CITATION: R. v. Millard, 2017 ONSC 5275

COURT FILE NO.: CR-15-50000474-0000

DATE: 20170908

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DELLEN MILLARD and MARK SMICH

Jill Cameron, Ken Lockhart, and Katie Doherty, counsel for the Crown Applicant

Ravin Pillay, counsel for the Respondent Millard

Tom Dungey and Jennifer Trehearne, counsel for the Respondent Smich

HEARD: August 28-31, 2017

M.A. CODE J.

REASONS FOR JUDGMENT

on SIMILAR FACT MOTION

AND DISCREDITABLE CONDUCT MOTION

A. OVERVIEW

[1] The two accused, Dellen Millard and Mark Smich (hereinafter, Millard and Smich) are charged in an Indictment with one count of first degree murder on the person of Laura Babcock. I have been hearing pre-trial Motions at various intervals since March 27, 2017. Jury selection is scheduled to commence on October 12, 2017.

[2] The Crown has brought two Motions relating to the admissibility of similar fact evidence and discreditable conduct evidence. The parties sensibly agreed to argue the two Motions together as they involve similar legal principles and some related evidence. I substantially dismissed the Motions at the end of oral argument, with some exceptions and with Reasons to follow. These are my Reasons.

B. FACTS

(i) The similar fact Motion

[3] The Respondents Millard and Smich were previously convicted of first degree murder at a trial in Hamilton that concluded on June 17, 2016. The victim of that murder was Tim Bosma. The Crown seeks to call certain evidence relating to the Bosma murder as similar fact evidence at the present trial relating to the alleged murder of Laura Babcock.

[4] In brief summary, the evidence at the Bosma murder trial in Hamilton was to the effect that Bosma was trying to sell his Dodge Ram 3500 pick-up truck. He advertised the truck on two internet websites. The Respondents Millard and Smich responded to the advertisement and took the truck for a test drive on May 6, 2013, with Bosma as a passenger. They shot and killed Bosma at some point during the test drive of the truck and then proceeded to dispose of his body. They disposed of his body by cremating it in an industrial incinerator known as The Eliminator. Millard had purchased the incinerator a year earlier, in June 2012. He kept it at a rural property that he owned in Ayr, Ontario. The police found Bosma’s DNA on the outside of the incinerator, after they seized it on Millard’s property later in the week of May 6, 2013. In addition, two male human bones were found inside the incinerator. They were consistent with Bosma’s age. Seventeen human bone fragments were also found inside the incinerator but the age and gender of these fragments could not be determined. A number of other bone fragments and bone ash were also found in the incinerator but it could not be determined whether they were human or animal. Prior to his arrest, Smich had told his girlfriend that “it wasn’t the first time” that they had burned a body and that “it wasn’t the only body that they had burned.”

[5] The alleged murder of Laura Babcock is quite different from the murder of Tim Bosma, with one major exception. That exception is that the Crown seeks to prove that Millard and Smich disposed of Babcock’s body in The Eliminator in July 2012, shortly after Millard had purchased it and about ten months before it was used to dispose of Bosma’s body.

[6] The evidence relating to Ms. Babcock’s alleged murder is complex and circumstantial. She was a former girlfriend of Millard’s and she led a troubled life. She struggled with mental illness and she was transient. There is evidence that she was interfering in Millard’s relationship with a current girlfriend in early 2012 and was causing jealousy and acrimony. In a text message to his current girlfriend on April 17, 2012, Millard stated, “I’m going to hurt her [Babcock]” and “I’ll make her leave.” On May 4, 2012, Millard asked a mutual friend to keep him “updated on where Laura goes out to, that’d be of use to me.” On July 3, 2012, Millard and Babcock exchanged several text messages and phone calls and it can be inferred that they met. Their two cell phones moved in tandem from the vicinity of a subway station in west Toronto to the vicinity of Millard’s home in Etobicoke. That evening, Ms. Babcock’s phone made its last outgoing call. She has never been heard from or seen since this time. Millard’s and Babcock’s cell phones moved in tandem from the vicinity of Millard’s home in Etobicoke to his farm in Ayr, although Ms. Babcock’s phone was only receiving calls and texts by this point. There is cell phone evidence, in the form of both text messages and photographs, which could infer that Ms. Babcock’s body was at the farm on July 4, 2012, that The Eliminator was delivered to Millard on July 5, 2012, and that Millard and Smich used The Eliminator to cremate something on July 23, 2012. In particular, there is a photograph of an object that could be a body covered in a blue tarp at the farm on July 4, 2012, there is a note on July 7, 2012 to do a “smell check” in the barn, there is an internet search on July 23, 2012 concerning “what temperature is cremation done at?” and there are photographs of something burning in the incinerator that night. After this date, Smich was in possession of Ms. Babcock’s iPad and her suitcase. Furthermore, Smich began to compose a rap song on Ms. Babcock’s iPad on July 23/24, 2012 at the time when something was being cremated in The Eliminator. He later performed the rap song for Millard and for two other friends. He also spoke to the two friends about killing and/or burning a girl. It is open to the interpretation, on all the evidence, that one verse of the rap song found on Ms. Babcock’s iPad is about killing a girl and burning her body (as set out below at para. 17). Millard subsequently wrote a letter to his current girlfriend that could be read as an implied admission that Ms. Babcock had died at Millard’s home on “the night [she] disappeared.”

[7] There is no DNA or expert evidence indicating that any of the human remains found by the police in the incinerator, some ten months after Ms. Babcock disappeared, were Ms. Babcock’s remains. Some of the remains were male, some were simply human, and other remains were unknown. Only Tim Bosma’s DNA was found on or in the incinerator. The forensic anthropologist who examined the remains, Dr. Rogers, gave the opinion that the remains found in the incinerator in May 2013 were “of one individual” and that there was “no evidence suggesting that more than one person was represented by the bones recovered.”

(ii) The discreditable conduct Motion

[8] There are three parts to the Crown’s Motion seeking to admit evidence of extrinsic misconduct. Those three parts are as follows: first, evidence of twenty specific instances of past discreditable conduct that generally involve criminal acts, or discussions about criminal behaviour, but which never resulted in criminal charges or convictions; second, three rap songs composed by Smich that refer to obviously discreditable conduct in the lyrics; and third, a series of text messages between Millard and Smich in early 2012, prior to Ms. Babcock’s disappearance, that refer amongst other things to “steady escalation” of certain behaviour.

[9] The first body of evidence on this Motion is the twenty incidents that involve criminal acts or discussions about criminal behaviour. These incidents can be summarized as follows:

• Four incidents in 2010. They took place about two years before Ms. Babcock’s disappearance. One incident involved Millard and Smich throwing a pumpkin from a moving car on a highway during Halloween. The other three incidents involved Millard and various friends other than Smich. In the first incident, Millard appears to drive his vehicle at night on top of another vehicle at a car dealership. The second incident involved Millard and a friend apparently committing arson by lighting two cars on fire at night. The third incident appears to involve a very brief robbery of a convenience store by three men. There are difficulties identifying the three men but Millard is alleged to be one of them;

• Four incidents in 2011. They took place about a year before Ms. Babcock’s disappearance. None of these incidents involved Smich. Two of the incidents involved Millard and his friends stealing plants from a nursery. One incident involved Millard stealing a trailer. The last incident involved Millard successfully fleeing from police in his car when they had tried to stop him for speeding;

• Three incidents in early 2012, a couple of months prior to Ms. Babcock’s disappearance. One of these incidents involved both Millard and Smich as they exchanged text messages which the Crown describes as “musing” about pimping girls. There is no evidence that they acted on these discussions. The other two incidents involved Millard trafficking drugs with a friend and having a device installed on his van that enabled him to easily switch license plates;

• Four incidents in late 2012, a few months after the alleged murder of Ms. Babcock. Both Smich and Millard are involved in three of these incidents. One involved them exchanging pictures of Millard apparently growing marijuana, one involved a discussion between them about buying cell phone “jammers” that can “block police radio,” and one involved the theft of a Bobcat. The fourth incident involved Millard alone in attempts to recruit various friends (other than Smich) to import drugs into Canada;

• One incident in early 2013, some six months after the alleged murder of Ms. Babcock. It involved both Millard and Smich. There had apparently been a break and enter and theft of marijuana from Millard’s home in Etobicoke (they refer to it as a “robbery”). Millard and Smich suspected that an acquaintance of theirs was involved and it is alleged that they interrogated him and had discussions about torturing the perpetrators;

• And finally, four incidents in 2012 involving the purchase of firearms and ammunition by Millard and Smich. Three of these incidents occurred in the months prior to Ms. Babcock’s disappearance. In the first incident, in February 2012, Millard is alleged to have purchased a 9mm handgun from Matthew Ward-Jackson, and to have then texted Smich about the purchase. In the second incident, in April 2012, Millard and Smich discussed the purchase of a handgun for Smich, while Millard was in the United States. In the third incident, also in April 2012, Millard advised Smich that he was bringing back ammunition that he appeared to have purchased while he was in the United States. The fourth incident involving firearms took place in September 2012, about two months after the alleged murder of Ms. Babcock. Millard is alleged to have purchased another firearm from Ward-Jackson, this time a .380 handgun, which Millard then showed to Smich by sending Smich a text and accompanying photograph.

[10] The second body of evidence on this Motion is three rap songs composed by Smich. The content of these three songs does not relate to the disappearance and alleged murder of Ms. Babcock. Furthermore, the content is obviously discreditable. The Crown seeks to use the three rap songs only for the purpose of inferring the following facts: that Smich’s nickname was “say 10”; that one of Smich’s phones was number 416-829-9372; and that Smich and Millard were at Millard’s home in Etobicoke on the night of May 28/29, 2012 (which is a time when certain relevant events occurred).

[11] During the course of argument on the Motion, counsel for Smich agreed to make a formal admission of Smich’s above nickname and phone number. It was also agreed that one or more still photographs of Smich performing a rap song on May 28/29, 2012 could be tendered, without actually playing the video and hearing the lyrics to the rap song. Certain witnesses could then identify the location depicted in the still photographs as Millard’s home.

[12] As a result of the above resolution, it will not be necessary to address the admissibility of the three rap songs, assuming the resolution is carried out.

[13] The third body of evidence on this Motion is a lengthy series of text messages between Smich and Millard in the months leading up to Ms. Babcock’s disappearance in July 2012. The parties have referred to this evidence as the “steady escalation” text messages. Some of the content in these text messages could be characterized as extrinsic misconduct but some of it may be directly relevant to Ms. Babcock’s disappearance. Furthermore, the more obvious extrinsic misconduct parts of these text messages may be amenable to editing. I asked the parties whether this part of the Motion could be severed and addressed on a separate Motion, together with any editing proposals, given that all of the texts did not seem to involve obviously extrinsic misconduct. The parties agreed to this proposal.

[14] I also asked the parties whether the four firearms-related incidents in 2012 could also be severed and addressed on this separate Motion. It was unclear to me whether the firearms incidents obviously involved extrinsic misconduct, given their proximity to Ms. Babcock’s disappearance and her alleged murder. In addition, there is already a separate Motion that the defence has scheduled concerning the admissibility of a third firearm purchased by Millard from Ward-Jackson, this one on July 2, 2012 at a time that was closely proximate to Ms. Babcock’s disappearance and alleged murder. It seemed to me that all of the firearms evidence should be addressed at the same time, together with the “steady escalation” text messages (which also make reference to a handgun in an April 15, 2012 text). Once again, the parties agreed to this proposal. Accordingly, I will not address the admissibility of the four firearms incidents or the “steady escalation” texts on this Motion.

[15] In the result, I need only address the sixteen incidents of obvious extrinsic misconduct.

(iii) Three additional items of evidence

[16] Included in the present Motions are three further items of evidence that the Crown intends to tender at trial. The Crown does not agree that this evidence can properly be referred to as extrinsic misconduct and it is certainly not similar fact evidence. The Crown has, nevertheless, sensibly included these three items in the present Motions because the defence objects to their admissibility on grounds that involve balancing probative worth and prejudicial effect. These additional items of evidence are as follows: another rap song composed by Smich; a particular text message sent by Millard; and a calendar entry in Millard’s iPhone. The Crown’s position is that this evidence is directly relevant to Ms. Babcock and her alleged murder and that it is not “extrinsic.”

[17] The first item of evidence is the so-called “ashy stone” rap song (referred to above at para. 6). It is an important piece of evidence in the Crown’s case for a number of reasons. First, it was composed on Ms. Babcock’s own iPad, after her disappearance. As noted above, that iPad was found in Smich’s possession when he was arrested in May 2013. Second, the file containing the rap song indicates that the author began composing it on the night of July 23/24, 2012, which is when the Crown alleges Millard and Smich were cremating Ms. Babcock’s body in The Eliminator. Third, the lyrics of the first verse of the rap song could arguably relate to that cremation. Those lyrics are as follows:

The bitch started off all skin and bone, now the bitch lay on some ashy stone, last time I saw her was outside the home, and if u go swimming u can find her phone.

It is arguable that the interior of The Eliminator resembles “ashy stone.” In addition, Ms. Babcock’s phone has never been found. There is also evidence that Millard’s and Babcock’s phones traveled in tandem on July 3, 2012, near the lakeshore, from his home in Etobicoke to his farm in Ayr. Perhaps most importantly, two of Smich’s friends (named Cronin and Liberatore) are expected to testify as Crown witnesses. They were present when Smich performed a rap song in the late summer of 2012. Their two accounts vary somewhat but the song they heard Smich perform included the topic of burning a girl and throwing her cell phone in the water somewhere. In the context of performing this rap song, Smich is alleged to have told both Cronin and Liberatore that he actually did kill a girl and burn her body.

[18] The second item of evidence is a text message from Millard to his cousin on January 18, 2013. They exchanged texts from time to time but not in relation to any of the criminal activities described above. In this particular text, Millard’s cousin asked, “What are you up to lately?” Millard replied, “Smuggling drugs killing hookers.” The context for this remark, relied on by the Crown, is the apparent drug smuggling activity that Millard was engaged in, as described above, and evidence that Ms. Babcock was working as an escort prior to her disappearance.

[19] The third item of evidence is a calendar entry in Millard’s iPhone. It is dated January 10, 2012. This was at a point in time shortly before the difficulties between Millard, his current girlfriend, and Ms. Babcock began to escalate. The calendar entry is as follows:

Make a deal w/Laura, pimp her, what does she want from me, what does she have to offer?

C. ANALYSIS

(i) The similar fact Motion

[20] I dismissed the Crown’s similar fact Motion in a brief oral ruling on August 31, 2017. I held that the evidence relating to the murder of Tim Bosma and the cremation of his remains had some legitimate probative value in the present case. However, that probative value was outweighed by the substantial prejudicial effect of this evidence, both in terms of reasoning prejudice and moral prejudice.

[21] The modern test for the admissibility of similar fact evidence is well known. Binnie J. summarized it in R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at para. 55 (S.C.C.), speaking on behalf of a unanimous court:

Similar fact evidence is thus presumptively inadmissible. The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[22] Binnie J. explained the methodology for applying the above test as first identifying the issue or issues to which the similar fact evidence relates and then assessing the probative value of the evidence in relation to those issues by considering factors which may or may not connect the similar facts to the particular issue. Some of the traditional factors are the proximity in time of the acts, whether they are similar in detail, the number of similar acts, any distinctive unifying features, and any intervening events. Binnie J. then summarized the two forms of countervailing prejudice (moral and reasoning prejudice) in the following terms:

On the other hand, countervailing factors which have been found helpful in assessing prejudice include the inflammatory nature of the similar acts (D. (L.E.), at p. 124) and whether the Crown can prove its point with less prejudicial evidence. In addition, as stated, the court was required to take into account the potential distraction of the trier of fact from its proper focus on the facts charged, and the potential for undue time consumption. These were collectively described earlier as moral prejudice and reasoning prejudice.

See: R. v. Handy, supra at paras. 69-83; R. v. Shearing (2002), 2002 SCC 58, 165 C.C.C. (3d) 225 at paras. 33-74 (S.C.C.); R. v. Bent (2016) 2016 ONCA 651, 342 C.C.C. (3d) 343 (Ont. C.A.).

[23] Ms. Cameron submits, on behalf of the Crown, that the similar fact evidence from the Bosma murder is relevant to the following issues in the Babcock case: first, to prove that Ms. Babcock is deceased and to rebut the defence that she has innocently disappeared due to her unstable, transient, and high risk lifestyle (counsel for both accused have advised the Court that they are committed to this defence); second, to prove that her death was due to murder; third, to prove planning and deliberation; and fourth, to rebut any defence concerning innocent uses of The Eliminator (both Millard and Smich made statements to various witnesses to the effect that the incinerator was to be used to dispose of animal carcasses and/or to melt metal). The Crown does not seek to use the similar fact evidence to prove identity, nor would the Crown need to, given the abundant admissible evidence connecting Millard and Smich to the incinerator at the time of Ms. Babcock’s disappearance.

[24] In my view, the similar fact evidence relating to the Bosma murder has legitimate probative value, especially in relation to the first and fourth issues set out above. The Crown already has a reasonably compelling body of admissible evidence inferring that Ms. Babcock is deceased and that her remains were disposed of in The Eliminator in July 2012. I have briefly summarized that evidence above (at para. 6). Introducing the similar fact evidence from the Bosma trial into the present trial would undoubtedly strengthen the Crown’s proof in relation to these two issues. The fact that the two accused used the very same incinerator some ten months later to dispose of Tim Bosma’s remains, after he had been murdered, is a distinctive and unusual use of the incinerator. It legitimately helps to infer that Ms. Babcock is likely deceased and that her remains were likely disposed of in the same manner.

[25] I cannot, however, say that the evidence from the Bosma trial has significant probative value in the Babcock trial, given that the Crown already has reasonably strong proof that Ms. Babcock is deceased and that her remains were disposed of in The Eliminator. The Bosma similar fact evidence is cumulative, in the sense that it strengthens or increases the Crown’s proof in relation to these issues. That is a legitimate reason to call evidence in a criminal trial, given that the burden of proof on the Crown is high. However, the cumulative nature of the evidence becomes a factor when considering whether its legitimate use in the trial is outweighed by countervailing prejudice. This is the point made by Binnie J. in the above passage quoted from R. v. Handy, supra at para. 83.

[26] Turning to the assessment of prejudice, I am satisfied that the similar fact evidence from the Bosma trial inevitably carries some reasoning prejudice with it. It will lengthen and complicate the trial to some extent. Furthermore, the accused are entitled to dispute the facts from the Bosma trial, regardless of their prior convictions for first degree murder (which are now under appeal). See: R. v. Jesse (2012), 2012 SCC 21, 281 C.C.C. (3d) 145 at para. 64 (S.C.C.). However, this is not my primary concern as the Crown could be directed to call only a limited amount of evidence from the Bosma trial, in particular, the evidence that is not open to serious dispute (for example, the finding of male human bones in the incinerator and male DNA on the outside of the incinerator). It would then be a tactical decision as to whether the defence wished to expand the scope of the Bosma evidence by opening up more complex disputed issues, such as who was the principal who shot and killed Bosma and what were the circumstances that led to the shooting. None of this evidence is essential to the Crown’s limited purpose of proving that the incinerator was used to dispose of human remains in May 2013.

[27] My greater concern is with the moral prejudice that will flow from the jury learning that the incinerator was subsequently used to dispose of some other unrelated human remains, at a time when the incinerator was still in Millard’s possession at his farm in Ayr. This will raise the spectre that one or both of the accused have committed some other murder and that they may be multiple murderers. It will be very difficult for the jury to objectively and dispassionately weigh the evidence relating to the Babcock case in these circumstances. As Blair J.A. put it in R. v. Jeanvenne (2010), 2010 ONCA 706, 261 C.C.C. (3d) 462 at para. 34 (Ont. C.A.), a case where the Court ordered severance of two murder counts:

This [the requirement of severance of the two murder counts] flows from the common sense proposition that a jury may have great difficulty dissociating the evidence of one homicide from the other and in refraining from drawing the impermissible inference that because the accused may have committed one murder – bad character evidence of the highest degree – he or she is likely to have committed the other. The potential for serious prejudice to the accused is at its zenith in such circumstances.

[28] I appreciate that there are cases where evidence of one murder has been held to be admissible as similar fact evidence in relation to another murder, even where the two murders are not joined in the same indictment. See: R. v. Smith (1915), 11 Cr. App. R. 132 (C.C.A.); R. v. Straffen (1952) 36 Cr. App. R. 132 (C.C.A.); R. v. Ross, 1980 CanLII 3023 (BC CA), [1980] 5 W.W.R. 261 (B.C.C.A.). These cases all pre-date the modern approach to similar fact evidence, set out in Handy, which requires the balancing of probative worth and prejudicial effect. Accordingly, they should be approached with some caution as they include little or no discussion of the modern basis for admissibility. In any event, the similar fact evidence in those cases had greater probative value than the similar fact evidence in the present case. There were a number of distinctive similarities between the similar fact evidence and the murders in those cases and it appears that the Crown could not prove its case without the similar fact evidence. In the case at bar, there is only one distinctive similarity — the use of the incinerator to dispose of human remains — and the two murders are otherwise quite different. Furthermore, the similar fact evidence is not essential as the Crown has a significant body of admissible evidence with which it can prove that Ms. Babcock’s remains were disposed of in the incinerator, as discussed above.

[29] In conclusion, the similar fact evidence has some legitimate probative value, but it is outweighed by the prejudicial effect of the evidence.

[30] As I stated in my oral Ruling on August 31, 2017, it may be that the balance of probative worth and prejudicial effect will change at trial. In particular, if the defence of innocent use of The Eliminator becomes a significant issue at trial, the importance and probative worth of the similar fact evidence may then increase. The Crown presently intends to lead evidence as to what the accused said about the anticipated or planned uses of The Eliminator, at the time when it was acquired, and the Crown will seek to prove that these statements were false. The defence must be allowed to respond to this Crown evidence without risking the admission of rebutting evidence about the Bosma murder. However, if the defence ultimately rests heavily on evidence about ongoing innocent uses of The Eliminator, after July 2012 when Ms. Babcock disappeared and closer in time to the Bosma murder in May 2013, it may well open the door to reconsideration of this Motion concerning similar fact evidence. However, I need not decide that issue at this time. See, e.g.: R v. Batte (2000), 2000 CanLII 5751 (ON CA), 145 C.C.C. (3d) 449 at paras. 88-91 (Ont. C.A.).

[31] For all the foregoing reasons, the Crown’s similar fact Motion is dismissed.

(ii) The discreditable conduct Motion

[32] As explained above, a significant part of this Motion has been severed and deferred. What remains is sixteen prior incidents involving criminal acts and discussions about criminal conduct. None of these incidents resulted in criminal charges or convictions. They all involved Millard and a few of them involved Smich. They extend over a two and a half year time period, from May 2010 until January 2013. They cover a disparate array of criminal conduct including theft, mischief, arson, drug trafficking, drug importing, robbery, obstructing police, and prostitution.

[33] The admissibility of evidence of extrinsic discreditable conduct involves analogous principles to those governing similar fact evidence, namely, the balancing of legitimate probative worth against prejudicial effect. See: R. v. F.F.B. (1993), 1993 CanLII 167 (SCC), 79 C.C.C. (3d) 112 at paras. 71-3 (S.C.C.); R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 at paras. 96-100 (Ont. C.A.); R. v. Luciano (2011), 2011 ONCA 89, 267 C.C.C. (3d) 16 at paras. 217-235 (Ont. C.A.); R. v. Stubbs (2013), 2013 ONCA 514, 300 C.C.C. (3d) 181 at paras. 54-6 (Ont. C.A.).

[34] Mr. Lockhart submits, on behalf of the Crown, that the extrinsic misconduct evidence tendered on the Motion is relevant to three issues in the Babcock case: first, the nature of the relationship between the two accused, in particular, their mutual obsession with a criminal lifestyle and Smich’s dependence on Millard (this relationship, in turn, is arguably relevant to issues of party liability); second, Millard’s motive for killing Ms. Babcock which is alleged to include “thrill” seeking derived from committing crimes (this motive is alleged in addition to the more conventional motive, discussed previously in these Reasons, concerning the difficulties Ms. Babcock was causing to Millard’s relationship with his current girlfriend); and third, the assessment of any antagonistic defences that may arise at trial.

[35] The third issue relied on by the Crown does not need to be addressed at this stage. To some extent it overlaps with the first issue. More importantly, Mr. Lockhart conceded that it may be premature to raise it at this stage. The defence of both accused, according to counsel’s submissions, is focused on an alleged lack of proof that Ms. Babcock is deceased and/or that the accused caused her death. Both accused deny any intention of advancing antagonistic defences where one accused alleges that the other killed Ms. Babcock. In these circumstances, the third issue may never arise. However, if it does arise, the Crown can renew its argument at that time.

[36] The first issue, concerning the nature of the relationship between Millard and Smich, depends mainly on those parts of the Motion that I have severed and deferred. The four incidents relating to firearms and the “steady escalation” text messages, together with other evidence that does not involve discreditable conduct, is the more cogent evidence relating to the nature of their relationship. This evidence will be addressed on a separate Motion (to be heard on September 25 and 26, 2017). Mr. Lockhart substantially conceded that the sixteen incidents of criminal conduct are not particularly significant in elucidating the nature of the relationship between Millard and Smich. That is because there are only two incidents, prior to Ms. Babcock’s disappearance in July 2012, that involved both Millard and Smich (the pumpkin incident in October 2010 and the “musing” about prostitution in March 2012). There are four further incidents involving both Millard and Smich but they all took place after the alleged murder of Ms. Babcock. Accordingly, they have more limited value in inferring the prior nature of the relationship.

[37] The main purpose in seeking to tender evidence of the sixteen criminal incidents is to prove Millard’s alleged “thrill” seeking motive. In my view, the evidence of the sixteen incidents has limited probative value in relation to this issue for a number of reasons. First, it is not apparent that Millard’s alleged crime spree during this two and a half year period was motivated by “thrill” seeking. If the sixteen incidents can be proved and can be connected to Millard, they tend to indicate a pervasive and casual amorality, or general criminal disposition, but there is little about the crime spree that suggests “thrill” seeking. Second, and assuming a “thrill” seeking crime spree can be proved, the further inference the Crown relies on is that the Babcock murder was also motivated by a related desire for further and greater “thrills.” There is no real support for this inference in the evidence directly surrounding Ms. Babcock’s disappearance and her alleged cremation in the incinerator (as summarized above at para. 6). The desired further inference rests entirely on the extrinsic misconduct. Third, the Crown already has admissible evidence of a much more conventional motive, namely, Ms. Babcock appears to have become troublesome to Millard’s current relationship with his girlfriend and he had made a commitment to the current girlfriend that he was “going to hurt” Ms. Babcock and “make her leave.” In these circumstances, seeking to add weak evidence of a secondary motive concerning “thrill” seeking has little probative value while bringing significant prejudice into the trial. There is both moral prejudice, as the prior incidents infer a general disposition to commit crime, and there is reasoning prejudice due to the large number of prior incidents and the problems of proof associated with some of them. See: R. v. Johnson (2010), 2010 ONCA 646, 262 C.C.C. (3d) 404 at para. 100 (Ont. C.A.).

[38] For all the above reasons, the evidence of the sixteen prior incidents of discreditable conduct is excluded on the basis that they have little probative value and they have significant prejudicial effect.

(iii) Three additional items of evidence

[39] The three additional items of evidence tendered by the Crown on these Motions, as summarized above, are as follows: first, the “ashy stone” rap song; second, the “smuggling drugs killing hookers” text message; and third, the “pimp her” calendar entry.

[40] The second and third items can be resolved relatively easily. Millard responded to his cousin’s inquiry, “What are you up to lately?” in January 2013 by texting back that he was, “smuggling drugs killing hookers.” The probative value of this response, in relation to the alleged murder of Ms. Babcock in July 2012, is diminished by the fact that that the text was sent six months after that alleged murder and by the fact that it was intended as a light-hearted joke. None of Millard’s texts with his cousin included discussions about criminal activities and this particular text message went on to recount Millard’s actual activities at the time. It cannot realistically be argued that Millard intended in this text message to admit to his cousin that he committed the earlier murder of Babcock. On the other hand, the content of the text carries obvious moral prejudice if the jury was to take it as an admission that Millard was engaged in drug importing (evidence that I have already excluded) or as an admission that he had killed an unspecified number of prostitutes.

[41] For all these reasons, the probative value of this particular text message is exceeded by its prejudicial effect. The evidence is not admissible.

[42] A very different analysis applies to Millard’s January 10, 2012 calendar entry. In my view, it has significant probative value. This note in Millard’s iPhone — “Make a deal w/Laura, pimp her, what does she want from me, what does she have to offer?” — is arguably referable to Ms. Babcock. Furthermore, it occurs at a point in time when Millard’s alleged difficulties with Ms. Babcock were coming to a head. Finally, the content of the calendar entry suggests that Millard was preoccupied with Ms. Babcock and that he wanted to engage with her in some fashion. The only prejudicial part of the calendar entry is the words “pimp her.” There is no suggestion that Millard ever did “pimp” Ms. Babcock.

[43] Mr. Pillay, counsel for Millard, fairly conceded that the words “pimp her” could be edited, leaving only the legitimately probative part of the calendar entry. In my view, this is the appropriate remedy. The speculative suggestion that Millard could become a “pimp” for Ms. Babcock adds little to the legitimate uses of this evidence and it carries significant moral prejudice.

[44] For all these reasons, the January 10, 2012 calendar entry is admissible, provided the words “pimp her” are edited out of the entry.

[45] The one remaining item of evidence is the “ashy stone” rap song. It was the subject of considerable argument. Ms. Trehearne, counsel for Smich, seeks its exclusion on the basis that rap songs are a form of artistic expression that do not reliably recount actual events, that none of Smich’s many other rap songs are alleged to be truthful accounts of real events, and that the content of this particular rap song is violent and highly prejudicial. In relation to this latter point, Ms. Trehearne notes that it is only the first verse of the song that allegedly relates to the murder of Ms. Babcock. The song continues with six more verses which are full of violent imagery, none of which allegedly relates to Ms. Babcock. The Crown does not seek to tender the remaining six verses of the song. When Smich performed the rap song on video at Millard’s home on September 25, 2012, and to Cronin and Liberatore in the late summer of 2012, it appears that he only performed the first verse. Ms. Trehearne submits that the first verse must be assessed in the context of the entire song file and that the defence would want to tender all seven verses, if the first verse was admitted, in order to show its overall fictional character.

[46] In my view, the “ashy stone” rap song has significant probative value. Indeed, it is one of the Crown’s most important pieces of evidence. There are a number of reasons supporting this conclusion. First, the file containing the song was stored on Ms. Babcock’s iPad, inferring that the author of the song had obtained possession of her iPad when he composed it. Second, the time and date when Smich began composing the rap song stored in this iPad file was late at night on July 23/24, 2012, according to the information stored in the iPad. This is the exact time when other evidence indicates that Millard and Smich were cremating something in The Eliminator, in the days after Ms. Babcock’s disappearance. A further body of evidence could infer that it was Ms. Babcock’s remains that they were in the incinerator. I appreciate that the file storing the song in the iPad was later modified, or added to, on September 22, 2012. However, the fact remains that the composition began on July 23/24, 2012, at the exact time when the incinerator appears to have been in use. Third, the iPad was later found in Smich’s possession, connecting him to Ms. Babcock. Fourth, the song was performed and recorded in Millard’s residence in September 2012, arguably in his presence. Millard is connected to Ms. Babcock and to her disappearance. Fifth, the interior of The Eliminator arguably resembles “ashy stone” and Ms. Babcock’s phone has never been found. Sixth, and perhaps most importantly, it appears that Smich performed the song for Cronin and Liberatore and, according to their accounts, he proceeded to tell them that he had actually killed and burned a girl.

[47] In all these circumstances, I am satisfied that the rap song has significant probative value in relation to the alleged murder of Ms. Babcock. The most significant prejudicial content of the song is found in the six verses that the Crown does not seek to tender.

[48] There is a small but authoritative body of case law addressing the admissibility of art forms, such as poetry, songs, and other writings, when tendered by the Crown as statements made by an accused. One of the earliest cases is R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34 (Ont. C.A.) where the Court held that evidence of certain writings of the accused were admissible. They were described as “jottings” or “notes” and the accused explained that he was “going to write a novel.” He was charged with the apparently random stabbing of a complete stranger in a public place. The only issue in the case was the identity of the assailant. The writings referred to “homicide, death, destruction and mass murder,” and tended to indicate a kind of “universal malice.” Martin J.A. gave the judgment of the Court and applied the principles set out in R. v. Morris (1984), 1983 CanLII 28 (SCC), 7 C.C.C. (3d) 97 (S.C.C.), balancing probative value and prejudicial effect. He held (at pp. 42-3 C.C.C.):

In our view, the writings were, in the particular circumstances of this case, relevant and admissible to prove motive, notwithstanding they may also tend to prove disposition. … it was open to the jury to infer from the writings that the appellant entertained strong generalized feelings of hostility and homicidal urges that were likely to lead to the doing of the act charged. In the particular circumstances of this case, where there was no apparent reason for the stabbing of [the victim] by a complete stranger, the evidence of the writings was relevant and admissible on the issue of motive in its primary sense, notwithstanding it might also tend to prove disposition.

Martin J.A. cautioned that evidence of “generalized hostility,” as in Malone, would not be admissible to prove motive in a case where a more specific motive for a murder was alleged. He again stressed that it was “the absence of any rational cause for the stabbing” that made the particular writings in Malone admissible on the issue of motive and, in turn, on the issue of identity. In other words, Martin J.A. held that there was a sufficiently probative connection between the particular contents of the accused’s writings and the particular crime alleged in Malone.

[49] The leading Supreme Court case on this issue is R. v. Terry (1996), 1996 CanLII 199 (SCC), 106 C.C.C. (3d) 508 (S.C.C.). The accused was charged with murder in the stabbing death of another man. The police seized a poem written by the accused which was as follows:

Crazy thoughts pass through my head.

Now I have killed a life, it's dead.

I drained his blood with my knife,

How stupid am I to take his life.

He had done nothing wrong but I took his

life and now he's gone. Why? Why did

I do it? How? How could I? Shit.

The Court upheld the trial judge’s ruling, admitting the poem in evidence as an admission by the accused. McLachlin J., as she then was, gave the judgment of the full Court. She stated (at pp. 518-519 C.C.C.):

An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect.

The probative value of the poem on the ultimate issue is not great. As a form of artistic expression, a poem is not necessarily probative of the "truth" expressed therein; an author may have any number of motivations for expressing himself or herself in a given fashion, only one of which is to recite what he or she did. Moreover, this poem's connection with known events is tenuous. No names were mentioned. The poem is undated. No details of the "crime" described in the poem were provided other than a reference to the use of a "knife". At the same time, its prejudicial effect was considerable. The danger existed that the jury would accept the poem's oblique factual similarity with actual events to infer directly that the appellant was the author of both the poem and the events.

These concerns, however real, were alleviated by the careful instruction the jury received on the use of the poem. The trial judge charged the jury that it could conclude that the poem represented a "lament about the killing in question", but was not to use it in isolation as direct proof of the fact the appellant committed the act. It was admissible, he instructed, as a link in the chain of inferences tending to establish guilt; the strength of that link was for the jury to determine based on the cogency of the connecting inferences and the number and nature of alternative innocent inferences. Defence counsel specifically alerted the jury to the fact that the appellant was the author of numerous poems written prior to the killing, some of which conjured up scenes of violence. And there was nothing in the Crown's address that was capable of "inflaming the emotions of the jurors" to the point where they would overlook the fact that an inference equally consistent with innocence could be drawn from the poem. Accordingly, I conclude that admission of the poem was proper. [Emphasis added.]

[50] It can be seen that the only connection between the contents of the poem in Terry and the particular murder was its reference to causing death with a knife. Although its probative value, standing alone, was “not great,” the poem was admissible as one piece of circumstantial evidence providing “a link in the chain of inferences tending to establish guilt.”

[51] The most recent appellate authority on this point appears to be R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.). In that case, somewhat like Malone, the accused was charged with committing a murder with no apparent motive. The victim and the accused were friends and there had been no animosity between them. The accused failed a polygraph test and then confessed to the police that he had committed the murder. He proceeded to make a number of statements indicating that he decided to kill his friend “because he was curious about death and wanted to experience what it felt like to kill someone.” In this context, the trial judge admitted the statements to the police and admitted a short story and poem written by the accused “as evidence tending to show motive for the killing, and to show that the identity of the killer was the appellant as he had originally indicated in his confession.” The Court of Appeal ruled that the accused’s initial confession to the polygraph operator, one Valliere, immediately after the failed polygraph test, was admissible. However, the subsequent details about his state of mind were inadmissible as they were obtained by the polygraph operator in violation of the accused’s s. 10(a) and s. 10(b) Charter rights. The admissibility of the accused’s subsequent statements to the other police officers was left to the trial judge at the new trial. In these circumstances, the Court declined to rule on the admissibility of the poem and short story, also leaving this matter to the new trial judge. However, the Court re-affirmed its earlier decision in Malone. Weiler J.A. (Rosenberg and Feldman JJ.A. concurring) stated (at p. 125 C.C.C.):

At the first trial, the poem and the story were admitted against the backdrop of the appellant’s statements to Valliere and the other officers. I have held that a substantial portion of the statement to Valliere is inadmissible and have left it for the trial judge on the new trial to determine the admissibility of the other statements. The relevance of the story and the poem will turn on whether the appellant’s confession is linked to them, with particular attention to the application of this court’s decision in R. v. Malone (1984), 1984 CanLII 3480 (ON CA), 11 C.C.C. (3d) 34. The admission of this evidence also requires a delicate balancing of probative value against prejudicial effect. In balancing the probative value against the prejudicial effect of the evidence, the fact that these two items represented only a very small part of the appellant’s writings for school and otherwise cannot be overlooked. [Emphasis added.]

[52] As I understand McIntosh, the admissibility of the accused’s writings turned on the extent to which their contents could be linked to what he told the police about his motivations, in his various post-arrest statements. In other words, did the writings help to explain an apparently motiveless murder, as in Malone?

[53] One final case that should be mentioned is the decision of Nordheimer J. in R. v. Campbell and David (2015), 2015 ONSC 6199, 24 C.R. (7th) 1 (Ont. S.C.J.). The Crown sought to admit evidence in that case of the accused performing rap music. The rap songs included lyrics about guns, drugs, and violence. Nordheimer J. excluded the evidence as he held that the lyrics were generic and common to many murders and could not be sufficiently linked to the particular murder in that case. He held that there is “no evidence as to when the rap video was actually recorded,” that is, whether it was recorded before or after the murder in question. He also held that “the identifiers or similarities” between the rap lyrics and the actual murder were “common to any number of murders.” Finally, he held that the motive for murder suggested by one of the video clips was quite different from the motive suggested by the admissible evidence in the case. As against this limited probative value, the rap videos carried a great deal of moral prejudice. Ms. Trehearne relies on Nordheimer J.’s comments about the probative value of rap music and artistic expression generally (at paras. 15, 19 and 25) where he stated:

As with lyrics generally, but especially when it comes to rap, it is risky to take any word literally. … rap lyrics, like lyrics in other forms of music, are driven more by artistic requirements and less by requirements of accuracy. They are also not necessarily used to refer to a specific event as opposed to a general reality.

There is another aspect to this evidence that should not be lost sight of. It is an aspect that strongly suggests that such evidence should generally be approached with considerable caution. Rap, particularly gangster rap, often deals with the subject matter of drugs, guns, shootings, violence, and the like. The mere fact that an artist records a rap with lyrics that refers to such activities cannot be taken as an admission by the artist that they were involved in such activities, even where the lyrics are used in the first person. While this is true for music as a whole, it is particularly the case with gangster rap. There is a long history of artists singing about events as if they were personally involved in them when, in fact, they had no involvement in them at all. Absent some other evidence that would establish that the artist is truly speaking about a personal experience, there is a fundamental flaw in asserting that such first person lyrics are the truth. There is an even greater danger in asserting that they can be taken as amounting to a confession. [Emphasis added; footnote omitted.]

Also see: R. v. Parsons (1996), 146 Nfdl. and P.E.I. R. 210 at paras. 44-63 (Nfdl. C.A.).

[54] Applying the principles that emerge from the above authorities, I am satisfied that the “ashy stone” rap song is admissible. As in Malone, there is a link between the content of the lyrics and the particular murder in this case. In particular, the unusual act of incineration or cremation of a body provides a significant link. As in Terry, the rap song should not be analyzed in isolation, as if it were a free-standing confession. It is simply one piece of circumstantial evidence and its cogency will depend on the extent to which the jury links the various pieces of circumstantial evidence together. Finally, this is a case where there is “some other evidence that would establish that the artist is truly speaking about a personal experience,” as Nordheimer J. put it in Campbell. Liberatore and Cronin are expected to testify that Smich performed the rap song in the context of telling them that it actually recounted a true event. The defence intends to launch a vigourous attack on the credibility and reliability of Liberatore and Cronin as witnesses. It would be unfair and misleading to ask the jury to assess their credibility and reliability without the evidence of the rap song found on Ms. Babcock’s iPad and without evidence as to the date, time, and place when Smich apparently began composing the rap song on the iPad. It is this evidence, together with the “ashy stone” reference, that arguably provides a persuasive link between the rap song and the cremation.

[55] It is only the first verse of the rap song that is admissible, at the instance of the Crown. Indeed, it appears that it is only this first verse that was performed for Cronin and Liberatore (and for Millard at his home). The other verses have significantly less probative value and they are highly prejudicial. It is unclear what connection they have to the first verse and whether they were simply added to this file in the iPad at a later time. Of course, it will be open to the defence to bring out these other verses, and any other rap songs composed by Smich, as the defence did in Terry. This is a tactical decision that should be left to the defence. If the attack on Liberatore’s and Cronin’s credibility and reliability is successful, it may not be worth the risk of introducing the obviously prejudicial content of these other verses. The defence can make this decision at trial, as the evidence unfolds.

[56] For all these reasons, the significant probative value of the first verse of the “ashy stone” rap song outweighs any prejudicial effect. Accordingly, it is admissible.

D. CONCLUSION

[57] For all the reasons set out above, the Crown’s similar fact evidence is inadmissible, the sixteen prior incidents of discreditable conduct are inadmissible, and the “smuggling drugs killing hookers” text message is inadmissible. On the other hand, the “Make a deal w/Laura” calendar entry is admissible, provided the words “pimp her” are edited. In addition, the first verse of the “ashy stone” rap song is admissible. Finally, the remaining balance of the discreditable conduct Motion is deferred and will be addressed as part of a subsequent Motion, to be heard on September 25 and 26, 2017.

[58] I would like to thank all counsel for their thorough materials and excellent submissions.

M.A. Code J.

Released: September 8, 2017

CITATION: R. v. Millard, 2017 ONSC 5275

COURT FILE NO.: CR-15-50000474-0000

DATE: 20170908

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DELLEN MILLARD and MARK SMICH

REASONS FOR JUDGMENT

on SIMILAR FACT MOTION

AND DISCREDITABLE CONDUCT MOTION

M.A. Code J.

Released: September 8, 2017