Citation: R. v. Millard, 2017 ONSC 6040

Court File No.: CR-15-50000474-0000

Date: 2017-10-10

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Dellen Millard and Mark Smich, Defendants

Counsel:

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

Tom Dungey and Jennifer Trehearne, for Mr. Smich

Dellen Millard, representing himself

Heard: October 5 and 6, 2017

Reasons for Judgement on Motions Seeking Trial by Judge Alone and Challenge for Cause

M. A. Code J.

A. Overview

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

[2] The final Motions were brought by counsel for Smich and were joined in by Millard, who was self-represented on these two Motions. The nature of the two Motions is as follows: first, the Applicant Smich seeks to over-ride the Attorney General’s refusal to consent to a judge alone trial; and second, if the first Motion fails, the Applicant Smich seeks to challenge prospective jurors for cause on grounds of pre-trial publicity. The two Motions are closely connected because counsel for Smich submits that challenge for cause of prospective jurors will not succeed in securing a fair trial for these two accused. Accordingly, the only effective remedy is to over-ride the Attorney General’s refusal to grant consent to a judge alone trial pursuant to s.473(1) of the Criminal Code. In the alternative, if the first Motion fails, Smich and Millard both seek to challenge prospective jurors for cause.

[3] At the end of oral arguments on October 6, 2017, I dismissed the first Motion and allowed the second Motion, with reasons to follow. These are my Reasons for Judgement.

B. Facts

[4] There has undoubtedly been a great deal of adverse pre-trial publicity surrounding the two accused Millard and Smich. The main cause of that publicity is the fact that they were both tried for a separate first degree murder in Hamilton, about a year and a half ago. That earlier case alleged that the two accused had murdered one Tim Bosma. The trial took place over a 6 month period and ended with guilty verdicts against both accused on June 17, 2016. As a result, Millard and Smich are presently serving life sentences with no parole eligibility for 25 years.

[5] The Bosma murder trial attracted intense media and public interest in Ontario, if not in the whole country. The facts of the case were particularly bad: Tim Bosma was a decent young man who had advertised his Dodge Ram truck for sale on Kijiji; the two accused took Bosma and the truck for a test drive and then murdered Bosma, while Bosma’s wife and young daughter waited at home for his return; the two accused then burned Bosma’s body in a large commercial incinerator that Millard had previously purchased. These events took place in May 2013 and were accompanied by an emotionally powerful press conference, where Bosma’s wife pleaded for the safe return of her husband. The two accused were arrested soon afterwards. They have been in custody for the past four and a half years.

[6] When the Bosma trial ended in June 2013, there was another emotionally powerful press conference where Bosma’s widow spoke. Needless to say, she and her daughter have attracted a great deal of public sympathy and the two accused have been vilified. Two books have been written about the case and two television documentaries have analysed the case. Although the media coverage, and related internet searches were at their most intense during 2013 (at the time of the Bosma trial), media interest in Millard and Smich has continued until the present. This is partly due to the fact that the present trial, relating to the alleged murder of Ms. Babcock, has been pending in this court for the past two years.

[7] One aspect of the Bosma trial publicity that is particularly damaging to the accused’s fair trial interests in the present Babcock case relates to the evidence surrounding the incinerator. It was purchased by Millard in June 2012, shortly before Ms. Babcock disappeared, and the Crown alleges that Millard and Smich used it to cremate Ms. Babcock’s remains in July 2012. Some ten months later, in May 2013, Millard and Smich undoubtedly used the incinerator to dispose of Tim Bosma’s body. His DNA, and human bones consistent with Bosma’s age and gender, were found on and in the incinerator. Smich testified and admitted that the incinerator was used for this purpose. Evidence concerning the incinerator figured prominently in the media coverage of the Bosma trial, and in the subsequent books and television documentaries. It has also been suggested in some of the media coverage that a successful and timely police investigation of the Babcock case in 2012 might have saved Tim Bosma’s life in 2013.

[8] The Crown brought a pre-trial Motion that I heard in August 2017, seeking to admit evidence concerning the two accused’s involvement in the Bosma murder as similar fact evidence in relation to the Babcock murder. The main similar fact linking the two cases together was the alleged use of the large commercial incinerator to dispose of both bodies. I agreed that the evidence concerning the murder of Tim Bosma was relevant to the alleged murder of Laura Babcock. However, I ruled that its legitimate probative value was outweighed by its prejudicial effect. Accordingly, the evidence has been ruled inadmissible in the present trial. See R. v. Millard and Smich, 2017 ONSC 5275.

[9] On September 2, 2017, Mr. Dungey wrote to the Crown, on behalf of Smich, seeking the Attorney General’s consent to a judge alone trial, as provided for in s.473(1).

[10] On September 15, 2017, the Crown responded and advised that the Attorney General would not consent to a judge alone trial. In addition, Millard has stated in open court on a number of occasions that he does not consent to Smich’s request for a judge alone trial. Millard wishes to have a trial by jury, as provided for in the provisions of the Criminal Code and in s.11(f) of the Charter. However, Millard joins in Smich’s present Motion seeking a judge alone trial if it would have the effect of granting severance. Millard and Smich have both previously applied for severance, including on the ground that Smich wishes a trial by judge alone. I denied that earlier severance Motion. See: R. v. Millard and Smich, 2017 ONSC 4030.

C. Analysis

i. The First Motion

[11] Smich’s first Motion seeks a s.24(1) Charter remedy, over-riding the Attorney General’s refusal to consent to a judge alone trial. Ms. Trehearne submits that Smich cannot receive a fair trial by jury and that the Attorney General’s refusal to consent to a judge alone trial therefore violates s.11(d) of the Charter. Smich relies mainly on the quantity and character of the adverse pre-trial publicity flowing from the Bosma trial. In addition, Ms. Trehearne submits that cross-examination of certain Crown witnesses will be restricted because of a tactical and practical inability to refer to the Bosma matter in front of a jury.

[12] The law relating to Motions seeking to over-ride the Attorney General’s refusal to consent to a judge alone trial was recently reviewed by MacDonnell J. in R. v. Biddersingh, 2016 ONSC 2396. Adopting and summarizing his analysis, there are two grounds on which such a Motion can be brought:

• where the manner in which the Attorney General’s discretion has been exercised amounts to an abuse of process; or
• where proceeding with a jury would result in an unfair trial and a violation of s.11(d) of the Charter.

[13] Smich does not rely on abuse of process. That branch of the Motion, illustrated by R. v. McGregor (1999) 1999 CanLII 2553 (ON CA), 134 C.C.C. (3d) 570 (Ont. C.A.), affirming (1992) 14 C.R.R. (2d) 155 (Ont. S.C.J.) and discussed in R. v. L. E. (1994) 1994 CanLII 1785 (ON CA), 94 C.C.C. (3d) 228 (Ont. C.A.), was expressly disavowed by Ms. Trehearne, counsel for Smich. She relies solely on the fair trial branch.

[14] The authorities recognizing a power to over-ride the Attorney General’s refusal to consent to a judge alone trial, on fair trial grounds, describe it in demanding terms. In R. v. Henderson (2001) 2001 CanLII 4540 (ON CA), 145 O.A.C. 150 (Ont. C.A.), the court held that the test for a change of venue, on the basis of adverse pre-trial publicity, is “whether a change of venue is necessary in order to ensure that an accused has a fair trial with an impartial jury.” See: R. v. Collins (1989) 1989 CanLII 264 (ON CA), 48 C.C.C. (3d) 343 at 350-1 (Ont. C.A.). In a case where that standard of “necessity” cannot be met, the court in Henderson held that there is “no basis” for the argument that a jury trial would violate the s.11(d) Charter right to a fair trial. In the subsequent case of R. v. Khan and Fatima (2007) 2007 ONCA 779, 230 O.A.C. 174 at paras. 10-16, the court made it clear that the “necessity” test for a change of venue, discussed in Henderson and Collins, is a “minimum” requirement for Charter relief against trial by jury. The court stated that the Attorney General’s refusal to consent to a judge alone trial can only be over-ridden “in the clearest of cases”, that the test for such relief “will not be an easy one to meet”, and that the accused seeking such relief “must show that, on balance, the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient”. In this regard, the court referred in particular to “extensive screening of prospective jurors and challenges for cause”, in those cases like Khan and Fatima where trial fairness is threatened by adverse pre-trial publicity. Most recently, in R. v. Saleh (2013) 2013 ONCA 742, 303 C.C.C. (3d) 431 at paras. 82-4, the court reiterated the approach to this issue taken in Khan and Fatima and described it as a “demanding” standard.

[15] In R. v. Biddersingh, supra at para. 18, MacDonnell J. identified the traditional statutory and common law fair trial protections referred to in Khan and Fatima as follows:

Among “the time-honoured…procedures…designed to preserve and protect the right of every accused to a fair trial” referred to in the Khan are the initial judicial screening of the jury panel, an unlimited number of challenges for cause, the oath of prospective jurors during the challenge for cause process, peremptory challenges, the limitation of the evidence to that which is ruled to be admissible, the instructions of the trial judge that the case is to be decided solely on the evidence adduced at trial, and the oath of the jurors to try the accused on that basis.

I would add the overall solemnity and gravitas of the courtroom and the trial process as one further and constant protection of fair trial values. Trial judges and jurors have often remarked on the significance of this factor.

[16] Applying the above principles, I dismissed Smich’s first Motion at the end of oral argument because the record before me does not rise to the level of the “demanding” and “clearest of cases” standard for Charter relief against trial by jury. The difficulty for Smich is that his Motion tries to anticipate or predict what will happen during upcoming jury selection procedures. He asserts that he will not be able to find 12 fair and impartial jurors, no matter how careful and thorough the jury selection process. I concede that the pre-trial publicity in this case has been damaging and that jury selection will be difficult. I also concede that this is not merely a case of adverse pre-trial publicity relating to a separate case that resulted in an earlier conviction, that included a striking item of evidence (the use of a large commercial incinerator) that will figure in the present case, and that I have excluded the evidence from the prior trial as similar fact evidence in the present trial. These factors will undoubtedly make jury selection particularly difficult.

[17] Nevertheless, the court has summonsed two very large panels of prospective jurors (there are about 800 prospective jurors in the two panels and it can be anticipated that between 400 and 600 prospective jurors will appear). In addition, I will allow a careful challenge for cause that should succeed in screening out partial jurors (as discussed below). There have always been difficult cases in this country, with particularly bad facts and a lot of adverse pre-trial publicity, and yet fair trials with impartial juries have been feasible. I am unwilling to admit defeat in advance by granting the present Motion, without at first making an effort to select an impartial jury. The Motion can be renewed, at a later stage, if the record presently before me changes. I repeat what I said in the previous ruling, dismissing Smich and Millard’s severance Motion (at para. 52).

In terms of Smich’s wish to be tried by judge alone, this aspect of the severance Motion is premature. I agree that jury selection is likely to be difficult in this case. A challenge for cause, based on pre-trial publicity arising from the conviction in the Bosma trial in Hamilton, may simply highlight and revive memories that a prospective juror has of those earlier proceedings. It may be that an acceptable juror in this case will be one who recalls the Bosma trial but, like any judge trying the case without a jury, undertakes to be disciplined and to set aside that knowledge. In R. v. Vermette (1988) 1988 CanLII 87 (SCC), 41 C.C.C. (3d) 523 at pp. 530-1 (S.C.C.), LaForest J. gave the majority judgment in a case where there had been significant adverse pre-trial publicity and where the trial judge had stayed proceedings on a pre-trial Motion. On appeal, the Court held that it was “premature” to speculate, at the stage of a pre-trial Motion, about the partiality of prospective jurors who may have been tainted by pre-trial publicity. LaForest J. stated:

…It is only at the stage when the jury is to be selected that it will be possible to determine whether the respondent can be tried by an impartial jury. This does not therefore involve substituting our opinion for that of the judge. As Beauregard J. notes, there is no evidence indicating that it will be impossible to select an impartial jury in a reasonable time. This is rather a matter of speculation.

In deciding the question, one must not, in my view, rely on speculation. As the Court of Appeal of Ontario observed in R. v. Hubbert (1975), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279, at p. 289 (affirmed by this Court: 1977 CanLII 15 (SCC), [1977] 2 S.C.R. 267), "There is an initial presumption that a juror ... will perform his duties in accordance with his oath", and the fact that he may have read about the case through the media is by and large unimportant; see R. v. Makow (1974), 1974 CanLII 1423 (BC CA), 20 C.C.C. (2d) 513, at pp. 518‑19 (B.C.C.A.); R. v. Kray (1969), 53 Cr. App. R. 412, at p. 414, both cited with approval in Hubbert. In an extreme case (and the present certainly qualifies), such publicity should lead to challenge for cause at trial, but I am far from thinking that it must necessarily be assumed that a person subjected to such publicity will necessarily be biased. The law on the matter was thus expressed in the following passage from Hubbert, at p. 292:

In an extreme case, publication of the facts of a case can give rise to the degree of partiality that should lead to the right to challenge for cause. Such a case was R. v. Kray et al., supra, where there had been a previous trial, widely covered by the London press. At least two newspapers published discreditable facts, not in evidence at the trial, concerning some of the accused. At a subsequent trial for other serious offences, including murder, counsel for one of those accused sought to challenge prospective jurors for cause. After observing that the mere fact of accurate publication of the facts of a previous trial did not, in itself, produce a case of probable bias against jurors empanelled in a later case, Lawton, J., said at p. 415:

The situation, however, is, in my judgment, entirely different when newspapers, knowing that there is going to be a later trial, dig up from the past of the convicted who have to meet further charges discreditable allegations which may be either fact or fiction and those allegations are then publicised over a wide area. This does, in my judgment, lead to a prima facie presumption that anybody who may have read that kind of information might find it difficult to reach a verdict in a fair‑minded way. It is, however, a matter of human experience, and certainly a matter of the experience of those who practice in the criminal courts, first, that the public's recollection is short, and, secondly, that the drama, if I may use that term, of a trial almost always has the effect of excluding from recollection that which went before. A person summoned for this case would not, in my judgment, disqualify himself merely because he had read any of the newspapers containing allegations of the kind I have referred to; but the position would be different if, as a result of reading what he had, his mind had become so clogged with prejudice that he was unable to try the case impartially.

This Court has recently had occasion to underline the confidence that may be had in the ability of a jury to disabuse itself of information that it is not entitled to consider; see R. v. Corbett, a judgment pronounced today [ante, p.385].

The issue in this case should then have been left to be disposed of at trial as was done in the very similar case of R. v. Goguen, Que. S.C. No.500‑01‑006139‑817, November 16, 1982, per Biron J., arising out of the same incidents; see also R. v. Parent (1986), 23 C.R.R. 291.

[18] As noted above, Smich advanced a secondary basis (unrelated to adverse pre-trial publicity) for alleging that he could not receive a fair trial by jury. In this regard, Ms. Trehearne submitted that cross-examination of certain witnesses would be restricted by a tactical and practical inability to refer to the Bosma case. She identified three pairs of witnesses where this issue is said to arise, for differing reasons: Cronin and Liberatore; Noudga and Millard (if they testify); and Dr. Rogers and Dr. Gruspier. The argument has no merit in relation to the latter two pairs of witnesses. In relation to Noudga and Millard, it depends on speculation that they will testify and that they will give certain evidence that is unfavourable to Smich. Neither assumption can be safely made at this early stage. In relation to Dr. Rogers and Dr. Gruspier, the two forensic anthropologists who examined certain remains in the incinerator, I am satisfied that their expert opinions can be challenged on the basis suggested by Ms. Trehearne in oral argument without referring to the Bosma case.

[19] The two witnesses, Cronin and Liberatore, will be more challenging. They are important Crown witnesses against Smich as they are expected to testify about a rap song that Smich performed in their presence in the late summer of 2012, about burning a girl and throwing her cell phone in the water somewhere. When they questioned Smich about the rap song he told them, in effect, that it referred to actual events where he had killed a girl and burned her body. There is no doubt that Cronin and Liberatore did not provide this evidence to the police until after the Bosma murder in 2013. It also appears that Smich and Millard’s arrest for the Bosma murder had some impact on the extent to which Cronin and Liberatore took Smich’s earlier “confession” seriously, about having killed a girl and burned her body. For example, Cronin told the police in May 2013 that he thought the apparent “confession” in the late summer of 2012 “was just some stupid joke” until after he learned of Millard’s and Smich’s arrest for the Bosma murder. It was at this point that he went to the police. Ms. Trehearne submits that it will be difficult to cross-examine Cronin and Liberatore without referring them to the context of the Bosma murder in May 2013, and then exploring its impact on these two witnesses.

[20] I agree that cross-examination of these two Crown witnesses will require considerable care. They will be cautioned not to refer to the Bosma matter, unless defence counsel or Millard expressly ask them about it, which is unlikely. I am satisfied that counsel for Smich will be able to cross-examine Cronin and Liberatore effectively by suggesting there was considerable delay in going to the police, by suggesting that they thought at the time of the alleged “confession” that it was “just some stupid joke”, and by asking why they thought it was just a joke (for example, Cronin told the police, “we just laughed because we thought Mark was just trying to be cool”). In other words, there is considerable room to carefully explore the reliability of Smich’s alleged “confession” to Cronin and Liberatore, without referring to the Bosma case.

[21] In any event, I have considerable doubt as to whether tactical constraints on cross-examination can provide grounds for over-riding the statutory requirement of a jury trial and for finding a s.11(d) Charter violation. There are often witnesses in criminal cases who have to be approached with care, and who have to be controlled by the cross-examiner, in order to avoid drawing the witness into areas of otherwise inadmissible extrinsic discreditable conduct. These practical realities of the criminal jury trial do not rise to the level of “the clearest of cases” of trial unfairness.

[22] Given that I have found no s.11(d) Charter violation, I need not consider the particular s.24(1) Charter remedies sought by Smich, namely, severance of his judge alone trial from Millard’s jury trial or an order over-riding Millard’s refusal to consent to a judge alone trial. I also need not consider Millard’s support for the remedy of severance. In this regard, I should note that Millard advanced one new ground for severance that his counsel, Mr. Pillay, had not advanced on the earlier severance Motion that I heard and dismissed in June 2017. See R. v. Millard and Smich, 2017 ONSC 4030. Millard’s new ground for severance was that he wished to compel Smich to testify as a defence witness at a severed jury trial. When asked what basis there was to believe Smich could testify “in a manner favourable to the accused seeking severance” (the “reasonable possibility” test in R. v. Savoury (2005) 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 at paras. 27-9, Millard conceded that Smich had testified unfavourably to him at the Bosma trial. He also conceded that the only basis he could point to was his own double hearsay assertion as to what Smich had told him, set out in a letter that Millard wrote to his girlfriend Noudga from the Hamilton jail in 2013. That letter appears to be an attempt to obstruct justice. Millard later wrote, in a subsequent letter to Noudga, “that was brainstorming, forget it.” Counsel for Smich added nothing in submissions to suggest that Smich might testify favourably to Millard.

[23] There is no merit to Millard’s new ground for severance and there has been no basis advanced for reconsidering my previous ruling denying severance.

[24] For all these reasons, the first Motion is dismissed.

ii. The Second Motion

[25] In the alternative, if the first Motion is dismissed (as it has been), Smich and Millard both seek leave to challenge prospective jurors for cause on grounds of pre-trial publicity. The Crown supports this Motion and I indicated some time ago that I would allow a challenge for cause based on pre-trial publicity. Accordingly, the only issue that was argued on this Motion was the form and the number of the questions. There was initially some disagreement between the parties, as Smich advanced an elaborate set of proposed questions which Ms. Trehearne later conceded were not advisable. Substantial consensus eventually formed around a set of questions derived to some considerable extent from those approved by MacDonnell J. in R. v. Biddersingh, supra.

[26] I recently summarized my understanding of the governing law relating to challenge for cause in R. v. Jaser and Esseghaier, 2014 ONSC 7528 at para. 10, which I simply repeat as follows:

The law in this area is now well-settled. In brief summary, the following principles apply:

• First, there is a presumption that jurors will carry out their duties with impartiality. This presumption is based on long experience with the practice of trial by jury. Unless the presumption is rebutted, challenge for cause is not permitted;
• Second, the presumption of impartiality can be rebutted upon a showing that there is a “realistic potential for the existence of partiality” in the circumstances of a particular case. Pre-trial publicity and race-based prejudices are the most common ways in which the presumption can be rebutted;
• Third, once the presumption has been rebutted and challenge for cause has been permitted, the trial judge has considerable discretion in determining the number and form of the questions. Relevant considerations, in this regard, are whether the proposed questions will “unnecessarily … invade the privacy of the potential jurors, or unnecessarily … prolong the trial”;
• Fourth, there are two relevant issues that a challenge for cause should inquire into, namely, whether a particular source of prejudice or lack of impartiality exists in the prospective juror and whether the prospective juror can set it aside. These two avenues of inquiry are often referred to as the “attitudinal component” and the “behavioural component” of lack of impartiality.

See: R. v. Spence (2005), 2005 SCC 71, 202 C.C.C. (3d) 1 (S.C.C.); R. v. Find (2001), 2001 SCC 32, 154 C.C.C. (3d) 97 (S.C.C.); R. v. Williams (1998), 1998 CanLII 782 (SCC), 124 C.C.C. (3d) 481 (S.C.C.); R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 84 C.C.C. (3d) 353 (Ont. C.A.); R. v. Sherratt (1991), 1991 CanLII 86 (SCC), 63 C.C.C. (3d) 193 (S.C.C.).

[27] Applying the above principles, there are six questions that are appropriate in this case, preceded by a preamble, as follows:

In deciding whether the Crown has proved the charge of first degree murder against Mr. Millard and Mr. Smich, a juror must be able to judge the evidence without bias, prejudice, or partiality. In other words, a juror must be able to decide the case with an open and fair mind, free from outside influences, solely upon the evidence heard at trial and the instructions of the trial judge, in accordance with the juror’s oath or affirmation.

As part of the jury selection process, you will be asked a series of questions. Every prospective juror is being asked the same questions. If you do not understand a question or require clarification, please feel free to ask.

As Justice Code told you last week, Mr. Millard and Mr. Smich are alleged to have murdered Laura Babcock and to have burned her remains in a large commercial incinerator, known as The Eliminator, which was later found at a rural farm property owned by Mr. Millard in Ayr Township, near Kitchener/Waterloo.

1. Have you seen, heard or read anything about this case, or about these two accused (Mr. Millard and Mr. Smich), in any form of media, for example, from the radio, the television, the internet, newspapers or magazines, or through discussions with others, including discussions on social media?

(If the answer to question 1 is yes)

2. As a result of anything you may have seen, heard, read, discussed or communicated, have you formed an opinion about the possible guilt or innocence of Mr. Millard and/or Mr. Smich?

(If the answer to question 2 is yes)

3. Would you describe the opinion you have formed as strong?

(If the answer to any of questions 1, 2 or 3 is yes)

4. Would you be able to set aside any information you may have received or any opinion you may have formed, about this case or about Mr. Millard and/or Mr. Smich, and decide this case solely on the evidence heard in court and on the instructions of the trial judge?

(Regardless of the answers to the previous four questions)

5. Would you be able to follow the trial judge’s instructions not to conduct online research or read or listen to news media accounts about the case or about Mr. Millard and/or Mr. Smith?

6. Would you be able to follow the trial judge’s instructions not to allow your family or friends or acquaintances to give you information they have obtained or to provide you with opinions they have formed about the case or about Mr. Millard and/or Mr. Smich?

[28] I will, of course, be open to further suggestions from the parties about how to improve these six questions, now that they have my draft of the questions in writing.

D. Conclusion

[29] For all the above reasons, the first Motion is dismissed and the second Motion is granted.

M. A. Code J.

Released: October 10, 2017