ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-4348
DATE: 2015/10/15
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DELLEN MILLARD
Applicant
– and –
MARK SMICH
Respondent
A. Leitch, C. Fraser & B. Moodie, on behalf of the Crown
R. Pillay on behalf of the Applicant, D. Millard
T. Dungey and J. Trehearne, on behalf of the Respondent, M. Smich
HEARD: October 8, 2015
A. J. Goodman J.:
RULING ON APPLICATION FOR A CHANGE OF VENUE
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL A FURTHER ORDER OF THIS COURT Allows.
[1] This is an application brought by the applicant, Dellen Millard (“Millard”) for a change of venue for the trial. Millard’s co-accused, Mark Smich (“Smich”), and the Crown Attorney oppose the application.
Background
[2] On May 6, 2013, Timothy Bosma (“Bosma”) was reported missing after leaving his home with two men who expressed interest in purchasing his vehicle. Bosma and his wife Sharlene had placed advertisements to sell their pick-up truck on the Kijiji website and on Auto Trader. Bosma corresponded via text and voice messages with a male who was interested in purchasing his truck. This cell phone number was registered to a fictitious name and address.
[3] As arranged, on May 6, 2013, two males (Millard and Smich) attended Bosma’s home around 9:00 p.m. Bosma met them outside the home with his wife Sharlene and their tenant, Wayne Deboer. A conversation took place between Bosma and Millard and Smich. Millard and Smich requested a test drive of his truck. Bosma entered the passenger side of his own truck, while one of the males (Smich) entered the back seat area of the truck and the other drove (Millard). The vehicle left the residence at approximately 9:15 p.m. The truck never returned and neither did Bosma.
[4] Sharlene Bosma contacted police in the hours following as it was obvious her husband was not returning home as planned. As a result of the missing person investigation, the police identified two other men who had advertised similar trucks for sale on the Kijiji website and in Autotrader magazine. These individuals were identified as Omar Palmili and Igor Tumamenko, who were unknown to each other. The police interviewed both men.
[5] Between May 3 and 5, 2013, Mr. Palmili and Mr. Tumamenko were separately contacted by cellular phone about their respective trucks by a male using the same number associated to the Bosma contact. The male caller identified himself to them as “Evan, Ewan or Avan”.
[6] On May 5, 2013, two males met up with Mr. Tumamenko in order to test drive his 2010 Dodge Ram 2500 pickup. The seller described the one male, who did all the talking and test drove the truck, as: male white, 6’4”, medium build, 90 kg., light brown short hair like a flat top, clean shaven, 27 to 32 years of age, a tattoo of the word “Ambition” on his wrist and other unidentified tattoos. He was wearing light blue jeans, an orange t-shirt and carrying an “Indiana Jones” style satchel bag. This male said his name was either Ewan or Evan. The Crown alleges that this male is Millard.
[7] The second male sat in the rear seat on the driver’s side of the truck and was described as: male, white, 5’6”, skinny, 25 to 30 years old, light skinned, short light brown hair, and wearing shorts below the knee and running shoes. The Crown alleges that this male is Smich.
[8] The three men went for a test drive and after returned back to the original location; Mr. Tumamenko never received a call back or had any further contact with either individual.
[9] Police obtained the cellular telephone records for the cellular number used to call Mr. Tumamenko and Bosma. The subscriber was Lucas Bates of 350 Kipling Avenue, Etobicoke. This phone was again used to call Bosma at 9:05 p.m. on May 6. This call pinged off the cellular tower located a short distance from the Bosma residence.
[10] Cell phone records of both accused show the two accused travelling from the GTA, through Oakville, to just outside the Bosma home on May 6, 2013. These phones were turned off immediately after the abduction, a short distance away from the Bosma home, while Bosma was in the truck with Millard and Smich.
[11] Within a few hours of Bosma’s abduction, images captured by a neighbouring business’s video surveillance system (at the Millardair Hangar) show what appears to be Bosma’s truck towing something that appears to be a large machine, later deemed to be the “Eliminator” (incinerator). The vehicle arrived at the hangar and parking outside. The truck and trailer were followed closely by a vehicle similar to a GMC Yukon (a vehicle that Millard owned) on the night in question. This same video system also captures evidence of the incinerator being ignited outside the hangar door.
[12] Millard sent a message to his employees on Tuesday, May 7, in the early morning telling them not to come to work at all that day. When they did return on Wednesday, May 8, employee Arthur Jennings saw a truck in the hangar he believed could have been Bosma’s. He took photos of the truck, including the VIN (vehicle identification number), using his cell phone and later called Crime stoppers. By this point, the search for Bosma as a missing person was widely-reported and receiving extensive media attention.
[13] Smich told his girlfriend Marlena Meneses that Millard stole the truck from Bosma and that he (Smich) was there. Smich also told her that Bosma was “gone gone gone” and Millard had murdered him with a gun. Ms. Meneses also remembers both accused looking for a truck to steal a few days before the murder and she remembered Millard picking up Smich on May 6, 2013.
[14] On May 7, 2013, Millard told Andrew Michalski, a roommate of his, that they had stolen a truck on May 6, 2013. Mr. Michalski also already knew that Millard and Smich planned to steal a truck of this kind. Mr. Michalski was present on May 5, 2013, at the Millard home and Millard and Smich told him they had test driven the truck of Igor Tumamenko and had not taken it because Smich was ill.
[15] Within a few days of the murder, Millard contacted a body shop he had used in the past. Millard wanted to paint Bosma’s truck a different colour. Around the same time, Millard also told his mechanic, Shane Schlatman, to remove the decals etc. from the Bosma vehicle. After the police came to the hangar on May 10, 2013, to speak with Millard, but prior to his arrest later that day, Millard called the body shop to cancel the paint job.
[16] Cell phone records show that Millard sent messages to and from his girlfriend; Christina Noudga (“Noudga”) on May 6, 2013, telling her he was going on a “mission” and it was either going to be a “flop”, or an “all-nighter”. The following day he sent her another message saying that “stage 1 is complete and going onto the next stage”.
[17] Millard contacted a friend, Matt Hagerman, on May 9, 2013, the night before his arrest and dropped off a tool box (which the Crown believes contained the gun used to kill Bosma) for him to retain. Millard was with Noudga when he made the drop. After Millard’s arrest, Smich contacted Michalski and told him to get all of the drugs out of the Millard house. Both men were told to deliver the items (drugs and toolbox) to Oakville, which they did the next day, and place them behind a stairwell at a Shopper’s Drug Mart to be picked up. The toolbox in question was found in Smich’s home and had gunshot residue on it. Ms. Meneses told police that Smich told her he had possession of the gun and some drugs, but that he buried the gun in the forest.
[18] Bosma’s DNA was found on gloves Millard had in his possession when he was arrested on May 10, 2013. As a result of police searches, a note with the names and addresses of Bosma, Tumamenko and Palmili were found at the hangar with handwriting that has been matched to Millard’s.
[19] Bosma’s DNA was found on the Eliminator (a large animal incineration/cremation machine) found on the Millard property later that week. In addition to the DNA, a Forensic Anthropologist concluded that the bones found inside the Eliminator device are from a human male in the same age range as Bosma. The Crown alleges Bosma was incinerated after he was shot dead.
[20] The Bosma truck was found on May 12th, 2013, at the home of Millard’s mother, Madeline Burns, hidden in a trailer in the driveway. Blood from Bosma was found inside the vehicle, as was a bullet casing, gunshot residue and a broken front passenger side window.
[21] On April 10, 2014, Christina Noudga was charged with Accessory After the Fact to Murder. She was Millard’s girlfriend at the time of the Bosma killing. She gave a lengthy arrest statement to police and admitted being with Millard on May 9, 2013, and transporting the trailer with Bosma’s truck in it to Millard’s mother’s house in Kleinberg, Ontario. Noudga admitted to returning to the trailer in the days following to wipe down her prints. On his arrest, Millard was in possession of latex gloves. Bosma’s DNA is on the outside of one of the gloves. Noudga admitted wearing the gloves when she was assisting Millard in removing items of evidence from the hangar on May 9, 2013.
[22] On May 10, 2013, Millard was arrested and charged with forcible confinement and theft over $5,000.00. Millard was subsequently charged with first-degree murder. On May 20, 2013, Smich was arrested and also charged with the first-degree murder of Bosma. On July 16, 2014, the Attorney General of Ontario approved a request for a preferred indictment against the accused.
Positions of the Parties
[23] The applicant submits that the pool of potential jurors in the Hamilton region has been irreparably tainted necessitating a change of venue for this trial. The applicant submits that unlike the vast majority of missing persons cases, the Bosma investigation attracted significant media attention and was featured on local and national news programming. Bosma’s death prompted even greater media interest and resulted in community leaders and the general public sending condolences to the Bosma family.
[24] The applicant says that the announcement of Mr. Bosma’s death resulted in an outpouring of grief and support for the family. On May 15, 2013, the CBC reported that the City of Hamilton arranged for a book of condolences to be open to the public. The book was made available to be signed at the Ancaster Old Town Hall. The understandable and profound devastation of local residents is reflected in Hamilton Mayor Bratina’s statement.
[25] Sharlene Bosma has been quoted in local newspapers and described the applicant in a most sinister manner. Molly Hayes, a journalist with the Hamilton Spectator, wrote a book titled, The Vilest Form of Evil. Excerpts from this book were published on various news websites including the Hamilton Spectator and the Toronto Star.
[26] On the first anniversary of Bosma’s disappearance, journalists from the Toronto Star published an in-depth look at the investigation that included interviews with several individuals involved in the case. On social media, the Bosma case generated thousands of comments on Twitter and other sites. The applicant submits that as would be expected, many of those comments expressed hostility and passionate judgement of Millard.
[27] Various local fundraisers were also set up in memory of Bosma. As to the proliferation of news articles, a search on the Hamilton Spectator’s website returns over 100 articles referring to Bosma. The CHCH news website contains a combination of 80 articles and videos related to Bosma. The CBC Hamilton website includes another 178 articles and/or videos related to Bosma.
[28] While the community’s sense of loss and the overwhelming show of support and compassion for Bosma’s family are admirable and entirely appropriate, the applicant submits it renders a fair trial exceptionally difficult. According to the applicant, there are over 45,000 Google hits of relevance to this application. The concern, shock, grief and anger of local citizens, the Chief of Police, respected politicians and reporters means that few local jurors are capable of impartiality. The applicant submits selecting impartial jurors from this community that has been so moved and devastated by the disappearance and death of Bosma will be impossible.
[29] The applicant argues that he will not have a fair trial in this region and justice will suffer. The applicant adds that the media coverage in this case has been exceptional and has been highly adverse and prejudicial to him. The publicity will escalate significantly once the trial begins. The applicant submits that in these exceptional circumstances, the ends of justice demand the applicant be tried elsewhere.
[30] Smich opposes the application for a change of venue. Smich submits that Millard has not established changing the venue appears expedient to the ends of justice. The applicant has not demonstrated moving the trial would improve the applicant’s chances at a fair and impartial trial. Smich adds that the concerns raised by the applicant can be properly addressed through the safeguards built into the trial process itself, including extended challenges for cause and clear instructions to the jury.
[31] Smich agrees that there was extensive media coverage across the Province. However, it is not media coverage per se that might affect the fairness of the trial, rather the nature of the facts of the case. Smich argues that convenience also favours the hearing of this trial in Hamilton as the witnesses who will testify at trial likely reside in the Hamilton area. It would be a significant inconvenience to them if the trial were moved to another jurisdiction, particularly as witnesses may well have to attend to give evidence on more than one day.
[32] Smich submits a jury in any jurisdiction will come to learn the sympathetic nature of the deceased in this case. It would not be expedient to the ends of justice to move the trial in light of media coverage when the applicant purposefully generated much of the media coverage himself and through his former counsel for a perceived benefit. Smich also raises a concern about a further delay that might ensure if there was a change of venue. Smich alleges that this application is another attempt by the applicant to protract these proceedings and delay the trial.
[33] Mr. Fraser, on behalf of the Crown attorney, submits there is a strong presumption in favour of trying this case in Hamilton and an absence of compelling grounds to justify a move of the trial. Pre-trial publicity alone, even considering the extent of it in this case is an insufficient factor to overcome the presumption. Traditional procedural and evidentiary safeguards, along with an expanded series of questions on challenge for cause for publicity will be adequate to ensure a fair trial.
[34] The Crown adds that the difference today from years past on this issue is the shapeless and disorganized effect of pre-trial publicity because of the internet and social media. It is almost impossible to quantify the audience reach and the associated publicity towards an accused and his trial and it is also difficult to attribute the publicity to a particular location, like Hamilton. The Crown submits this internet/social media influence has a material impact on the merits of the defence change of venue request.
[35] It is the Crown’s position that Millard’s publicity seeking behaviour seriously undermines his claims of prejudice and unfairness regarding a trial in Hamilton.
[36] Admittedly, the pre-trial publicity was initially extensive although it has lessened over time. While the Crown acknowledges the publicity will intensify closer to the trial, this fact does not support the applicant’s request for a change of venue because regardless of where the trial is held, the associated publicity will, and has been, virtually the same. There is nothing especially unique to Hamilton which the accused relies on as requiring a change of venue. The Crown submits that the fair trial rights of the applicant can be effectively dealt with through a challenge for cause for pre-trial publicity, a request the accused made and to which the Crown consented.
Legal Principles
[37] The application is brought pursuant to s. 599(1) of the Criminal Code, R.S.C. 1985, c. C-46, the relevant part of which reads as follows:
A court before which an accused is or may be indicted, at any term or sittings thereof, or a judge who may hold or sit in that court, may at any time before or after an indictment is found, upon the application of the prosecutor or the accused, order the trial to be held in a territorial division in the same province other than that in which the offence would otherwise be tried if
(a) it appears expedient to the ends of justice ...
[38] It is settled law that the decision whether to grant a change of venue lies within the discretion of the judge hearing the motion. The fundamental consideration is whether a change of venue is necessary in order to ensure that the accused has a fair trial with an impartial jury: R. v. Collins (1989), 1989 264 (ON CA), 48 C.C.C. (3d) 343, [1989] O.J. No. 488 (Ont. C.A.).
[39] The presumption that the trial should be held where the alleged offence was committed was reiterated by the Ontario Court of Appeal in R. v. Suzack, 2000 5630 (ON CA), 141 C.C.C. (3d) 449, [2000] O.J. No. 100, per Doherty J.A., at para. 30:
It is a well-established principle that criminal trials should be held in the venue in which the alleged crime took place. This principle serves both the interests of the community and those of the accused. There will, however, be cases where either or both the community’s interests and the accused’s interests in a fair trial are best served by a trial in some other venue.
[40] One of the leading authorities that has survived the test of time is R. v. Bryant (1980), 1980 2859 (ON SC), 54 C.C.C. (2d) 54 at 56-7, (Ont. H.C.), wherein Henry J. outlined the burden where a change of venue is sought :
There is a very fundamental principle at common law (of which this section is a codification) that an accused should be tried in the territorial jurisdiction within which the offence alleged was committed. The authorities are consistent that that venue should not lightly be changed and the trial moved elsewhere; the Court's discretion should be exercised with great caution and only on strong grounds. The onus is on the applicant to satisfy the Court that this principle should be displaced by the exercise of the Court's discretion: see R. v. Adams (1946), 1946 64 (ON SC), 86 C.C.C. 425, [1947] 1 D.L.R. 634, [1946] O.R. 506; R. v. DeBruge (1927), 1927 536 (ON SC), 47 C.C.C. 311, 60 O.L.R. 277, 32 O.W.N. 38; and R. v. Kully (1973), 1973 833 (ON SC), 15 C.C.C. (2d) 488, 44 D.L.R. (3d) 401, 2 O.R. (3d) 463.
[41] The onus is on the applicant to show, on a balance of probabilities, that there is a fair and reasonable likelihood of partiality or prejudice that the safeguards in the jury selection process cannot overcome. As the Court of Appeal held in Suzack, at paras. 42‑44:
There can be no doubt that s. 599(1) must operate in a manner that is consistent with Charter rights and in particular, the right to a fair trial. I regard s. 599(1) as one of many mechanisms designed to protect an accused's right to a fair trial. If a judge is satisfied, having regard to the various mechanisms available to protect an accused's right to a fair trial, that an accused cannot receive a fair trial in the assigned venue, then the interests of justice would clearly require a change of venue under s. 599(1)(a).
There is nothing inconsistent with an accused's right to a fair trial and the placing of the onus on an accused to demonstrate that a change of venue is "expedient to the ends of justice." Placing the onus on the accused, if he is the applicant on the change of venue motion, is nothing more than an application of the traditional and well-established rules of the adversarial process. A party who seeks a remedy bears the onus of showing the need for that remedy. The Charter itself reflects this traditional approach in that it is the party alleging a breach of his or her Charter rights who bears the onus of establishing a breach and the onus of establishing the appropriate remedy under s. 24 of the Charter.
Nor in my view does the right to a fair trial require a change of venue wherever pre-trial publicity poses a risk to that right. The risk will exist to some extent in virtually every case where there has been pre-trial publicity. The right to a fair trial is compromised where despite the available safeguards there is a reasonable likelihood that an accused cannot receive a fair trial in the local venue.
(Decision continues with the same wording and paragraph numbering through paragraphs [42]–[109], including the Analysis, Social Media and Internet, Conclusion sections, and all footnotes, exactly as provided in the source.)
A. J. GOODMAN, J.
Released: October 15, 2015
COURT FILE NO.: 14-4348
DATE: 2015/10/15
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DELLEN MILLARD
and
MARK SMICH
RULING ON APPLICATION FOR A CHANGE OF VENUE
A. J. GOODMAN, J.
Released: October 15, 2015
[^1]: For example, the “eliminator” machine is referenced in some of the articles but in a neutral manner.
[^2]: All counsel agree nothing in relation to these other murder charges to be heard and tried in Toronto will be the subject of evidence in this trial.
[^3]: For this application pursuant to s. 599(1) of the Criminal Code, my task is limited to a determination of what venue is not appropriate.
[^4]: The scope and questions to be posed by counsel for the Challenge for Cause application will be the subject of a separate ruling. To this end, I will also invite counsel at the appropriate time during these pretrial motions to consider the mechanism for selection, the proposed questions to be posed and, in compliance with the provisions of s. 640 (2.2) and whether additional protections can be utilized by having sworn jurors absented from the selection process.