COURT OF APPEAL FOR ONTARIO DATE: 20230614 DOCKET: C62307 & C65124

Gillese, Huscroft and Paciocco JJ.A.

DOCKET: C62307

BETWEEN

His Majesty the King Respondent

and

Dellen Millard Appellant

DOCKET: C65124

AND BETWEEN

His Majesty the King Respondent

and

Mark Smich Appellant

Dellen Millard, acting in person Richard Litkowski and Myles Anevich, for the appellant Mark Smich Benita Wassenaar, Katie Doherty, and Heather Fregeau, for the respondent

Heard: March 13-16, 2023

On appeal from the convictions entered by Justice Andrew J. Goodman of the Superior Court of Justice, sitting with a jury, on June 17, 2016.

Gillese J.A.:

I. OVERVIEW

[1] Timothy Bosma, aged 32, lived just outside Ancaster, Ontario, with his wife and young daughter. In April 2013, the family decided to sell his Dodge 3500 truck and posted it for sale online. Mr. Bosma arranged for an interested buyer to come to their home and see the truck on May 6, 2013.

[2] Dellen Millard and Mark Smich (the “appellants”) arrived on May 6 and the three men went for a test drive. Mr. Millard was driving, Mr. Bosma was in the front passenger seat, and Mr. Smich was in the rear seat. Mr. Bosma never returned. Shortly after he disappeared, Mr. Millard and Mr. Smich were charged.

[3] At trial, the appellants raised cut-throat defences. Mr. Smich placed the blame for the murder on Mr. Millard, claiming that Mr. Millard brought a gun to the test drive and shot Mr. Bosma. He said he had no knowledge of the gun or Mr. Millard’s intention to shoot Mr. Bosma. He claimed that he helped clean up and destroy evidence in the days following the murder because he was “utterly shocked at everything”. Mr. Millard did not testify at trial but his counsel argued, in closing, that the jury should conclude Mr. Smich was the shooter.

[4] At trial, the Crown theorized that Mr. Bosma was shot during the test drive and his body was burned in Mr. Millard’s incinerator where his remains were later found by police.

[5] Following a six-month jury trial, the appellants were convicted of the first‑degree murder of Mr. Bosma. Both of the appellants now appeal against conviction.

[6] The Crown submits that the case against each appellant was overwhelming. In its factum, the Crown offers the following brief summary of the evidence at trial:

Mr. Bosma’s truck was found at the home of Mr. Millard’s mother. Mr. Bosma’s blood was splattered throughout the vehicle. The passenger-side window was broken. Mr. Millard’s fingerprints were on the rear-view mirror and driver’s-side door. Video footage from the night that Mr. Bosma disappeared captured the movement of the truck on the night in question and placed the appellants inside the Millard Air hangar at 1:33 a.m. on May 7, 2013. The video surveillance also showed a large flame emerging from the hangar at 1:44 a.m. When police searched Mr. Millard’s farm, they found a ten-foot-tall incinerator – labelled the “Eliminator” – in the woods behind the barn. Male human bones were found inside. Mr. Bosma’s blood was on the hatch.

Gunshot residue and a .380-calibire shell casing were found inside Mr. Bosma’s truck. Text messages showed that Mr. Millard acquired a .380-calibre firearm the year before, and a photograph showed Mr. Smich holding that same gun. Months of text messages between the appellants showed they were planning a “mission” to steal a truck and discussing the acquisition and preparation of the Eliminator. After Mr. Millard was arrested, Mr. Smich enlisted friends to bring him the murder weapon in a toolbox. He later buried the gun and refused to disclose its location.

[7] For the reasons that follow, I would dismiss both appeals.

II. THE GROUNDS OF APPEAL

[8] Mr. Smich claims the trial judge erred in:

1. admitting irrelevant and highly prejudicial bad character evidence led by Mr. Millard against Mr. Smich;
2. refusing to allow Mr. Smich to lead similar bad character evidence against Mr. Millard, thus creating an imbalanced view of the two co-accused in the jury’s mind;
3. failing to properly instruct the jury on how to assess, apply, and differentiate the defence-led bad character evidence from the Crown-led bad character evidence;
4. curtailing Mr. Smich’s ability to tender key evidence regarding the transmission of letters from Mr. Millard to his then girlfriend, Christina Noudga, from jail, which instructed her on how to obstruct the police investigation and shift the blame from him to Mr. Smich;
5. failing to properly equip the jury on how to approach the evidence of a number of unsavoury witnesses by refusing to give Vetrovec warnings;
6. providing an incorrect instruction on planning and deliberation;
7. refusing to add a charge of accessory after the fact to the Indictment;
8. refusing to provide an appropriate limiting instruction after Mr. Millard’s counsel openly disparaged Mr. Smich’s counsel while the jury was within earshot;
9. failing to provide proper corrective instructions to cure the prejudicial effect of the improper closing addresses by the Crown and Mr. Millard, especially as it related to the need to keep distinct the evidence properly admissible against each accused on the relevant legal issues; and
10. providing a jury charge that was inherently confusing and accompanied by a misleading decision tree.

[9] In his initial notice of appeal, Mr. Millard set out 13 grounds of appeal. Shortly before the appeal was heard, he provided a written factum in which he did two things. First, he adopted the grounds of appeal that Mr. Smich advanced on Vetrovec (Ground #5), the instructions on planning and deliberation (Ground #6), the refusal to add a charge of accessory after the fact (Ground #7), and the jury charge and decision tree (Ground #10). Second, he argued that his appeal should be allowed because:

1. the trial was a miscarriage of justice due to Mr. Smich’s character attack on him, the inflammatory closing addresses, and his inability to respond;
2. in addition to Mr. Smich’s submissions on the instruction on planning and deliberation, there were facts that made it nonsensical to view Mr. Bosma’s murder as the result of planning and deliberation on his part;
3. the instruction on post-offence conduct was erroneous;
4. the theory of motive and instruction on it were erroneous; and
5. the trial judge erred in failing to give a Vetrovec warning in relation to the evidence of his co-accused, Mr. Smich.

[10] At the oral hearing of the appeal, the court advised the Crown that it needed to hear on only Grounds 1, 3, 6, and 9 of Mr. Smich’s appeal, and on only Ground 1 of Mr. Millard’s appeal. The court was satisfied that the other grounds of appeal were meritless.

III. MR. SMICH’S APPEAL

Ground 1 Bad character evidence elicited by Mr. Millard

[11] During the trial, Mr. Millard was permitted to elicit bad character evidence about Mr. Smich from his girlfriend, Marlena Meneses, and his friend, Brendan Daly, and through the admission of rap lyrics that Mr. Smich purportedly authored. The purpose of the evidence, according to Mr. Millard, was to show why Ms. Meneses and Mr. Daly would have initially minimized Mr. Smich’s involvement to the police, as well as to show that Mr. Smich had a general propensity for violence. Ms. Meneses testified that Mr. Smich was controlling and had physically abused her. Mr. Daly testified about Mr. Smich’s anger problem and poor treatment of another of his friends.

[12] On appeal, Mr. Smich submits that the trial judge erred in permitting this bad character evidence to be admitted with the result that his right to a fair trial was compromised. He contends that the trial judge failed in his gate-keeping duty because the bad character evidence had little probative value and was prejudicial, given the danger that the jury would engage in general propensity reasoning.

[13] I do not accept that the trial judge erred in admitting the evidence.

[14] In a joint trial, an accused may elicit bad character evidence of a co‑accused to raise a reasonable doubt about their own culpability. The party seeking to lead the evidence must provide a sound evidentiary foundation that supports the specific purpose for which the evidence is being led and identify the probative value and associated prejudice. Where the prejudicial effect of the evidence does not substantially outweigh its probative value, the evidence will be admissible: R. v. Pollock (2004), 188 O.A.C. 37 (C.A.), at paras. 106-7, 110, leave to appeal refused, [2004] S.C.C.A. No. 405; R. v. Davani, 2023 ONCA 169, at para. 41.

[15] In this case, the appellants raised antagonistic defences. Each argued that the other shot Mr. Bosma. The trial judge was repeatedly required to evaluate whether each co-accused would be permitted to elicit bad character evidence about the other. The trial judge permitted some of the requested evidence to go before the jury but excluded other aspects as unfounded or unduly prejudicial to Mr. Smich. His determination of the probative value of the numerous rap songs attributed to Mr. Smich evolved over the course of the trial, in response to the evidentiary landscape at the time each request was made. In making his determinations, the trial judge had to perform a careful balancing of the competing interests of the two co-accused.

[16] I see no reversible error in the trial judge’s decisions. He correctly ensured there was a proper foundation for the evidence Mr. Millard sought to elicit. He required Mr. Millard to identify the potential relevance and probative value of the areas he wished to explore with the witness or through the rap lyrics, and balanced the competing fair trial and full answer and defence rights of each accused.

[17] A trial judge’s decision on the admissibility of evidence of prior discreditable conduct involves a delicate balancing of the probative value of the evidence against its prejudicial effect and is entitled to a high degree of appellate deference: R. v. Higginbottom (2001), 150 O.A.C. 79 (C.A.), at para. 9; R. v. B.(C.R.), [1990] 1 S.C.R. 717, at pp. 733-34. I see no basis for appellate intervention with the trial judge’s decisions.

Ground 3 Jury instruction on bad character evidence

[18] When one co-accused tenders bad character evidence against another co‑accused, a trial judge must provide a limiting instruction to the jury detailing the permissible and prohibited uses of the evidence: Pollock, at paras. 103, 109. Mr. Smich acknowledges that the trial judge’s initial instruction to the jury on this matter was correct. The trial judge stated:

The evidence adduced by Smich against Millard of Millard’s alleged bad character, disposition or propensity to commit crimes may only be used by you to assist you in whether it raises a reasonable doubt about Smich’s involvement in the murder charged and for no other purpose.

The evidence adduced by Millard against Smich of Smich’s alleged bad character, disposition or propensity to commit crimes may only be used by you to assist you in whether it raises a reasonable doubt about Millard’s involvement in the murder charged and for no other purpose.

[19] However, Mr. Smich submits that the trial judge provided an incorrect instruction as to the use that could be made of the bad character evidence when he later told the jury they could use all of the evidence – that is, the bad character evidence led by the Crown and that elicited by Mr. Millard – in considering whether the Crown had proven its case. He points to the following passage (the Impugned Passage”) in support of this submission:

As mentioned, there were specific reasons why this evidence was admitted in this case and why you heard it. All of the evidence is part of the evidence – all of this testimony, rather – is part of the evidence that may go to your consideration of the issues raised you need to decide.

First, this type of evidence may provide context in terms of the relationship or association between the two accused.

Second, it may go to the issue of identity or opportunity to commit the crime alleged.

Third, it may relate to a specific accused’s involvement, intent or motive for their alleged participation in the commission of the crime.

Lastly, it may rebut a defence being advanced, or raise a reasonable doubt regarding the culpability of the accused who raised the issues against his co-accused.

Again do not consider the evidence – that an accused who possessed or sold drugs, or committed acts of thievery, or had a violent or reproachful nature or disposition – to immediately jump to the conclusion that he committed criminal offences or the crime charged. It is one piece of circumstantial evidence that you may consider along with all of the other circumstantial evidence.

[20] He argues that the Impugned Passage, by failing to differentiate bad character evidence led by the Crown from bad character evidence elicited by Mr. Millard and rolling them into the same part of the instruction, rendered the instruction problematic and confusing.

[21] I do not accept this submission.

[22] The jury was repeatedly correctly instructed about the potential use it could make of the bad character evidence Mr. Millard elicited about Mr. Smich. The instructions included that the bad character evidence that each co-accused elicited against the other could be used to raise a doubt regarding the elicitor’s guilt but not to determine if the subject of the evidence was guilty of the charged murder. These instructions were given both mid-trial and in the final charge.

[23] The mid-trial instructions noted:

• Neither accused was on trial for committing other offences (e.g. drug possession) or engaging in other offensive behaviour;
• Neither accused could be convicted of the charged murder based on their prior disposition or propensity; and
• Evidence about one accused’s disposition could be considered in evaluating whether the jury was left with a reasonable doubt about the elicitor’s guilt but not in determining if the Crown had proven the guilt of the accused to whom the evidence of disposition related.

[24] Following the Impugned Passage, the trial judge reiterated that the jury was to consider the bad character evidence elicited by each accused only to assist in determining whether they had a reasonable doubt about the elicitor’s culpability. The jury was told that they “must not” use the evidence to infer that the co‑accused, because of their propensity, was the type of person likely to commit the alleged offence of murder in this case.

[25] The trial judge devoted a section of his final charge to the bad character evidence that was tendered throughout the trial. Those instructions were canvassed with counsel before they were delivered. The instructions told the jury, among other things, that it was “vitally” important that they understood how they could and could not use the bad character evidence. They also stressed that prior disreputable conduct did not necessarily mean that they could not or should not believe or rely upon evidence adduced or elicited by the appellants nor could they rely on bad character evidence to jump to the conclusion that an accused committed the charged offence.

[26] Considered against this backdrop, I do not accept that the Impugned Passage misdirected the jury or could have led the jury to misuse the bad character evidence that Mr. Millard elicited against Mr. Smich. The Impugned Passage was subject to the instructions that the trial judge repeated in his mid-trial and final instructions, which sufficiently outlined the permissible and prohibited uses of the bad character evidence, both that adduced by the Crown and that elicited by Mr. Millard.

Ground 6 Jury instruction on planning and deliberation

[27] In his charge, the trial judge said:

Even if you are not satisfied that a plan to take human life was formulated before Bosma was killed, you should go on to consider whether a plan was arrived at and there was deliberation during the course of the evening in question.

[28] Mr. Smich submits that this instruction erroneously permitted the jury to find the killing was a planned and deliberate murder even if the plan post-dated Mr. Bosma’s death.

[29] I do not accept this submission. Mr. Smich’s proposed interpretation of the impugned phrase is based on one sentence in a lengthy charge in which the trial judge correctly and repeatedly instructed the jury that planning and deliberation relates to the intention to take human life and “deliberation must take place before the act of murder starts”.

[30] When the impugned instruction is considered within the context of the charge as a whole, the jury would have understood that the plan to kill could not have post-dated the murder. The jury would have understood the impugned sentence as meaning that it was to consider Mr. Smich’s actions before, during, and after the killing to evaluate whether there was a pre-existing plan. Given this context, the jury could not have reasonably interpreted this passage as endorsing the idea that the plan did not need to pre-date Mr. Bosma’s murder.

Ground 9 Closing addresses

[31] Mr. Smich makes a number of complaints on this ground of appeal. I will deal with each separately.

(a) Improper Closing Addresses

[32] Prior to the closing addresses, the trial judge cautioned Crown counsel and counsel for Mr. Millard to not repeat theories put to Mr. Smich during cross‑examination that Mr. Smich rejected and for which there was no evidentiary support. These theories included: (i) that the plan was to kill Mr. Bosma outside of his truck in the farmer’s field; (ii) Mr. Bosma had been shot in his truck while it was in the farmer’s field before it had been driven anywhere because he realized something was amiss and he tried to get back to his home; (iii) Mr. Smich pulled out a gun during the test drive and it went off accidentally, killing Mr. Bosma; and (iv) Mr. Smich killed Mr. Bosma to curry favour with Mr. Millard because he wanted Mr. Millard to give him an old Cadillac.

[33] Despite the judge’s caution, some of these theories were repeated by the Crown and Mr. Millard’s counsel in their closing submissions. Following those closing submissions, counsel for Mr. Smich objected.

[34] The trial judge gave a forceful corrective instruction in the jury charge, stating that the submissions “must be corrected”. He instructed the jury that assertions and theories are “not evidence” and “[y]ou must disregard them entirely in your determination of fact and in your assessment of whether it could raise a reasonable doubt or support the Crown in any findings of guilt.”

[35] In my view, the trial judge’s corrective instruction was sufficient to ensure that the jury did not consider the submissions that were made without an evidentiary foundation.

(b) Appeals to emotion in the Crown closing

[36] Mr. Smich contends that parts of the Crown’s closing were inflammatory and improper. He points to some of the Crown’s statements, which included: Tim (Mr. Bosma) was taken “from all of us”; “don’t forget about Tim”; and, Tim “may have tried to escape to get back to his family”.

[37] The trial judge provided a clear and firm corrective instruction on this matter, telling the jury it must “refrain from drawing on the sentiments and emotions” about Mr. Bosma and his family.

[38] In my view, the corrective instruction was sufficient to address the key concerns raised at trial. It is entitled to deference.

(c) Crown’s treatment of Mr. Smich and Mr. Millard

[39] Mr. Smich argues that the Crown conflated the evidence against Mr. Millard and him, and the trial judge gave a deficient corrective instruction, thereby creating a danger that the jury did not appreciate the proper uses of evidence. He points to the repeated suggestions in the Crown’s closing that “they” (referring to the two accused) acted together in planning the murder by referencing the acquisition of the incinerator, the execution of the truck theft, and the cover-up.

[40] The Crown was entitled to press its theory that Mr. Smich and Mr. Millard acted together in a planned and deliberate murder – that they were together when Mr. Bosma was killed, they burned his body together, and they destroyed evidence together afterward.

[41] The trial judge’s clear, specific, and repeated instructions on evidence that was admissible only against one accused, combined with his instructions on the need to evaluate each accused separately, alleviates any possible confusion arising from the Crown’s closing.

[42] In conclusion, I see no unfairness as a result of the closing arguments when they are considered in the context of the jury instructions as a whole, the various corrective instructions, and the trial as a whole. This was a hard-fought, lengthy, and contentious trial where the co-accused mounted antagonistic defences. The trial judge addressed the co-accused’s multiple complaints about each other’s closing arguments in a fair and balanced manner. He addressed the allegedly problematic aspects of the Crown’s closing firmly, clearly, and correctly.

[43] Accordingly, I reject this ground of appeal.

IV. MR. MILLARD’S APPEAL

[44] As explained above, the court called on the Crown to respond to only the first ground of Mr. Millard’s appeal. In it, he submits that the cumulative effect of Mr. Smich’s attack on his character, the Crown’s inflammatory closing address, and his inability to respond resulted in a miscarriage of justice.

[45] I reject this ground of appeal.

[46] Above I explain why I reject Mr. Smich’s submission that the trial judge erred in permitting Mr. Millard to elicit bad character evidence against him. The same reasoning applies to Mr. Millard’s contention that the trial judge erred in permitting Mr. Smich to adduce bad character evidence about him. In sum, that reasoning is as follows.

[47] The trial judge was repeatedly required to evaluate whether each co‑accused would be permitted to elicit bad character evidence about the other. He permitted some evidence to go before the jury but excluded other aspects that he ruled were unfounded or unduly prejudicial. His rulings evolved over the course of the trial, in response to the evidentiary landscape at the time each request was made. In making his determinations, the trial judge had to perform a careful balancing of the competing interests of the two co-accused. He correctly ensured there was a proper foundation for the evidence, and required the requesting party to identify the potential relevance and probative value of the areas he wished to explore. He carefully balanced the competing fair trial and full answer and defence rights of each accused. His determinations are entitled to deference, and I see no basis for appellate interference.

[48] In addition, as noted above, any issues with the Crown’s allegedly inflammatory closing address were alleviated by the trial judge’s corrective instructions.

[49] Finally, I do not accept that unfairness arose from his alleged inability to respond to perceived wrongdoings of the Crown and counsel for Mr. Smich. Mr. Millard was represented by counsel at the trial who had the opportunity to raise any concerns he had about these matters with the trial judge and, in fact, did so.

[50] For these reasons, I see no merit to Mr. Millard’s appeal.

V. DISPOSITION

[51] Accordingly, I would dismiss both Mr. Smich’s and Mr. Millard’s conviction appeals.

Released: June 14, 2023 “E.E.G” “E.E. Gillese J.A.” “I agree. Grant Huscroft J.A.” “I agree. David M. Paciocco J.A.”