ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 14-4348
DATE: 2015/12/16
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DELLEN MILLARD
Applicant
– and –
MARK SMICH
Respondent
A. Leitch, on behalf of the Crown
R. Pillay on behalf of the Applicant, Millard
T. Dungey on behalf of the Respondent, Smich
HEARD: December 3, 2015
A. J. Goodman J.:
RULING ON APPLICATION FOR severance
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 a further order of this court allows.
[1] This is an application brought by Dellen Millard (“Millard”) for severance and an order for separate trials of the accused who are jointly charged with first degree murder, pursuant to s. 591(3)(b) of the Criminal Code.
[2] This application is opposed by the co-accused, Mark Smich (“Smich) and the Crown.
Positions of the Parties:
[3] The applicant moves for severance from his jointly charged co-accused and submits that the prejudice in this joint trial is overwhelming. Smich’s proposed aggressive attack on the applicant by advancing damning evidence of bad character and propensity will be insurmountable.
[4] According to Millard, Smich has made his position at trial clear. Smich concedes that this was a carefully designed and executed plot to lure and murder an unknown random victim. Smich maintains, however, that it was Millard alone that orchestrated the murder and that he had no knowledge of the plan. Smich will argue that Millard, a powerful and intelligent manipulator, duped him into assisting in the execution of his plan to kill an innocent person. According to Smich, he was at all times ignorant of Millard’s intentions and is therefore innocent of any wrongdoing. To advance this position, Smich will adduce a body of bad character and propensity evidence against Millard.
[5] In the days following Bosma’s disappearance on May 6, 2013, Smich provided his girlfriend Marlena Meneses (“Meneses”) details of what had transpired. Meneses made a number of statements to police wherein she recounts what Smich told her. These statements, while intended to serve Smich, serve to implicate him in Bosma’s disappearance, death and the destruction of evidence. In her video statement, Meneses stated that Smich told her that Millard murdered Bosma with a gun, that he was present at the time of the murder and that he (Smich) disposed of the gun.
[6] The applicant says that Meneses will be an important and pivotal witness for the Crown at trial. She will provide a powerful body of incriminating admissions made by Smich in the immediate aftermath of Bosma’s death, when she was his closest and most intimate ally. These statements, while inadmissible against the applicant, are highly prejudicial to Millard.
[7] In support of the application at this juncture, Millard adds that Smich has disclosed his position at trial in his factum filed in support of his response to the application for directions on his intention to introduce evidence of the transportation of jailhouse letters from Millard to Christina Noudga (“Noudga”). Smich’s position is that Millard ‘orchestrated’ and executed the planned and deliberate murder of Bosma. Smich’s theory is that Bosma’s murder was planned and deliberate and that it was Millard who planned and deliberated upon the murder. Millard’s plan was to murder someone and to then blame Smich for it. Millard murdered Bosma by shooting him and Smich had no knowledge of the plan. Smich will claim that he is an innocent dupe manipulated by Millard into being an unwitting accomplice.
[8] Millard submits that Smich will lead a body of evidence that undermines his character and introduces propensity reasoning. Much of this evidence is inadmissible at the behest of the Crown. Given Smich’s aggressive and antagonistic defence, it is likely that he will introduce evidence of Millard’s prior alleged criminal activities that include the importing, possession and trafficking of firearms, theft and the possession and trafficking of various controlled substances. Moreover, the enormity of the material seized from Millard’s many electronic devices affords Smich a wealth of personal information - emails, text messages, photographs and video recordings - that could be used in his attack of the applicant’s character.
[9] Millard says that while it is impossible to define the precise scope of Smich’s attack on him, it is beyond question that Smich’s objective is to be as destructive as possible. It is further anticipated that should the applicant elect to testify at trial, counsel for Smich will embark on a lengthy and aggressive cross-examination designed to demonstrate his propensity to commit a murder and to dismantle his character. It is argued that this approach is essential to Smich’s right to make full answer and defence.
[10] In these circumstances, Millard submits that no limiting instruction to a jury can cure the damage. The interests of justice require that he be tried separately from Smich.
[11] The co-accused, Smich, opposes the application and says that Millard argues four areas of anticipated evidence that purportedly require severance in this case. They include: evidence the Crown might lead of Smich’s alleged involvement with the applicant in another murder; Meneses anticipated evidence, that Smich told Meneses that he was present for the killing but that Millard killed Bosma; evidence of Millard’s bad character and propensity that Smich might introduce; and the anticipated cross-examination of Millard by Smich’s counsel should Millard choose to testify.
[12] Smich submits that none of the above areas of anticipated evidence, collectively or standing alone, require severance. In particular, the Crown has clarified that it does not apply to lead evidence of the accused’s alleged participation in any other murder. The jury can be clearly instructed that Meneses’s statement is only admissible against Smich and not against Millard. The extent of any bad character evidence admissible at the instance of Smich against Millard has not been determined and thorough cross-examination by counsel for a co-accused is not a basis for severance, particularly as Millard would be subjected to a thorough cross-examination by the Crown whether he is tried alone or together with Smich.
[13] While Millard seeks a separate trial because the Crown will lead the evidence that Smich admitted to Meneses that he was present for the killing but stated that it was Millard’s plan and that Millard killed Bosma; Smich responds that the jury can easily and clearly be told that this evidence is only admissible against Smich. It is not a complicated issue.
[14] Smich submits that Millard may not testify and so the application for severance on this ground is premature. In any event, subjection to cross-examination is not inherently a justification for severance. If Millard chooses to testify, he will no doubt face significant cross-examination not only by counsel for Smich, but by the Crown. Smich vigorously argues that the interests of justice require a joint trial.
[15] The Crown opposes the application as Millard has not demonstrated that it is in the interests of justice to grant severance. Both parties have acknowledged that they will present cut-throat defenses, that the co-accused perpetrated the murder without their knowledge or assistance. It is expected on the known facts that one or both will assert they were under duress or threat from the co-accused to assist in the murder and/or the disposal of the body.
[16] There is strong evidence that this is a joint crime carried out in concert. Severance is rarely granted in circumstances where co-accused blame each other for the crime because there is “a real concern that the truth will not be discovered at either trial”. The Crown submits that the application be dismissed.
Issues:
[17] The fundamental issue in this application is whether the applicant’s right to a fair trial will be undermined. This is discussed in a series of questions.
[18] Will the applicant be sufficiently prejud