Thomas Seymour Dungey

This decision contains pre-charge conference rulings in a first-degree murder trial involving two accused.

The court addressed two main issues: the Crown's request to include constructive first-degree murder under s. 231(5)(e) of the Criminal Code as a route of liability, and Mr. Smich's request for a Vetrovec warning regarding certain Crown witnesses.

The court denied the Crown's request for constructive murder, finding no air of reality to unlawful confinement distinct from the killing.

It also denied Mr. Smich's request for a Vetrovec warning for the specified witnesses, concluding that the jury would be capable of assessing their credibility with general instructions.

However, the court granted Mr. Millard's counsel's request for a caution regarding Mr. Smich's testimony where it implicates Mr. Millard.

The Crown applied mid-trial to admit text messages between the two accused, previously ruled inadmissible, arguing that defence cross-examination had "opened the door" by asserting lack of planning, good character, or lack of knowledge of the "Eliminator." The accused opposed, citing prejudice and lack of material change in circumstances.

The court denied the Crown's application, finding no material change in circumstances to warrant reconsideration of the prior ruling, and that the probative value did not outweigh the significant prejudice, especially given the potential for references to another alleged murder.

Limited exceptions were made for cross-examination if the accused testified on specific points.

The Crown sought a mid-trial order for the jury to conduct a view of multiple crime scenes and an incinerator device in a murder trial.

The accused opposed, arguing prejudice due to late timing, potential for misleading the jury regarding the theoretical route, and inflammatory impact of the incinerator.

The court dismissed the application, finding the Crown failed to demonstrate a "very real and demonstrable advantage" that could not be achieved through existing evidence, and that the late stage of the trial exacerbated the risk of prejudice and overemphasis.

Mark Smich, a co-accused in a joint trial, brought an application to introduce evidence of Dellen Millard's general propensity or bad character, arguing that Millard's counsel had put Millard's character in issue during cross-examination of a witness.

Millard and the Crown opposed the application.

The court found that the cross-examination, which elicited evidence about Smich's violent temperament, anger issues, and control over others, including rap lyrics, was within the scope of a Pollock and Morrisson application.

This evidence was deemed probative to specific issues, such as Smich's ability to intimidate and weapon ownership, relevant to Millard's antagonistic defence.

The court concluded that Millard's general character had not been put in issue by these questions and that there was no imbalance requiring rebuttal.

The application was dismissed.

The applicant, Mark Smich, sought a mistrial during a joint murder trial, alleging that co-accused Dellen Millard's counsel improperly introduced highly prejudicial propensity and bad character evidence, including violent rap lyrics, beyond the scope of a Pollock and Morrisson application.

The Crown and co-accused Millard opposed the application, arguing the evidence was within the scope of cross-examination for antagonistic defenses and that timely limiting instructions had been provided.

The court dismissed the application, finding that while one specific rap lyric reference exceeded the permitted scope, it was probative to a live issue (firearm ownership) and that any potential prejudice could be cured by jury instructions, not warranting the "last resort" remedy of a mistrial.