Court File and Parties

Court File No.: 14-4348 Date: 2016/05/11 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Crown Counsel for the Crown: A. Leitch and C. Fraser

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Dellen Millard, Accused Counsel for D. Millard: R. Pillay and N. Sachak

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Mark Smich, Accused Counsel for M. Smich: T. Dungey and J. Trehearne

Heard: May 5, 2016

Before: A.J. Goodman J.

Mid Trial Written Ruling # 8 – Crown Application to Admit Certain Text Messages Previously Excluded

[1] In this application, the Crown makes a request to admit certain text messages between the accused that had been previously ruled inadmissible. Both accused, Dellen Millard (“Millard”) and Mark Smich (“Smich”) oppose the application.

[2] This Application for the admission of certain text messages arises at the end of the prosecution’s case. After having reviewed the materials filed and hearing the submissions of counsel, I denied the Crown’s application with two minor exceptions, with written reasons to follow. These are those Reasons.

Positions of the Parties:

[3] Mr. Fraser, on behalf of the Crown, submits that there is now a basis for the admissibility of texts between the two accused in 2012 which were previously ruled inadmissible on the Crowns’ pre-trial application to introduce other discreditable conduct. The Crown submits that the cross-examination of witnesses Marlena Meneses (“Meneses”) and Brendan Daly (“Daly”) by both defence counsel has opened the door to the admissibility of texts between the two accused in 2012, several months before the murder alleged in this case.

[4] The Crown submits that these texts no longer fall under the auspices of other discreditable conduct. The texts between the two accused are probative and relevant in this trial on the following issues: Firstly, to rebut the defence assertion of a lack of planning and deliberation. The defence of both accused will benefit from this antagonistic ambiguity and it will work an unfairness to the Crown’s case on proof of planning and deliberation, by presenting a distorted picture of the degree to which they worked together to murder Tim Bosma (“Bosma”). Secondly, to rebut the evidence of good character positively asserted by counsel for Smich on a repeated basis in the cross-examination of Meneses and also, to a lesser extent, in the cross-examination of Elizabeth Meneses; thirdly, to rebut the evidence elicited by counsel for Smich in the cross-examination of Meneses on Smich’s lack of “interest” in or knowledge of the Eliminator. This was in the context of introducing evidence of the fact Smich referred to himself as a “drug dealer” and not someone who knew anything about how to incinerate humans in the Eliminator, a device he knew nothing about.

[5] Lastly, to rebut the reasonably anticipated defence of duress, or duress to explain post offence conduct, by assisting in incinerating Bosma’s body.

[6] Mr. Pillay, on behalf of Millard, submits that the Crown has not met its onus and has not established that there is a material change of circumstances that warrant a review of previous rulings made during the pre-trial motions.

[7] Millard submits that given the timing of this request - at the very end of the Crown’s case - the prejudice that will be occasioned by the introduction of this evidence will irreparably damage his right to a fair trial as it potentially impacts some strategic decisions already made.

[8] Ms. Trehearne, on behalf of Smich, submits that there is no material change in circumstances. Her client did not introduce any such evidence. The probative value does not exceed its significant prejudice as the text timeframe may relate to the Laura Babcock murder in July 2012. In any event, the Crown chose to proceed in this manner and the text messages are remote and do not address the issues of planning and deliberation.

Legal Principles:

[9] As the parties are in agreement on the legal principles and the appropriate test that applies for a reconsideration of a prior ruling made at trial, I need only briefly address the leading authorities on the question.

[10] In R. v. Adams, 4 S.C.R. 707, 1995 Carswell Alta 773, the Supreme Court of Canada addressed this question albeit in relation to other issues advanced on appeal. At para. 29, Sopinka J. for an unanimous court stated:

With respect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible. These orders generally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order may be varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be varied or revoked. This will apply with greater force when the initial making of the order is mandatory.

[11] At paras. 30 and 31, Sopinka held:

A court has a limited power to reconsider and vary its judgment disposing of the case as long as the court is not functus. The court continues to be seized of the case and is not functus until the formal judgment has been drawn up and entered. See Oley v. City of Fredericton (1983), 50 N.B.R. (2d) 196 (C.A.). With respect to orders made during trial relating to the conduct of the trial, the approach is less formalistic and more flexible. These orders generally do not result in a formal order being drawn up and the circumstances under which they may be varied or set aside are also less rigid. The ease with which such an order may be varied or set aside will depend on the importance of the order and the nature of the rule of law pursuant to which the order is made. For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be varied or revoked. This will apply with greater force when the initial making of the order is mandatory.

As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.

[12] The jurisprudence provides that it will be appropriate to reconsider a ruling when there has been a material change in circumstances. Again, Sopinka J. had an opportunity to opine on the issue in R. v. La, [1997] 2 S.C.R. 680 at para. 28:

I would add that even if the trial judge rules on the motion at an early stage of the trial and the motion is unsuccessful at that stage, it may be renewed if there is a material change of circumstances. See also R. v. Le, 2011 MBCA 83, [2011] M.J. No. 319 (C.A.), at para. 123.

Discussion:

[13] In this particular application, the Crown applies for the admission of four text messages related to an exchange between Millard and Smich on July 9, 2012, photographs of Smich in front of the Eliminator dated July 23, 2012, a series of messaged dated March 8, 2012 and one message dated April 3, 2012.

[14] According to Mr. Fraser, contrary to the defence position, the most significant text message sought to be introduced by the Crown to advance an available inference for the jury that there was evidence of joint planning and deliberation in July, 2012 (and even further back as shown by the gun and ammunition purchase and “nab a 3500”) . The July 9, 2012 text message reads:

“BBQ is the last piece of the 3500 puzzle. July mission”

• Millard “I like BBQ”
• Smich “And I like 3500”
• Smich

[15] The Crown says that counsel for Millard introduced in the cross-examination of Meneses and Daly that Smich told both these persons, “I fucked up…..I fucked up”. By contrast, counsel for Smich established in the cross-examination of Meneses that “Dell did everything…Dell murdered him…” and Smich was “just there”. On either version there is an assertion of the absence of joint planning and deliberation.

[16] The Crown concedes that it has the onus to demonstrate that there has been a material change in circumstances warranting a reconsideration of my previous ruling regarding the impugned text messages. During oral submissions, both defence counsel submitted that, in fact, it was the Crown who introduced the various areas in its examination-in-chief of the witnesses, and not the defence.

[17] Having reviewed my notes and the audio recordings, I agree with Mr. Pillay and Ms. Trehearne on this point. I also note that the Crown did not argue against this assertion in reply.

[18] Moreover, save one exception, all of this evidence referenced by the Crown was contained in disclosure and is nothing new to the prosecution. It would have been known at the time of the pretrial applications. The one area that arose at trial was when Meneses testified about both accused seemingly being happy or in a celebratory mood when she was picked up by them in the early morning hours of May 7, 2013. This information was provided by the Crown to the defence in disclosure arising from the witness prep-meeting a few days before the commencement of her testimony. I am not persuaded that this situation bolsters the Crown’s position for this motion.

[19] In order to be considered material so as to justify revisiting an earlier ruling, the change of circumstances would have had to be one which altered the balance between the prejudicial effect and the probative value of the evidence in question: R. v. Sessions, [1996] A.J. No. 1055 (C.A.), at para. 13.

[20] I do not find that the Crown has established a material change in circumstances warranting a re-visitation of my earlier rulings. This effectively puts an end to this analysis.

[21] However, for the sake of completeness, and if I am wrong with respect to whether there was a material change in circumstances warranting a re-visitation of my earlier ruling, I would nonetheless deny the Crown’s application.

[22] The Crown says it is unfair to this case to permit the defence evidentiary refuge behind the outstanding Toronto charges. The temporal connection alone is insufficient to keep key pieces of planning and deliberation from the jury. The Crown says that it is the protracted nature of the criminal “mission” to steal the 3500 truck, at gunpoint, and then eliminate the witness which distinguishes this criminal venture from the theft of lawnmowers, Bobcats or trees and bushes. Unlike those thefts, the theft of the truck required something more involved and complex: a killing and an incineration. It was a plan that took considerable time to execute. The passage of time over several months from July, 2012, to May, 2013 adds cogency to the Crown argument on planning and deliberation. Because the plan was so destructive and heinous, the passage of time adds relevance to planning and deliberation, rather than detracting from it.

[23] While this may be one inference that can be drawn from the evidence adduced thus far, it still does not warrant reconsideration of the specific - and in my opinion, highly prejudicial evidence. The July 9, 2012 text message in question is framed: “July mission”. That is its context and was the subject of much argument and scrutiny during the pretrial stage. The parties are well aware what is alleged to have occurred in July 2012 with the use of the Eliminator.

[24] The defence submits that in these circumstances an inference can be drawn that bringing this application at this time was in fact a strategic decision on the part of the Crown. Whether or not that is true, all effort has been made by all parties to avoid specific or indirect references to the July 2012 use of the Eliminator in relation to another alleged murder.

[25] In R. v. Gager, 2012 ONSC 2697, 2012 O.J. No. 2085 (S.C.). a decision giving rise to a reconsideration of a ruling in a situation wholly distinguishable from the one before me, the court stated at para 83:

In that behalf, I accept as a general proposition that defence counsel are entitled, to some reasonable degree, to rely on the court's rulings in terms of deciding how to defend against the Crown's case: R. v. Underwood, [1998] 1 S.C.R. 77. In that case, speaking for the court, at paragraph 5 ff., Lamer C.J. stated:

On the one hand, it would be very undesirable to force the trial judge to make a decision without all the relevant information. On the other hand, the accused must have an opportunity to make an informed decision whether to testify and, accordingly, should know as much as possible about the consequences of that decision in advance of having to make it.

A balance must be struck between these two necessities. However, the balance must reflect that the ultimate goal of the procedural and substantive protections in the criminal justice system are [sic] to ensure that trials are scrupulously fair. Our criminal process is based upon the principle that before the accused calls evidence in his own defence, he must have knowledge of the case to be met.

[26] I accept counsels’ submissions that at this juncture, the admission of this particular text message could tend to compromise the defence strategy. I remain firm in my view that their respective clients’ will suffer significant prejudice for the reasons provided in my prior ruling, [2015 ONSC 7357 – unreported to date]. As Ms. Trehearne rightly points out, the defence cannot be faulted for actually putting up a robust defence to the charge alleged.

[27] I also accept that Smich had not put his character in issue by merely advancing a defence to rebut suggestions posed to various witnesses by his co-accused. The responses from Meneses in relation to questions posed by Mr. Dungey as outlined in para 5 of the Crown’s Application are merely responsive to the attack on Smich by Millard’s counsel.

[28] The reference to para. 46 of the April 26, 2016 trial transcripts as illuminated by the Crown in para. 3(c) of the Application addressed a temporal and specific use of the Eliminator. In my view, it did not go to whether Smich had a lack of a general knowledge about the nature or use of the device. The question was directed to Meneses as it related to Smich’s “... involvement in the burning of Mr. Bosma”.

[29] As such, I do not agree with the Crown’s characterization of the question posed to the witness. That being said, should Smich elect to testify and suggest in his evidence-in-chief that he had no knowledge of the Eliminator whatsoever or at any time, (apart from the May 6, or May 7, 2013 timeframe), then Crown counsel may cross-examine him in this area with the use of the photographs found at tab 3 of the Application with the appropriate redactions.

[30] Given the evidence adduced at trial, the Crown may also cross-examine any accused on any plans to run a “mission” for a “3500” in early 2012, (found at tab 8), should the probative value of this line of questioning be opened up by Millard or Smich in their respective testimony-in-chief.

Conclusion:

[31] For all of the aforementioned reasons, the Crown’s request to introduce text messages already deemed inadmissible in its case-in chief is denied. The Crown has failed to demonstrate a material change in circumstances warranting a re-visitation of my prior ruling. Crown may refer to two text messages in cross-examination of an accused who elects to testify, should the situation warrant.

A.J. GOODMAN, J. Released: May 11, 2016