Court of Appeal for Ontario

CITATION: R. v. Millard, 2023 ONCA 426

DATE: 2023-06-15

DOCKET: C69963 & C67473

Gillese, Huscroft and Paciocco JJ.A.

DOCKET: C69963

BETWEEN

His Majesty the King

Respondent

and

Dellen Millard

Appellant

DOCKET: C67473

AND BETWEEN

His Majesty the King

Respondent

and

Mark Smich

Appellant

Ravin Pillay, for the appellant, Dellen Millard

Richard Litkowski and Myles Anevich, for the appellant, Mark Smich

Benita Wassenaar, Katie Doherty and Heather Fregeau, for the respondent

Heard: March 13 and 14, 2023

On appeal from the convictions entered on December 16, 2017, by Justice Michael Code, of the Superior Court of Justice, sitting with a jury, and from the sentences imposed on February 26, 2018, with reasons at 2018 ONSC 1299.

Paciocco J.A.:

OVERVIEW

[1] The appellants, Dellen Millard and Mark Smich, were convicted of the first-degree murder of Laura Babcock. They each appealed separately, but their appeals were heard together. For the reasons that follow, I would not allow any of the numerous grounds of appeal against conviction brought by either of the appellants. I would dismiss their conviction appeals.

[2] At the time they were sentenced, both appellants had already received minimum sentences of life imprisonment without eligibility for parole for 25 years, after being convicted of first-degree murder in the killing of Timothy Bosma. For the murder of Laura Babcock, the trial judge also imposed minimum sentences of life without eligibility for parole for 25 years. Pursuant to s. 745.51 of the Criminal Code, R.S.C., 1985, c. C-46,the trial judge ordered that this period of parole ineligibility on the Babcock murder be served consecutively to the parole ineligibility imposed for the Bosma murder.

[3] Section 745.51 was subsequently found by the Supreme Court of Canada, in R. v. Bissonnette, 2022 SCC 23, 414 C.C.C. (3d) 1, to be of “no force or effect” retroactively to the date of its enactment in 2011, as contrary to s. 12 of the Canadian Charter of Rights and Freedoms. Given that the appellants are entitled to the benefit of the Bissonette decision, the Crown does not oppose an order by this court granting the appellants leave to appeal their sentences, and quashing the orders made pursuant to s. 745.51, while otherwise leaving their sentences intact. The Crown concession is appropriate, and I would make those orders.

[4] It is unnecessary to say more about the sentence appeals. I will focus below solely on explaining my reasoning for denying the conviction appeals.

MATERIAL FACTS

[5] Mr. Millard and Mr. Smich were close friends, but they inhabited different worlds before meeting.

[6] Mr. Millard’s father was a successful, wealthy entrepreneur who provided Mr. Millard with a privileged lifestyle, even as Mr. Millard approached his late twenties. His father owned several properties that Mr. Millard enjoyed, including a home at 5 Maple Gate Court in Etobicoke Ontario, an airport hangar in the Waterloo region, and a farm also in the Waterloo region.[^1]

[7] In contrast, Mr. Smich had a disadvantaged background and a criminal record and was Mr. Millard’s drug dealer. Mr. Millard was generous in providing Mr. Smich with food, drugs, and accommodation. Mr. Smich and his girlfriend, Marlena Meneses, would frequently stay at Mr. Millard’s 5 Maple Gate Court home when they were not staying at Mr. Smich’s mother’s house. Mr. Millard would pay Mr. Smich and Ms. Meneses for odd jobs.

[8] Along with other associates of Mr. Millard, Mr. Smich and Mr. Millard’s activities included going on “missions” that involved committing petty crimes.

[9] Laura Babcock was also a friend of Mr. Millard and had been in an intimate relationship with him for a brief period prior to 2012.

[10] In February 2012, Ms. Babcock told Christina Noudga, Mr. Millard’s girlfriend, that she had recently slept with Mr. Millard. Ms. Noudga was jealous of Ms. Babcock and confronted Mr. Millard about it. In April 2012, in text message exchanges that were ultimately admitted into evidence, Mr. Millard assured Ms. Noudga that he was going to “remove [Ms. Babcock] from [their] lives”. He said he would first “hurt her” and then “make her leave”. Ms. Noudga responded that this made her “feel really loved and all warm on the inside.” The Crown theory was that this love triangle provided Mr. Millard with the motive to kill Ms. Babcock, and that Mr. Smich agreed to assist Mr. Millard out of loyalty.

[11] The Crown theorized that Mr. Millard began preparing for Ms. Babcock’s murder by May 4, 2012, when he asked a friend to keep him updated “on where [Ms. Babcock] goes out to”.

[12] Over the next two months, with Mr. Smich’s knowledge and assistance, Mr. Millard took steps to acquire an incinerator capable of cremating a body. Mr. Millard told Shane Schlatman, a mechanic who worked at Mr. Millard’s airport hangar, that he wanted the incinerator so that he could go into business with his uncle, Dr. Robert Burns, a veterinarian, incinerating dead animals. He also mentioned providing a mobile incineration service for other businesses. Dr. Burns would later testify that Mr. Millard never mentioned this business to him, and he made it clear in his testimony that the idea was “absurd”, most particularly the idea of a mobile animal incineration business.

[13] Initially, Mr. Millard had Mr. Schlatman attempt to build a homemade incinerator. This did not meet with success, and Mr. Smich offered to, and may have participated in, its failed testing. By June, Mr. Millard was arranging for the purchase of a commercial incinerator, which was shipped on June 20, 2012, and delivered to the hangar on July 5, 2012. The commercial incinerator had the name “The Eliminator” marked on its side.

[14] Mr. Millard also took steps between June 30 and July 3, 2012, to purchase a gun from a man named “Isho”, who was a friend of Mr. Smich’s sister. Text messages provided evidence that on July 2, 2012, Mr. Millard acquired a .32 calibre handgun with a stamp on the barrel, “32 LONG CTG”, from Isho, and then arranged for ammunition. A year later police would find a functional .32 Smith and Wesson revolver with an identical stamp at the 5 Maple Gate Court residence with Mr. Millard’s DNA on the handle, linking the gun to Mr. Millard.

[15] Between June 30 and July 3, 2012, while Mr. Millard was in the process of securing the gun and anticipating delivery of the incinerator, he and Ms. Babcock began to communicate frequently by cellphone. Cellphone records, including cellphone tower evidence, put Mr. Millard and Ms. Babcock together on July 3, 2012. On that date, Ms. Babcock’s cellphone records enable her cellphone to be traced from Kipling subway station in Toronto to the area of 5 Maple Gate Court, between 5:40 p.m. and 7:03 p.m. Records for a cellphone being used by Mr. Millard show that it was in the same locations at the same times, providing circumstantial evidence that he was with Ms. Babcock during this period.

[16] At 6:51 p.m., while apparently travelling with Ms. Babcock from Kipling station, Mr. Millard texted Mr. Smich, “I’ll be back in 15 mins, don’t be out front.”

[17] At 7:33 p.m., Mr. Millard again texted Mr. Smich saying that he was on a mission and would be back in an hour. As indicated, “mission” is a term the young men used to describe their criminal ventures. At this time, Ms. Babcock’s phone and Mr. Millard’s phone had left the area of 5 Maple Gate Court and were travelling north on Highway 427. Both phones were again in the vicinity of 5 Maple Gate Court at 8:21 p.m.

[18] At 10:20 p.m., Ms. Noudga texted Mr. Millard, saying, “I’ll see you Friday, have fun doing big things.”

[19] Even though Ms. Babcock’s body has never been discovered, the Crown theory was that Ms. Babcock was murdered at some point between 7:33 p.m. on July 3, 2012, and the morning hours of July 4, 2012. This theory is supported by Ms. Babcock’s sudden and mysterious disappearance. After July 3, 2012, she was not heard from by friends and family with whom she typically maintained regular contact. Her bank account and credit card, which had been active before July 3, 2012, show no activity after July 3, 2012. When Ms. Babcock disappeared, she left behind an envelope with $1000 in cash and her beloved dog. And her cellphone, which she used frequently, was not used for any outgoing purposes after 7:03 p.m. on July 3, 2012.

[20] Ms. Babcock’s cellphone stopped working around 11:00 a.m. the next day, July 4, 2012. Immediately before it stopped working it can be tracked travelling along Lakeshore Boulevard, near Lake Ontario. A cellphone used by Mr. Millard can be tracked taking the same route, at the same time. The Crown theory was that Mr. Millard threw Ms. Babcock’s cellphone into Lake Ontario.

[21] This theory was further supported by rap lyrics authored by Mr. Smich, who is an aspiring rap artist. I describe the “ashy stone rap lyrics” below. Those lyrics would later be found on an iPad that Ms. Babcock possessed at the time of her disappearance. That iPad was connected to Mr. Millard’s computer at 10:43 a.m. on July 4, 2012, and later renamed “Mark’s iPad”. Mr. Smich was ultimately found in possession of this iPad as well as a red suitcase that belonged to Ms. Babcock at the time of her disappearance.

[22] The ashy stone rap lyrics, along with other evidence, also supports the Crown theory that Ms. Babcock’s body was burned by Mr. Millard and Mr. Smich, on the evening of July 23, 2012. This “other evidence” includes the following:

• Mr. Millard sent a text message to Mr. Smich at 10:00 a.m. on July 4, 2012, shortly after Ms. Babcock disappeared, in which Mr. Millard said, “I rolled my first spliff”. “Spliff” is slang for a rolled marijuana cigarette. At 2:40 p.m. that day, Mr. Millard took a photograph of something consistent in size and shape with a human body rolled in a tarp. The grommets of the tarp can be seen. At 3:21 p.m. Mr. Smich texted back, “How’s the spliff”. When The Eliminator incinerator was discovered by the police almost a year later in connection with an unrelated investigation, five grommets, consistent with the grommets on the tarp depicted in the photograph were found in the ash inside the incinerator.
• Mr. Millard’s 10:00 a.m. “spliff” message was composed shortly before Ms. Babcock’s cellphone stopped working. At 11:03 a.m. shortly after Ms. Babcock’s cellphone stopped working, Mr. Millard texted Mr. Smich that he had gone to Waterloo and would be back at 4:00 p.m. It appears that the “spliff” was “rolled” before Mr. Millard set out for Waterloo.
• As indicated, the Millard farm is in the vicinity of Waterloo. The Crown theory was that Mr. Millard took Ms. Babcock’s body to the farm on the trip he texted Mr. Smich about. When the photograph of the “spliff” was taken on Mr. Millard’s phone at 2:40 p.m., part of a vehicle can be seen in the background. It was identified as Mr. Millard’s father’s vehicle, which Mr. Millard is known to have borrowed that morning. It has an elevating gate that could assist in lifting a body. On July 7, 2012, Mr Millard’s calendar had an entry, “barn smell check”.
• On July 5, 2012, the commercial incinerator was delivered by its manufacturer to the hangar. In the ensuing days, Mr. Millard and Mr. Smich worked on getting the incinerator operational and constructing a “BBQ trailer”, which would allow the incinerator to be mobile, despite its significant size.
• On July 21, 2012, Mr. Millard texted Mr. Smich, “Just picked up the BBQ, seems ready to go.” It was the Crown theory that Mr. Millard had moved the incinerator from the hangar to the farm in preparation for Ms. Babcock’s incineration.
• In the same July 21, 2012, text conversation in which Mr. Millard advised Mr. Smich that he had “picked up the BBQ”, Mr. Millard asked Mr. Smich to come over, without Ms. Meneses. Mr. Smich replied, “She can wait in the front while we [are] out back talkin to that girl … if [you] know what I mean.” Mr. Smich and Mr. Millard then discussed final preparations for using the incinerator “tomorrow after dark”.
• On July 22, 2012, Mr. Millard texted Mr. Schlatman asking him about starting the incinerator.
• On July 23, 2023, Mr. Millard texted Mr. Smich shortly after 3:00 p.m., “BBQ has run its warm up, it’s ready for meat.” Ms. Meneses would later testify that on an unidentified summer night, Mr. Millard picked her and Mr. Smich up and drove them to the farm because Mr. Millard wanted to “test” the incinerator. She was told to sit in the car, not to pay attention, and keep her headphones on, consistent with Mr. Smich’s July 21, 2012, message to Mr. Millard that “she can wait in the front”. Ms. Meneses testified that Mr. Millard and Mr. Smich went in the barn for “half-an-hour” before leaving and travelling to the hangar, with the incinerator attached to the truck. The Crown theory was that Ms. Babcock’s body was inside. Ms. Meneses testified to seeing smoke coming out of the incinerator after they arrived at the hangar, and that, after staying at the hangar for hours, Mr. Millard and Mr. Smich subsequently transported the incinerator back to the farm and dropped it off at the back of the barn.
• At 10:38 p.m. on July 23, 2012, an internet search was done on Mr. Millard’s cellphone, asking “what temperature is cremation done at?” Between 11:14 and 11:16 p.m., photographs were taken on Mr. Millard’s phone of Mr. Smich smiling while standing at the hangar in front of The Eliminator incinerator holding an ash rake. Four minutes later, a photograph was taken on Mr. Millard’s phone of the inside of the incinerator, in operation. Bone fragments can be discerned in the photograph. The Crown expert witness, Dr. Tracy Rogers, offered the opinion that the bones could be human or animal, a conclusion accepted by Mr. Scott Rufolo, the defence expert witness, although Mr. Rufolo’s view was that the bones appear to be more consistent with deer than human bones.

[23] The ashy stone rap lyrics were composed by Mr. Smich in whole, or in part, beginning at 12:40:05 a.m. on July 24, 2012, as evidenced by the creation of the file containing the lyrics on “Mark’s iPad”.[^2] This, of course, is within two hours of the alleged cremation. Along with the other evidence described above, the timing and content of those lyrics supported the Crown theories that Ms. Babcock’s cellphone was thrown in the lake on July 4, 2012, and that she was cremated on July 23, 2012:

The bitch started off all skin and bone,

now the bitch lay on some ashy stone,

last time I saw her was outside the home,

and if u go swimming u can find her phone.

[24] The ashy stone rap lyrics were found not only on Mark’s iPad, but also on a computer located in Mr. Millard’s residence that had been used to back up Mark’s iPad.

[25] Two witnesses, Desi Liberatore and David Cronin, high school aged boys to whom Mr. Smich sold drugs and had befriended, testified that on an unspecified date in August 2012, Mr. Smich performed the rap for them and their friend, James Lewis, in Mr. Smich’s mother’s garage. Mr. Liberatore testified that Mr. Smich then detailed what happened, saying “they” torched a woman’s body and threw a cell phone in the lake. Mr. Cronin testified that Mr. Smich said that he had killed a girl, burned her body and threw it in the lake. Mr. Lewis was not called as a witness.

[26] On September 25, 2012, Mr. Smich again performed the rap lyrics in the basement of Mr. Millard’s 5 Maple Gate Court home. A video recording of the performance was found on Mr. Millard’s iPhone. Ms. Meneses, who can be seen in the film, along with Mr. Smich and Mr. Millard’s dog, could not recall the rap being filmed, but deduced that it would have been filmed by Mr. Millard as the three of them were always together at his house. A copy of the iPhone video of the performance was later found backed up on Mr. Millard’s computer.

[27] On April 10, 2014, police executed a search warrant at Ms. Noudga’s residence and discovered letters Mr. Millard had written to Ms. Noudga and smuggled out of prison while detained pending trial for the murder of Mr. Bosma. In one of the letters, Mr. Millard wrote to Ms. Noudga: “Whatever you may believe it needs to be put aside. This is what happened.” The letter then describes a narrative in which Ms. Babcock overdosed while doing cocaine with Mr. Smich in the basement of Mr. Millard’s 5 Maple Gate Court residence. It also includes instructions to Ms. Noudga to destroy the letter. Mr. Millard and Mr. Smich were arrested for the murder of Ms. Babcock later that same day. The letters were admitted at the trial against Mr. Millard as after-the-fact conduct evidence.

[28] Despite the role she played in the case, Ms. Noudga was never called as a witness.

[29] Neither Mr. Millard nor Mr. Smich testified in their defence at the trial. They each argued that the Crown had not proved beyond a reasonable doubt that Ms. Babcock was dead, or that they had any involvement in causing her death.

[30] The appellants’ challenge to the sufficiency of the proof that Ms. Babcock was dead was rooted in the theory that Ms. Babcock, who had mental health challenges and who worked as an escort, could have chosen to disappear, or have come to a mishap without their involvement. She had made statements that exhibited a loose intention to go away, and she had had suicidal ideations.

[31] The defence position was that, at the very least, there was a reasonable doubt as to whether Ms. Babcock was still alive after the point in time when the Crown claimed she had died. There was a basis in the record for this defence position. Megan Orr, Ms. Babcock’s friend, testified to having a phone conversation with Ms. Babcock on July 4, 2012, at 4:00 a.m., which, if true, contradicted the Crown theory that Ms. Babcock died on July 3, 2012, and complicated the Crown’s alternative position that if she did not die on July 3, 2012, she died in the early morning hours of July 4, 2012. Dr. Sohail Khattak, who was occasionally meeting with Ms. Babcock at a local hotel during the material timeframe, said he met with her around July 10 to 13, 2012, a claim which if true undercut entirely the Crown theory of Ms. Babcock’s killing. Mr. Millard also called Gabe Austerweil, who testified he saw Ms. Babcock in October 2012 at a bulk food store.

[32] Mr. Millard also relied on an out-of-court statement made by Crown witness Bradley Dean, in which Mr. Dean allegedly said that he believed he saw Ms. Babcock on July 10 or 17, 2012. However, that statement did not become evidence in the case. When Mr. Millard confronted Mr. Dean with this alleged statement during cross-examination, Mr. Dean denied making it, and no such statement was ever proved.

[33] The Crown position at trial was that any witnesses who believed they had contact with Ms. Babcock after the point in time when the Crown claimed she died were mistaken. The Crown asked the jury to accept this based in part on Ms. Babcock’s cellphone records. The Crown had not confronted any of these witnesses with Ms. Babcock’s cellphone records before making this submission.

THE ISSUES

[34] Mr. Millard and Mr. Smich advanced common and distinct grounds of appeal from their convictions. The grounds of appeal that were pursued are as follows:

Common Grounds of Appeal

A. Did the trial judge commit a reversible error by instructing the jury that reasonable doubt can be based on logical non-speculative inferences?

B. Did the trial judge commit a reversible error by instructing jurors to find the facts first?

Mr. Smich’s Additional Grounds of Appeal

C. Did the trial judge commit a reversible error by providing an unfair charge relating to Mr. Smich’s party liability?

D. Did the trial judge err by providing an inadequate jury charge on Mr. Smich’s after-the-fact conduct?

E. Did the trial judge misdirect jurors on the mens rea elements of planned and deliberate first-degree murder through aiding or abetting?

F. Did the trial judge err in the mid-trial instruction he gave about the failure of the Crown to call witnesses?

Mr. Millard’s Additional Grounds of Appeal

G. Did the trial judge err by instructing jurors that they could use the ashy stone rap lyrics as evidence against Mr. Millard?

H. Did the trial judge err by permitting Dr. Burns to provide inadmissible testimony?

I. Did the trial judge err by permitting the Crown to contradict witnesses without prior confrontation?

J. Did the trial judge err in refusing to grant Mr. Millard’s adjournment request?

[35] As indicated, I would not give effect to any of these grounds of appeal.

ANALYSIS - COMMON GROUNDS OF APPEAL

A. Did the trial judge commit a reversible error by instructing the jury that reasonable doubt can be based on logical non-speculative inferences?

[36] The trial judge provided jurors with an uncontroversial jury instruction on reasonable doubt and the burden of proof. He subsequently instructed them “about circumstantial evidence” and provided an uncontroversial instruction about inferring guilt from circumstantial evidence. He then provided jurors with what he called a “related instruction” about inferences that give rise to reasonable doubt. He twice told jurors that “a finding that the accused is not guilty, can be based on any reasonably possible, non-speculative and logical inference that arises from the evidence or lack of evidence”. After he repeated an earlier caution that he had given that “inference drawing is not to be based on speculation or on absence of any evidentiary basis”, he continued by saying, “[i]t has to be [a] non-speculative, reasonably possible, logical inference that the accused is not guilty based on the evidence or the lack of evidence.”

[37] Both appellants argue that this “related instruction”, linking inference drawing to reasonable doubt, was wrong because “a not guilty verdict is [not] an inference” and need not rest on a line of reasoning, or evidence. They argue that to require reasonable doubt to be based on a non-speculative, reasonable inference would reverse the burden of proof, and is inconsistent with jurisprudence from this court including R. v. Brown, 2018 ONCA 1064, at para. 15; R. v. Darnley, 2020 ONCA 179, 387 C.C.C. (3d) 200, at paras. 32-36; and R. v. Mann, 2021 ONCA 103, 481 C.R.R. (2d) 143, at paras. 12-20.

[38] I would not give effect to this ground of appeal. It is not an error to direct jurors that a reasonable doubt can be based on a factual inference that is inconsistent with guilt. The rule in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 30, that an inference of guilt may be drawn from circumstantial evidence, only if it is “the only reasonable inference that such evidence permits” recognizes that a reasonable doubt will arise where there are factual inferences inconsistent with guilt that arise from the evidence. It was therefore not erroneous for the trial judge to explain how innocent inferences may be drawn.

[39] Of course, a reasonable doubt does not depend on jurors identifying an innocent inference that arises from the evidence. Reasonable doubt can, and typically does, arise in other ways. For example, there will be reasonable doubt where, because of the absence or insufficiency of evidence, the trier of fact is unable to draw any inferences or conclusions: Darnley, at paras. 33-36. Where this occurs, the Crown will have failed to prove its case beyond a reasonable doubt. There will also be a reasonable doubt if the jurors cannot come to a definitive conclusion with respect to the credibility or reliability of competing versions of the relevant events where one of those versions is innocent: R. v. Austin (2006), 2006 CanLII 39077 (ON CA), 214 C.C.C. (3d) 38, at para. 20 (Ont. C.A.); R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at pp. 757-58.

[40] Therefore, had the trial judge directed jurors that the only path to reasonable doubt is through non-speculative, reasonably possible, logical inferences of innocence, he would have erred. But that is not what he told jurors. His earlier instructions made clear to jurors that if they are unable to draw inferences or conclusions about guilt, they must find the appellants not guilty. In the course of his instruction he told jurors that “the evidence does not have to answer every question raised in the case” and that their role is only “to decide those matters that are essential to [their] ability to say whether the charge has been proved beyond a reasonable doubt” by the Crown. He also directed jurors that a reasonable doubt can arise “from the evidence, from a conflict in the evidence, or from a lack of evidence” that leaves them “not sure that Mr. Millard or Mr. Smich committed a particular offence”. The trial judge delivered this message to jurors in various ways before he directed them on finding reasonable doubt by drawing inferences that the accused is not guilty. When the trial judge did turn to drawing innocent inferences that give rise to reasonable doubt, it was in a section of his charge dedicated to drawing inferences from circumstantial evidence in which he explicitly cross-referenced his initial reasonable doubt instruction. Subsequently, he identified several gaps in the evidence which “can lead to a reasonable doubt” and he gave jurors an elaborate instruction on how reasonable doubt applies to the credibility and reliability of exculpatory evidence.

[41] In sum, the trial judge was not wrong in telling jurors that they could find a reasonable doubt based on non-speculative inferences that follow logically from the evidence, nor did he direct jurors that this was the only way to be left in reasonable doubt. He told them quite the contrary, without error. I would therefore reject this ground of appeal.

B. Did the trial judge commit a reversible error by instructing jurors to find the facts first?

[42] This court reaffirmed in R. v. Hayles-Wilson, 2022 ONCA 790, that it is “wrong” to direct jurors to engage in two-step reasoning, by finding facts before applying the law. I accept the appellants’ submission that the trial judge erred in this case by giving a similar two-step instruction. I would not, however, allow the appeal on this basis.

[43] The impugned two-step direction is found in the written jury charge that jurors were provided with, and it was repeated orally in court. The trial judge told jurors that they should “begin [their] deliberations by trying to decide the facts, that is, decide issues of credibility and reliability and weight and make findings about what happened during the relevant time period. In other words, do your fact finding first” (emphasis in the original written jury charge). In his oral charge the trial judge augmented this charge by sharing his view with jurors that this “advice” would make it easier to apply complex legal concepts.

[44] Although the trial judge was wrong to provide this two-step charge, I would not find that a reversible error occurred, in the circumstances of this case.

[45] First, in Hayles-Wilson, where the appeal was denied notwithstanding that this same kind of error was made, the trial judge did not direct jurors to reason in this way but was “merely recommending that approach”. This was advice, not a firm direction. The same holds true in this case.

[46] Second, the mischief that two-step instructions can create is sufficiently attenuated in the circumstances of this case such that it would not be in the interests of justice to overturn the verdicts on this basis:

• The primary concern is that two-step reasoning is not consistent with the proper evaluation of reasonable doubt because: (1) not all facts that feature in a narrative of “what happened” need to be proved to this standard, only the facts relied upon to establish the elements of an offence, which are identifiable only when a jury is endeavouring to apply the law; (2) standards of proof apply to ultimate issues, not individual facts; and relatedly, (3) directing jurors to find facts first creates the risk that jurors may discard facts because there is doubt about what those facts prove, when uncertainty about what facts prove can operate as a basis for a finding of reasonable doubt: Hayles-Wilson, at paras. 22-24, citing R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 360-61. None of these concerns arise materially in this case. Concern (1), that the reasonable doubt standard will be applied to facts that legally do not have to be proved beyond a reasonable doubt would prejudice the Crown, but not the accused. It is therefore not a concern that the appellants can rely upon. With respect to concerns (2) and (3), there is no material reason to fear that such reasoning errors occurred in this case. I agree with the Crown’s submission on appeal that the jurors received sufficiently clear and correct direction on the elements of the offence, how to assess reasonable doubt, and how to apply standards of proof, to ameliorate these risks. In sum, although a two-step direction can invite an improper evaluation of reasonable doubt, there was no risk of that happening when this jury direction is read as a whole.
• A related mischief created by the two-step reasoning the trial judge encouraged is that jurors may not be able to resolve factual controversies, and directing them to determine the facts first can imply that they are obliged to come to a definitive factual conclusion: Hayles-Wilson, at para. 24. Here the trial judge did not direct jurors to decide “what happened”. He told them to “[try] to decide the facts”. This, along with his repeated instructions that reasonable doubt can arise from a lack of evidence, ensured that jurors in this case did not proceed on the erroneous understanding that they were required to resolve “what happened”.
• A remaining concern is that two-step instructions are capable of frustrating the entitlement of individual jurors to arrive at their own verdicts without agreeing to the same facts: Hayles-Wilson, at para. 22. I see nothing in the two-step charge in this case that could suggest to jurors that they must collectively agree on the factual findings before settling their verdicts.

[47] I would therefore reject this ground of appeal.

ANALYSIS – MR. SMICH’S ADDITIONAL GROUNDS OF APPEAL

C. Did the trial judge commit a reversible error by providing an unfair charge relating to Mr. Smich’s party liability?

[48] The trial Crown did not allege that Mr. Smich participated directly in the violence that killed Ms. Babcock. The Crown alleged that it was Mr. Millard who took her life. Mr. Smich was prosecuted as a party to her murder, by knowingly and intentionally aiding or abetting Mr. Millard in killing her.

[49] Mr. Smich does not take issue with the trial judge’s instruction on the legal elements that the Crown is required to prove to convict him as an aider or abettor. He argues that the jury charge was deficient because the trial judge did not adequately “relate the evidence (or lack thereof) to the legal issues the jury had to decide”, thereby failing to assist jurors with the defence position on this theory of liability.

[50] I would dismiss this ground of appeal. Not only did the trial judge invite Mr. Smich’s counsel to comment on the adequacy of his summary of the defence position on the aiding and abetting issue without receiving any objection, but Mr. Smich raised none of the points in his jury address that he now submits the trial judge was obliged to include. The trial judge provided jurors with a fair outline of the evidence and the defence position, enabling them to gain a sufficient understanding of the evidence and submissions they should consider in resolving the material issues before them in a fair and balanced manner. I will begin by describing the standard of review we are to apply, and then elaborate on the conclusions I have just summarized.

[51] The proposition that a jury charge should review, among other things, the material evidence relevant to the legal framework and related factual issues in the case, as well as the position of the parties on these issues, is not controversial: R. v. Newton, 2017 ONCA 496, 349 C.C.C. (3d) 508 (Ont. C.A.), at para. 11. Of course, that review must be balanced: R. v. Walker, 2019 ONCA 806, 58 C.R. (7th) 7 (Ont. C.A.), at para. 6, leave to appeal refused, [2020] S.C.C.A. No. 38954; R. v. Mendez, 2018 ONCA 354,at para. 14. That said, the appellate standard for reviewing the sufficiency of a charge is not perfection, but whether the charge is “functional” in fulfilling its purpose: Newton, at para. 13. A trial judge is not required to review all of the facts upon which the defence relies, or to provide “a minute record of the evidence adduced”: R. v. Daley, 2007 SCC 53, [2007] 2 S.C.R. 523, at para. 55 (citations omitted); R. v. McIntyre, 2012 ONCA 356, 95 C.R. (6th) 106 (Ont. C.A.), at para. 30. Ultimately, the “fundamental question an appellate court must ask is, has the jury been ‘left with a sufficient understanding of the facts as they relate to the relevant issues’”, or “are we satisfied ‘that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues’”: Newton, at para. 13 (citations omitted); R. v. Wood, 2022 ONCA 87, 411 C.C.C. (3d) 495 (Ont. C.A.), at paras. 130-32. These standards were met in this case.

[52] After correctly describing the legal elements that the Crown was required to prove to convict Mr. Smich as an aider or abettor, the trial judge gave jurors what Mr. Smich concedes to have been a fair summary of the Crown position, consisting of seven “bodies of evidence” that supported the Crown’s aiding and abetting theory, specifically: (1) Mr. Smich’s close relationship with Mr. Millard; (2) Mr. Smich’s knowledge of and involvement in the acquisition and testing of the incinerators; (3) his acquisition and use of Ms. Babcock’s iPad the day after her disappearance; (4) his ongoing possession of the iPad and the red suitcase; (5) the “confession” to Mr. Cronin and Mr. Liberatore; (6) his participation in the cremation of Ms. Babcock’s body (assuming jurors were to find that this event occurred); and (7) the ashy stone rap lyrics.

[53] The trial judge then described opposing submissions that defence counsel made in its jury address, including its general position that it would be speculative to infer knowing participation in Ms. Babcock’s killing from the above circumstances. He also identified challenges Mr. Smich’s counsel made to the points listed above, including with reference to points (3) and (4), that Mr. Millard gave these items to Mr. Smich; with reference to point (5), explanations as to reasons why Mr. Cronin and Mr. Liberatore are not credible or reliable witnesses; with reference to point (6), that the cremation that took place may have been a deer carcass; and with reference to point (7), that the ashy stone rap lyrics were mere artistic expression. This was a faithful description of the submissions Mr. Smich’s trial counsel made in his jury address.

[54] Indeed, before the trial judge delivered this charge, the trial judge directly asked Mr. Smich’s trial counsel to advise him if he had not fairly and accurately captured his position on party liability. The next day, in receiving Crown submissions on the charge, the trial judge repeated that he had set out what he understood the defence position to be in relation to party liability. This did not provoke any expression of disagreement by Mr. Smich’s trial counsel. In his charge, the trial judge let jurors know that he was trying to summarize the defence position and the evidence the defence relied upon in relation to the aiding and abetting issue, all of which they would have heard directly during the trial and from defence counsel.

[55] In his factum, Mr. Smich is critical of the trial judge for not alerting jurors to specific considerations, namely: (1) the fact that the “close relationship” evidence could explain why Mr. Millard would not hesitate to commit the murder on his own, trusting that Mr. Smich would not report it; (2) that Mr. Smich would not have retained the red suitcase had he any concerns that his possession of this object would implicate him in a homicide; (3) that the emphasis in the alleged statements to the two teenagers was on burning the body, not on the murder; (4) that his participation in the cremation could be the action of an accessory after the fact rather than a participant in the murder; and (5) that the rap lyrics were entirely focused on the disposal of the body. Mr. Smich’s trial counsel took none of these positions before the jury.

[56] Finally, Mr. Smich argues that the trial judge failed to alert jurors to the fact that there is no evidence establishing what aid Mr. Smich allegedly provided. This is not entirely so. If jurors were satisfied on the totality of the evidence that Mr. Smich participated in the attempted preparation of the homemade incinerator for the purpose of disposing of Ms. Babcock’s body after she was killed, this would satisfy the aiding or abetting requirement. In any event, Mr. Smich’s trial counsel did not make the submission that Mr. Smich now says the trial judge was obliged to ask the jury to consider. This may have been a tactical decision made by Mr. Smich’s trial counsel, given that the law does not require the Crown to establish the precise role a party to an offence plays. The trial judge was not required to raise this point of his own initiative during the jury charge.

[57] I am therefore satisfied that the trial judge’s summary of the material evidence relied upon by Mr. Smich was sufficient, and fairly represented his position at trial. I would dismiss this ground of appeal.

D. Did the trial judge err by providing inadequate jury instructions on after-the-fact conduct?

[58] Much of the evidence the Crown relied upon in prosecuting Mr. Smich was “after-the-fact” conduct evidence. Mr. Smich does not challenge the admissibility of this evidence. He contends that the trial judge erred by not adequately instructing jurors on how to use this evidence. In particular, he argues that the trial judge erred by not adequately alerting jurors to consider the possibility that Mr. Smich’s after-the-fact conduct may not be attributable to participation in Ms. Babcock’s homicide, but instead to other unlawful conduct on his part such as acting as an accessory after the fact. I do not agree and would dismiss this ground of appeal.

[59] After-the-fact conduct evidence is circumstantial evidence of post-offence behaviour that is offered to support relevant inferences consistent with the accused’s guilt, the theory being that such behaviour is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person: R. v. Calnen, 2009 SCC 6, [2019] 1 S.C.R. 301, at paras. 107-12: R. v. Peavoy (1997), 1997 CanLII 3028 (ON CA), 34 O.R. (3d) 620 (C.A.), at p. 624. The after-the-fact conduct evidence offered against Mr. Smich was his acquisition and possession of Ms. Babcock’s iPad and red suitcase, his alleged participation in the cremation of Ms. Babcock, and his composition and performance of the ashy stone rap.

[60] Often, the theory of relevance for after-the-fact conduct is that it reveals that the accused is attempting to evade responsibility, being “conscious of their guilt”. But at times, the after-the-fact conduct may actually be inspired by the accused’s consciousness of guilt relating to an offence other than the one the Crown is offering the after-the-fact conduct evidence to prove. In R. v. Arcangioli, 1994 CanLII 107 (SCC), [1994] 1 S.C.R. 129, for example, the accused may have fled the scene of a stabbing because he was conscious that he was involved in an assault other than the charged stabbing. Where after-the-fact conduct is equally consistent with consciousness of guilt of either the offence charged, or some other offence, trial judges may have to direct jurors that the evidence has no probative value because it is incapable of supporting safe inferences (the “no probative value” instruction): Arcangioli, at p. 145. But where the after-the-fact conduct can reasonably be treated as more consistent with the offence the Crown is using it to prove, it is for the jury to determine how much weight, if any, to give to that evidence. However, the trial judge should provide an instruction regarding the proper use of that evidence, including by explaining the use to which the evidence can be put and cautioning jurors to consider whether the after-the-fact conduct is attributable to consciousness of guilt of the offence the evidence is offered to prove (the “proper use” instruction): R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at paras. 24-29, 36; Calnen, at paras. 117, 124.

[61] I do not understand Mr. Smich to be arguing that the trial judge was obliged to provide a “no probative value” instruction and erred by failing to do so. His submission is that the trial judge failed to give a sufficient “proper use” instruction to guide jurors in deciding whether to accept the Crown’s claim that this evidence was more consistent with Ms. Babcock’s homicide.

[62] I would not give effect to this ground of appeal for two reasons.

[63] First, I can find no fault in the trial judge’s decision not to mention the possibility to the jury that Mr. Smich’s after-the-fact conduct may be consistent with his more limited role as an accessory after the fact, rather than his participation in Ms. Babcock’s murder. The offence of accessory after the fact was not before the jury, and at no point during the trial did Mr. Smich’s trial counsel suggest that his conduct was consistent with his complicity as an accessory after the fact. To the contrary, his position was that the after-the-fact conduct was entirely innocent. Specifically, his positions were that: Mr. Millard gave Mr. Smich the iPad and the red suitcase; Ms. Babcock was not cremated and could still be alive; the two teenagers did not accurately describe the statements Mr. Smich made; and the ashy stone rap lyrics were simply artistic expression. Had the trial judge, of his own initiative, told jurors that Mr. Smich’s after-the-fact conduct could be consistent with Mr. Smich acting illegally as an accessory after the fact, he risked interfering with and discrediting the innocent explanations that Mr. Smich was presenting to the jury.

[64] Second, the trial judge did direct the jury that they should consider whether there is “some other explanation […] not necessarily the innocent explanation, but an explanation that does not necessarily involve inferring that [Mr. Smich] had been responsible for [Ms. Babcock’s] death”. He also told jurors to ask, “Did Mr. Millard and/or Mr. Smich dispose of Ms. Babcock’s body for some reason other than having caused her death themselves?” I would not interfere with the trial judge’s discretionary decision to go no further in the circumstances of this case.

[65] Mr. Smich advances a related argument. On a number of occasions during his after-the-fact conduct evidence charge the trial judge spoke in a general, binary fashion about the after-the-fact conduct, directing jurors to consider whether this evidence indicates that the appellants had acted “unlawfully” (in which case it would be evidence of guilt), or whether there are potentially “innocent” explanations for such conduct (in which case it would not be evidence of guilt). Mr. Smich argues forcefully that these directions are wrong and dangerous given that it would be unlawful for Mr. Smich to have engaged in these activities as an accessory after the fact. His concern is that even if jurors were to conclude that his after-the-fact conduct showed only that he was acting as an accessory after the fact, jurors could misunderstand these directions and believe that since his actions as an accessory after the fact are unlawful, they are to use that evidence as proof that he aided or abetted in the homicide.

[66] I am not persuaded by this submission. In my view, the jurors would have understood that when the trial judge spoke of “innocent” inferences, he was referring to inferences that do not show guilt of Ms. Babcock’s homicide, the offence charged. I say this for two reasons. First, the trial judge repeatedly made clear that the after-the-fact conduct was only proof of guilt if it showed that the appellants were “responsible for [Ms. Babcock’s] death”; “[had] caused her death”; “[had] an awareness of having unlawfully caused death to that person”; or “were conscious or aware of having acted unlawfully in relation to Ms. Babcock’s death.” Second, even lay jurors would quickly recognize that it would be absurd to convict someone of murder based on inferences that they may have acted unlawfully as an accessory after the fact. These jurors had clear instructions on what murder entails, and what aiding and abetting requires. They would not have engaged in the inappropriate reasoning Mr. Smich apprehends.

[67] I would dismiss this ground of appeal.

E. Did the trial judge misdirect jurors on the mens rea element of planned and deliberate first-degree murder for aiders and abettors?

[68] The trial judge provided jurors with an instruction that would enable them to convict Mr. Smich of first-degree murder as an aider or abetter to a planned and deliberate murder, even if he himself did not engage in planning the murder or personally deliberate about it. Mr. Smich acknowledges that the trial judge’s jury instruction conforms to this court’s direction in R. v. Sauve and Trudel (2004), 2004 CanLII 9054 (ON CA), 182 C.C.C. (3d) 321 (Ont. C.A.), and R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516 (Ont. C.A.), at paras. 78-89, leave to appeal refused, [2007] S.C.C.A. No. 32050, that an aider or abetter will be guilty of first-degree murder if they assist or encourage another in committing a murder that they know the principal planned and premeditated. But he contends that these decisions are incorrect and contrary to the intent and structure of the Criminal Code because the legal standard they support does not provide a sufficient level of fault to warrant a first‑degree murder conviction for the aider or abettor.

[69] Mr. Smich unsuccessfully sought the appointment of a five-judge panel so that he could argue in this appeal that these decisions should be overturned. He concedes that our appeal panel, as a three-person panel, is bound by this line of authority, and that we must dismiss this ground of appeal. Although he did not pursue oral arguments on this issue, he has not abandoned this ground of appeal in order to preserve his right to appeal on this issue to the Supreme Court of Canada. We must therefore rule on this ground of appeal. It is obvious that we must dismiss it, and I would do so.

F. Did the trial judge err in the mid-trial instruction he gave about the Crown failure to call witnesses?

[70] Mr. Smich argues that the mid-trial jury instruction the trial judge gave relating to submissions his trial counsel made in his jury address about the failure of the Crown to call two “witnesses”, Ms. Noudga and Mr. Lewis, was an unfair rebuke of trial counsel that undermined the fairness of the trial and was wrong in law. I do not agree and would reject this ground of appeal. I will begin by describing the relevant submissions Mr. Smich’s trial counsel made in his jury address.

[71] With respect to Ms. Noudga, Mr. Smich’s trial counsel told jurors that it was only natural to expect the Crown to call Ms. Noudga as a witness, as she was the one person who could testify whether there was a love triangle, and about the hatred that would inspire murder, yet the Crown chose not to call her. He said the Crown, who has the onus of proof, failed jurors by asking them to live with their verdict, without having heard “the main component”. He asked how they could possibly be satisfied beyond a reasonable doubt, when the Crown had not called Ms. Noudga.

[72] Mr. Lewis is the young man who was with Mr. Liberatore and Mr. Cronin when Mr. Smich allegedly confessed to the murder. With respect to Mr. Lewis, Mr. Smich’s trial counsel repeatedly said during his jury address that the Crown chose not to call Mr. Lewis, and he said, “Well, you can infer that they didn’t call Lewis because it wouldn’t help their case,” and asked, “shouldn’t you have been able to have him on the stand?”

[73] The trial judge concluded that these submissions had invited jurors to engage in erroneous reasoning. He gave a mid-trial instruction to jurors after Mr. Smich’s trial counsel’s jury address, directing jurors that they were not to draw adverse inferences from the Crown’s decision not to call Ms. Noudga and Mr. Lewis.

[74] Mr. Millard subsequently objected to the trial judge’s final jury charge and brought a motion asking the trial judge to recharge the jury. In that motion he argued that the jury charge, coupled with the trial judge’s mid-trial instruction relating to the failure by the Crown to call Ms. Noudga, would confuse jurors into thinking that they could not consider the absence of testimony from Ms. Noudga as a “gap” in the evidence that can contribute to a reasonable doubt. Mr. Smich’s trial counsel joined in the motion and defended the jury submissions he and Mr. Millard’s counsel had made about the failure of the Crown to call Ms. Noudga. The trial judge dismissed the motion, ultimately providing written reasons for that decision: R. v. Millard and Smich, 2017 ONSC 7584.

[75] Mr. Smich argues on appeal that the trial judge erred in giving the mid-trial instruction because it was a rebuke that discredited Mr. Smich’s trial counsel, rendering the trial unfair, and that the mid-trial jury instruction was incorrect because the law permits the kind of reasoning that his trial counsel invited the jury to engage in. I would not give effect to either submission.

[76] With respect to the first submission, the trial judge did not rebuke Mr. Smich’s trial counsel in his mid-trial instruction. The trial judge expressed no criticism of trial counsel, nor were his comments intemperate. He directed jurors that they could not draw adverse inferences from the Crown’s decision not to call Ms. Noudga and Mr. Lewis, and he explained to the jurors that this was because they lacked information about why those witnesses were not called, and they should not speculate about what those witnesses would or would not have said had they been called. I therefore reject the first challenge to the trial judge’s mid‑trial instruction.

[77] I would also reject the second challenge, because the mid-trial instruction to jurors not to draw adverse inferences from the failure of the Crown to call these witnesses was correct and required. It is convenient to begin with the ruling relating to Mr. Smich’s trial counsel’s comment about the failure of the Crown to call Mr. Lewis.

[78] It is settled law that it is only in very limited circumstances, and with the greatest of caution, that a trier of fact can draw an “adverse” inference from the failure by a party to call a particular witness: R. v. Zehr (1980), 1980 CanLII 2964 (ON CA), 54 C.C.C. (2d) 65 (Ont. C.A.), at pp. 68-69; R. v. Lo, 2020 ONCA 622, 152 O.R. 709 (C.A.), at para. 156. As the trial judge explained to the jury, this is because there may be good and valid but unknown reasons why a party has not done so. Mr. Smich effectively concedes that there was no basis in this case for an adverse inference relating to the failure by the Crown to call Mr. Lewis, but he argues that the trial judge was mistaken in concluding that he was seeking an adverse inference. He contends that to be an invitation to draw an adverse inference within the meaning of the authority, a party must invite the trier of fact to infer that the opposing party did not call the evidence because it would have been contrary to that party’s case. He submits that he asked the jury only to infer that the Crown “didn’t call Lewis because it wouldn’t help their case”, which he claims not to be an adverse inference.

[79] In my view, Mr. Smich takes an unduly narrow view of what constitutes an adverse inference. In R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 28, Binnie J., in explaining the “exact nature” of an adverse inference, described both an inference that the evidence would be contrary, and an inference that the evidence would not be helpful. Specifically, he said, “the failure to call evidence may … amount ‘to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it’”: citing Murray v. Saskatoon, 1951 CanLII 202 (SK CA), [1952] 2 D.L.R. 499 (Sask. C.A.) (emphasis in original). In R. v. Rudge, 2011 ONCA 791, 108 O.R. (3d) 161 (C.A.), at para. 81, leave to appeal refused, [2012] S.C.C.A. No. 34658, Epstein J.A. also said that both of these inferences are “adverse inferences”. I agree.

[80] Mr. Smich’s argument to the contrary is based on Binnie J.’s subsequent citation, also in paragraph 28 of Jolivet, of jurisprudence from other jurisdictions which recognizes that “in many cases the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse” (citations omitted). Mr. Smich suggests that this passage is authority for the proposition that it is not an adverse inference to infer that the testimony would not have been helpful. I do not read this passage that way. I would suggest that Binnie J. included this passage in recognition of the fact that there may be cases where an appropriate adverse inference would be limited to inferring that the testimony would not have been helpful to the opposing party’s case, because circumstances do not support the more powerful adverse inference that the evidence would have been unfavourable to that party.

[81] I therefore agree with the trial judge. I too think it is clear that Mr. Smich’s trial counsel sought an adverse inference arising from the Crown’s failure to call Mr. Lewis. The trial judge was therefore entitled to give the mid-trial instruction that he did relating to the Crown’s failure to call Mr. Lewis.

[82] Nor did the trial judge err in his mid-trial instruction relating to the failure by the Crown to call Ms. Noudga. I see no error in the trial judge’s finding that by suggesting to jurors that Ms. Noudga could explain the text messages relating to motive, Mr. Smich was implicitly inviting jurors to infer that her evidence would have assisted his case. Mr. Smich’s submissions were certainly open to that interpretation, making it appropriate for the trial judge to direct jurors not to draw an adverse inference from the failure by the Crown to call Ms. Noudga.

[83] Nor do I accept that the trial judge’s mid-trial instruction would erroneously have prevented jurors from considering whether the failure of these witnesses to testify left a gap in the Crown’s case that could raise doubt in their minds. I reject this argument for the same three reasons the trial judge cited in his motion ruling.

[84] First, the mid-trial instruction was limited to directing jurors not to draw adverse inferences from the failure of the Crown to call these witnesses. It said nothing that would discourage jurors from considering the absence of evidence.

[85] Second, on at least four occasions in the jury charge the trial judge specifically instructed jurors to consider gaps in the evidence.

[86] Third, even if those instructions could be misinterpreted as directions not to consider the absence of evidence from Mr. Lewis and Ms. Noudga as gaps in the Crown’s case, this would cause no prejudice to Mr. Smich for the simple reason that the absence of their evidence did not leave gaps in the Crown’s case. The failure to call a witness, even a central witness who has material evidence to give, is not a “gap” in the evidence that can raise a reasonable doubt unless the Crown requires the testimony of that witness to prove an essential element of the offence. In R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113, at p. 1124, L’Heureux-Dubé J., when dealing with the related issue of whether the Crown is obliged to call witnesses “essential to the … narrative”, explained that “essential to the narrative” means “no more and no less than that the Crown [has] to put forward enough witnesses so that the essential elements of the crime could be adequately proven.” Here, even without Mr. Lewis’s and Ms. Noudga’s evidence, the Crown had testimony from other witnesses that if believed would prove the matters they could offer testimony about.

[87] I would therefore dismiss this ground of appeal.

ANALYSIS – MR. MILLARD’S ADDITIONAL GROUNDS OF APPEAL

G. Did the trial judge err by instructing jurors that they could use the ashy stone rap lyrics as evidence against Mr. Millard?

[88] Mr. Millard argues that the trial judge erred by instructing jurors that if they were satisfied that he had adopted Mr. Smich’s ashy stone rap lyrics as true, they could use those lyrics as evidence against him. He submits that there was an insufficient evidentiary foundation to meet the legal requirements for an “adopted admission” finding, and that this direction should not have been given.

[89] I would dismiss this ground of appeal. In my view, it was entirely open to the trial judge to instruct jurors to consider whether Mr. Millard adopted the ashy stone rap lyrics as true, and, if so, to use those lyrics as evidence against him. I will explain my reasoning, beginning with the legal principles that govern the admissibility of adopted admissions.

The Legal Principles

[90] A party is entitled to prove relevant out of court statements an opposing party has made, and offer those statements as “admissions” of fact that have been made by that party: R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653. When Mr. Smich composed and performed the ashy stone rap lyrics, he was making statements. Since he was an opposing party litigant being prosecuted by the Crown, the Crown was entitled to prove his composition and performance of the ashy stone rap lyrics, and to use the ashy stone rap lyrics against him as admissions of fact made by him.

[91] As a general rule, in a joint trial, “an out of court statement [or admission] made by one accused is not admissible evidence against a co-accused”: R. v. MacDonald, 2010 ONCA 178, 259 O.A.C. 308, at para. 18. Unless an exception to this rule operated, the ashy stone rap lyrics could therefore be used as evidence against Mr. Smich, but not Mr. Millard. The Crown relied, in this case, on the “adopted admissions" exception to this rule in order to use those lyrics as evidence against Mr. Millard, as well. The theory of the adopted admissions rule is simple. If an accused person “adopts” as true a statement made by a co‑accused person, that statement may be used as evidence against them as well, since they have adopted that statement as their own. An accused person can adopt a statement made by their co-accused if they “expressly adopt the statement or where, by [their] words, action, conduct or demeanour [they] may be taken to have inferentially adopted it” as true: R. v. Dubois (1986), 1986 CanLII 4683 (ON CA), 27 C.C.C. (3d) 325 (Ont. C.A.), at p. 341; Chapdelaine v. The King, 1934 CanLII 46 (SCC), [1935] S.C.R. 53, at pp. 55-56, citing R. v. Christie, [1914] A.C. 545 (H.L.), at p. 554-55; R. v. Gordon, 2022 ONCA 799, at para. 49.

[92] When the Crown seeks to treat a statement made by one accused person as an adopted admission by their co-accused, the trial judge must perform a gate‑keeping function. If the trial judge determines that a finding of adoption by the accused is not available on the evidence, the trial judge must direct the jury not to use it as evidence against the accused. But if a finding of adoption is available on the evidence, “it is up to the jury to apply the legal principles as instructed by the trial judge to determine whether the inference [of adoption] should in fact be drawn”: Gordon, at para. 48; R. v. Warner (1994), 1994 CanLII 842 (ON CA), 21 O.R. (3d) 136 (C.A.); R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581 (C.A.), at para. 48; R. v. Scott, 2013 MBCA 7, 296 C.C.C. (3d) 311, at para. 22.[^3]

Application and Analysis

[93] The Crown argued at trial that a finding that Mr. Millard had adopted the truth of the ashy stone rap lyrics “by his conduct” was legally available on the evidence. Although the Crown’s submissions were brief, it is evident that it was relying on three acts of adoption it attributed to Mr. Millard: (1) the saving of the ashy stone rap lyrics from Mark’s iPad onto his computer when Mark’s iPad was backed up; (2) the September 25, 2012, 10:34 p.m. recording on his iPhone of Mr. Smich’s performance of the ashy stone rap lyrics; and (3) “his” act of saving this iPhone recording onto his computer. The trial judge accepted that there was a sufficient foundation to permit a finding of adoption based on this conduct and directed the jury accordingly.

[94] Mr. Millard takes no issue with the trial judge’s description of the applicable legal principles. As indicated, it is his position that there was an insufficient foundation in the trial record for a finding of adoption by him of the ashy stone rap lyrics.

[95] I agree with Mr. Millard that a party cannot adopt a statement made by another without knowing that the statement was made, either because they were present when it was made, or they knowingly possess a copy of the statement. This much is obvious. It is impossible for a party to adopt a statement of which they are not aware.

[96] Mr. Millard submits that this is an impediment to the Crown’s adopted admission theory in his case. He maintains that no evidence exists in the trial record that he was present when the ashy stone rap lyrics were composed; there is no evidence that he was present when Mr. Smich performed those lyrics in the basement of his home; and there is no evidence that he is the one who filmed that performance on his iPhone. He also argues that there is no evidence on the trial record that he participated in the backup of Mark’s iPad onto his computer, or that he is the one who backed up his iPhone, or that he knew that either of those backups contained versions of the ashy stone rap lyrics. Mr. Millard therefore maintains that on this basis alone there is an insufficient foundation for a finding of adoption in this case.

[97] I disagree. Jurors are entitled to draw reasonable inferences from all of the circumstances, even in the absence of direct evidence, and there was an ample circumstantial evidentiary foundation that jurors could reasonably rely upon to link Mr. Millard to the ashy stone rap lyrics.

[98] Specifically, there was evidence that Mr. Millard was with Mr. Smich in the early morning hours of July 24, 2012, the time that Mr. Smich either composed or began composing the ashy stone rap lyrics. There was also evidence available that would permit jurors to find that Ms. Babcock’s cremation had just occurred. Jurors would have no basis, given the evidence about the relationship between the parties and their apparent involvement in the events at the time to think that Mr. Smich would have authored the lyrics privately. It was entirely available to them to infer that Mr. Smich would have shared those lyrics with Mr. Millard.

[99] More importantly, there was evidence from which jurors could reasonably infer that Mr. Millard was not only present on September 25, 2012, when Mr. Smich performed the ashy stone rap lyrics, but that Mr. Millard filmed and preserved those lyrics. That performance was captured on Mr. Millard’s iPhone, and performed in his home. This provides strong circumstantial evidence of his presence at the time. A further inference that he himself did the filming is supported not only by the fact that his iPhone was used, but by Ms. Meneses’ testimony that Mr. Millard probably did the filming, given that the three of them were always together when she was at Mr. Millard’s 5 Maple Gate Court home. Her testimony is enhanced by the fact that she and Mr. Smich, who appear in the video, could not have done the filming.

[100] Finally, the iPhone video of Mr. Smich’s performance of the ashy stone rap lyrics was preserved not only on Mr. Millard’s iPhone, but it was also later backed up onto one of Mr. Millard’s computers. Mr. Millard’s ownership of both of these devices, coupled with the circumstantial evidence that he filmed the performance on the iPhone supports the further inference that he is the one who backed up his iPhone and in doing so, knowingly saved Mr. Smich’s performance of the ashy stone rap lyrics.

[101] Even leaving aside entirely the evidence that Mark’s iPad had also been backed up on Mr. Millard’s computer, there was therefore a sufficient factual foundation to enable jurors to find that Mr. Millard was in a position to adopt the ashy stone rap lyrics.

[102] Mr. Millard argues that, even if that is so, and he was present when the ashy stone rap lyrics were generated, or later knowingly possessed them on his electronic devices, there is no factual foundation that could permit the jury to conclude that he adopted the ashy stone rap lyrics as true. In support of this position, Mr. Millard emphasizes that the lyrics do not refer to him or accuse him of anything. That being the case, he argues he could not reasonably be expected to have denied the content of those lyrics if he disputed their truth, thereby defeating an inference of adoption.

[103] I do not accept this argument because the Crown’s theory of adoption does not depend on the inference that Mr. Millard could reasonably be expected to have denied the content of the ashy stone rap lyrics. This line of reasoning tends to operate where the alleged adoptive conduct is silence in the face of an allegation: R. v. Beauchamp, 2015 ONCA 260, 326 C.C.C. (3d) 280 (C.A.), at para. 247, citing R. v. Baron and Wertman (1976), 1976 CanLII 775 (ON CA), 14 O.R. (2d) 173 (C.A.), at p. 187 (other citations omitted). The underlying theory in such cases is typically the “assumption that the natural reaction of one falsely accused is promptly to deny [it]”: R. v. Eden (1970), 1969 CanLII 329 (ON CA), 2 O.R. 161 (C.A.), at p. 164. In adoption by silence cases, the fact that the statement does not contain an accusation against the accused can therefore weaken or even defeat the adopted admission theory: see Robinson, at paras. 70‑71, 79-81. But here the Crown did not depend on Mr. Millard’s silence as the adoptive conduct. Instead, the Crown relied on actions engaged in by Mr. Millard to capture and preserve the ashy stone rap lyrics, most significantly, by filming their performance by Mr. Smich and by backing that film up on his computer. In effect, the inference is that he adopted the ashy stone rap lyrics by keeping them in order to memorialize Ms. Babcock’s murder. In my view, this inference finds further support in evidence the jury could reasonably rely upon to find that Mr. Millard took other steps to memorialize Ms. Babcock’s killing, such as photographing her body rolled in a tarp (the “spliff”) and photographing Mr. Smich smiling and posing with an ash rake next to The Eliminator incinerator the night that Ms. Babcock was cremated. In my view, this theory of adoption is compelling and entirely supported on the record. I therefore firmly reject the suggestion that there was no foundation for a finding that Mr. Millard adopted the admissions that Mr. Smich made when he composed and performed the ashy stone rap lyrics.

[104] I would dismiss this ground of appeal.

H. Did the trial judge err by permitting Dr. Burns to provide inadmissible testimony?

[105] Mr. Millard raises several issues with the evidence provided by Mr. Millard’s uncle, Dr. Burns, in which he testified that Mr. Millard never raised the prospect of providing cremation services to his veterinary practice. Dr. Burns also shared his view that the suggestion of a mobile incineration business is “absurd” and unheard of in his 30 years as a veterinarian. Mr. Millard submits that this evidence included inadmissible hearsay, which was not sufficiently addressed by the trial judge’s hearsay direction, as well as inadmissible expert opinion evidence. He also argues that this testimony was highly prejudicial. I would dismiss these grounds of appeal.

[106] First, Dr. Burns did not present hearsay evidence when he testified that he heard from a man named Charles Dubien, a neighbouring business owner, that Mr. Millard had purchased a large animal incinerator and told him that Mr. Millard was going into business with Dr. Burns cremating pets. As the trial judge instructed the jury, this testimony was provided not to establish that Mr. Millard actually told Mr. Dubien about this alleged business plan. Instead, Dr. Burns was permitted to relate this conversation as “narrative” to explain his own subsequent conduct in instigating contact with Mr. Millard to see if he would mention this business plan, which he did not do. The Crown relied upon the testimony of Mr. Schlatman to establish that Mr. Millard was claiming that he was going to go into the veterinary cremation business with Dr. Burns.

[107] I accept that it may well be prudent for trial judges to exercise discretion to prevent out of court statements from being admitted as narrative where those statements happen to include factual claims a party is attempting to prove as part of its case, and where that witness’s evidence can be presented effectively without including that narrative. Admitting statements unnecessarily as narrative when they contain relevant factual detail can create a risk that jurors will misuse that evidence. I am also of the view that Dr. Burns could have adequately provided the relevant evidence he had to give without narrating his conversation with Mr. Dubien by simply testifying that Mr. Millard never mentioned the veterinary incineration business to him. However, the decision to permit this evidence as narrative was a discretionary determination for the trial judge to make, and I see no basis to interfere. The evidence had some narrative value, and the trial judge gave jurors a firm mid-trial instruction not to use it as proof of the truth of its contents. More importantly, Mr. Millard was not prejudiced by permitting Dr. Burns to narrate Mr. Dubien’s comments given that he himself left the suggestion with jurors, both through the testimony of his expert, and in his jury submissions, that The Eliminator incinerator could legitimately be used to incinerate animals. I would therefore dismiss Mr. Millard’s submission that the trial judge erred by permitting Dr. Burns to present inadmissible hearsay evidence.

[108] Nor did Dr. Burns present inadmissible opinion evidence. The information he offered was acquired through the ordinary experiences gained operating a veterinary business relating to the protocols and restrictions on incinerating animals. This was not expert information, since it was not the kind of information that could only be acquired and understood with special training or expertise: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at pp. 871-72; R. v. Ajise, 2018 ONCA 494, at para. 23, aff’d on other grounds in 2018 SCC 51, [2018] 3 S.C.R. 301. Anyone with ordinary experience working in a veterinary clinic familiar with its cremation practices could readily have provided this kind of testimony, as it was neither technical nor complex.

[109] The fact that Dr. Burns punctuated his testimony with strong language and sarcasm and lampooned the suggestion of a mobile incineration business does not change this. Any opinions he made known in his testimony were lay opinions and not expert opinions.

[110] Nor would the animus against Mr. Millard that fed Mr. Burns’ aggressive manner of testifying disqualify his testimony. The trial judge was alert to this issue and did a commendable job in tempering the manner in which Dr. Burns provided his testimony.

[111] I would dismiss this ground of appeal.

I. Did the trial judge err by permitting the Crown to contradict its own witnesses without prior confrontation?

[112] Crown witnesses, Dr. Khattak and Ms. Orr, provided testimony that if true, would prove that Ms. Babcock was alive after Mr. Millard allegedly killed her. Mr. Millard seeks to rely for the same purpose on a prior statement he alleges that Crown witness Mr. Dean made. In its jury address the Crown relied upon Ms. Babcock’s cellphone records to argue that witnesses who claimed to have had contact with Ms. Babcock after the early morning hours of July 4, 2012, were mistaken. It did so without first confronting any of these witnesses with those records. Mr. Millard argues that this was unfair, and that the trial judge erred by permitting it. I do not agree.

[113] The rule invoked by Mr. Millard, the “rule in Browne v. Dunn,” operates to discourage parties from attempting to discredit opposing counsel’s witnesses with contradictory evidence, without first confronting those witnesses with that evidence during cross-examination: R. v. McNeill (2007), 2000 CanLII 4897 (ON CA), 48 O.R. (3d) 212 (C.A.), at paras. 44‑45; R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81 (C.A.), at paras. 75‑86. Mr. Millard appreciates that, technically, this rule does not apply because the material witnesses in this case were not opposing witnesses, but Crown witnesses who were never subjected to cross-examination by the Crown. He argues that the unfairness he identifies is nonetheless “akin” to breaches of the rule in Browne v. Dunn.

[114] I would not give effect to this ground of appeal.

[115] I will begin with the suggestion that it was unfair of the Crown not to confront Mr. Dean with the phone records. Simply put, there can be no reasonable expectation that the Crown would have done so because Mr. Dean’s evidence was entirely consistent with the Crown theory as to the time of Ms. Babcock’s death. He denied making an out of court statement about having seen her on or after July 10, 2012, and no such statement was ever proved.

[116] In contrast, there was evidence from Dr. Khattak and Ms. Orr about contact with Ms. Babcock after the point in time the Crown theorized that Ms. Babcock was dead, that was contradicted by inferences arising from Ms. Babcock’s cellphone records. There are three reasons why I do not accept Mr. Millard’s submission that it was unfair for the Crown not to have confronted Dr. Khattak and Ms. Orr with those records.

[117] First, a party cannot cross-examine its own witnesses without leave, and it would doubtlessly have constituted cross-examination had the Crown attempted to confront these witnesses with Ms. Babcock’s cellphone records in order to contradict the testimony they had provided. Moreover, there were no available legal mechanisms that the Crown could use to obtain leave to cross-examine, even if it was of a mind to do so. Neither witness was hostile, and the Crown was not relying on inconsistent statements made by those witnesses. Simply put, there would have been technical impediments to the confrontation Mr. Millard proposes.

[118] Second, and relatedly, if Mr. Millard thought that these witnesses would have testimony capable of neutralizing the cellphone records or dampening their effect, subject to irrelevance objections he could have confronted them with the records.

[119] Ultimately, there is nothing improper with a party asking the trier of fact to prefer some of its evidence, over other evidence that it has called, where that other evidence does not serve its theory of the case. This happens frequently, for example, where an identification witness deviates from the description provided by other witnesses the Crown considers to be more reliable. I see no problem with the Crown inviting jurors to prefer the circumstantial inferences supported by the cellphone records to the testimony of some of its witnesses.

[120] I would dismiss this ground of appeal.

J. Did the trial judge err in refusing to grant Mr. Millard’s adjournment request?

[121] Mr. Millard argued that his trial was unfair because the trial judge denied his June 24, 2017, request for an adjournment so that he could retain counsel: R. v. Millard and Smich, 2017 ONSC 4548. Mr. Millard argues that as a result of this ruling he was forced to defend himself without the benefit of a lawyer and without proper time to prepare following his trial for the murder of Mr. Bosma. We dismissed this ground of appeal after Mr. Millard made his oral argument, without calling on the Crown.

[122] We did so because the trial judge exercised his discretion judicially in denying the adjournment request, after applying the correct legal standards in a remarkably thorough decision. The trial judge found, with clear support in the record, that Mr. Millard, having the means to retain counsel, wanted to represent himself, something he was capable of doing. The trial judge found that even if Mr. Millard was serious at the time of his adjournment application about wanting counsel, he had not been diligent in retaining counsel, notwithstanding being repeatedly implored to do so and despite an order made more than eight months before that his trial would proceed peremptorily on the scheduled date. The trial judge also found, as he was entitled to, that Mr. Millard had sufficient time before the scheduled start of his trial to secure legal counsel if he chose to do so.

[123] We saw no palpable or overriding errors in the trial judge’s decision. We found no merit in Mr. Millard’s submissions that the trial judge prejudged the adjournment application or rendered a decision inconsistent with the findings he made when denying Mr. Millard’s earlier s. 11(b) motion, or that the trial judge failed to consider relevant circumstances. None of the factual findings made by the trial judge were unreasonable. Nor was the trial judge’s decision to deny the adjournment unreasonable. The trial judge carefully evaluated the competing interests, including Mr. Smich’s interest and the public interest in moving the trial along. In the circumstances, the trial judge’s decision was entitled to deference.

Conclusion

[124] I would dismiss Mr. Smich’s and Mr. Millard’s conviction appeals.

[125] I would grant them leave to appeal their sentences and allow the sentence appeals only to the extent of quashing the s. 745.51 orders. The sentences otherwise remain unchanged.

Released: June 15, 2023 “E.E.G”

“David M. Paciocco J.A.”

“I agree. E.E. Gillese J.A.”

“I agree. Grant Huscroft J.A.”

[^1]: As I will explain, all of these properties feature in the Babcock murder trial. [^2]: Unknown modifications were made to the file containing the ashy stone rap lyrics on September 24, 2012. It is possible but not assured that the lyrics were altered on that date. [^3]: In Evans, at pp. 667-68, Sopinka J. held that admissions by opposing party litigants are not admissible without a finding made by the trial judge on the balance of probabilities that the statement was made. Parallel reasoning may suggest that since adopted admissions are a species of admission the preconditions to their admission should also be proved on a balance of probabilities before they are left with jurors, particularly given that adopted admissions are arguably a more dangerous form of admission. In R. v. F.J., 2011 ONCA 220, 105 O.R. (3d) 161 (C.A.), at para. 46, aff’d on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565, Rosenberg J.A. proceeded on this basis. But Evans was not an adopted admission case, and in two prior cases, Stein v. The King, 1928 CanLII 67 (SCC), [1928] S.C.R. 553, and Chapdelaine, the Supreme Court of Canada affirmed the more generous standard for the reception of adopted admissions expressed by the House of Lords in Christie, at p. 554, that although a trial judge should instruct jurors to disregard statements where there is no evidence that the accused has adopted them, “it is the function of the jury, which tries the case, to determine whether [the] words, action, conduct, or demeanour at the time when the statement was made [of the accused] amounts to an acceptance of [the statement made by another] in whole or in part.” Sopinka J. did not address this line of authority in Evans, and the predominant view in this court has long been that before leaving an adopted admission with a jury a trial judge should make only a preliminary determination that some evidence of adoption exists, rather than a finding of adoption on the balance of probabilities: Warner, at pp. 144-45; Robinson, at para. 56; and Gordon, at para. 48. See also, R. v. Daley, 2015 ONSC 7164, per Fairburn J. (as she then was). This is the standard the trial judge used in this case, and Mr. Millard has not taken issue with it on appeal. Therefore, this is the standard that I will be using in this decision.