CITATION: R. v. Millard and Smich, 2015 ONSC 7357
COURT FILE NO.: 14-4348
DATE: 2015/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
DELLEN MILLARD
Respondent
– and –
MARK SMICH
Respondent
COUNSEL:
A. Leitch, on behalf of the Crown
R. Pillay on behalf of D. Millard
T. Dungey and J. Trehearne, on behalf of M. Smich
HEARD: November 18, 19, 22, 24 & 26, 2015
A. J. Goodman J.:
RULING ON APPLICATION OF OTHER DISCREDITABLE CONDUCT
tHIS RULING IS SUBJECT TO A BAN ON PUBLICATION pursuant to s. 648(1) of the criminal code of canada AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL the jury is sequestered or a further order of this court allows.
[1] This is an application brought by the Crown to introduce other discreditable conduct in this trial with respect to both accused.
[2] The respondents Dellen Millard ("Millard") and Mark Smich ("Smich") are charged with first degree murder. They are alleged to have acted as co-principals in a planned and deliberate scheme to steal Timothy Bosma's ("Bosma") truck and subsequently murder him, contrary to s. 231(2) of the Criminal Code. They also are alleged to have murdered Bosma while he was forcibly confined attracting first degree murder culpability on a constructive basis pursuant to s. 231(5) of the Criminal Code.
[3] It is my preference to provide full written reasons to the parties with regards to this application. However, due to the imminent hearing for a severance motion scheduled to be heard later this week, and in order that my full reasons be considered by the parties in a timely manner, in a somewhat unorthodox fashion my reasons for judgment are being provided in two parts. The first segment is found in these written reasons for judgment, supplemented by my oral reasons with respect to the specific items of evidence sought to be introduced by the Crown.
Background:
[4] Bosma and his wife Sharlene Bosma took out advertisements to sell their pick-up truck on the Kijiji website. Bosma corresponded via text message and by phone with a male who was interested in purchasing his truck.
[5] This male's telephone number was (647) 303-2279. The cell phone was registered to a fictitious "Lucas Bates" ("Bates phone") with a fictitious address located close to Millard's residence in Etobicoke. This phone has been linked to Millard through cell tower locations, phone call records, interviews with recipients of the calls from this number along with physical descriptors provided by Igor Tumamenko, ("Tumamenko") an individual who was also contacted by someone using this particular phone.
[6] Through the cell phone calls, plans were made to meet at Bosma's residence at 1230 Trinity Road South, Ancaster. On Monday, May 6, 2013 two males attended Bosma's home and were met by Bosma outside the home along with his wife Sharlene and tenant, Wayne Deboer. A conversation took place between Bosma and the two males. They requested to test drive his advertised vehicle and, with little hesitation, Bosma entered the passenger side of his own truck. One of the males (allegedly matching the description of Smich) entered the rear of the truck and the other (allegedly matching the description of Millard) drove. The vehicle left the residence between 9:15 p.m. and 9:20 p.m. The truck never returned and neither did Bosma.
[7] Cell phone records of both Millard's phone and the Bates phone show Millard coming from Etobicoke, through Oakville, to just outside Bosma's home on May 6. In fact, both of these cell phones accessed cell towers closest to the Bosma home immediately before Bosma met the two males. Bosma's phone, which he had with him when abducted, was turned off shortly after his abduction and was later found by the police.
[8] Tumamenko and Omar Palmilli had also advertised Dodge Ram trucks for sale and had been contacted by a male from the same Bates phone used to contact Bosma. The caller identified himself to Mr. Palmilli as Evan, or Ewan; Mr. Millard's middle name is Evan. Tumamenko actually conducted a test drive with two men in his Dodge ram pick-up truck and provided descriptions of these men to the police.
[9] Millard was the principal of MillardAir, a large commercial airplane hangar adjacent to the Waterloo International Airport. Images captured by a neighboring business' video surveillance system show what appears to be Bosma's truck towing something that appears to be the Eliminator incinerator, up to the MillardAir hangar and parking outside. The truck and trailer were closely followed by a vehicle similar to a GMC Yukon on the night in question. Millard owns a GMC Yukon. This same system also captures evidence of the incinerator being ignited outside the hangar door in the early morning hours of May 7, 2013.
[10] Bosma's DNA was found on gloves that Millard had in his possession when he was arrested on May 10, 2013.
[11] A note with the addresses and names of Bosma, Tumamenko and Omar Palmilli was found inside the Millard airport hangar in Waterloo, with handwriting that has been matched to Millard via a handwriting expert.
[12] The morning after Bosma's disappearance, Millard sent a message to his employees in the early morning telling them not to come to work at all that day as there was "airport politics" involved. Importantly, he told them not even to come to pick anything up. When they did return that week on Wednesday, May 8, employee Arthur Jennings saw a truck in the hangar that 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. The truck he saw in the Millard hangar turned out to be Bosma's, matched by VIN.
[13] Bosma's truck was discovered on May 12, 2013 at the home of Millard's mother, Madeline Burns. Bosma's blood was discovered inside the vehicle, as was a .380 calibre bullet casing, gunshot residue and a broken front passenger window.
[14] Bosma's DNA was discovered on the "Eliminator", an animal incineration device located during a police search on the Millard farm property. In addition to the DNA, a forensic anthropologist, Dr. Tracey Rogers, concluded that bones found inside the device are believed to be from a human male the same age as Bosma.
[15] Smich told his girlfriend Marlena Meneses ("Meneses") that Millard stole the truck from Bosma and that he (Smich) was there. Smich also said that Bosma was "gone gone gone" and Millard had murdered him with a gun. Meneses also vaguely remembers both accused looking for a truck to steal a few days before this happened and remembered Millard picking up Mr. Smich on May 6, 2013.
[16] Millard told Andrew Michalski ("Michalski") that they had stolen a truck on May 6, 2013 when the pair saw each other on May 7. Michalski knew from overheard remarks on previous days that the pair had planned to steal a truck similar to Bosma's. On May 5, Michalski was present at the Millard home and was told by Millard that they had test driven a truck and had not stolen it because Smich was ill. Michalski was even asked by Millard if they should steal a truck "from the nice guy or the asshole?"
[17] Millard contacted a mechanic he had used in the past to paint the Bosma truck a different colour. Mr. Millard also instructed his mechanic Shane Schlatman to remove the decals from the vehicle. Other evidence includes cellular phone records between Millard and his girlfriend on May 6, 2013. Millard contacted a friend, Matt Hagerman on May 9, 2013, the night before his arrest and dropped off a tool box, (believed by the Crown to contain a gun) for him to hold onto. After Millard's arrest, Smich contacted Michalski to gather all of the drugs in the Millard house and get them out. Both men were told to deliver the items to Oakville, which they did the next day, and placed them behind a stairwell for retrieval. The toolbox in question was found by police in Smich's home inside the washing machine. It was later tested and determined to have gunshot residue on it.
[18] Brendan Daly, a friend of Smich told police that Smich contacted him and was acting very strangely. He said the "cops" were after him and that Millard had been arrested because of the Bosma truck. Arthur Saboulian, a friend of Smich's, is believed to have disposed of the gun; however, he refused to cooperate with the police.
Positions of the Parties:
[19] The Crown submits that the respondents together murdered Bosma and that the murder was both planned and deliberate, or in the alternative, the murder was committed while Bosma was forcibly confined.
[20] The Crown says that evidence will reveal that after he was shot with a .380 firearm, Bosma's body was lifted into the Eliminator and burned. The Crown will advance the theory that both men acted together, planning the robbery and murder, committing the murder, disposing of the body and covering up the evidence of their crime, as co-principals or acting in concert together.
[21] The strong evidence implicating both accused in abducting Bosma and his murder while both were present drives the ultimate issue in this trial. Did they act in concert or as co-principals to murder Bosma? The Crown argues that evidence of their prior collaboration in lesser crimes is crucial to the jury's evaluation of the ultimate issue at trial. The Crown submits that the context of why Bosma was murdered will be lost if this evidence is not presented.
[22] In this case, the Crown says that the prior discreditable evidence highlights criminal behaviour that is markedly less serious than the allegations that are before the court. The evidence is highly probative and necessary for the trier of fact to understand the relationship and background between the accused and the facts. The jury will not become confused or distracted from the task of assessing the charges before the court by the admission of this evidence. As the evidence is primarily computer or cellphone evidence, it is easily understood and attributable to Millard and Smich and ought to be admitted.
[23] Millard submits that the Crown seeks to introduce an extensive body of evidence of discreditable conduct that, if permitted, will derail the trial, distract from the issues, and irreparably prejudice the jury against him. The evidence includes over 900 cell phone text messages spanning 21 months, data from electronic devices that comprises voluminous pictures and videos, SMS messages, internet searches and witness testimony. This evidence shows that Millard was involved in drug use, drug trafficking, firearms, importing contraband, the prior use of an animal incinerator and other unrelated misconduct in the roughly two-year period leading up to the alleged offence.
[24] Millard submits that the Crown must first identify a basis of admissibility for each discreet item of evidence. The respondent submits that the volume, nature and complexity of the discreditable evidence demands precision to ensure that only evidence that is capable of falling within a narrow exception to the exclusionary rule is admitted. In their factum, the Crown failed to set out a basis for admissibility with respect to each item of evidence, and has not therefore met this preliminary threshold. The complexity entailed in unpacking the Crown application and examining each item of evidence with the precision necessary for meaningful consideration is significant and onerous.
[25] Millard further submits that the probative value of the evidence is tenuous. Again, the evidence contains material separated in time and circumstances from the charge such that claims of relevance are highly problematic. Moreover, the alleged theory that supports the admissibility of some of the evidence is speculative. In addition, most of the evidence is unnecessary and is being advanced to prove facts for which there is less prejudicial evidence available. Although I pause to note that this has been addressed by the presentation and limitation of specific items of evidence sought to be introduced by the Crown during the course of this hearing.
[26] Mr. Pillay argues that the moral prejudice that will result from the admission of the discreditable conduct evidence is beyond question. The evidence chronicles his client's daily life and is highly inflammatory. The evidence invites a conviction because of the allegedly distasteful manner in which the respondent conducted himself in the months preceding the incident alleged in the indictment. The danger of propensity reasoning is significant and, in these circumstances, impossible to contain. There is a manifest danger in the evidence of prior use of the Eliminator as it invites an inference that his client was previously involved in burning a body. This, in turn, suggests that the respondent was involved in a prior murder. The damage that will flow from this will be incurable.
[27] Millard argues that equally problematic is the reasoning prejudice that will result. Evidence of weapons, drugs, thefts and importing contraband requires an extensive detour in the trial. The form of this evidence – hundreds of text messages, computer searches, photographs from cell phone backups and witness evidence – will require inordinate time to present when measured against its minimal value.
[28] Smich submits that the Crown's application is so deficient that neither the probative value, nor the prejudicial effect of the proposed evidence can be assessed. The Crown has failed to meet its onus to demonstrate that the probative value of the evidence outweighs its prejudicial effect.
[29] In the alternative, even accepting the Crown's assumptions, Smich submits that the prejudicial effect of the proposed evidence still significantly outweighs its probative value. This prejudice cannot be adequately and fairly managed by instructions to the jury.
[30] In particular, Ms. Trehearne says that the Crown has failed to outline or to prove a whole host of issues as outlined in para. 14 of their factum, including but not limited to: a) which specific text messages it wishes to introduce before the jury; their accuracy and whether the date and time on which the messages are said to have been sent are correct; b) any evidentiary basis for proof that the alleged conversations involved the respondent; c) the connection between the specific evidence it seeks to introduce and the specific issue in question to which it says the evidence is relevant; and d) the inferences it wishes to ask the jury to draw from the messages, which are often obscure in meaning and devoid of an evidentiary basis.
[31] While there is some validity to this argument, to a significant degree the complaints raised in subpara. (a) and (b) above have been remedied by the Crown's focus on certain specific items for admissibility during the course of this hearing. The Crown has provided the requisite foundational records to show the originator and receiver of various messages or texts along with the source information for images and videos. Although the Crown has made voluminous disclosure as is constitutionally required, Mr. Leitch has now limited the initial application to admit other discreditable conduct to only those items found or referenced in Exhibits "AA" and "AB".
[32] In any event, both accused submit that the Crown's application be dismissed. In the alternative, the parties tackled each particular item sought to be introduced into evidence by the Crown and addressed its potential for admissibility or exclusion during oral argument.
Legal Principles:
[33] It is settled law that evidence of other discreditable conduct is presumptively inadmissible. It is the Crown that bears the burden of establishing on a balance of probabilities that the evidence is relevant to a live issue at trial and the probative value of the evidence outweighs its prejudicial effect. R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 at para. 54, R. v. B.(C.R.), (1990), 55 C.C.C. (3d) (S.C.C.) 1 at para. 22-25.
[34] The probative value of the discreditable conduct is driven by the purpose for which it is tendered. The utility of the evidence lies in its ability to advance or refute a live issue at trial. Handy, at para. 69-73, Sweitzer v. The Queen, 1982 CanLII 23 (SCC), [1982] 1 S.C.R. 949 at p. 953. First the judge must determine whether the conduct which forms the subject matter of the proposed evidence is the conduct of the accused. Second, it must be determined whether the presumptive exclusionary rule applies. The trial judge must determine whether the evidence in question is "discreditable" to the accused, in the sense that an ordinary person would disapprove of his or her conduct.
[35] Once these threshold issues are resolved, the Crown must identify the purpose for which the evidence is proffered. That is, the Crown must identify the material issue in question that the contested evidence is relevant to. The probative value of any piece of evidence lies precisely in its ability to advance or refute a live issue pending before the trier of fact.
[36] Assuming the evidence relates to a material issue of sufficient importance and it is capable of supporting the inferences sought by the Crown, the trial judge must then balance the probative value of the evidence against the prejudicial effect of its admission. This is an important gatekeeper function that must be exercised judiciously.
[37] While this is not an application to admit similar act evidence in this case, there are some analogous legal principles. I have considered the jurisprudence to the extent that they can provide some assistance to the assessment required in this application.
[38] The admission of any evidence of other discreditable conduct can occasion prejudice to the defendant; however, the issue is whether the degree of prejudice outweighs the probative value of the proffered evidence. Reasoning prejudice becomes significant when the nature of the facts and the number of witnesses required to prove them can unduly sidetrack the jury from the charges in the indictment and move their focus to the other misconduct tendered by the prosecution. Moral prejudice becomes significant where the other discreditable conduct is particularly inflammatory compared to the charges before the court or has the potential to cause the jury to assess the defendant as someone deserving of punishment for the uncharged offences. Handy, at paras. 139 and 144, R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33 at paras. 65 - 70.
[39] There is an exception to the rule that permits the admission of evidence of other discreditable conduct. A Court may properly admit such evidence where it is so highly relevant and cogent that its probative value in the search for the truth outweighs any potential for misuse. Prejudice does not refer to the risk of conviction, but to the risk of an unfocused trial and a wrongful conviction.
Discussion:
[40] A criminal trial is a search for the truth as well as fairness to the accused: Handy at para. 43.
[41] This case is not limited to the issue of identity of the perpetrators. There are several live issues in question arising from the facts alleged in support of the charge of murder.
[42] The Crown bears the onus of satisfying the Court on a balance of probabilities that the probative value of evidence of prior discreditable conduct outweighs its prejudicial effect. In discharging this onus, the Crown is required to identify the issue that the discreditable evidence is related to and the non-prohibitive inferences to be drawn from the discreditable evidence. The Crown must establish that in a specific case, the probative value of bad character evidence outweighs its prejudicial effect. There is a narrow window of admissibility as the Supreme Court of Canada held in B.(C.R.), at para. 24:
Evidence of propensity, while generally inadmissible, may exceptionally be admitted where the probative value of the evidence in relation to an issue in question is so high that it displaces the heavy prejudice which will inevitably inure to the accused where evidence of prior immoral or illegal acts is presented to the jury.
[43] It is clear that the probative value of evidence cannot be assessed in isolation or a determination made in the abstract: Handy at para. 73. As mentioned, the Crown must identify the purpose for which the evidence is being proffered: Handy at para. 73. Further the Crown must demonstrate that there is "some evidence" linking the accused and the alleged prior bad acts: Sweitzer at p. 197. As well, that the evidence is properly capable of supporting the inferences urged by the Crown: R. v. Blake, 2003 CanLII 13682 (ON CA), [2003] O.J. No. 4589 (C.A.) at para. 48.
[44] The strength of the evidence in issue must be assessed to determine whether it is reasonably capable of belief. This necessarily entails a consideration of the credibility and reliability of the evidence. In Handy, at para. 134, Binnie J. explained:
In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is a factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief.
[45] In R. v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 (Ont. C.A.) at paras. 97-98, Doherty J.A. held:
Propensity reasoning involves two inferences. First, one infers from conduct on occasions other than the occasion in issue that a person has a certain disposition (state of mind). Second, one infers from the existence of that disposition that a person acted in a certain way on the occasion in issue: R. v. Watson (1996), 1996 CanLII 4008 (ON CA), 108 C.C.C. (3d) 310 (Ont. C.A.), at 325. Assuming the evidence can reasonably support both inferences, there is nothing irrational or illogical in using propensity reasoning to infer that an accused committed the act alleged. Viewed in this way, the evidence of the accused's discreditable conduct is a form of circumstantial evidence and meets the legal relevance criterion: R. v. Arp, at pp. 338-9.
[46] In R. v, Magno, 2012 ONSC 4014, [2012] O.J. No. 3354, (S.C.) at para. 14, Ducharme J. stated:
Therefore, the Court must consider whether there is evidence that the events that make up the prior discreditable conduct actually occurred and that the accused participated in them. The more compelling the proof, the greater the probative value of that evidence will be.
[47] The other crucial component of the analysis deals with prejudice. In R. v. Stubbs, 2013 ONCA 514, [2013] O.J. No. 3657 at para. 55, in one of a whole host of cases on this issue, the Court of Appeal reiterated that the general exclusionary rule is based on several policy considerations; including the danger that a finding of guilt will be grounded on "bad personhood" (moral prejudice), and the danger that the evidence will create confusion or distract the jury from its true task or take undue time (reasoning prejudice).
[48] Moral prejudice is described as the risk that the jury will convict an accused because of his bad character, or punish him for other discreditable conduct rather than on proof that he committed the offence charged. In Handy, at para. 139, Binnie J. held:
It is frequently mentioned that "prejudice" in this context is not the risk of conviction. It is, more properly, the risk of an unfocussed trial and a wrongful conviction. The forbidden chain of reasoning is to infer guilt from general disposition or propensity. The evidence, if believed, shows that an accused has discreditable tendencies. In the end, the verdict may be based on prejudice rather than proof, thereby undermining the presumption of innocence enshrined in ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms.
[49] The Crown submits that the evidence sought to be introduced is neither directed to nor will be advanced to demonstrate general propensity. I appreciate the Crown's intention and stated position; however it remains incumbent on me to ensure that such is indeed the case.
[50] Reasoning prejudice is the risk "of the jury being distracted or confused, of using undue court time, of the jury concentrating on resolving whether the accused actually committed the similar acts, and of the jury having difficulty disentangling the subject matter" of the disreputable conduct evidence from "that of the charges before them." Magno at para. 18.
[51] In this vein, whatever evidence I permit to be introduced, clear and fulsome jury instructions as to its use and how the evidence may be considered vis-à-vis either or both accused must be provided. As trial judge, it is my responsibility to ensure and provide adequate direction or instruction, in order to caution the jury against engaging in propensity reasoning.
[52] Before prior discreditable evidence is admitted, it must be closely scrutinized to determine whether it is reasonably capable of advancing the proposition for which it is being adduced. There must be a clear connection. In this regard, the Crown submits that discreditable conduct revealed in the cellular and electronic records is admissible in this trial under the following five general categories:
a) Relationship between the co-accused. Specifically, their propensity to commit criminal acts in concert;
b) Motive;
c) Actus Reus – specifically access to firearms and the Eliminator cremation device;
d) Narrative and background. Allowing the triers of fact the proper foundation to understand the co-accused, their actions and potential defences.
e) Rebutting the antagonistic defences and the anticipated defence of duress.
The relationship between the co-accused:
[53] This case involves a complex and long standing relationship between the co-accused. The Crown says that their relationship was fueled by a desire to live as outlaws, consuming drugs and committing criminal offences. In order for the jury to first understand this relationship and ultimately relate it to the Bosma murder it will be necessary to adduce past discreditable conduct both have engaged in. The Crown refers to P.K. McWilliams, "Canadian Criminal Evidence" (3rd ed.) at 10:10:5.10, which discusses the relevance of this category of evidence:
In some cases, it is unavoidable that the prosecution adduce evidence as part of its case to set the milieu and activity of the accused and the other witnesses to show the context or narrative even though it reveals that they are involved in criminal activity.
[54] The Manitoba Court of Appeal in R. v. Lamirande, (2002), 2002 MBCA 41, 164 C.C.C. (3d) 299 (Man. C.A.) held that prior criminal activity and relationships between the co-accused was admissible. Indeed the Court held it was essential to explain to the jury that the robbery was not a spur of the moment activity, but was rather part of an ongoing criminal business that both co-accused were engaged in. As well, it also properly permitted the jury to put into context what happened.
[55] I agree with Mr. Pillay that the evidence of association in Lamirande is somewhat distinguishable from the facts in this case. In Lamirande the evidence concerned the accused's association to the Indian Posse, a Winnipeg street-gang, and explained "how it was that two apparent strangers were so readily and quickly taken into the group" involved in the robbery and manslaughter. As well, as the only evidence that Lamirande was involved in the incident came from a Vetrovec witness who was also a member of the group that committed the robbery, the evidence was also required to corroborate his testimony.
[56] However, other authorities provided by the Crown support the admissibility of other discreditable conduct that can be employed to support inferences of association and relationships of co-accused in the appropriate case. The Ontario Court of Appeal in R. v. Chenier (2006), 2006 CanLII 3560 (ON CA), 205 C.C.C. (3d) 333 upheld the trial judge's decision to admit prior discreditable conduct into evidence for similar reasons to the case at bar. Previous drug dealing and drug use, weapons transactions and joint assaults were all deemed admissible. The prior discreditable conduct helped explain the relationship between the various parties to the jury and was relevant to show the accused's relationship at or near the time of the crime.
[57] I agree with the Crown that the nature of the relationship between Millard and Smich will be a critical issue at trial. The Crown submits that they have a situation specific propensity to act in concert to commit criminal activities, and in a particular fashion or modus operandi, making it more likely they acted in concert to forcibly confine and murder Bosma. This goes to the issue of the theft of the Bosma truck, planning and deliberation, and other material issues.
[58] There is no dispute that Millard and Smich knew each other or were closely associated. They worked together, socialized together, perhaps stole other items in concert, and planned and obtained firearms and had access to weapons and eventually, the Eliminator device.
[59] I am persuaded that without some of this historical evidence the jury would be not be able to appreciate how or why both men acted as alleged in the indictment. The history provides a necessary backdrop to understand their "team" dynamics and elements of planning and deliberation. Some of the discreditable conduct in this case does not merely speak to general disposition, rather involvement in other criminal activity that ties into the probative value being advanced by Crown counsel. In my view, it may address a specific disposition or connectedness to murder necessary to support the first inference. The second inference implies that the offence charged was a consequence of the accused acting in accordance with his disposition: R. v. Nurse, [2004] O.J. No. 3005 (S.C.).
The Dodge 3500 Pickup was the motive for the robbery and murder:
[60] The discreditable conduct is also relevant to the motive to obtain a 3500 Dodge Ram Pickup truck. Motive has long been held as a ground that allows sufficiently probative discreditable conduct to be led. The evidence of previous searches on computer websites for this type of vehicle, pictures and videos of similar vehicles in public, contact with Tumamenko and Mr. Palmilli who were selling the same vehicle, and discussions with Meneses and Michalski about stealing this type of truck show clearly that they were after this specific type of vehicle. It may provide proof of planning and motive. An inference could be drawn that murder may have been part of the plan; as unlike prior instances, the respondents took no steps to conceal their identity, used a burner phone to make contact, were armed with a firearm, all distinct from prior discussions between the accused with respect to other plans or previous "missions".
The Actus Reus – Identification and access to a firearm:
[61] It is alleged that both respondents participated in the test drive of the Bosma vehicle the evening Bosma was murdered. Based on some witness identification, Millard was the driver and Smich the rear passenger. When the truck was found at Millard's mother's home, a window was smashed, a .380 casing was found in plain sight inside the vehicle and there was gunshot residue inside the truck. It's the Crown's position that Bosma was shot and killed and then burned in the Eliminator.
[62] The cellular and computer records show access to both firearms and bullets by both respondents. There are photos attributable to each individually as well as shared transmissions. The Crown submits that each accused is seen holding illegal handguns, numerous pictures of guns and bullets sent via text messages and on their computers, with some plan to buy, smuggle and obtain guns, ammunition and other weapons.
[63] To a degree, the access and use of firearms is highly relevant to identification and proving the actus reus of the offence. Their history of mutual use and planning supports the theory that both accused had access to, and used firearms together, including the night Bosma was murdered. This evidence will show neither could have been surprised that the other, or both, brought a firearm to the Bosma theft and murder.
[64] There are a number of discussions surrounding the Eliminator, its acquisition, use, and placement at various times. The respondents urge the Court to find that the prior discreditable conduct evidence regarding the Eliminator does nothing to advance the case on identification or planning and deliberation. They stress that there is ample less prejudicial evidence of identification that is available and this evidence is therefore unnecessary. With respect, I cannot accept that submission. I am persuaded that access to the Eliminator device is relevant and probative to the issue of identification, planning or actus reus.
[65] However, the fundamental question is whether the evidence surrounding the Eliminator is particularly treacherous as underscored by the defence?
[66] The Crown's theory is that in this case, when considering the proposed evidence, the jury would have to evaluate whether this crime was an attempt to steal a truck gone wrong or an escalation in an ongoing pattern of joint criminal endeavours.
[67] The bulk of the evidence consists of communications and photos of alleged activity in July 2012 that purports to prove that Millard and Smich purchased and used the Eliminator. The Crown theorizes that the Eliminator was purchased in July 2012 for the purpose of incinerating dead bodies. The synopsis of the Babcock murder was entered as an exhibit and provides relevant dates of July 3 - 4 2012, (the alleged murder) and July 23, 2012, (the alleged use of the Eliminator).
[68] The inference available to the jury is that the incinerator was employed in July 2012 for this intended purpose or for future use. As mentioned, many of the messages sought to be introduced are in the timeframe of July 2012, during this important period, when it is alleged Ms. Babcock was murdered and subsequently incinerated.
[69] The respondents urge the Court to find that the prior discreditable conduct evidence regarding the Eliminator is highly prejudicial. This evidence is divorced in time and circumstances from the offence charged in the indictment. The respondents stress that it is a short leap from this evidence to an inference that this prior use of the Eliminator was to burn a body and, further, that this was the body of another murder victim. It may be that the introduction of evidence of the Eliminator at the same time of the alleged Babcock murder may beg further speculation and is therefore equivocal at best as to whether the alleged abduction and murder were consistent with a propensity to commit crimes in concert.
[70] It is submitted that this evidence is dangerously prejudicial and will irreparably poison the proceedings. A fair trial with this evidence will be impossible. The defence submits that this evidence will shift focus to whether Millard and Smich incinerated another body. The jury will wonder what use was made of the incinerator in July 2012. If they accept the Crown's submission, they could conclude that the only purpose for the Eliminator is to incinerate dead bodies. This could lead to a consideration of whose body it was, how the person died, whether the accused killed the person etc. The evidence will cry out for an explanation. If either or both accused testifies, it means that he could be cross-examined regarding events that squarely relate to another murder investigation. The danger to propensity reasoning is insurmountable and no jury instruction can revive some semblance of fairness.
[71] I agree. While I have considered all of the materials filed and submissions from all counsel, on this particular point I have kept the defence submissions on the potential for reasoning prejudice foremost in my mind. More will be said about this issue later in my oral reasons.
Rebut potential defences and anticipated defence of duress or innocent associations:
[72] The defence has conceded on record that they will both advance antagonistic defences. More specifically, each man is expected to point the finger at the other and accuse him of killing Bosma. Both accused may claim that they had no warning or knowledge that he would be murdered by the other. Given the strength of the evidence that they acted together to incinerate Bosma's body, it is anticipated they will also advance defences of duress that they covered up the crime under threat of harm or death by the other.
[73] In Handy, the Supreme Court held at para. 74:
The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issues in the trial to which the evidence of disposition is said to relate.
[74] Given the statements advanced by counsel throughout these pretrial motions, I agree with the Crown that the other discreditable conduct evidence is relevant to rebut potential defences that may be reasonably anticipated by the Crown to be raised in this case. To some limited extent, the evidence may also assist in providing the triers of fact with the narrative and with the proper foundation to assess all of the evidence to be adduced in this case.
The evidence of discreditable conduct is unnecessary:
[75] The respondents submit that there is less prejudicial evidence available on the allegation that the two accused acted in concert in the theft or robbery of Bosma's truck on May 6, 2013. The respondents say that the close association between the two is easily demonstrated by less prejudicial evidence that includes the testimony of numerous witnesses.
[76] However, in my opinion, this fails to provide the true nature of their relationship to the jury, including but not limited to the issue of their trusting relationship, that the Crown alleges to have existed between the two and the intimate details of their combined activities leading to the facts being alleged here. I am persuaded that the evidence of other discreditable conduct does properly advance the probative value to which is being adduced to the allegation that the accused acted in concert with respect to the events of May 6.
[77] In this case, the prior discreditable evidence highlights criminal behaviour that is markedly less serious than the allegations that are before the Court. As discussed, in my view, some of the evidence is highly probative and necessary for the triers of fact to understand the relationship and background between the accused and the facts alleged. The jury will not become confused or distracted from the task of assessing the charges before the court by the admission of some of this evidence. The evidence is primarily computer/cellular phone evidence, and in the manner presented by Mr. Leitch during the course of argument, it is easily understood and attributable to either or both Millard and Smich.
[78] I do not accept the respondents' suggestion that while the text messages show a wide range of criminal activity or misconduct, perhaps most significantly from involvement with firearms, and the severity of some of the alleged behaviour, the jury might well be glad that the respondents are now in custody and wish to keep them there. In my view, that concern has been reduced by my findings along with the Crown's limiting and reasonable approach to the list of items of evidence submitted for introduction into evidence as found in Exhibits "AA" and "AB". In any event, appropriate limiting instructions to the jury will be provided when necessary.
Conclusion:
[79] I am satisfied that some of the items of evidence sought to be introduced by the Crown in this application fall squarely into the proper admission of other discreditable conduct. The probity, that is their relevance and connection with respect to other evidence to be proffered in this case has been established.
[80] In fact, in their oral submission to this court, both defence counsel have conceded the admissibility of some of the items of evidence sought to be introduced by the Crown in this application, notably those pieces of evidence that are not considered as "discreditable" or where their probative value is not exceeded by their prejudicial effect. With this in mind, the potential for prejudice outweighing the probative value of the discreditable conduct evidence needs to be thoroughly reviewed and considered. In this light, I must consider both the case for the Crown and each accused.
[81] Recall that prejudice does not equate to a risk of conviction, but rather to the risk of an unfocussed trial or a wrongful conviction based on guilt inferred from general propensity. I have applied the requisite principles and have attempted to balance the probative value of the particular items of evidence which is not outweighed by its prejudicial effect.
[82] For all of these reasons, the Crown's application is granted in part.
[83] As mentioned at the outset, I will now continue and supplement my written reasons for judgment and ruling with oral findings with respect to the specific items sought to be introduced by the Crown in this application as found in Exhibits "AA" and "AB".
A. J. GOODMAN, J.
Released: December 1, 2015
CITATION: R. v. Millard and Smich, 2015 ONSC 7357
COURT FILE NO.: 14-4348
DATE: 2015/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
- and -
DELLEN MILLARD
Respondent
- and -
MARK SMICH
Respondent
RULING ON aPPLICATION of other discreditable conduct
A. J. GOODMAN, J.
Released: December 1, 2015