The jury that found Mark Smich guilty of helping his once-close friend Dellen Millard murder an ex-lover was not properly told how to balance the evidence against him, his lawyer argued before Ontario’s highest court Monday.
But the Crown says the cases against the two men for the murder of Laura Babcock are overwhelming, calling on the court to dismiss their appeals of the conviction.
Babcock’s parents sat in the courtroom Monday as the Ontario Court of Appeal began to hear arguments from the two men convicted of her July 2012 murder.
The three-judge panel is scheduled later this week to hear the appeals of their convictions for the murder of Tim Bosma, a 32-year-old man whose body was burned in an incinerator after he took the two men out for a test drive of his pickup truck in May 2013.
Millard is also set to appeal his conviction for murdering his father, Wayne Millard.
Millard and Smich were sentenced to life in prison with no chance for parole for 75 years and 50 years, respectively, after convictions were handed down in those cases. But the Supreme Court ruled last year those types of stacked periods of parole ineligibility amounted to cruel and unusual punishment.
As a result, if Millard and Smich fail to successfully appeal their convictions, they will be entitled to reduced sentences of life in prison with no chance of parole for 25 years.
Smich’s lawyer argued Monday there was “a huge gap” in the evidence underpinning the Crown’s theory Smich helped Millard carry out the murder of Babcock, Millard’s ex-lover. There was evidence he helped Millard get an incinerator and later helped use it to dispose of Babcock’s body, lawyer Richard Litkowski said. But there was insufficient evidence, he argued, to find he helped Millard carry out the murder itself.
“That kind of weakness of the evidence on that point, the only point that mattered legally, in this case simply was not left with the jury in a balanced way,” Litkowski said.
But the Crown’s written arguments say the trial judge’s clear instructions and repeated reminders to the jury to consider the evidence in its totality undermine the argument.
Smich and Millard were convicted of Babcock’s murder in 2017. The Crown theorized Millard was motivated to kill his one-time lover to settle a love triangle with his then-current girlfriend and enlisted his close friend Smich to help.
In the lead-up to Babcock’s disappearance in July 2012, Millard sent texts to his then girlfriend telling her he would “remove” Babcock from their lives and “hurt her”. Millard would go on to acquire a gun and an incinerator.
Phone records placed Babcock, Millard and Smich in the area of Millard’s house on July 3, the night she made her last outgoing call, to her own voicemail, before her disappearance.
The Crown argued the two men used the incinerator later that month to get rid of Babcock’s body. Court would see rap lyrics written and performed by Smich, which referred to a woman’s burned body and her phone being thrown in a lake.
Millard appeared by video feed from prison, dressed in a blue long-sleeve shirt and seated at a table with papers arranged in front of him, as he listened to his lawyer present his appeal arguments Monday. Millard is representing himself in the other two appeal cases to be heard later in the week.
Lawyer Ravin Pillay argued the trial judge should not have allowed the jury to consider the lyrics as evidence against him, claiming it amounted to hearsay. But the Crown submitted that because the lyrics were found on Millard’s computer, the judge was correct to leave it to the jury to weigh.
Pillay faced pointed questions from Court of Appeal Justice Grant Huscroft on Monday when he argued the trial judge in the Babcock case improperly denied Millard an adjournment to get a lawyer. Huscroft noted the trial judge’s written decision outlined a number of reasons for denying the application, including Millard still had enough time and money to get a lawyer.
“This isn’t an off-the-cuff no, this is multiple pages explaining why and findings that are against you on all the key points,” Huscroft said in response.