“It’s not like ‘Give Peace a Chance,’ ” says Sachak, providing Smich with another opening, as may be his intent.
“Is that a rap song?” Smich sasses him back.
Sachak ignores him and asks again for an explanation of the lyrics.
“Like I said, it’s an art form. It’s just raps, rhymes.”
“ ‘Ima killer, check my design, mountains I climb and throw you off too’?”
“I’ve never been up a mountain before, and I’ve never thrown anyone off a mountain before,” says Smich. “I never owned a gun.”
“We’ll let the jury decide that,” Sachak says.
“ ‘Peace, bitch. You’re deceased kid.’ Is that what you were thinking when you were killing Mr. Bosma?”
“I did not kill Mr. Bosma.”
“ ‘Fuck with me SAY10.’ Is that what you said to Mr. Bosma before he died?”
“I was not with Dellen Millard when he shot and killed Mr. Bosma, then parked his truck on his mother’s property,” says Smich, who grabs every chance he can to put across his storyline. “I remember yesterday you asked me a question about profiting from selling Dell’s gun. This is where it’s confusing, because Dell was profiting from Mr. Bosma’s truck. That’s what happened. That’s what happened, sir.”
Later, Sachak revisits the topic of art and reality. He tells Smich that his rap was not mere artistic expression but “an artistic diary” of his criminality. “There are rap artists engaged in exactly the type of criminality you wrote about.”
Smich brings up Stephen King and Dr. Seuss. “Just because somebody writes something a certain way does not make them a certain way,” he says.
Sachak says he understands that, but there’s also a unique category of artist who acts out his art. “Those rap lyrics, that video that the jury saw, are an indication of your true aspirations,” he says.
He calls Smich a drug dealer who writes about drug dealing, a .380 owner who writes about .380s, a man on trial for first-degree murder who writes about killing.
“There’s a lot more to it than that,” says Smich. “I’ve written thousands [of lyrics] in my lifetime.”
“Those rap lyrics are a reflection of your inner soul,” says Sachak.
In keeping with this life-imitates-art theme, a Websleuths member had, back before Smich took the stand, looked anew at his “Ghozted” video, the one that spiked in popularity on the internet after he was arrested. The sleuth, whose user name was “InducedLogic,” picked up on something that hadn’t been noticed before and took on new meaning in the light of Marlena Meneses’s testimony. Meneses had told the court that when she asked Smich what had happened to Tim Bosma, he replied he was “gone, gone.” In “Ghozted,” after the fictional victim has been killed and dismembered, the last words of the soundtrack are a chant of “gone, gone, gone.”
That video was never shown in court.
—
IN A TRUE CUTTHROAT DEFENCE, both defendants would have told their version of events to the jury. But because Dellen Millard chose not to take the stand, it’s Nadir Sachak who puts Millard’s account of what happened the night of May 6 to Mark Smich. As Sachak tells it, after leaving the Bosma property, Millard wanted to take the truck on the highway to see how it would drive. Tim Bosma agreed. They headed up Trinity Road past the Super Sucker camera. (This was ostensibly the mysterious truck sighting that Ravin Pillay had grilled forensic video analyst Michael Plaxton about earlier in the trial.) No sooner had they gotten onto Highway 403 eastbound when Smich purportedly pulled out the Walther PPK concealed in the pocket of his red hoodie.
“We’re going to take this truck,” Smich said, according to Millard.
In this scenario, Tim Bosma grabbed the gun that was pointing at him, there was a struggle, and the Walther was discharged. Bosma was struck and the window was shattered. Millard swerved onto the shoulder and stopped. He was furious and said they should call an ambulance. Smich said Tim Bosma was already dead.
Millard panicked, because his Yukon was still in the field with his dog in it. He had been seen by Sharlene Bosma and Wayne De Boer. He thought he would be blamed; it had always been his idea to look for a Dodge Ram 3500. He exited the 403 at Wilson Street, outside Hamilton, turned around, and headed back west on the 403. Travelling south on Trinity Road, as he drove to the field, he passed the Super Sucker camera once again. (This was the second video sighting brought to the court’s attention by Pillay during the cross-examination of Plaxton.)
As Sachak describes Millard’s version of events, Smich regularly disagrees. “Absolutely not, sir,” he says. “No, sir, that did not happen.” He shakes his head while craning his neck ever so slightly. It’s a gesture that gives a vaguely cartoonish impression.
Sachak says that when Smich and Millard arrived back at the field, Smich got into the Yukon and followed Millard onto the highway to Brantford.
Smich says this couldn’t be true, because he doesn’t know how to drive on highways. In his account, they took back roads when they set out from the Bosmas’ house—Millard and Bosma leading, Smich following in the Yukon—but because he had to concentrate hard on his driving he can’t remember the route. Nor does he recall hearing a shot from a gun or seeing a flash from a muzzle. After they had both stopped at the side of the road, Millard was putting the gun away in his satchel as he exited the truck.
Sachak asks if Millard shut off the vehicle, and Smich says he believes he did. If that was the case, says Sachak, how could Millard have put the truck in park, switched off the ignition, and opened the door of the vehicle, all the while holding a gun? He also says he finds the detail of Millard putting the gun into the satchel odd.
Smich appears slightly flustered. He repeats that he was scared and in shock. He describes Millard’s eyes as bulging like a lunatic’s. Smich just did what he was told, which was to switch the licence plates on the Bosma truck with those of Millard’s red Dodge.
Sachak asks why. It makes no sense.
“We’ve done this before on other missions.”
Sachak says that Millard was in a panic about Bosma’s phone, because he thought the police might trace it. He began searching the body so that he could find the phone and get rid of it. He was concerned that the phone and the truck might have GPS, which was why he grabbed the flashlight from the Yukon to look.
At the farm, according to Sachak, both men struggled to load Tim Bosma’s body into the incinerator. Then, when they got to the hangar, Millard left briefly in the Yukon. He had to get away from Smich, if only temporarily. He needed to process what had just happened. His plan had been to scope the truck that night and, if he liked it, return later to winch it into the trailer and steal it.
Smich rejects the account. Millard was so deranged that night that even Pedo, who normally stuck faithfully by his side, was scared off, he says. The dog followed Smich around the entire time they were at the hangar. Yet, by the next morning, Millard was happy again. On the drive back to Oakville, Smich borrowed his phone to contact Meneses and tell her they were coming to pick her up. Then Millard dropped them both at Smich’s mother’s house, where Mark Smich went to sleep.
“How many hours?” asks Sachak.
“I don’t recall how long I would have slept for.”
His ability to sleep would seem to require an explanation, yet Smich, who on the witness stand has over-explained many of his actions, glides right by this one. It’s almost as if he doesn’t realize that going to sleep after incinerating a murder victim might not be seen as a normal reaction. Nor does he explain why he would choose to put his girlfriend in the same car as an alleged lunatic killer.
Despite the numerous flaws in his story, Smich emerges from his cross-examination by Sachak with many people still convinced that he was an innocent dupe. Judging by the online chatter, they are willing to forgive and forget the gun amnesia, the suspicious cell phone behaviour, the disturbing rap videos, the wedding partying, and everything else. They want, more than a
nything, to believe Smich when he says, “I’m sitting here right now, taking ownership and responsibility.” And they laugh when, near the end of his questioning by Sachak, Smich tells his adversary, “If you want stories, you can ask your client Walt Disney over there.”
—
DELLEN MILLARD’S STORY is that Mark Smich killed Tim Bosma because he wanted a red Cadillac. According to this scenario, Smich would take the car, part of Carl Millard’s collection, to Calgary when he moved there, which he was planning to do very soon. The move to Calgary, first raised in the Noudga letters, was not entirely a figment of Millard’s imagination. Detective Kavanagh asked Smich about it in his post-arrest interview. And Smich’s mother told a police officer who was present at the search of her house that Mark had said after Millard was arrested that now he would never get the car.
The Cadillac is yet another thing Smich rapped about, Sachak says, another incidence of his rhymes reflecting reality. Smich denies it, saying that at one time his sister Andrea had owned a Cadillac Escalade.
Sachak says Millard promised Smich the Cadillac, valued at about $7,000, once they pulled off the truck theft. It was to be his payment for a job well done. Meneses was getting her licence so that she could drive it. The problem for Smich was that Millard was enjoying their scoping missions a little bit too much. “As pathetic as that may sound, he got a kick out of it,” says Sachak. “It’s you, Mr. Smich, who got very anxious that this theft of a truck wasn’t taking place.”
No, answers Smich. The pressure to get the Dodge Ram 3500 diesel had nothing to do with a Cadillac. It came strictly from Millard, who needed the truck to go to the Baja race. When he had taken his gas-fuelled red Dodge to Mexico in 2011, it had cost him a fortune. He wanted to save money on gas. “Like I said,” says Smich, “Dell is cheap.”
SIXTEEN
THE PLAN
Craig Fraser begins his cross-examination of Mark Smich with a blunt accusation of cold-blooded murder.
“The plan that you and Dellen Millard had was to steal, was to kill, and was to burn,” Fraser declares.
“No, sir.”
“Executed with chilling perfection.”
“No, sir. The plan was, like I said, to steal a truck.”
According to Fraser, the plan took over a year to execute, had multiple incarnations, and involved only two people, Mark Smich and Dellen Millard. Unlike Nadir Sachak, Fraser does not have a client to protect and consequently whole areas of evidence he must avoid. His goal in this cross-examination is simply to prove there was a plan to murder. To accomplish this, he says he will show repeated examples of how Smich and Millard worked together to plan and cover up their crime, and that Smich’s actions weren’t born out of fear, confusion, and shock, as he has maintained.
Fraser describes the video of the two men walking through the hangar in the early morning hours of May 7. “It looked more like a stroll. There was no confusion, no panic, no fear in that walk,” he says. “We can see you and Mr. Millard calmly walking through that hangar going about your business. That’s what it looks like, doesn’t it?”
“No, sir.”
“In lockstep, side by each, calmly walking.”
Fraser says Smich and Millard immediately began to destroy evidence. He uses examples from Smich’s testimony, starting with Smich cutting the carpet and seat belts out of the truck. “That, sir, is destruction of evidence. That’s you doing something positive to destroy evidence.”
“I was told—” Smich starts to say, but Fraser cuts him off. He’s not interested in hearing from Smich about his motivations. He’s not going to let him get under his skin, or think he’s getting under his skin, as happened with Sachak.
“The second thing you do, with Mr. Millard present, you hose down the truck,” says Fraser. Then, he says, Smich and Millard removed the seats from the truck, stowed the evidence in garbage bags, and put the bags in the back of Millard’s red Dodge truck to burn at the farm.
“I didn’t want to be involved,” says Smich. “I was just pretending to go along with it.”
“Excuses, justifications, rationalizations…I’m just pointing out the facts, what you and Mr. Millard did.”
This cross-examination is the only one the Crown attorneys will do at this trial. When they were preparing for the possibility the defendants might testify, it was decided that Tony Leitch would cross-examine Millard and Fraser would take on Smich. As always, Fraser is well prepared. And, liberated to ask the leading questions permitted on cross-examination, he comes across very differently than he has before. He keeps Smich firmly under his control.
Fraser moves ahead to Tuesday night, when video evidence shows the Yukon arriving at the hangar at 9:09 P.M. and leaving with the Eliminator in tow at 11:40. Smich looks worried, not as cocky as he was with Sachak.
“I’m going to suggest that it doesn’t take very long to hitch on and drive to the farm,” says Fraser. “The other thing that was going on at that hangar for two and a half hours was you had to clean the Eliminator. That’s when you went back and cleaned out the remains of Tim Bosma. That’s what you did.” The Eliminator had been too hot earlier that morning.
Smich obfuscates, saying he can’t recall exact details.
Fraser treats his claim with skepticism and carries on. He says that after Smich and Millard stuck the incinerator away from “prying eyes,” they took Wednesday as an unplanned day off. Smich saw a doctor about his sore shoulder and got fitted for a suit for his sister’s wedding before returning on Thursday to destroy more evidence with Millard.
“Those burn sites that we see, that’s where you did it,” Fraser says. “Tucked away at the back of the farm. That’s the spot that he chose?”
“I don’t think any of this was a good plan,” says Smich, dodging the question. He continues to insist that all he set out to do was steal a truck.
“The plan was to steal, the plan was to kill, and the plan was to burn,” Fraser corrects him. He reminds Smich that he and Millard even brought along a fire extinguisher from the hangar. The devil was in the details as the two partners—“just the two of you,” Fraser repeats—spent several hours at the farm destroying evidence.
Unfortunately for Smich and Millard, when they returned to the hangar later Thursday afternoon, they learned there was a problem. “Things are getting a little hot, a little uncertain, a little worrisome because of Art and Shane,” says Fraser. Millard realized that he needed to get the truck out of the hangar.
“I don’t think you explained exactly what you knew about where that truck was going,” Fraser says to Smich. “You must have discussed it with him. ‘What are you going to do with the truck, Dell?’ ”
“No, sir, I didn’t want to be involved.”
“Whether you wanted to be or not, logically you would say, ‘Where are you taking that truck, Dell?’ ”
“No, sir. He seemed very in control of everything. He told me not to worry.”
“You know for a stone-cold fact that trailer was going in his mother’s driveway and you two discussed it.”
Smich denies it. He also says he doesn’t recall talking to Millard on the phone shortly after the police left the hangar on Friday afternoon, May 10.
“You’re Canada’s most wanted at this point,” says Fraser in disbelief. “You don’t recall? You don’t remember the words he said to you?”
“The exact words, no.”
Millard told Smich things were not looking good, says Fraser.
“I won’t agree, because I don’t remember.”
After the police visit, Millard was under surveillance. Police followed him as he and Schlatman stashed Millard’s red truck nearby at a house owned by a friend of Schlatman’s. Millard then visited his bank in Kitchener before stopping on his way home to see Smich for fifty minutes at Meneses’s sister’s apartment.
Smich claims not to remember what they discussed at that meeting, but somehow he recalls without a doubt that Brendan Daly was present and let Millar
d into the building.
“I don’t remember Brendan Daly saying that,” says Fraser. “I remember you saying that.” Then, having set the record straight, he moves on.
“Mr. Millard needs to talk to you, Mr. Smich, because you have to come up with a plan. Because he knows the jig is up.”
“It’s very difficult to remember a verbal conversation,” says Smich.
“No it’s not. It’s not difficult, Mr. Smich, when you’re in the predicament you’re in….Mr. Millard turned to you, his partner in crime, to talk to you about what to do when he got arrested.”
—
CRAIG FRASER INSISTS that Millard and Smich’s “mission” was never just to steal a truck. A truck would have been easy for them, given their success with Bobcats, trees, motorbikes, trailers, and wood chippers. “The difference with this plan is you needed a target to kill, and you needed a target to incinerate, and that’s why it took as long as it did,” he says. “That’s why it took you over a year.”
The elements of the plan were the 3500 diesel truck, the gun, and the Eliminator, “so chillingly referred to as the barbecue, [which] was the last piece of the puzzle,” says Fraser. “The truck, the gun, the incinerator, the plan. That’s how it went down.”
Fraser next displays a text on the courtroom screens from February 29, 2012, more than a year before the Bosma murder. It was sent from Millard to Smich. “Next on the list is: getting you a G1, sound equipment for recording, nab a dodge 3500, sell the green jeep, nab a nacra 18 sailboat.”
Two more texts, from March 14, 2012, are shown to illustrate the closeness between Millard and Smich. “I love you my kneegrow,” says Millard. Mi Negro is one of the contact names he used for Smich and a term of endearment in Spanish. Smich responds, “I love you a whole lot like large. Big huge monstrously massive…You’re really the brother I never had.”
“Like I said,” Smich tells Fraser, “I treated him like family.”
“Remember Miss Meneses’s description? She said you were in love with him,” says Fraser. “Right up until the events of May 2013, you were as tight as ever.”
Dark Ambition Page 28
