the guilt or innocence of the accused before the court based solely on the evidence presented to themm.  Thre is a centuries-old tradiion of juries reaching fair and 

(page 9 missing here) 

In another Supreme Court of Canada decision dealing with jury exhortations, R. v. Sims, [1992] 2 S.C.R. 858 a new trial was ordered because the trial judge had said to the deadlocked jury that if they accepted the evidence of the police officer the Crown had a very powerful case.  The Supreme Court held that a judge should refrain from offering his or her opinion on matters of fact, properly left ot the jury, because of potential detriment to the accused’s interest in a fair trial.  Mr. Ritchie submits that his case shows the defence our courts show for the function of the jury. 

In R.V. Wilson, (1993), 78 C.C.C. (3d) (Man. C.A.) the appellant, a plaintiff in civil proceedings attempted by way of a declaration to attack his criminal conviction, alleging that the jurors had been imporperly interfered with during their deliberations in the criminal trial by receiving information alleged to have been communicated to them by an R.C.M.P. Officer that did not form part of the evidence heard at trial.  The appellant at the civil trial had attempted to introduce into evidence a taped telephone conversion between the witness and the foreman of the jury, in which it was alleged that the foreman referred to one of the jurors receiving information about the appellan’s co-conspirator.  The decision of the trial judge to exclude the taped conversation from evidence as hearsay was upheld and what the foreman was alleged to have said to the witness was held by the appellate court to be protected by the traditional rule that the court shouldnot inquire through the evidence of jurors as to what occurred either in the jury box or the jury room.  In Wilson in delivering the reasons of the court at pp. 572-573, referred to in the decision of Haines J. in R. v. Dyson (1971) 5 C.C.C. (2d)401, (Ont. High Court of Justice) who reviewed the law relating to the secrecy of jury deliberations and the rationale for its existence as follows" 

The verdict pronounced in court by the jurors must be taken as the sole embodiment of the jury’s act. 

The doctrine of privilege protects jurors. 

A jror may not testify to prove his own misconduct. 

A need exists for finality of the verdict. 

Such a protection ensures freedom of debate among the jurors. 

Secrecy protects the jurors from harassment following the verdict. 

Secrecy is required to ensure public confidence in trial by jury. 

In R. v. Perras (1974), 18 C.C.C. (2d) 47 (Sask. C.A.), the court considered whether or not the appellant could use the testimony of jurors and a stranger to impeach the jury’’s verdict that found him guilty of murder.  The court held that the appellant could not use the testimony of jurors to impeach their verdict or show that it was arrived at improperly, for example, by majority decision.  Likewise, the evidence of a strager to the same effect was inadmissible as it could only be met by calling the jurors to testify. 

Our Court of Appeal considered the same Criminal Code sections as are at issue here, albeit in different circumstances, in R. v. Zacharias (1987), 39 C.C.C. (3d) 280 (B.C.C.A.) and Mr. Ritchie pointed out that in the investigation that took place there pusuant to s. 127(2), the present day s. 139(2), Crown counsel questioned jurors about their actual deliberations, which was commented upon critically b the court.  The facts were that following the accused’s conviction for fraud, the foreman of the jury communicated information to defence counsel who, in turn, contacted the Crown.  An investigation was launched by the police and senior counsel and during that investigation 11 jurors were questioned about whether third parties had communicated to the jurors untrue and prejudicial information about the accused.  The investigation did not reveal any evidence of an attempt to obstruct justice, but then the jurors were improperly questioned in the course of the investigation about thei deliberations.  In disclosing information about their deliberations MacDonald J.A., who delivered the judgment of the ocurt, said that the jurors who had breached s. 576.2 (now s. 649) at the instigation of the lawyer conducting the Attorney General’s investigation, where not to be blamed, but what had occurred was in contravention of the long established rule that the Court should not inquire of a juror with respect to what happened in the jury room.  MacDonald J.A. referred to R. v. Perras, supra, and quoted at length from that judgment.  The court then ordered a new trial, MacDonald J.A. making the following concluding comments at p. 284: 

What the jurors said with respect to the second allegation constituted disclosure in breach of s. 576.2.  But they cannot be blamed.  They must have thought it was entirely proper to answer.  The fault lies with the Attorney-General’s investigation.  It was wrong for the investigating lawyer to bring out from the jurors, or fail to prevent, disclosures about their deliberations. 

The disclosures of the jurors, although not made under oath, are likely true.  If tru, they support the conclusion that a verdict of guilty was rendered in this case because the jurors did not fully understand the courses open to them.  As this is attributable to the attorney-General’s interrogation of jurors, in breach of s. 576.2, I think the Crown is in no position to say that the verdict should be allowed to stand.  The peculiar circumstances of this case ought to strip it of any precedent-setting value for probing a jury’s deliberations in other cases. 

The last case of significance referred to by the Defence is R. v. Taraviras, [1993] B.C.J. No. 2820, which was an application for a mistrial based on an encounter prior to sentencing between defence counsel and a juror, during which the juror made certain statements that indicated a possible misapprehension of certain aspects of the evidence.  Tysoe J. declined to declare a mistrial and after reviewing the law relating to the secrecy of jury deliberations he stated at paragraph 12:

I do not accept the submission made by Mr. Taravias’ counsel that the Zacharias case is an example of a situation where the rights of the accused outweighed the interest of society and that the present case is another such example.  As a general statement, the interests of society to protect the secrecy of jury deliberations will outweigh the interests of the accused for the reasons reviewed in the Dyson case and s. 7 of the Charter will not require the Court to accept the testimony of jurors to impeach the jury’s verdict.  The Zacharias case was an extremely unusual situation where the Crown elicited the statements made by the jurors and, having done so, the Court was not willing to allow it to take the position that the statements could not be considered by the Court in deciding whether the jury’s verdict should be set aside.

The Crown Argument

Mr. Bellows, for the Crown, argues that I must not be distracted from the issue in the case at bar by the vast array of irrelevant or only peripherally relevant matters referred to by the Defence.  He pointed out that although Mr. Ritchie conceded at the outset that none of the cases he referred to were on point and that he was aware that this court  was not to be concerned with matters relating to the Crown appeal in the Johal et al case, he then proceeded to argue and rely upon that which he had indicated he would not.  He stressed that all the cases referred to by the Defence, even the Zacharias case, relate to the secrecy of jury deliberations in the context of an accused seeking to avoid a jury verdict contrary to his or her interests, or the need to preserve the independence of in the face of judicial exhortations.  He stressed that noone of them are on point given the clear and limited issue of first instance before this court.

Mr. Bellows submits that to attribute to s. 649(b) its clear meaning, and the only meaning that makes sense on its plain wording, is to permit the Crown to call the jurors it seeks to call in this very unique case, where a fellow juror is charged with an offence contrary to s. 139(2) of the Criminal Cod.  It is the Crown position that the jurors it seeks to call have very relevant to the alternate theories as to the commission of the alleged offence as further particularized in Exhibit 9 as (b) that "if it was proved that by virtue of the personal relationship the accused was partial or biased, the offence would also be proven."  He submitted that to secure a conviction at trial the Crown does not have to prove beyond a reasonable doubt that Guess caused the verdict to be different than it otherwise would have been, but only that she attempted to do so, and that the Crown plans to focus on the matter of an alleged attempt.  He indicated that he does not intend to ask the jurors if their ultimate vote was influenced by Guess.  He argued that the Defence is trying to preclude the Crown from tendering this important evidence, which on a plain reading of s. 649 is permitted.  Starting from first principles he submits that it is trite law that everyone is a competent and compellable witness unless they are prohibited from testifying based on either common law or statutory exemption.  Once the preconditions for the very specific and limited exception enacted by Parliament, to the general prohibition against jurors revealing jury deliberations contained in s. 649 are met, he argues that these former jurors become competent and compellable for the Crown.  Further, he submits that to interpret s. 649 otherwise would be to rob it of any real meaning at all.  For example, if jurors can disclose information relating to the proceedings of the jury for the purposes of "an investigation of an alleged offence under subsection 139(2) in relation to a juror" as set out in s. 649(a) of but then not testify if such an offence is alleged to have occurred following an investigation, the result, the Crown submits would be nonsensical and would deprive s. 649(b) of its plain meaning.

Mr. Bellows referred to two of the cases put before the court by the Defence:  Perras, supra, and Zacharias, supra.  In Perras, he referred to a portion of the judgment of the Saskatchewan Court of Appeal, delivered by Culliton, C.J.S. found at pp. 50-51, which reads as follows:

If there was ever any doubt of the principle that the Court should not accept the evidence of what transpired in the jury room or in the jury-box when considering their verdict in criminal cases, to impeach their verdict, that doubt was removed by the enactment, of 576.2 [by 1972, c. 13, s. 49) of the Criminal Code.  This section reads: [He then quotes s. 576.2, now s. 649.]

Under the foregoing section it is an offence for a juror to disclose any information relating to the proceedings of the jury while it was absent from the court-room and which was not subsequently disclosed in open Court except for the purpose of paras. (a) and (b).  These paragraphs permit disclosure for onnly two purposes: that is for the purpose of investigating a charge that someone wilfully attempted in any manner (other than a manner described in s-s. (1) which has no relevance to the matter in issue), to obstruct, pervert, or defeat the course of justice or for the purpose of the trial of that charge.  Apart from disclosure for these two purposes, the section creates as absolute prohibitino for a juror to disclose any information relating to the proceedings of the jury when it was absent from the court-room that was not subsequently disclosed in open Court no matter for what other purpose or purposes disclosure is sought.

The interpretation that the Crown urges this court to accept here is the same as the obiter expressed above in relation to the application of s. 649 of the Criminal Code, when the provisions that create the exception to the general rule that jurors may not disclose jury deliberations are met, as the Crown says they are here.

In commenting upon the decision of our Court of Appeal in the case of Zacharias, supra, Mr. Bellows submits that the facts of this case make it very different than those in Zacharias.  He stresses that there the Attorney-General’s investigation had no reason to question the jurors about their deliberations, given the alleged impropriety, which was that the jury had received untrue and prejudicial information about the accused from a third party.  When the investigation there continued and questioned the jurors about their deliberations an error was made, and it was that error that gave rise to the comments of MacDonald J.A. for the court.  Given the nature of the charge here Mr. Bellows submits that the Crown must be permitted to call the former jurors of the Johal et al jury in accordance with the clear exception outlined in s. 649 of the Criminal Code.

Analysis

The legal issue in this case in my respectful view is a reasonably simple and straightforward one, while its ramifications are clearly not.  There can be no doubt that these jurors, if properly required to testify by virtue f s. 649 of the Criminal Code, will be called upon to testify in relation to aspects of their deliberations in the Johal et al trial insofar as they relate to the involvement of Guess.  I aree with Mr. Ritchie that the charge as framed here, given Guess’ alleged personal relationship with Preet Sarbjit Gill or Peter Gill as hi is sometimes called, while a juror under oath, "sworn to well and truly try" the criminal case in which Gill was an accused, will take the court into the hear t of the jury deliberations that took place in the Johal et al case.  I also agree that this is a momentous step given the long-standing legal principle in English and Canadian common law that the secrecy of jury deliberations is to be regarded as sacrosanct for all the compelling policy considerations set out in the Dyson decisions referred to in Wilson, supra.  For this reason I have taken care to outline all of the cases relevant to that enshrined legal principle that preserves the integrity of the Canadian jury system as we know it.  I have also outlined the details of the arguments made by the Crown and the Defence so as to clearly set forth the opposing view points.

The Crown has much evidence still to call on this preliminary inquiry, if it adheres to the original witness list provided for what was originally to be a trial.  To date, without embarking on a detailed summary of a weighing of the evidence, which is not permitted on a preliminary inquiry, I note the following.  I have heard from a former friend of Guess’ about comments Guess made to her about an intimate sexual relationship she had with a man during the summer of 1995, who the witness came to understand was Peter Gill.  That same friend testified as to being out with Guess at a club where Guess met Gill shortly after the trial.  I have heard from the court clerk in the Johal et al trial as to her observations of an unusual connection by way of eye contact and gesture that occurred numerous times druing the trial between Guess and Gill to the point that she brought it to the attention of the trial judge.  Testimony of a gnerally similar nature was given by Detective Crook and 4 sheriffs who were in attendance at the criminal trial.   I Have heard the evidence of the sheriff in charge of the jury, who kept notes of certain occurrences and conversations in relation to Guess, including her concern about meeting people associated with the trial on the street.  As well I have learned of 7 telephone calls made to Guess’ home telephone from two different cellular phones during the months of September and October, 1995.  One of these cellular phones upon which a call to Guess’ residence was made belonged to Peter Gill’s father, Nachhattar Gill.  The other one belonged to a man acquainted with Peter Gill, who recalled being at a soccer tournament with his cellular phone where Gill was present on September 10, 1995.  This was a date when a call to her residence was made using his cellular phone.  Six calls in total were made to Guess’ home phone number at various times from this cell phone.  Neither of these men knew Guess. 

I refer to a brief summary of the evidence to date to provide some background in relation to the matter before the court.  It is clear that what is alleged is a very serious matter.  The integrity of a jury is founded on the integrity of its members, and Guess’ integrity is what is impugned here.  In my view the only reasonable interpretation of s. 649 of the Criminal Code is that the former jurors who deliberated with Guess in the Johal et al trial are competent and compellable witnesses for the Crown, given that the very specific and limited exceptin established by parliament, is met by the unusual circumstnces of this case.  This is, indeed, the only exception that Parliament saw fit to make in 1972 to the long-standing rule in English and Canadian common law of secrecy regarding jury deliberations.  To interpret this section otherwise would be to deny the words their plain meaning and rob the section of any meaning or effect.

In support of this interpretation I rely on the comments of Culliton C.J.S. in the decision of Perras, supra, at pp. 50 and 51, as referred to by the Crown.  I also rely on the fact that MacDonald J.A. delivering the judgment of the British Court of Appeal in Zacharias, supra, referred with approval to those same passages of Perras I have just referred to, which speak clearly as to the circumstances outlined in subsections (a) and (b) of s. 649 being the only circumstances that permit disclosure of jury deliberations.  As I regard the charge in this case to bring it sqarely within the exception set out in s. 649(b) of the Criminal Code, I rule that the Crown is permitted to call the jurors from the jury in Johal et al.

Dated at the City of Vancouver, in the Province of British Columbia, this 7th day of May, 1997.

(Signed)
E.A.Arnold
Provincial Court Judge

Counsel for the Accused:                          &n bsp;            &nbs p;              P. Ritchie, M. Sandford 

[2]  At first I was concerned that the former would be inadmissible as being tndered for the prohibited purpose.  But on reflection, I think that they are admissible on another basis in the same way that the second category of statements are admissible in that the very fact of the various entries of this nature, in and of itself, demonstrates, or could demonstrate when combined with other evidence, that some interest was developing between Guess and Gill during the trial.  That is, both categories of entry have the quality of original evidence in that way. 

[3]  Furthermore, it would be wholly artifical and therefore possibly misleading to admit only part of sch entries on that subject and not others. 

[4]  Finally, I see no significant prejudice to the accused because the entries containing hearsay-type statements contain no more tha what has already been given in oral evidence and, indeed, does not seem to be disputed in cross-examination.  The entries referred to by Mr. Bellows are therefore admissible, but there are a couple of matters I wish to refer him to and query him further about. 

[5]  I must also say that since the timing of these entries is an issue, evidence sufficient to prove, if that can be done, the timing of the various entries on these journal pages would be admissible but, again, I cannot rule on that definitievely without discussing it in more detail with counsel. 

[6]  Finally, I with to query, to ask counsel specifically the relevance of certain of these pages in the diary, especially after a certain date, the April 30th tab, of course, in particular, and what appear to be letters written to somebody, and whether those are really tendered or should be tendered by the Crown. 
 

              ;             & nbsp;            &nb sp;              ;             & nbsp;           (signed) 
            &nbs p;                           &n bsp;            &nbs p;                          The Honourable Mr. Justice Paris

Lower Court Registry Number:  CC970630 
Lower Court Registry Location: Vancouver  COURT OF APPEAL REGINA
RESPONDENT
GUESS
APPELLANT 
1.  Place of conviction:           &nb sp; Vancouver, British Columbia 

2.  Name of Judge:            &n bsp;      The Honourable Mr. Justice Paris 

3.  Offence(s) of which appellant convicted: 
            &nbs p;                           &n bsp;        Obstruction of Justice 

4.  Section of Crimnal Code or other Act under which the appellant was convicted was: 
            &nbs p;                           &n bsp;        Section 139(2), Criminal Code 

5.  Plea at trial            &nb sp;              ; Not Guilty 

6.  Whether or not jury trial:       Jury Trial 

7.  Length of trial:            &n bsp;         6 weeks 

8.  Sentence Imposed:                18 months imprisonment plus one year probation 

9.  Date of conviction           &nbs p;     June 19, 1998 

10.Date of sentence                    August 24, 1998 

11.If appellant in custody, place of incarceration: 
            &nbs p;                           &n bsp;         Burnaby Correctional Centre for Women 

TAKE NOTICE that grounds for appeal are: 

    (a)  appeals agains her conviction upon grounds involving question of law alone. 

    (b)  applies for leave to appleal her conviction upon grounds involving a question of fact 
          alone or a question of mixed law and fact, and if leave be granted hereby appeals 
          against the conviction. 

    (c)  applies for leave to appeal against sentect, and if leave be granted hereby appeals 
          against the sentence. 

The grounds for appeal are: 

NOTA BENE: 

Specifics of certain grounds of appeal cannot be set out herein because of the stricture of Orders imposed on defence counsel by the learned Trial Judge, which specifics are accordingly unknown to the Appellant, but known to Counsel for the Appellant, who are under order by the Learned Trial Judge to not disclose these matters to anyone including to the Appellant.  It is contemplated that motions on behalf of the Appellant in this regard will precede the filing of the Appellant's factum. 

(1)  The Learned Trial Judge erred in law in ordering that certain motins be heard in court proceedings from whoch both the accused and the public were excluded ("secret court").  The Appellant says that these secret court proceedings violated s. 650 of the Crimnal Code, as well as her right ot a fair trial as protected s. 11(d)  the Canadian Charter of Rights and Freedoms, and her right not to be deprived of her liberty except in accordance with the principles of fundamental justice, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. 

(2)  The Learned Trial Judge erred in law in interfering with the relationship between the accused and her counsel by ordering defence counsel not to communicate to the Appellant certain information obtained by wasy of Crown disclosure and through secret court proceedings , in violation of the appellant's righ to a fair trial as protected by s. 11(d) of the Canadian Charter of Rights and Freedoms  and her right not to be deprived of her liberty except in accordance with the principles of fundamental justice, as protected by s. 7 of the Canadian Charter of Rights and Freeoms. 

[3]  The Learned Trial Judge erred in law in ruling , through Orders that counsel for the Appellant are not at liberty to specify herein, that defence counsel not pursue or investigate, in or out of court, certain avenues of defence inquiry that arose in secret court, and further erred in ordering defence counsel not to discuss those matters with the Appellant, which rulings and orders were in violation of the Appellant's rights as protected by ss.11(d) and 7 of the Canadian Charter of Rights and Freedoms; 

(4)  The Learned Trial Judge erred in law by failing to quash the indictment, or, alternatively, by failing to order the Crown to particularise the Indictment sufficiently so that the Appellant could know the essence of the delict alleged against her; 

(5)  The Learned Trial Judge erred in law in improperly instructing the jury on the requisite mental element required to found a conviction for obstruction of justice; 

(6)  The Learned Trial Judge erred in law, given the circumstances of the case, in permitting the Crown to call former jurors as witnesses contrary to the principles of juror privilege; 

(7)  The Learned Trial Judge erred in law in failing to rules that the Indictment herein should be quashed as offending the prindciple of juror immunity from prosecution for breach of the juror's oath; 

(8)  The Learned Trial Judge erred in alw by failing to instrtuct the jurors called by the Crown that it was open to them to choose to discuss their evidence with defence counsel, and that they broke no law in so doing, thereby prejudicing the conduct of the defence; 

(9)  The Learned Trial Judge erred in law in ruling admissible in evidence certain intercepted private communications, and in failing to find that those intercepted communications violated s. 8 of the Canadian Charter of Rights and Freedoms; 

(10)  The Learned Trial Judge erred in alw by quashing defence subpoenas issued compelling the attendance at trial of Crown Prosecutors Richard Carins, Michael Luchenko, and Arlen Loyst, and thereby prejudicesd the defence; 

(11)  The Learned Trial Judge erred in failing to appropriaately charege the jury on the principle of reasonable doubt; 

(12)  The Learned Trial Judge erred in law in failing to adequately charge the jury on the principle of the burden of proof; 

(13)  The Learned Trial Judge erred in law in ordering the Appellant not to disculss the case with the media during the course of her trial; 

(14)  The Learned Trial Judge erred in admitting into evidence the hearsay evidence of the diary of Peter Gill; 

(15)  Such further and other grounds as counsel may advise and theis Learned Court may allow. 

The relief sought is : 

(1)  A setting aside of the conviction and the ientering of an acquittal; or 

(2)  The ordering of a new trial; or 

(3)  That the sentence imposed by the Learned Trial Judge be varied. 

The Appellant's address for service is: 

Gibbons Ritchie 
Law Offices, 
#1300-355 Burrard STreet, 
Vancouver, B.C. V6C 2G8 
 

Dated this 24th day of August, 1998 

(signed) 
Solicitor on behalf of appellant
To the Registrar  Return to Legal Documents of Regina v. Guess 
 

[2]  Given all the evidence I have heard in the case so far, given the fact that the thrust of the Crown’s evidence in that regard, is apparently not challenged on cross-examination, and given the availability of so many other witnesses present in court who could give further evidence in that regard, at this point more evidence from Crown counsel on the case does not seem tome to be material in any realistic sense of the word.

[3]  The only conclusion I can come to is that there is some other prupose, as well, for the issuance of the subpoenas.  Indeed, Mr. Ritchie, in effect acknowledges that, that he has another purpose which he does not which to disclose, which is, of course, his prerogative.

[4]  I note, and I hasten to say that I have not used the word "ulterior" purpose because that might imply something improper.  I do not know that and I am not suggesting that.  It may be that if there is another purpose for the calling of these witnesses, that is, to adduce some other evidence, such evidence would be perfectly admissible.  But I am not told what such evidence might be.

[5]  As I have said, the application is before me.  The test on the authorities in the Criminal Code is clear, and I have to deal with it.  The use of court process to compel people to come to court is a significant, serious matter, especially when it is counsel that is sought to be brought in as a witness, who has acted on a case which in some way is the subject of the proceedings.

[6]  Therefore, I have no alternative, in my view, but to quash the subpoenas at this point, and that is my order.

(signed)
The Honourable Mr. Justice Paris.

1. "Wilfully" - means to commit an act deliberately, intentionally and, in 
this case, knowing that it was an obstruction or perversion of the course 
of justice (as defined below).

2. "Obstruct" - prevent or retard the progress of, impede.

3. "Pervert" - turn a thing aside from its proper use or nature.

4. "Defeat" - frustrate, baffle, or annul.

5. "Attempt" - to perform acts which one knows have the tendency to 
  obstruct, pervert or defeat the course of justice.

6. "Course of Justice" - that expression has a broad meaning.  However, 
for the purposes of this case you can tak it that course of justice means 
a judicial proceeding.  Specifically, it refers to the murder trial that you 
have heard referred to at which the accused was a sworn juror.  And in 
that respect the course of justice not just the result or decision in the 
case, but also the process or procedure by which the accused were 
being tried.

 Specifically, in this case the allegation is that by having an affair with one of the accused druing the murder trial and continuing to act as a juror Ms. Guess perverted the judicial process, the procedure by which those person were being tried.  It will be for you to decide, firstly, whether she did in fact have such a relationship during the trial and, secondly, if she did, whether that constituted a wilful attempt by her to obstruct, pervrt or defeat the course of justice as I have just described it to you, that is, the procedure by which the accused in the murder case were being tried.

 In the circumstances of this case the issue is not whether the verdict of the jury in the murder case was correct or incorrect or whether the accused believed it was correct or incorrect.  The allegation is that the process or procedure by which the verdict was arrived at, that is, the trial itself, was obstructed or perverted.  Of course, the Crown must prove that the accused did so wilfully, that is, knowing that she was obstructing or perverting the trial process.

I have told you that as sworn jurors you are the judges of the facts and as such you perform a judicial function.

 The core issue in this kind of allegation is whether the relationship is so close that the conflict of interest and the danger of not being able to be impartial are so great and so obvious that the person would know that they could not continue to act as judge or jror, and that to do so would be a perversion of the trial process, and therefore of the course of justice.  In such a case there could not be a fair trial—that is, far to both sides.  And it would make no difference whether the verdict was correct or not or if the judge or juror thought it was correct.  There would have been no real trial at all.  The trial process and therefore the course of justice would have been obstructed or perverted.

 In sum, if the intimate relationship alleged existed during the trial it is for you to decide whether continuing to act as a juror constituted an obstruction or perversion of the course of justice, that is, the trial process, and whether the accused did it wilfully, that is, knowing that what she was doing was obstructing or perverting the trial process.  To convict the accused you must be satisfied of those things beyond a reasonable doubt.

Table of Contents 

Introduction   

Arguments on Appeal  

Sanctity of Jury Deliberations 

Admissability of Gill Diary  

Violation of Attorney-Client Relationship  

Prosecution's Refusal to Share Evidence  
  
Discriminatory Prosectution  
  
Other Gillian Guess Websites 

Legal Documents in the Case of Regina v. Guess  

During the trial, Ms. Guess began a romantic relationship with Peter Gill, one of the defendants. Ms. Guess and the other jurors were not instructed not to have contact with the defendants.  The prosecution and the judge were aware during the trial of the relationship between Ms. Guess and Mr. Gill. 

Subsequent to the conclusion of the Johal trial, Ms. Guess was charged with obstruction of justice.  The Canadian government claims that Ms. Guess’ behavior constituted obstruction of justice under § 139(2) of the Canadian Criminal Code.  § 139(2) reads as follows: 

Obstructing Justice (2) Everyone who willfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years. 

Ms. Guess was tried, found guilty and sentenced to 18 months in prison.  She is now appealing her case. 

The purpose of this website is to explain what the legal bases for Ms. Guess’ appeal would be under the law of the United States.  Canadian law is the law that actually applies to Ms. Guess’ case. 

Ms. Guess has several bases for appeal.  First, the procedures used in her trial  may have violated Ms. Guess’ rights under the Canadian Charter.  A portion of Ms. Guess’ trial was closed to both her and the press.  Moreover, Ms. Guess’ attorney is not allowed to discuss this portion of the trial with her.  These restrictions may be violate Ms. Guess’ right to counsel. 

Second, Mr. Gill’s trial diary, written by him during his trial, was introduced as evidence against Ms. Guess in her trial.  This evidence may have been improperly admitted. 

Third, Ms. Guess’ fellow jurors testified during her trial.  This evidence may have been improperly admitted. 

Fourth, the prosecution in Ms. Guess’ case refused to share evidence with Ms. Guess’ attorney.  This may be a violation of the Brady Rule. 

Finally, Mr. Gill has not been charged with obstruction of justice for the affair.  Nor has the judge in Regina v. Johal been charged with obstruction of justice for failing to act after being informed of the Guess-Gill relationship.  Prosecution of Ms. Guess coupled with the failure to prosecute Mr. Gill and the judge may constitute discriminatory prosecution. 

Privilege issue: 

At first appearance it would seem that Gill's diary would be protected from 
admission on the grounds of the attorney-client privilege advocated in Rule 
501 of the Federal Rules of Evidence, in that the diary was for all intents 
a trial log maintained by the defendant while being represented in a 
criminal trial.  In other words, given that such entries were shared with 
counsel and employed to presumably assist in his defense, it would seem 
clear that such communications would be protected under both the Rules and 
the common law.  This is because it is well established that information 
conveyed in a privileged communication between an attorney and his or her 
client is not admissible in court and cannot be subject to discovery, even 
though such communication may be highly relevant to a disputed issue. 
Furthermore, it would appear that all of the conditions necessary for the 
existence of privilege were met in this instance - i.e. a genuine 
attorney-client relationship, a reasonable expectation of privacy by the 
client, and a proper existence and preservation of confidentiality. 
However, the attorney-client privilege exists only for the benefit of the 
client, not for third parties that may find such communications damaging. 
As such, the privilege can only be claimed by the client (i.e. Mr. Gill), 
the client's lawyer (acting on behalf of the client), or by others who 
represent the client.  If Mr. Gill had been prosecuted for the relationship 
at issue, the privilege might have been invoked by him successfully to 
exclude the diary entries from evidence; however, it would appear that the 
privilege cannot be claimed by Ms. Guess or by her attorney on her behalf. 
Therefore, because a claim of privilege seems likely to be unavailing in 
this case, the following discussion will focus almost exclusively on the 
more relevant issue of hearsay. 

Hearsay issue: 
Statements made by persons out of court are often relevant to legal 
disputes; however, despite their possible relevance, such statements must 
be excluded from admission if determined to be "hearsay" in nature.  Rules 
801 of the Federal Rules of Evidence provides in part as follows: 
(a) Statement.  A "statement" is an oral or written assertion or nonverbal 
conduct of a person, if it is intended by the person as an assertion. 
(b) Declarant.  A "declarant" is a person who makes a statement. 
(c) Hearsay.  "Hearsay" is a statement, other that one made by the 
declarant while testifying at the trial or hearing, offered in evidence to 
prove the truth of the matter asserted. 

Most importantly, Rule 802 states that hearsay is not admissible except as 
provided by the rules or by other rules prescribed by the Supreme Court 
pursuant to statutory authority or by Act of Congress. As this rule clearly 
mandates, out-of-court statements are inadmissible as hearsay if they are 
sought to be admitted for the purpose of establishing that their content is 
true.  In such circumstances, unless an exception to the rule of exclusion 
applies (as outlined in Rules 803 and 804), a party cannot quote what 
another person said outside of court, and cannot introduce documents 
containing words written outside of court. Given that it remains undisputed 
that Gill's diary consisted of out-of-court statements, the hearsay 
doctrine is invariably invoked as a possible bar to admission, assuming 
that all requirements for the rule existed. 

 The fundamental idea behind the hearsay doctrine is that of reliability - 
i.e. the recognition that having a third party repeat one's words or 
assertions (whether written or spoken) is for the most part a poor 
substitute for a first-person account of such.  In other words, the rule is 
based on the observation that information obtained from a person directly 
is much more likely to be accurate than that derived through an 
intermediary. Therefore, because these reliability problems of out-of-court 
statements are viewed as significant, the hearsay rule acts to restrict the 
freedom of parties in selecting the evidence they wish to present, 
reflecting the general view that exclusion of such evidence is necessary to 
produce the fairest results. 

Nevertheless, a vast amount of hearsay (including diary entries) is allowed 
to be admitted in both civil and criminal trials, because of either the 
purpose such statements are offered for or the fact that the statement 
falls within one of the well-defined exceptions to the hearsay rule.  See 
e.g. Turpin v. Kassulke, 26 F.3d 1392, 1400 (6th Cir.1994)(finding 
admissibility under F.R.E. 404(b) and 403); United States v. Treff, 924 
F.2d 975, 983 (10th Cir.1991)(finding admissibility under F.R.E. 803(24) 
and 804(b)(5)); United States v. Red Feather, 865 F.2d 169, 170-71 (8th 
Cir.1989) (finding admissibility under F.R.E. 801(d)(1)(b)); Greger v. Int. 
Jensen Inc., 820 F.2d 937, 943 (8th Cir.1987)(finding admissibility under 
F.R.E. 803(5)); Seattle-First Natl. Bank v. Randall, 532 F.2d 1291, 1295 
(9th Cir.1976)(finding admissibility under F.R.E. 803(3)). As noted above, 
the judge in the Guess case likewise found the Gill diary entries to be 
admissible - thus it becomes important to determine on what basis such a 
judgment was most likely made, as well as to evaluate to efficacy of such. 
It is my view that there appears to exist only three possible explanations 
for the court's decision to admit the entries: (1) the entries were not 
offered as "assertions"; (2) the entries fell within the "recorded 
recollection" exclusion of Rule 803(5); or the entries fell within the 
"catch-all" exception of Rule 803(24).  As will be seen below, while it 
remains unclear as to whether such exceptions were adequate to support 
admission of the evidence (as reasonable arguments can be made from both 
sides of the issue), none of these possible rationales are very convincing. 
To begin with, it should first be emphasized that the key element of 
hearsay is that it is "offered in evidence to prove the truth of the matter 
asserted"; as such, when an out-of-court statement is relevant without 
regard to whether it conveys accurate information, the hearsay rule does 
not apply.  More specifically, where the relevant issue is that words were 
spoken or written (and not whether the content of such words reflects the 
truth regarding a past event or occurrence), then the out-of-court 
statement may be introduced.  Stated another way, if the statements in 
question are relevant even if they are not an accurate representation of 
what transpired within the writer, then the hearsay issue is inapplicable. 
But if accuracy is essential to the relevance of the statements, then such 
statements must be excluded under Rule 802. 

Applying such logic to the Gillian Guess case, it appears that while the 
Gill diary could have been legally admitted for the purpose of 
demonstrating that a diary was written by Gill, it could not have been 
admitted for the purpose of demonstrating the content of its pages, as such 
would have necessarily reflected on the truth of the matter asserted.  Thus 
while such an argument as to the purpose of the diary entries sought to be 
introduced may have been made by the Guess prosecution (i.e. that the diary 
was not offered to prove the truth of its contents), it should apparently 
have been to no avail, given that its only relevance was in regards to its 
contents.  In other words, because the issue of whether the writings were 
an accurate representation of Gills perception of reality, most notably in 
regards to the development of the Gill-Guess relationship as described 
therein, the entries should have been barred from admission as hearsay in 
nature. 

A second possible rationale for allowing the diary to be admitted into 
evidence despite its hearsay nature involves the hearsay exception for 
"recorded recollections" under Rule 803(5). This rule defines a recorded 
recollection sufficient to be excluded from the hearsay rule as "a 
memorandum or record concerning a matter about which a witness once had 
knowledge but now has insufficient recollection to enable him to testify 
fully and accurately, shown to have been made or adopted by the witness 
when the matter was fresh in his memory and to reflect that knowledge 
correctly."  However, even if admitted, the memorandum or record may be 
read into evidence but may not itself be received as an exhibit unless 
offered by an adverse party. Fed.R.Evid. 803(5). According to this 
exception, a party seeking to admit a document under this rule must 
establish two elements: (1) that the document concerns a matter about which 
the witness once had knowledge but now has an insufficient recollection; 
and (2) that the witness recorded the matter subsequent to or immediately 
preceding the event and the document reflects such in an accurate fashion. 
See generally United States v. Severson, 49 F.3d 268, 271 (7th Cir.1995). 
Although this was apparently the primary reasoning adopted by the Guess 
court in its decision to allow the Gill diary into evidence, it appears 
that it was misplaced given the circumstances at hand.  For one, it remains 
unclear as to whether it was Gills position that he could not accurately 
recall the events and perceptions about which the diary entries were 
introduced.  Without such a position, a proper foundation would not have 
been laid for the diarys admissibility.  See Collins v. Kibort, 143 F.3d 
331, 338 (7th Cir.1998).  Furthermore, even if the prosecution had 
satisfied the admissibility requirements of Rule 803(5), the diary itself 
could not have been received as an exhibit unless it had been offered by an 
adverse party; rather, it could only have been used for recollection 
purposes during Gills testimony. See United States v. Lewis, 954 F.2d 
1386, 1393 (7th Cir.1992). Therefore, if such entries were introduced as 
evidence and made available to the jury in the Guess case (of which I am 
admittedly unsure of due to the currently sealed record of the case), it 
seems clear that this would have constituted error on the part of the trial 
judge. 

The final question that remains is whether the "catch-all" hearsay 
exception under Rule 803(24) was applicable in this case to allow for the 
introduction of relevant portions of Gills diary.  As with the Rule 803(5) 
exception, Rule 803(24) requires that certain criteria be met before 
hearsay evidence normally subject to the rule of exclusion be allowed: (1) 
the statement must be offered as a "material fact"; (2) the statement must 
be more probative than any other evidence which the proponent can obtain 
through reasonable efforts; (3) the admission of the statement must serve 
the general purpose of the Federal Rules; and (4) the statement must have a 
circumstantial guarantee of trustworthiness equivalent to other hearsay 
exceptions. See United States v. Sheets, 125 F.R.D. 172, 176 (D.Utah 1989); 
Fed.R.Evid. 803(24).  Without the existence of all of these criteria, the 
Rule 803(24) exception is inapplicable. 

While it could be reasonably argued that the diary entries were material to 
the Guess prosecution (in that they admittedly had some probative value), 
and that the admission of such statements might have served the general 
purpose of the Federal Rules (which is described under Rule 102 as being 
designed to support the fair administration of justice "to the end that the 
truth may be ascertained"), the remaining two criteria for Rule 803(24) 
application are simply not met.  For one, the diary entries contained no 
more information than that which had already been obtained through 
cross-examination; thus there existed no justifiable rationale for allowing 
them into evidence under 803(24), in that their inclusion was by no means 
more probative than any other evidence already before the court.  In 
addition, the character of the declarant (i.e. Gill, who at the time of 
writing the diary entries was on trial for murder) and the time lapse 
between the writing of the entries and their seizure by the prosecution, 
raises serious doubts as to the possibility of such statements having a 
"circumstantial guarantee of trustworthiness" sufficient to satisfy the 
clear and strict standard outlined by the rules.  As such, it would appear 
that a reliance on this exception to the hearsay rule would likewise be 
unwarranted. 

While determinations of the admission or exclusion of such evidence are 
left to the trial courts discretion, with such decisions being overturned 
on appeal only where there exists a clear abuse of discretion, see United 
States v. Hill, 627 F.2d 1052, 1055 (10th Cir.1980), the above discussion 
clearly indicates that there exists a good possibility that the allowance 
of these entries reflects sufficient error to warrant a new trial. 
 

 Shortly after the acquittal in the Regina v. Johal trial, Gillian Guess 
was investigated by Canadian authorities so as to determine whether she had 
obstructed justice during her tenure as juror in the aforementioned trial. 
Various surveillance devices -  from wiretaps of Ms. Guess and her circle 
of acquaintances to an electronic bug placed in Ms. Guess' bedroom - were 
employed in furtherance of this investigation. The resulting evidence 
obtained was voluminous, and various hearings were held during which the 
legality of the surveillance evidence was contested. These hearings were 
conducted in secret and are sealed; Ms. Guess' defense counsel cannot, by 
order of the court, disclose the content of these hearings to any party not 
present at the hearings. What is most amusing about this order of secrecy 
is that since Ms. Guess herself  was not allowed at the hearings, her 
counsel cannot relate to her what transpired at the hearings.  This sort of 
secret hearing, wherein the court enjoins all those present from disclosing 
the contents of the hearing and simultaneously refuses to offer the 
defendant admittance to the hearing, is unprecedented in Canadian law. 
 Ms. Guess has been given no explanation as to why the hearings were 
conducted in secret. 

Analysis 

The secret proceedings present a plethora of problems, but two issues in 
particular manifest themselves most noisily, with a common strain of 
argument. 

Effectiveness of Counsel 

 The court's order that Ms. Guess' attorney could not share with her the 
contents of the hearings impairs the ability of Ms. Guess to consult 
effectively with and instruct her attorney. Since it is not known exactly 
what transpired at the hearings, it is difficult to comment specifically on 
effects this had on her trial, but it does not seem unreasonable to argue 
that the gagging of one's attorney concerning certain issues of fact and 
law and the corresponding destruction of an optimal (or even satisfactory) 
attorney-client interaction vitiates one's right to a fair trial and 
deprives one of liberty without due process of law. 

 The court's failure to explain officially its depart from precedent seems 
ill-advised. While it is difficult to see why Ms. Guess should not have 
been privy to the secret hearings and then bound by court order to disclose 
nothing, that is not to say definitively there could have been no 
countervailing state concern of sufficient magnitude to overcome Ms. Guess' 
interest in a fair trial.  Perhaps there is some concern or group of 
concerns that might demand secret hearings, but the court certainly owes 
Ms. Guess, the public, and future jurists an explanation as to what -in 
conceptual if not specific terms -- those concerns are and what will 
qualify for the same secret treatment in the future. With secret trials 
being antithetical to the notion of a free and open society, it seems 
reasonable that their use should at least demand an explanation.  In an 
interesting twist, the court may have injured itself, as the lack of any 
explanation for its decision has undermined the court's credibility with 
numerous observers who have suggested that improper pressure on the court 
from certain powerful figures in the Canadian government, as opposed to any 
compelling legal justification, was the real reason for holding the 
hearings in secret. 

Right to Face Accused 

 A time-honored tenet of the common law is that an accused has the right to 
face his or her accuser.  This has traditionally been interpreted to mean 
that a defendant, particularly in a criminal trial, should have the right 
to be present for all elements of his or her trial.  The secret portions of 
the Guess case clearly present a challenge to the sanctity of this 
tradition, as Gillian Guess was not only not permitted to be present in the 
courtroom during the discussion of certain evidence which might have been 
used against her, she was also not even allowed to learn about this 
evidence from her counsel or have it discussed with her. 

 As above, we must consider the issue of what justification can be offered 
for this extreme aberration from jurisprudential tradition.  There has been 
no official explanation for the court keeping secret the evidence and 
proceedings in question.  There might be some precedent and a clearer 
justification for secrecy if there were issues of national security 
involved, but there is no intimation that this was the case.  The implicit, 
albeit unofficial, explanation is that of privacy concerns, and this seems 
extremely unsatisfactory.  In the absence of national security 
considerations, it seems that merely the privacy of one or more private 
citizens must have been at stake.  Where there is protection of the 
interests of the few at the expense of the usual practice of the justice 
system and where the similar interests of other private citizens are not 
protected, the protection seems unjust. 

 Finally, Gillian Guess was not able to offer her insights into the defense 
against the secret evidence.  It is possible that she might have been able 
to offer some personal information or contextual background which would 
have enabled her attorneys to undermine the probative value of the evidence 
against her.  This, indeed, is one of the reasons the right to face one's 
accuser is so important. 
 

[T]he fruits of the [police] investigation which are in the possession of 
counsel for the Crown are not the property of the Crown for use in 
securing a conviction but the property of the public to be used to 
ensure that justice is done. R. v. Stinchcombe (1991), 68 
C.C.C.(3d) 1,7.  At trial, the Canadian government successfully 
refused the defendant access to its volumes of taped evidence. All 
Ms. Guess was allowed to review was a mere 20 hours (out of thousands 
recorded) of the government's tapes. The government defended this 
decision on the ground that those 20 hours were all it would use at 
trial. This denial was a violation of, in the terms of Canadian 
law, her right to make full answer and defence. Settled 
Canadian law, as well as the American decisions which influenced it, 
imposes a general duty [resting on] the Crown to disclose all 
material it proposes to use at trial and especially all evidence which 
may assist the accused even if the Crown does not propose to adduce 
it. Regina v. Stinchcombe (1991), 68 C.C.C.(3d) 1, 11. 

In both the United States and Canada, the prosecution is required to 
comply with a defendant's request for potentially exculpatory evidence 
that is in the sole possession of the prosecution. In the United 
States, such requests are called Brady requests after Brady 
v. Maryland, 373 U.S. 83 (1963), in which the Supreme Court first rules 
denial of such requests reversible error.  Jencks v. U.S., 353 U.S. 
657 (1957) also held that only the defendant is adequately 
equipped to determine the potential usefulness of such 
material. Since that time, Brady requests have become a 
routine and useful tool in the assurance of a fair trial.The U.S. 
Congress later codified these decisions, in part, in 18 U.S.C. § 
3500. 

The Canadian Supreme Court, acknowledging the wisdom of the Brady 
decision, made a similar ruling in 1991: Regina v. Stinchcombe, 68 
C.C.C.(3d) 1.Even before Stinchcombe, similar requests were 
routinely made and granted.They still are, only now compliance 
with such requests are mandated constitutionally.Nevertheless, 
this fundamental rule has been ignored in Ms. Guess's case. 

The Canadian government, in the course of its investigation of Gillian 
Guess, recorded thousands of hours of audiotapes made from phone taps and 
bugs inside the homes of Ms. Guess and several of her family 
members. Over 18,000 conversations, as well as various highly 
personal events, were recorded.All but 20 hours of these 
recordings remain in the sole possession of the Canadian government, 
despite Ms. Guess's requests. The government turned over only the 
portions of the tapes it planned to adduce at trial. No 
consideration was given to Ms. Guess's right to review these tapes in 
order to prepare her own defence. 

This denial of a right considered fundamental to a fair trial, both in 
Canada and the United States, is a denial of due process that should 
bother not only Canadian citizens.For some time now, the legal 
systems of our two nations have developed alongside each other in a 
parallel, but similar, if not convergent, direction. If the 
government of Canada could trample upon the constitutional rights of one 
of its citizens, the threat to fundamental fairness is bound to be felt 
on both sides of the border. While the United States has had high 
profile trails of its own in which the rights of the defendant were 
ignored (e.g., Bruno Hauptmann), its more recent ones have scrupulously 
observed the rights of the accused (e.g., Simpson, Rodney King's 
beaters). While the government may often not like the acquittals 
which result from these careful trials, few would willingly sacrifice the 
protection of due process, and the legitimacy of the trial system, in 
order to punish a merely unpopular defendant. The Constitutions of 
both nations adhere to this belief, and no matter how zealous the 
prosecution, no matter how unpopular the outcome, in fact especially in 
such circumstances, the constitutional rights to due process must be 
protected. 
 

One of the points that we want to analyze is the prosecutorial decision to prosecute Gillian Guess for obstruction of justice, but not Peter Gill. 

The indictment against Gillian stated: "she did willfully attempt to obstruct, pervert or defeat the course of justice by having a personal relationship with Preet Sarbjit Gill, known as Peter Gill, during his criminal trial…at which she was a juror sworn to well and truly try and true deliverance make between our sovereign lady the Queen and the accused at the bar, whom she had in charge and a true verdict give, according to the evidence so help her God, contrary to Section 139(2) of the Criminal Code of Canada and against the peace of our Lady the Queen her Crown and Dignity." 

The Section 139(2) of the Criminal Code of Canada establishes: 
"Every one who willfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years." 
And clarifying this rule, Section 139(3) states: 
Without restricting the generality of subsection (2), every one shall be deemed willfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or proposed, 
(a)… 
(b) influences or attempts to influence by threats, bribes or other corrupt means a person in his conduct as a juror; or 
(c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt considerations to abstain from giving evidence, or to do or to refrain from doing anything as a juror." 

If we analyze these rules, it is clear that Peter Gill also could have been prosecuted for having an affair during his trial with one of the jurors. This relationship could be seen as a willful attempt to "obstruct, pervert or defeat the course of justice." In this sense, Section 139(3)(b) shows that Section 139(2) not only refers to the jurors, but also to the people that unlawfully attempt to influence the jurors in their decision. 

What are the legal problems that can be present in a situation in which the prosecution decides to prosecute some one who has possibly violated the criminal law and not others who may have acted similarly? 

The U.S. Supreme Court analyzed this question in Wayte v. United States.1  In this case, the Supreme Court decided whether a passive enforcement policy under which the Government prosecutes only those who report themselves as having violated the law, or who are reported by others, violates the First and Fifth Amendments of the U.S. Constitution. In this case, the petitioner had refused to register with the Selective Service System, and had written several letters to Government officials stating the he had not registered and did not intend to do so. 

The U.S. Supreme Court said:  "In our criminal justice system, the Government retains ‘broad discretion’ as to whom to prosecute…however, although prosecutorial discretion is broad, it is not "‘unfettered.’ Selectivity in the enforcement of criminal laws is…subject to constitutional constraints" (quoting United States v. Batcheldner, 442 U.S. 114, 99 S.Ct. 2198). 
One of the constitutional limitations to selective prosecutions is the equal protection of the Fifth Amendment’s Due Process Clause for which "the decision whether to prosecute may not be based on ‘an unjustifiable standard such as race, religion, or other arbitrary classification….’"2 
An unjustifiable standard to base the decision to prosecute on the gender of the potential defendant. And this is precisely the problem that could be posed in Gillian Guess case. Why did the prosecution decide to indict Gillian Guess for obstructing the jury, and not Peter Gill? What were the differences between these two potential transgressors of Section 139(2) but their gender? 

One could try to give a justification to this prosecutorial decision by saying that the difference between both is that Gillian Guess was the juror and Peter Gill only the defendant in his trial. 
However, one could also say that this difference is not relevant, and that, anyway, it is the prosecutor who made the decision, who should explain the reasons for his decision, and who should disclose his files related to it. 

In Wayte v. United States, the U.S. Supreme Court said that the equal protection standards included in the Fifth Amendment Due Process Clause require that the defendant " show both that the passive enforcement system had a discriminatory effect and that it was motivated by a discriminatory purpose."3 

In United States v. Arsmstrong, the Supreme Court established that for a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races. 

In Gillian Guess case, there may be a prime facie case about the discriminatory effect of the prosecutorial decision, because the prosecution chose to prosecute the female suspect and not the male one, who was similarly situated in relation to the obstruction of justice offense. 
Consequently, Gillian Guess could be entitled to discovery of the prosecution’s files about the decision to prosecute her and not Peter Gill, because she could show that the Government declined to prosecute the male suspect of the offense. 

Once the Government makes this discovery of its files, the court should decide whether there was a discriminatory intention in the case. And if it finds that there was not only a discriminatory effect, but also a discriminatory intention of the prosecution, the court of appeals should reverse Gillian Guess’ conviction on equal protection grounds. 

 1 470 U.S. 598, 105 S.Ct. 1524. 
  2 United States v. Armstrong, 116 S.Ct. 1480. 
 3 470 U.S. 598, 105 S.Ct. 1524. 
 

Ruling in Relation to Crown Calling Jurors to Testify 
Ruling on Admissability of Peter Gill Diary 
Ruling on Subpoenas of Counsel in Regina v. Johal et al.  

Jury Insturctions for Regina v. Guess  

Notice of Appeal 

  DATED this/Fait le 6th day of/jour de August, 1997, at/a the City of Vancouver/Ville de Vancouver, Province of British Columbia/Province de la Colombie-Britannique. 
 
 

              ;             & nbsp;            &nb sp;              ;             & nbsp;  (Signed, Joseph Bellows) 
            &nbs p;                           &n bsp;            &nbs p;                 Crown Counsel and Agent of the 
            &nbs p;                           &n bsp;            &nbs p;                 Attorney General of Brish Columbia/ 
            &nbs p;                           &n bsp;            &nbs p;                 Agent du procureur general pour la 
            &nbs p;                           &n bsp;            &nbs p;                 province de la Colombie-Britannique

GILLIAN GUESS            &nb sp;              ;             & nbsp;            &nb sp;              ;        ELIZABETH A. ARNOLD 
 

Appearances: 

Counsel for the Crown:            &n bsp; Joseph C. Bellows 
            &nbs p;                           &n bsp;         Diane M. Wiedemann 

Counsel for the Defence:            Peter C. Ritchie 
            &nbs p;                           &n bsp;         Marilyn Sandford 

Date and Place of Hearing:         May 5, 1997 
            &nbs p;                           &n bsp;          Vancouver, B.C. 

Date of Ruling:            & nbsp;            &nb sp;  May 7, 1997 

Introduction 

The accused in this case, Gillian Guess, is charged with wilfully atempting to obstruct justice, contrary to s. 139(2) of the Criminal Code.  Part way through what has turned out to be a preliminary inquiry, the Crown is seeking to call 6 jurors from the jury in Regina v. Johal et al (1995), B.C.S.C. Court File No. CC940998 to testify.  The Defence objects, arguing that the time-honoured common law principle attaching complete privacy to the sanctity of jury deliberations, ought to be relied uppon by the court, and that therefore, the court must rule that their testimony ought not to be received into evidence.  The Crown takes the position that given the specific charge here and the wording of s. 649 of the Criminal Code the jurors are properly competent and compellable to testify in the unusual circumstances of the case, not for the purpose of impeaching the verdict in the Johal case, but because they have relevant evidence to give in rlation to the charge against Guess, their former co-juror.  The Defence submits that s. 649 of the Code does not go that far and that this court ought not to tread where, over the centuries of our hallowed common law, none have dared to go.  Both counsel agree that there are no cases on point to assist and that this is a case of first instance. 

The Charge Against Guess 

The charge as laid, and which I found not to be a nullity in my written reasons dated April 28, 1997, reads in its entirely as follows that: 

THAT, at or near the City of Vancouver, Province of British Columbia, between the 17th day of April, 1995 and the 28th day of October, 1995, she did wilfully attempt to obstruct, pervert or defeat the course of justice by having a person relationship with Preet Sarbjit Gill, also known as Peter Gill, during his criminal trial of Her Majesty the Queen against Bhupinder Johal, Rajinder Kumar Benji, Preet Sarbjit Gill, Michael Kent Budai, Ho Sik (Phil) Kim and Sun News Lal, (Court File No. CC940998 at which she was a juror sworn to well and truely try and tru deliverance make between our sovereign lady the Queen and the accused at the bar, whom she had in charge and a true verdict give, according to the evidence so help her God, contrary to Section 139(2) of the Criminal Code of Canada and against the peace of our Lady the Queen her Crown and Dignity. 

The Criminal Code Sections Relevant to the Offence Charged 

Section 139(2): 

Everyone who willfully attempts in any manner other than a manner described in subsection (1) to obstruct, pervert or defeat the course of justice is guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years. 

Section 139(3): 

Without restricting the generality of subsection (2), every one shall be deemed wilfully to attempt to obstruct, pervert or defeat the course of justice who in a judicial proceeding, existing or propsed, 
  (a) dissuades or attempts to dissuade a person by threats , bribes or other corrupt means from 
  giving evidence; 
  (b) influences or attempts to influence by threats, bribes or other corrppt means a person in his 
  conduct as a juror; or 
  (c) accepts or obtains, agrees to accept or attempts to obtain a bribe or other corrupt 
  consideratins to abstain from giving evidence, or to do or to refrains from doing anything as a 
  juror. 

Criminal Code Section Relevant to Disclosure of Jury Porceedings 

Section 649: 

Every member of a jury, except for the purposes of 
  (a) an investigation of an alleged offence under subsectino 139(2) in relation to a juror, or 
  (b) giving evidence in criminal proceedings in relation to such an offence, discloses an 
  information relating to the proceedings of the jury when it was absent from the courtroom that 
  was  not subsequently disclosed in open court is guilty of an offence punishable on summary 
  conviction.  1972, c. 13 s. 49. 

Is s. 649 of the Criminal Code as framed sufficiently wide in scope and clear as written to permit jurors to testify as to aspects of their deliberations when one of their fellow jurors is subsequently charged as here, with wilfullly atempting to obstruct the course of justice by having a personal relationship during the trial with one of the accused in that trial, contrary to s. 139(2) of the Criminal Code, given the long enshrined principle in our common law that protects the secrecy of jury deliberations? 

The Defence Argument 

The Defence argues that the fact that s. 649 makes an exception for jurors to testify in criminal proceedings when a juror is charged with an offence pursuant to s. 139(2), insofar as it relieves them of the criminal liability that otherwise flows when jurors disclose what went on in jury deliberations, ought not to be construed as making them competent and compellable witnesses for the Crown in the circumstances of this case, given the time-honoured common law principle that hertofore protected jurors and the substance of their deliberations.  Mr. Ritchie admitted that there is no leal authority on point here and that one must resort to various cases over the years that enshrine the sanctity of the jury.  Before reviewing those cases, I note that Mr. Ritchie stressed a number of things the ocurt ought to keep in mind.  Foremost among them is that given the unusual nature of the charge here, and the fact that Guess is charged with breaching her oath as a juror in the Johal et al case, the nature of the evidence to be elicited from the jurors, if they are permitted to testify, goes to the very heart of the jury deliberations in the Johal et al case and Gess’ role in them.  He submits that this is not the more usual case of someone attempting to bribe a juror and fellow jurors being called to testify as to the circumstances surrounding the offering of the bribe.  He has also stressed that going into the jury room by hearing the evidence of some of the Johal et al  jurors is a veritable "Pandora’s Box" and a perilous course fraught with many difficulties including the following: 
(a)  that in defence of his client he will seek to extensively cross examine on all aspects of the jury deliberations in the longes criminal jury trial in B.C., a trial full of complex issues multiple accused, paid informer witnesses for the Crown, allegations of police improprieties (that include Detective Crook, one of the main investigating officers in this case) and countless other matters no doubt considered by the jury; 
(b)  given his client’s last minute change of instructions not to proceed to trial in this court, but to have a preliminary inquiry, he is unable to argue the various sections of Charter that might have impacted on whether or not the testimony of some of Guess’ fellow jurors ought to be received into evidence; 
(c)  that the Crown here is only planning to call six of the jurors from the Johal et al case, and not all the jury members who deliberated with Guess in reaching the verdict; 
(d) that the jury in the Johal et al  case is entitled to have the privacy of their deliberations respected, and to bring aspects of those deliberations into open court in this case make s the jurors vulnerable to censure and potential recriminations for their various roles in the deliberations, and deprives them of their anonymity and privacy; 
(e)  that a possible outcome of calling members of the jury is to disrupt the finality of the verdict in a highly celebrated and hard-fought case where six men were acquitted of murder in relation to the deaths of Jimsher and Ranjit Dosanjih; 
(f)  that the decision to permit the Crown to call some of the members of the jury in this case will impact on the outstanding Crown appeal to our Court of Appeal in Johal et al where to date, counsel for the Crown, have apparently assiduously refrained from any reference to jury deliberations, despite the Crown in this case having taken statements from various jurors; and 
(g)  that the jurors, if called, will have no one to represent their interests except the court, unless the court grants standing to a lawyer retained by Guess’ defence counsel to interview the various jurors the Crown seeks to call. 

Turning to the legal authorities argued by Mr. Ritchie they may be summariezed as either old cases of first principle in relation to the sanctity of jury deliberations and verdicts, and more recent cases where one party in a criminal case, usually the convicted accused, is attempting to impugn the jury verdict of guilt for a variety of reasons, or where the exhortations of the trial judge to the jury are impugned.  There is clearly no reported case in Canada even remotely similar to the unusual circumstances of this one, particularly since the amendments to the Criminal Codein 1972 that brought us the present s. 649. 

Starting with the early English cases, the sanctity of the jury’s deliberations and its verdict, is first and foremost.  In Onions v. Nash(May 1, 1819) 7 Price 203, 948 the court declined to set aside a jury verdict when the failing party alleged in an affidavit friendship and certain expressions of "partiality and prejudice" between the successful party and a juror, stating that "it would be a very dangerous precedent to set aside a verdict, upon such grounds as were now offered…"  In Everett v. Youells (April 24, 1833) 4 B. & D. 680, the court held that the delivery of food to a juryman after the jury was shut up to consider their verdict was not a ground for setting aside the verdict, if the refreshment was not supplied by a party to the cause and unless it was supplied to a juryman who was holding out, either of which were the case here.  The court agreed there that they could not receive statements from the jury to "shew on what grounds they acted."  In Sir John Morris, Bart.and Another (June 4, 1842) 10 M. & W. 136, 414 where two jurymen slept and dined at the house of the defendant during the trial the verdict in favour of the defendant was not avoided.  Failing a verdict not supported by the evidence or an obvious corrupt motive, Lord Abinger, C.B. stated, "…here it is alleged to be the concurrent opinion of all parties, that there was neither corruption nor favour.  If the public are to form an opinion, let them understand that this was a case in whhich all ipmputation of influence and favour was entirely disclaimed." 

Moving to this century in Canad the Defence has referred in sumbissions to a number of Suprem Court of Canad and Canadian appellate court decisions relating to the sanctity of jury deliberations and verdicts in various circumstances.  In Danis v. Saumure, [1956] S.C.R. 403, the Supreme Court of Canada held that a civil jury verdict in which the defendant was found not to be negligent when he struck the plaintiff, a pedestrial with his car, but the jury assessed damages for the plaintiff’s injuries, was not perverse.  The Supreme Court declined to receive affidavits from nine of the jurors purporting to show that the findings of the jury were not those they intended to make.  The judgment of the majority was delivered by Kerwin C.J. who reviewed the relevant law and stated in part: 

Statements or affidavits by any member of a jury as to their deliberations or intentions on the matter to be adjudicated upon are never receivable.  Halsbury (2nd ed.) Vol. 19, p. 317 note (I)…As early asw Vaise v. Dlaval [(1785) 1 T.R. 11] an affidavit of a juror that the jury, having beeen divided, tossed up, and that the plaintiff had won, was rejected.  Lord Mansfield said: 

The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanour: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or by some such other means. 

By way of contrast, in a most recent case, R. v. R.M.G., [1996] 3 S.C.R. 362 where the trial judge exhorted a hung jury to consider the public expense of a new trial, the inconvenience to all participants, the hardship to the accused and the complainant, and suggested that the minority might wish to reconsider what the majority were saying, a guilty verdict being shortly thereafter rendered, the Suprem Court of Canada held that such an exhortation was improper and ordered a new trial.   There Cory J., writing for the majority, said at paragraphs 13 to 15: 

The jury system is clearly a significant factor in many democratic regimes.  This is emphatically true in Canada.  T is extrememly important to our democratic society that jurors as representatives of their community may make the decision as to the guilt or innocence of the accused before the court based solely on the evidence presented to themm.  Thre is a centuries-old tradiion of juries reaching fair and 

(page 9 missing here) 

In another Supreme Court of Canada decision dealing with jury exhortations, R. v. Sims, [1992] 2 S.C.R. 858 a new trial was ordered because the trial judge had said to the deadlocked jury that if they accepted the evidence of the police officer the Crown had a very powerful case.  The Supreme Court held that a judge should refrain from offering his or her opinion on matters of fact, properly left ot the jury, because of potential detriment to the accused’s interest in a fair trial.  Mr. Ritchie submits that his case shows the defence our courts show for the function of the jury. 

In R.V. Wilson, (1993), 78 C.C.C. (3d) (Man. C.A.) the appellant, a plaintiff in civil proceedings attempted by way of a declaration to attack his criminal conviction, alleging that the jurors had been imporperly interfered with during their deliberations in the criminal trial by receiving information alleged to have been communicated to them by an R.C.M.P. Officer that did not form part of the evidence heard at trial.  The appellant at the civil trial had attempted to introduce into evidence a taped telephone conversion between the witness and the foreman of the jury, in which it was alleged that the foreman referred to one of the jurors receiving information about the appellan’s co-conspirator.  The decision of the trial judge to exclude the taped conversation from evidence as hearsay was upheld and what the foreman was alleged to have said to the witness was held by the appellate court to be protected by the traditional rule that the court shouldnot inquire through the evidence of jurors as to what occurred either in the jury box or the jury room.  In Wilson in delivering the reasons of the court at pp. 572-573, referred to in the decision of Haines J. in R. v. Dyson (1971) 5 C.C.C. (2d)401, (Ont. High Court of Justice) who reviewed the law relating to the secrecy of jury deliberations and the rationale for its existence as follows" 

The verdict pronounced in court by the jurors must be taken as the sole embodiment of the jury’s act. 

The doctrine of privilege protects jurors. 

A jror may not testify to prove his own misconduct. 

A need exists for finality of the verdict. 

Such a protection ensures freedom of debate among the jurors. 

Secrecy protects the jurors from harassment following the verdict. 

Secrecy is required to ensure public confidence in trial by jury. 

In R. v. Perras (1974), 18 C.C.C. (2d) 47 (Sask. C.A.), the court considered whether or not the appellant could use the testimony of jurors and a stranger to impeach the jury’’s verdict that found him guilty of murder.  The court held that the appellant could not use the testimony of jurors to impeach their verdict or show that it was arrived at improperly, for example, by majority decision.  Likewise, the evidence of a strager to the same effect was inadmissible as it could only be met by calling the jurors to testify. 

Our Court of Appeal considered the same Criminal Code sections as are at issue here, albeit in different circumstances, in R. v. Zacharias (1987), 39 C.C.C. (3d) 280 (B.C.C.A.) and Mr. Ritchie pointed out that in the investigation that took place there pusuant to s. 127(2), the present day s. 139(2), Crown counsel questioned jurors about their actual deliberations, which was commented upon critically b the court.  The facts were that following the accused’s conviction for fraud, the foreman of the jury communicated information to defence counsel who, in turn, contacted the Crown.  An investigation was launched by the police and senior counsel and during that investigation 11 jurors were questioned about whether third parties had communicated to the jurors untrue and prejudicial information about the accused.  The investigation did not reveal any evidence of an attempt to obstruct justice, but then the jurors were improperly questioned in the course of the investigation about thei deliberations.  In disclosing information about their deliberations MacDonald J.A., who delivered the judgment of the ocurt, said that the jurors who had breached s. 576.2 (now s. 649) at the instigation of the lawyer conducting the Attorney General’s investigation, where not to be blamed, but what had occurred was in contravention of the long established rule that the Court should not inquire of a juror with respect to what happened in the jury room.  MacDonald J.A. referred to R. v. Perras, supra, and quoted at length from that judgment.  The court then ordered a new trial, MacDonald J.A. making the following concluding comments at p. 284: 

What the jurors said with respect to the second allegation constituted disclosure in breach of s. 576.2.  But they cannot be blamed.  They must have thought it was entirely proper to answer.  The fault lies with the Attorney-General’s investigation.  It was wrong for the investigating lawyer to bring out from the jurors, or fail to prevent, disclosures about their deliberations. 

The disclosures of the jurors, although not made under oath, are likely true.  If tru, they support the conclusion that a verdict of guilty was rendered in this case because the jurors did not fully understand the courses open to them.  As this is attributable to the attorney-General’s interrogation of jurors, in breach of s. 576.2, I think the Crown is in no position to say that the verdict should be allowed to stand.  The peculiar circumstances of this case ought to strip it of any precedent-setting value for probing a jury’s deliberations in other cases. 

The last case of significance referred to by the Defence is R. v. Taraviras, [1993] B.C.J. No. 2820, which was an application for a mistrial based on an encounter prior to sentencing between defence counsel and a juror, during which the juror made certain statements that indicated a possible misapprehension of certain aspects of the evidence.  Tysoe J. declined to declare a mistrial and after reviewing the law relating to the secrecy of jury deliberations he stated at paragraph 12:

I do not accept the submission made by Mr. Taravias’ counsel that the Zacharias case is an example of a situation where the rights of the accused outweighed the interest of society and that the present case is another such example.  As a general statement, the interests of society to protect the secrecy of jury deliberations will outweigh the interests of the accused for the reasons reviewed in the Dyson case and s. 7 of the Charter will not require the Court to accept the testimony of jurors to impeach the jury’s verdict.  The Zacharias case was an extremely unusual situation where the Crown elicited the statements made by the jurors and, having done so, the Court was not willing to allow it to take the position that the statements could not be considered by the Court in deciding whether the jury’s verdict should be set aside.

The Crown Argument

Mr. Bellows, for the Crown, argues that I must not be distracted from the issue in the case at bar by the vast array of irrelevant or only peripherally relevant matters referred to by the Defence.  He pointed out that although Mr. Ritchie conceded at the outset that none of the cases he referred to were on point and that he was aware that this court  was not to be concerned with matters relating to the Crown appeal in the Johal et al case, he then proceeded to argue and rely upon that which he had indicated he would not.  He stressed that all the cases referred to by the Defence, even the Zacharias case, relate to the secrecy of jury deliberations in the context of an accused seeking to avoid a jury verdict contrary to his or her interests, or the need to preserve the independence of in the face of judicial exhortations.  He stressed that noone of them are on point given the clear and limited issue of first instance before this court.

Mr. Bellows submits that to attribute to s. 649(b) its clear meaning, and the only meaning that makes sense on its plain wording, is to permit the Crown to call the jurors it seeks to call in this very unique case, where a fellow juror is charged with an offence contrary to s. 139(2) of the Criminal Cod.  It is the Crown position that the jurors it seeks to call have very relevant to the alternate theories as to the commission of the alleged offence as further particularized in Exhibit 9 as (b) that "if it was proved that by virtue of the personal relationship the accused was partial or biased, the offence would also be proven."  He submitted that to secure a conviction at trial the Crown does not have to prove beyond a reasonable doubt that Guess caused the verdict to be different than it otherwise would have been, but only that she attempted to do so, and that the Crown plans to focus on the matter of an alleged attempt.  He indicated that he does not intend to ask the jurors if their ultimate vote was influenced by Guess.  He argued that the Defence is trying to preclude the Crown from tendering this important evidence, which on a plain reading of s. 649 is permitted.  Starting from first principles he submits that it is trite law that everyone is a competent and compellable witness unless they are prohibited from testifying based on either common law or statutory exemption.  Once the preconditions for the very specific and limited exception enacted by Parliament, to the general prohibition against jurors revealing jury deliberations contained in s. 649 are met, he argues that these former jurors become competent and compellable for the Crown.  Further, he submits that to interpret s. 649 otherwise would be to rob it of any real meaning at all.  For example, if jurors can disclose information relating to the proceedings of the jury for the purposes of "an investigation of an alleged offence under subsection 139(2) in relation to a juror" as set out in s. 649(a) of but then not testify if such an offence is alleged to have occurred following an investigation, the result, the Crown submits would be nonsensical and would deprive s. 649(b) of its plain meaning.

Mr. Bellows referred to two of the cases put before the court by the Defence:  Perras, supra, and Zacharias, supra.  In Perras, he referred to a portion of the judgment of the Saskatchewan Court of Appeal, delivered by Culliton, C.J.S. found at pp. 50-51, which reads as follows:

If there was ever any doubt of the principle that the Court should not accept the evidence of what transpired in the jury room or in the jury-box when considering their verdict in criminal cases, to impeach their verdict, that doubt was removed by the enactment, of 576.2 [by 1972, c. 13, s. 49) of the Criminal Code.  This section reads: [He then quotes s. 576.2, now s. 649.]

Under the foregoing section it is an offence for a juror to disclose any information relating to the proceedings of the jury while it was absent from the court-room and which was not subsequently disclosed in open Court except for the purpose of paras. (a) and (b).  These paragraphs permit disclosure for onnly two purposes: that is for the purpose of investigating a charge that someone wilfully attempted in any manner (other than a manner described in s-s. (1) which has no relevance to the matter in issue), to obstruct, pervert, or defeat the course of justice or for the purpose of the trial of that charge.  Apart from disclosure for these two purposes, the section creates as absolute prohibitino for a juror to disclose any information relating to the proceedings of the jury when it was absent from the court-room that was not subsequently disclosed in open Court no matter for what other purpose or purposes disclosure is sought.

The interpretation that the Crown urges this court to accept here is the same as the obiter expressed above in relation to the application of s. 649 of the Criminal Code, when the provisions that create the exception to the general rule that jurors may not disclose jury deliberations are met, as the Crown says they are here.

In commenting upon the decision of our Court of Appeal in the case of Zacharias, supra, Mr. Bellows submits that the facts of this case make it very different than those in Zacharias.  He stresses that there the Attorney-General’s investigation had no reason to question the jurors about their deliberations, given the alleged impropriety, which was that the jury had received untrue and prejudicial information about the accused from a third party.  When the investigation there continued and questioned the jurors about their deliberations an error was made, and it was that error that gave rise to the comments of MacDonald J.A. for the court.  Given the nature of the charge here Mr. Bellows submits that the Crown must be permitted to call the former jurors of the Johal et al jury in accordance with the clear exception outlined in s. 649 of the Criminal Code.

Analysis

The legal issue in this case in my respectful view is a reasonably simple and straightforward one, while its ramifications are clearly not.  There can be no doubt that these jurors, if properly required to testify by virtue f s. 649 of the Criminal Code, will be called upon to testify in relation to aspects of their deliberations in the Johal et al trial insofar as they relate to the involvement of Guess.  I aree with Mr. Ritchie that the charge as framed here, given Guess’ alleged personal relationship with Preet Sarbjit Gill or Peter Gill as hi is sometimes called, while a juror under oath, "sworn to well and truly try" the criminal case in which Gill was an accused, will take the court into the hear t of the jury deliberations that took place in the Johal et al case.  I also agree that this is a momentous step given the long-standing legal principle in English and Canadian common law that the secrecy of jury deliberations is to be regarded as sacrosanct for all the compelling policy considerations set out in the Dyson decisions referred to in Wilson, supra.  For this reason I have taken care to outline all of the cases relevant to that enshrined legal principle that preserves the integrity of the Canadian jury system as we know it.  I have also outlined the details of the arguments made by the Crown and the Defence so as to clearly set forth the opposing view points.

The Crown has much evidence still to call on this preliminary inquiry, if it adheres to the original witness list provided for what was originally to be a trial.  To date, without embarking on a detailed summary of a weighing of the evidence, which is not permitted on a preliminary inquiry, I note the following.  I have heard from a former friend of Guess’ about comments Guess made to her about an intimate sexual relationship she had with a man during the summer of 1995, who the witness came to understand was Peter Gill.  That same friend testified as to being out with Guess at a club where Guess met Gill shortly after the trial.  I have heard from the court clerk in the Johal et al trial as to her observations of an unusual connection by way of eye contact and gesture that occurred numerous times druing the trial between Guess and Gill to the point that she brought it to the attention of the trial judge.  Testimony of a gnerally similar nature was given by Detective Crook and 4 sheriffs who were in attendance at the criminal trial.   I Have heard the evidence of the sheriff in charge of the jury, who kept notes of certain occurrences and conversations in relation to Guess, including her concern about meeting people associated with the trial on the street.  As well I have learned of 7 telephone calls made to Guess’ home telephone from two different cellular phones during the months of September and October, 1995.  One of these cellular phones upon which a call to Guess’ residence was made belonged to Peter Gill’s father, Nachhattar Gill.  The other one belonged to a man acquainted with Peter Gill, who recalled being at a soccer tournament with his cellular phone where Gill was present on September 10, 1995.  This was a date when a call to her residence was made using his cellular phone.  Six calls in total were made to Guess’ home phone number at various times from this cell phone.  Neither of these men knew Guess. 

I refer to a brief summary of the evidence to date to provide some background in relation to the matter before the court.  It is clear that what is alleged is a very serious matter.  The integrity of a jury is founded on the integrity of its members, and Guess’ integrity is what is impugned here.  In my view the only reasonable interpretation of s. 649 of the Criminal Code is that the former jurors who deliberated with Guess in the Johal et al trial are competent and compellable witnesses for the Crown, given that the very specific and limited exceptin established by parliament, is met by the unusual circumstnces of this case.  This is, indeed, the only exception that Parliament saw fit to make in 1972 to the long-standing rule in English and Canadian common law of secrecy regarding jury deliberations.  To interpret this section otherwise would be to deny the words their plain meaning and rob the section of any meaning or effect.

In support of this interpretation I rely on the comments of Culliton C.J.S. in the decision of Perras, supra, at pp. 50 and 51, as referred to by the Crown.  I also rely on the fact that MacDonald J.A. delivering the judgment of the British Court of Appeal in Zacharias, supra, referred with approval to those same passages of Perras I have just referred to, which speak clearly as to the circumstances outlined in subsections (a) and (b) of s. 649 being the only circumstances that permit disclosure of jury deliberations.  As I regard the charge in this case to bring it sqarely within the exception set out in s. 649(b) of the Criminal Code, I rule that the Crown is permitted to call the jurors from the jury in Johal et al.

Dated at the City of Vancouver, in the Province of British Columbia, this 7th day of May, 1997.

(Signed)
E.A.Arnold
Provincial Court Judge

Counsel for the Accused:                          &n bsp;            &nbs p;              P. Ritchie, M. Sandford 

[2]  At first I was concerned that the former would be inadmissible as being tndered for the prohibited purpose.  But on reflection, I think that they are admissible on another basis in the same way that the second category of statements are admissible in that the very fact of the various entries of this nature, in and of itself, demonstrates, or could demonstrate when combined with other evidence, that some interest was developing between Guess and Gill during the trial.  That is, both categories of entry have the quality of original evidence in that way. 

[3]  Furthermore, it would be wholly artifical and therefore possibly misleading to admit only part of sch entries on that subject and not others. 

[4]  Finally, I see no significant prejudice to the accused because the entries containing hearsay-type statements contain no more tha what has already been given in oral evidence and, indeed, does not seem to be disputed in cross-examination.  The entries referred to by Mr. Bellows are therefore admissible, but there are a couple of matters I wish to refer him to and query him further about. 

[5]  I must also say that since the timing of these entries is an issue, evidence sufficient to prove, if that can be done, the timing of the various entries on these journal pages would be admissible but, again, I cannot rule on that definitievely without discussing it in more detail with counsel. 

[6]  Finally, I with to query, to ask counsel specifically the relevance of certain of these pages in the diary, especially after a certain date, the April 30th tab, of course, in particular, and what appear to be letters written to somebody, and whether those are really tendered or should be tendered by the Crown. 
 

              ;             & nbsp;            &nb sp;              ;             & nbsp;           (signed) 
            &nbs p;                           &n bsp;            &nbs p;                          The Honourable Mr. Justice Paris

Lower Court Registry Number:  CC970630 
Lower Court Registry Location: Vancouver  COURT OF APPEAL REGINA
RESPONDENT
GUESS
APPELLANT 
1.  Place of conviction:           &nb sp; Vancouver, British Columbia 

2.  Name of Judge:            &n bsp;      The Honourable Mr. Justice Paris 

3.  Offence(s) of which appellant convicted: 
            &nbs p;                           &n bsp;        Obstruction of Justice 

4.  Section of Crimnal Code or other Act under which the appellant was convicted was: 
            &nbs p;                           &n bsp;        Section 139(2), Criminal Code 

5.  Plea at trial            &nb sp;              ; Not Guilty 

6.  Whether or not jury trial:       Jury Trial 

7.  Length of trial:            &n bsp;         6 weeks 

8.  Sentence Imposed:                18 months imprisonment plus one year probation 

9.  Date of conviction           &nbs p;     June 19, 1998 

10.Date of sentence                    August 24, 1998 

11.If appellant in custody, place of incarceration: 
            &nbs p;                           &n bsp;         Burnaby Correctional Centre for Women 

TAKE NOTICE that grounds for appeal are: 

    (a)  appeals agains her conviction upon grounds involving question of law alone. 

    (b)  applies for leave to appleal her conviction upon grounds involving a question of fact 
          alone or a question of mixed law and fact, and if leave be granted hereby appeals 
          against the conviction. 

    (c)  applies for leave to appeal against sentect, and if leave be granted hereby appeals 
          against the sentence. 

The grounds for appeal are: 

NOTA BENE: 

Specifics of certain grounds of appeal cannot be set out herein because of the stricture of Orders imposed on defence counsel by the learned Trial Judge, which specifics are accordingly unknown to the Appellant, but known to Counsel for the Appellant, who are under order by the Learned Trial Judge to not disclose these matters to anyone including to the Appellant.  It is contemplated that motions on behalf of the Appellant in this regard will precede the filing of the Appellant's factum. 

(1)  The Learned Trial Judge erred in law in ordering that certain motins be heard in court proceedings from whoch both the accused and the public were excluded ("secret court").  The Appellant says that these secret court proceedings violated s. 650 of the Crimnal Code, as well as her right ot a fair trial as protected s. 11(d)  the Canadian Charter of Rights and Freedoms, and her right not to be deprived of her liberty except in accordance with the principles of fundamental justice, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. 

(2)  The Learned Trial Judge erred in law in interfering with the relationship between the accused and her counsel by ordering defence counsel not to communicate to the Appellant certain information obtained by wasy of Crown disclosure and through secret court proceedings , in violation of the appellant's righ to a fair trial as protected by s. 11(d) of the Canadian Charter of Rights and Freedoms  and her right not to be deprived of her liberty except in accordance with the principles of fundamental justice, as protected by s. 7 of the Canadian Charter of Rights and Freeoms. 

[3]  The Learned Trial Judge erred in law in ruling , through Orders that counsel for the Appellant are not at liberty to specify herein, that defence counsel not pursue or investigate, in or out of court, certain avenues of defence inquiry that arose in secret court, and further erred in ordering defence counsel not to discuss those matters with the Appellant, which rulings and orders were in violation of the Appellant's rights as protected by ss.11(d) and 7 of the Canadian Charter of Rights and Freedoms; 

(4)  The Learned Trial Judge erred in law by failing to quash the indictment, or, alternatively, by failing to order the Crown to particularise the Indictment sufficiently so that the Appellant could know the essence of the delict alleged against her; 

(5)  The Learned Trial Judge erred in law in improperly instructing the jury on the requisite mental element required to found a conviction for obstruction of justice; 

(6)  The Learned Trial Judge erred in law, given the circumstances of the case, in permitting the Crown to call former jurors as witnesses contrary to the principles of juror privilege; 

(7)  The Learned Trial Judge erred in law in failing to rules that the Indictment herein should be quashed as offending the prindciple of juror immunity from prosecution for breach of the juror's oath; 

(8)  The Learned Trial Judge erred in alw by failing to instrtuct the jurors called by the Crown that it was open to them to choose to discuss their evidence with defence counsel, and that they broke no law in so doing, thereby prejudicing the conduct of the defence; 

(9)  The Learned Trial Judge erred in law in ruling admissible in evidence certain intercepted private communications, and in failing to find that those intercepted communications violated s. 8 of the Canadian Charter of Rights and Freedoms; 

(10)  The Learned Trial Judge erred in alw by quashing defence subpoenas issued compelling the attendance at trial of Crown Prosecutors Richard Carins, Michael Luchenko, and Arlen Loyst, and thereby prejudicesd the defence; 

(11)  The Learned Trial Judge erred in failing to appropriaately charege the jury on the principle of reasonable doubt; 

(12)  The Learned Trial Judge erred in law in failing to adequately charge the jury on the principle of the burden of proof; 

(13)  The Learned Trial Judge erred in law in ordering the Appellant not to disculss the case with the media during the course of her trial; 

(14)  The Learned Trial Judge erred in admitting into evidence the hearsay evidence of the diary of Peter Gill; 

(15)  Such further and other grounds as counsel may advise and theis Learned Court may allow. 

The relief sought is : 

(1)  A setting aside of the conviction and the ientering of an acquittal; or 

(2)  The ordering of a new trial; or 

(3)  That the sentence imposed by the Learned Trial Judge be varied. 

The Appellant's address for service is: 

Gibbons Ritchie 
Law Offices, 
#1300-355 Burrard STreet, 
Vancouver, B.C. V6C 2G8 
 

Dated this 24th day of August, 1998 

(signed) 
Solicitor on behalf of appellant
To the Registrar  Return to Legal Documents of Regina v. Guess 
 

[2]  Given all the evidence I have heard in the case so far, given the fact that the thrust of the Crown’s evidence in that regard, is apparently not challenged on cross-examination, and given the availability of so many other witnesses present in court who could give further evidence in that regard, at this point more evidence from Crown counsel on the case does not seem tome to be material in any realistic sense of the word.

[3]  The only conclusion I can come to is that there is some other prupose, as well, for the issuance of the subpoenas.  Indeed, Mr. Ritchie, in effect acknowledges that, that he has another purpose which he does not which to disclose, which is, of course, his prerogative.

[4]  I note, and I hasten to say that I have not used the word "ulterior" purpose because that might imply something improper.  I do not know that and I am not suggesting that.  It may be that if there is another purpose for the calling of these witnesses, that is, to adduce some other evidence, such evidence would be perfectly admissible.  But I am not told what such evidence might be.

[5]  As I have said, the application is before me.  The test on the authorities in the Criminal Code is clear, and I have to deal with it.  The use of court process to compel people to come to court is a significant, serious matter, especially when it is counsel that is sought to be brought in as a witness, who has acted on a case which in some way is the subject of the proceedings.

[6]  Therefore, I have no alternative, in my view, but to quash the subpoenas at this point, and that is my order.

(signed)
The Honourable Mr. Justice Paris.

1. "Wilfully" - means to commit an act deliberately, intentionally and, in 
this case, knowing that it was an obstruction or perversion of the course 
of justice (as defined below).

2. "Obstruct" - prevent or retard the progress of, impede.

3. "Pervert" - turn a thing aside from its proper use or nature.

4. "Defeat" - frustrate, baffle, or annul.

5. "Attempt" - to perform acts which one knows have the tendency to 
  obstruct, pervert or defeat the course of justice.

6. "Course of Justice" - that expression has a broad meaning.  However, 
for the purposes of this case you can tak it that course of justice means 
a judicial proceeding.  Specifically, it refers to the murder trial that you 
have heard referred to at which the accused was a sworn juror.  And in 
that respect the course of justice not just the result or decision in the 
case, but also the process or procedure by which the accused were 
being tried.

 Specifically, in this case the allegation is that by having an affair with one of the accused druing the murder trial and continuing to act as a juror Ms. Guess perverted the judicial process, the procedure by which those person were being tried.  It will be for you to decide, firstly, whether she did in fact have such a relationship during the trial and, secondly, if she did, whether that constituted a wilful attempt by her to obstruct, pervrt or defeat the course of justice as I have just described it to you, that is, the procedure by which the accused in the murder case were being tried.

 In the circumstances of this case the issue is not whether the verdict of the jury in the murder case was correct or incorrect or whether the accused believed it was correct or incorrect.  The allegation is that the process or procedure by which the verdict was arrived at, that is, the trial itself, was obstructed or perverted.  Of course, the Crown must prove that the accused did so wilfully, that is, knowing that she was obstructing or perverting the trial process.

I have told you that as sworn jurors you are the judges of the facts and as such you perform a judicial function.

 The core issue in this kind of allegation is whether the relationship is so close that the conflict of interest and the danger of not being able to be impartial are so great and so obvious that the person would know that they could not continue to act as judge or jror, and that to do so would be a perversion of the trial process, and therefore of the course of justice.  In such a case there could not be a fair trial—that is, far to both sides.  And it would make no difference whether the verdict was correct or not or if the judge or juror thought it was correct.  There would have been no real trial at all.  The trial process and therefore the course of justice would have been obstructed or perverted.

 In sum, if the intimate relationship alleged existed during the trial it is for you to decide whether continuing to act as a juror constituted an obstruction or perversion of the course of justice, that is, the trial process, and whether the accused did it wilfully, that is, knowing that what she was doing was obstructing or perverting the trial process.  To convict the accused you must be satisfied of those things beyond a reasonable doubt.