ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-4348
DATE: 2015/10/19
B E T W E E N:
HER MAJESTY THE QUEEN
C. Fraser, for the Crown
- and -
DELLEN MILLARD & MARK SMICH
R. Pillay for the accused, Millard, &
T. Dungey for the accused, Smich
HEARD: October 13 & 14, 2015
RULING ON POST- OFFENCE CONDUCT EVIDENCE
THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS
A.J. GOODMAN J.
Introduction
[1] This is an application to exclude certain evidence of post-offence conduct related to both accused, Dellen Millard (“Millard”) and Mark Smich (“Smich”).
[2] The application was brought by the Crown as an application to admit post offence conduct evidence with defence counsel providing responding materials.
[3] Post offence conduct evidence is presumptively admissible and the onus falls on the party seeking to exclude such evidence on a balance of probabilities. See Rule 31.01 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). The fact that the Crown proceeded on an apparent misunderstanding of the onus and application of the Rules with the defence responding in opposition to the initial application as framed is of no moment. In submissions, I am satisfied that the parties advanced their full respective positions with the proper onus being acknowledged.
[4] Defence counsel do not oppose the admissibility of the preponderance of evidence to be called by the Crown in the application. However, there are two areas of evidence that remain in dispute; the circumstances of the disposal and retrieval of the toolbox by police from the Smich home and the events surrounding the movement and use of the incinerator, known as the “Eliminator”.[^1]
Background:
[5] The evidence for this application is taken from the Crown’s factum with necessary modifications.
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.
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. Bosman 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.
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 (“Palmili”) and Igor Tumamenko, (“Tumamenko”) who were unknown to each other. The police interviewed both men.
Between May 3 and 5, 2013, Palmili and 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”.
On May 5, 2013, two males met up with 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.
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.
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.
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.
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.
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 parked 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.
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.
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.
On May 7, 2013, Millard told Andrew Michalski, (“Michalski”) a roommate of his, that they had stolen a truck on May 6, 2013. Michalski also already knew that Millard and Smich planned to steal a truck of this kind. Michalski was present on May 5, 2013, at the Millard home and Millard and Smich told him they had test driven the Tumamenko’s truck and had not taken it because Smich was ill. Michalski was asked by Millard if they should steal a truck “from the nice guy or the asshole?” It is believed Tumamenko was the asshole and Bosma the nice guy.
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.
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”.
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 took the backpack and the toolbox to a stairwell at or near a Shopper’s Drug Mart on Speers Road in Oakville. The toolbox in question was later found in Smich’s home and had gunshot residue on it.
Ms. Meneses informed the police that Smich told her he had possession of the gun and some drugs, but that he buried the gun in the forest.
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, Tumemenko and Palmili were found at the hangar with handwriting that has been matched to Millard’s.
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.
Bosma’s 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.
On April 10, 2014, 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.
Noudga also admitted to being given a digital video recorder (DVR) by Millard on May 9th and told to hold it for him. This DVR was seized from the Noudga residence pursuant to a warrant. It was located in her bedroom closest. It is believed the DVR was taken from the hangar by Millard after the killing of Bosma. The analysis to date shows an image of Millard and Smich in the hangar (with Millard’s dog) at a material time in and around the killing of Bosma.
Positions of the Parties:
[6] Mr. Pillay on behalf of his client submits that the post-offence conduct in relation to the tool box does not support the inferences sought by the Crown. There is no evidence that the box contained a firearm, yet alone the actual firearm that was used in the killing of Bosma. The inferences sought to be drawn from this piece of evidence is nothing more than speculation. Mr. Pillay submits that the incinerator evidence is prejudicial and does not advance the proposition that the accused committed a planned and deliberate murder as opposed to another offence. As the evidence is discreditable conduct it is presumptively inadmissible and any probative value is exceeded by its prejudicial impact.
[7] Mr. Dungey joins with Mr. Pillay’s argument. As the post-offence conduct is explainable by competing events, and is highly prejudicial to his client, it is of no probative value and ought not to be admitted.
[8] Mr. Fraser, on behalf of the Crown admits that the post-offence conduct evidence could not support any inference as to the degree of either accused’s level of culpability for homicide, but could, in a more limited way support an inference that the accused acted as he or they did knowing he or they had been involved in the commission of a culpable homicide. The evidence is admissible and may lead to reasonable inferences to be drawn by the trier of fact.
Legal principles
[9] The use of post offence conduct or after-the-fact conduct has been addressed by the appellate courts in a myriad of cases. A recent pronouncement is found in the case of R. v. White, 2011 SCC 13, [2011] 1 SCR 433; (2011), 267 C.C.C. (3d) 453, a decision of the Supreme Court of Canada. While various holdings arose from the panel, the principles of the use of post offence conduct were set out by Binnie J.: [^2]
It is not the case that anything done by an accused after the offence is subject to a special warning;
The general rule is now, as in the past, that it is for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct put in evidence against the accused is related to the commission of the crime before them rather than to something else, and if so, how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury's exclusive fact-finding role;
However, there may be cases where a warning is required because jurors may attach more weight to the post-offence conduct than is warranted. “This risk exists with respect to some types of post-offence conduct relied upon by the Crown and in those cases it only makes sense for the judges to alert the jurors to what the courts have collectively learned over the years, especially when that learning may for some jurors be counter-intuitive”;
However, the bulk of so-called post-offence conduct “will simply flow into the record as an unremarkable part of the narrative”;
Like all other circumstantial evidence, evidence of post-offence conduct will be relevant and admissible depending on whether it has some tendency “as a matter of logic, common sense, and human experience... to help resolve the issues in the case”.
[10] In R. v. White and Coté, 1998 789 (SCC), [1998] S.C.J. No. 57, the Supreme Court opined that evidence of post-offence conduct is not fundamentally different from other types of circumstantial evidence, in that in some cases “it may be highly incriminating,” while in other cases “it might play only a minor corroborative role”.
[11] In R. v. J.A.T., [2012] ONCA 177, Watt J.A. in addressing several grounds of appeal, had the opportunity to discuss the principles of post-offence conduct at paras. 142 & 143:
In the law of evidence, the descriptive "post-offence conduct" is a term of art. It is not a neutral term that embraces any and all behaviour that occurs after a crime has been committed, only behaviour that is probative of guilt: R. v. Turcotte, 2005 SCC 50, [2005] 2 S.C.R. 519, at para. 37. Evidence of post-offence conduct is circumstantial evidence which, like other circumstantial evidence, will be relevant and admissible according to whether it has some tendency, as a matter of logic, common sense and human experience, to help resolve the issues in the case: (citations omitted).
Evidence of anything done by an accused after the commission of an offence is not subject to a special warning. As a general rule, it is for the jury to decide whether, on the basis of the evidence as a whole, evidence of an accused's post-offence conduct is related to the commission of the offence charged rather than to something else. It is also for the jury to decide how much, if any, weight it should assign to this evidence in its final decision: (citations omitted.)
Analysis
[12] As mentioned, defence counsel argue that the evidence sought to be introduced of post offence (often referred to as after-the-fact) conduct is highly prejudicial to their clients. It is trite law that the legal concept of prejudice is not defined by the admission of evidence that may be contrary or damaging to one party’s position or interests; rather it is how the use of such evidence may be assessed resulting in erroneous or improper inferences by the trier of fact.
[13] It is clear that the use of post-offence conduct evidence may provide some evidence of an accused’s culpability is supported by the authorities: R. v. Arcangioli (1994), 1994 107 (SCC), 87 C.C.C. (3d) 289 (S.C.C.) at pp. 300-1; R. v. White (1998), 1998 789 (SCC), 125 C.C.C. (3d) 385 (S.C.C.) at pp. 401-3; R. v. Jacquard (1997), 1997 374 (SCC), 113 C.C.C. (3d) 1 (S.C.C.) at pp. 21-3.
[14] Post-offence conduct is frequently important evidence and admitted to show that a person has acted in a manner, based on human experience, logic and common sense that is consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent person: R. v. Peavoy, 1997 3028 (ON CA), [1997] O.J. No. 2788 (C.A.) at para. 26, R. v. Polimac, [2010] O.J. No. 1968 (C.A.) at paras 107-116. This evidence may assist the trier of fact in determining the guilt or innocence of the accused charged with the alleged offence. In some limited circumstances the post-offence conduct may even provide evidentiary insight into the degree of the offender’s liability and sometimes the evidence can be useful in assessing the viability of a defence: R. v. Jaw. 2009 SCC 42, [2009] 3 S.C.R. 26,
[15] In considering the significance of this type of evidence, however, the jury is obliged to carefully consider any alternative explanation that may be offered. Indeed, the defence may well advance, through the testimony of the accused or otherwise, one or more alternative explanations for the post-offence conduct. In some situations this potentially incriminatory nature of the evidence may be neutralized or may be of an exculpatory nature.
[16] As one means of attempting to inhibit a jury’s potential erroneous inference of guilt when faced with post-offence conduct evidence, trial judges should consider reminding juries that this type of evidence is “simply just another piece of circumstantial evidence” for them to consider, together with all of the other evidence, in determining the guilt or innocence of the accused. The jury might also be reminded that this type of circumstantial evidence has only an “indirect” bearing on the guilt or innocence of the accused, as the potential inferences to be drawn from this evidence are being examined retrospectively.
[17] Some appellate jurisprudence suggests that the jury should exercise caution in inferring guilt because the conduct might be explained in an alternative manner. The trial judge should also instruct the jury that the evidence of the accused’s after-the-fact conduct can only be used to support an inference of guilt where they have rejected any innocent explanation for the conduct. The inferences to be drawn from the evidence cannot be based on speculation.
[18] In presenting a balanced perspective of the post-offence conduct evidence, a trial judge is obliged to remind the jury about the defence perspective on the evidence. The trial judge must remind the jury of any specific explanation for the conduct provided by the accused personally, or advanced by the defence more generally. Even where the accused does not testify and no other alternative explanation emerges from the evidence, other potential explanations that might neutralize the potentially incriminating nature of the evidence must be addressed. The jury is, of course, obliged to consider these or other potential explanations for the accused’s conduct, and should be told they cannot draw the inference that the evidence supports the guilt of the accused unless they reject all of these other potential explanations.
[19] It is for the jury to assess all of the evidence including the post-offence conduct and make appropriate findings of fact as to the significance, if any, of that type of evidence. The Supreme Court of Canada explained this in White and previously in R. v. White & Cote in this way:
As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role. Consequently, a “no probative value” instruction like the one required in Arcangioli will be called for only in limited circumstances.
[20] Turning to the latter point addressed in R. v. White & Cote, Mr. Dungey argues that a “no probative” instruction ought to be considered as the post-offence conduct in this case does not prove planning or deliberation or demonstrate who killed the deceased. Counsel submits that the post offence conduct is equally consistent with the offence of accessory after the fact or simply bad conduct. He submits that there can be a host of reasons why people may do stupid things in diverse situations. Those comments may be entirely true and may be the subject of a reasonable inference to be drawn by the trier of fact at the end of the day.
[21] In certain limited and rare circumstances, a trial judge may be required to instruct a jury that the post-offence conduct evidence before them has “no probative value” and should be ignored in reaching their verdict. According to Arcangioli, such an instruction is appropriate where an accused’s post-offence conduct is “equally explained” by, or is “equally consistent” with a displayed consciousness of guilt with respect to other unlawful conduct admittedly engaged in by the accused.
[22] However, this consideration does not arise in this case. While an accused is not obliged to make any formal admission or concede any factual or legal issue, neither Millard nor Smich have admitted to any degree of participation or the actus reus of the alleged crime. Thus, either or both accused’s culpability is very much an important consideration left for the jury. Further, the identity of the actual perpetrator(s) who is or are alleged to have committed the Bosma murder is not admitted and will be another live issue for trial.
[23] While the term “consciousness of guilt” is no longer employed as a term to be employed before a jury, the jury may still find the evidence probative with respect to the alleged offence, but only if they are satisfied that the consciousness of guilt displayed by an accused was with respect to the offence charged.
[24] It may be true that in this case it can be said that the post-offence conduct of either or both accused is “equally explained by” or “equally consistent with” two or more conclusions, one set suggestive of culpability, the other indicative of non-culpable conduct. However, this ultimate factual conclusion as to the significance of the evidence must be made by the trier of fact.
[25] I am cognizant that in certain cases such as White or R. v. Angelis, [2013] ONCA 70, there is a risk that the jury would give after-the-fact evidence more weight than warranted. In addressing this point, at para. 55 in Angelis, Laskin J.A. (in quoting Rothstein J. from White), wrote that “[where] the risk that the jury would “jump too quickly from evidence of post-offence conduct to an inference of guilt”, an instruction is required.
[26] I am alive to the direction from the appellate courts that special instructions to the jury about this area of circumstantial evidence are not routinely mandated or necessary. Each case must be considered on its own merits and I acknowledge that some instruction may have to be provided to the jury if warranted.
The Tool Box:
[27] With regards to the tool box, I am less concerned about this evidence and its alleged prejudicial impact on the jury in the totality of this case. The Crown has proffered evidence to sustain some degree of connectivity of this toolbox to both accused that can provide for reasonable inferences to be drawn as sought by the prosecution. While I agree with the defence that a witness’ opinion of what might be inside the toolbox is speculative and does not advance the case, that does not in itself negate or reduce the probative value of the evidence.
[28] In my view, this piece of circumstantial evidence is admissible. Whether or not there was an actual gun in the tool box at the relevant time, there still remain reasonable, albeit competing inferences that can be drawn from the conduct of all of those involved. I am not satisfied that the alleged prejudice alluded to by counsel cannot be negated by any instruction to the jury should that become necessary.
The Incinerator:
[29] I must concede some initial bewilderment about Crown counsel’s submission regarding its theory with respect to the incinerator and whether or not it forms part of a continuing occurrence or whether it falls under the rubric of post offence conduct. However, Mr. Fraser clarified his position in Reply and the Crown’s theory is that the incinerator was used to destroy evidence after the alleged use of a firearm to kill Bosma. I am persuaded that the events surrounding the incinerator after the alleged shooting is properly framed as post offence conduct.
[30] While I need not detail all of the evidence adduced in this motion, I have considered the Crown’s materials including but not limited to the video stills from the hanger, the observations of the incinerator at various sites by police and other witnesses, as well as the evidence of Noudga, Meneses, Hagerman, Michalski, and the forensic evidence. The evidence in this application is relevant and material, and in my opinion, provides some basis to support both accused’s involvement with the incinerator after the alleged shooting.
[31] Mr. Pillay submits that the introduction of the incinerator is “very dangerous” and may alienate the jury. There may be some validity to this argument. I am cognizant that the incinerator itself being implicated in this case may involve the risk that the jury would place undue emphasis on this piece of evidence. It is, therefore, important to ensure, by careful jury instructions, that the jury does not misuse this piece of evidence.
[32] Accordingly, there is a well-developed body of jurisprudence to the effect that juries be carefully instructed that there may be alternative explanations for the accused’(s) actions or behaviour and as such the conduct may not be capable of supporting an inference of consciousness of guilt. The destruction of physical evidence may fall under this consideration: R. v. Ruddick (1980), 1980 2941 (ON CA), 57 C.C.C. (2d) 421 (Ont. C.A.), (leave to appeal to the Supreme Court refused). Special cautionary instructions are often required to enable the jury to properly deal with the post-offence conduct. This assessment will be made at the appropriate time following submissions from counsel.
Conclusion
[33] It is clear that the jury must not treat any post-offence conduct as a special category of circumstantial evidence. Rather, the jury is only to weigh the post-offence conduct evidence together with the rest of the evidence when deciding the issue of guilt or innocence at the end of the case.
[34] The Crown is not introducing the toolbox and incinerator for the purpose of advancing demeanour or discreditable conduct evidence. I accept that the rationale for the presentation of this evidence relates to the live issues of identity of the perpetrator(s), complicity, culpability, intent or state of mind of either accused, or to rebut possible defences.
[35] I am persuaded that the nature of the evidence advanced in this application is strong compelling circumstantial evidence that may give rise those and other reasonable inferences. Of course, as defence counsel submits, there may be other innocent, rational or competing inferences to be drawn and the jury will be so informed based on the evidence adduced at trial.
[36] As I find that its probative value exceeds any prejudicial effect, the post offence conduct evidence ought to be left to the triers of fact for their consideration.
[37] Depending on how the evidence plays out before the jury, it may be that a careful and detailed instruction will be required in order that such evidence is not misused or over-emphasized. I am confident that any risk of detouring the triers of fact into an analysis not equal to the potential probative value to be derived from the exercise will be negated by an instruction as to the use of this evidence.
[38] Therefore, at this stage, and assuming that there is no other legal basis or Charter grounds to exclude the evidence, I am persuaded that the post-offence conduct evidence related to the toolbox and the incinerator is admissible.
A.J. Goodman J.
October 19, 2015
COURT FILE NO.:14-4348
DATE: 2015/10/19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
DELLEN MILLARD & MARK SMICH
RULING WITH RESPECT TO POST OFFENCE CONDUCT
A.J. Goodman J.
DATE: October 19, 2015
[^1]: The other remaining area of dispute, namely the post offence conduct related to letters sent by Millard to Noudga has been addressed in oral reasons provided to the parties.
[^2]: These principles were also summarized in R v. Cornelius, 2011 ONCA 551.