Smich adamantly denies Fraser’s version of events.
“You followed [Millard] because that was part of the plan. It was the incineration phase of the killing of Mr. Bosma.”
If Smich had wanted to get away, says Fraser, it would have been easy for him. It was Millard who had the dead man in his truck. “You don’t follow lunatic Dell for twenty-three kilometres” to a dark farm, says Fraser.
“No, sir, in that situation, like I said, I was terrified. I didn’t know what to do.”
“They’re explanations, they’re excuses, they’re not actions. Unless it’s a plan, you don’t follow him, you don’t go to a hangar,” says Fraser. “Unless it’s a plan.”
“I felt threatened, sir. I felt scared. I did what he told me to do—that’s it.”
Smich powered down his phone at 9:20 P.M., almost exactly the same time Millard turned off the burner phone. “You know you’re being tracked and that you killed Mr. Bosma, and you don’t want to be followed,” Fraser says.
Smich denies it, insisting his battery went dead. He may even be telling the truth. But it’s hard to know, given that he is, after all, the man with four cell phones and multiple missing SIM cards.
—
FRASER TELLS THE COURT there was no indication in the days following Tim Bosma’s murder that Smich was truly scared of Millard. On the contrary, he says to Smich, “there is a comfort level between you two that is consistent from day one to day four. No fear, no distancing” is revealed in Smich’s texts.
“I couldn’t come to terms with the reality of the situation at the time.”
“These are words, justifications, excuses,” says Fraser. He shows a text from Millard to Smich sent at 11 A.M. on May 7, about half a day after the shooting. It’s about their plan to return to the hangar that evening.
“Changed my mind bro, after 7pm,” Millard writes.
“Oh snap,” says Smich at 1:55 P.M. “Well in that case, I should go back to bed at some point, and she cant reach with us bcuz she work early next day. Link me when you’re awake.”
Fraser asks Smich to explain the garbled text.
“I believe [Millard] was asking Marlena to come with us,” he says. “I don’t think I discussed that with her.”
“How about, ‘Never in a million years would I have that conversation with Marlena, because that’s a horrendous situation’?”
On Wednesday, having towed the incinerator back to the farm the night before and possibly cleaned it out, Smich and Millard split up. But Smich both called and texted Millard that day. Millard was heading out to Oakville to see Smich when he changed his mind. “Bro Im so tired, not going to have the energy to drive you home, I’ll link you tomorrow.”
“What’s the dealio?” Smich texts back, and then later: “Get some sleep.”
Millard tells him he almost fell asleep driving home.
“This is what I would describe as a very comfortable conversation between you and Mr. Millard,” says Fraser.
At 3 A.M. on Thursday morning, Smich texts Millard asking him to come and get him at lunchtime that day.
Fraser says, “That’s you on board, all in: ‘Come get me.’ ”
Two minutes later, Smich asks, “you awake?” He tells his friend he’s thinking of getting an X-ray for his shoulder.
“Yo holla,” he texts, followed by a phone call to Millard. Not long after, Smich texts, “You wanna chill for a bit today?”
Fraser translates this as, “I, Mark Smich, want to spend a little time with lunatic Dell today.”
“Yes, sir, like I said, I didn’t know what to do at the time. I was trying to keep everything normal between us.”
As the texts pile up, Smich continues to insist he really was stressed, shocked, paranoid, and that no one was supposed to die.
—
THURSDAY, MAY 9, WAS A very busy day for Millard and Smich, says Fraser. They had a lot of work to do to cover their tracks, including picking up Millard’s red Dodge, burning evidence at the farm, and getting the Bosma truck out of the hangar to take to Kleinburg. Millard was driving his red truck and towing the trailer containing the stolen truck when he dropped Smich off at his mother’s house in Oakville at 10 P.M. and then continued on to pick up Christina Noudga.
Fraser asks Smich who removed the DVR from the hangar, which Millard gave to Noudga that evening and which was eventually found in her closet. Smich doesn’t recall, nor does he remember calling Millard that night at about 11 P.M., shortly after he’d been dropped off.
“What up bro, yo, link me back,” Smich texted his friend very early Friday morning.
“You just wanted to get a progress report,” says Fraser. “It’s a comfort, it’s an ease you have with each other. You’re reaching out to him at 1:20 in the morning.”
Some three hours later, Millard responded, “Retooled for stormy weather, all clear, getting some sleep now, 7am accounting meeting.”
Smich knew exactly what that meant, says Fraser: Millard had gotten rid of the murder weapon.
Smich disagrees.
Fraser cites another Friday text from Smich to Millard in which he implies that Matthew Ward-Jackson can help get rid of the gun.
Fraser asks Smich why Millard called him at 3:43 P.M., after the Hamilton Police left the hangar. He suggests it was to say, “Mark, it’s looking bad, the police were here, we gotta meet.”
“You are the last person he spoke to in person before he was arrested on Cawthra Road,” says Fraser. “The two of you had business to discuss: What do we do with the murder weapon, and what would we do with the stuff at Maple Gate?”
Smich insists the conversation couldn’t have been detailed, because Brendan Daly was present. Fraser reminds Smich that Daly never said that.
“You can’t remember a single thing about the conversation you had with Mr. Millard?” he asks.
Smich concedes that they probably would have talked about the police coming and that Millard was going to see a lawyer.
“There is no way you did not discuss with Mr. Millard exactly what you did in the hours following his arrest to get the murder weapon you destroyed and to get the drugs out of the house. You can agree or disagree, your call.”
“Disagree.”
Fraser shows an extraction report taken from Marlena Meneses’s phone. There are several calls to and from Andrew Michalski.
“The conversation would have been me telling him Dell was arrested, get all the drugs out of the house, the police are probably coming there next,” says Smich, adding that he would have later asked for the drugs because Meneses wanted them.
“He does exactly what you ask him to do,” Fraser says of Michalski.
“He doesn’t do exactly what I asked him to do. He contacted Matt Hagerman, which I did not ask him to do.”
Fraser reminds Smich of Michalski’s testimony. Michalski said Smich “wanted me to meet up with Hagerman, and he wanted whatever I had, and Hagerman had, brought to him the next day.”
The phone logs show that as soon as Michalski got off the call during which Smich gave him these instructions, he phoned Hagerman. At 10:53 P.M., he also texted Hagerman “call me asap.”
“Coincidence or plan, Mr. Smich?” Fraser tells Smich that getting the drugs and murder weapon from Michalski and Hagerman was all part of the plan he and Millard devised when they knew the police were closing in.
Smich counters that Michalski and Hagerman contradicted each other in court, that Hagerman said Michalski told him Dell wanted Smich to have the toolbox, that they lied to police.
Fraser cuts him off. “We’ll let the jury decide who to believe, Mr. Smich. That’s their function, not yours.”
Smich tries again to discredit Michalski and Hagerman.
When he wants to proclaim his version of events to the jury, Smich is assertive, even aggressive, a far cry from the shell-shocked patsy he has portrayed himself as being in May 2013. Fraser asks him if he can at least concede that his ex-girlfriend Marlena Menes
es was honest. Smich does. The video of him and Millard picking Meneses up on the morning of May 7 is played for the jury.
Fraser plays back the recording of the relevant portion of Meneses’s evidence, where she described the mood in the truck that morning. “Very happy. They’re just really happy, saying they wanted to celebrate,” she testified. “They just said that their mission went well.”
Fraser plays it again. “This is honest Marlena Meneses expressing clearly a celebration on the part of Dellen Millard and Mark Smich for the theft, the killing, and the incineration of Tim Bosma.”
“No, sir. I believe she says also that Dell was happy that he got the truck. She was asked that by Mr. Sachak.”
Fraser has come prepared. He reads from the transcripts of Meneses’s cross-examination by Sachak and Thomas Dungey.
“You can just tell that they were happy,” she tells Sachak. “You can tell when a normal person was happy.”
Dungey asks her about her police statement given on May 22, 2013. “Dell told you he got the truck?”
“Yes,” says Meneses. “They both told me that they, that the mission went well.”
Fraser looks at Smich. “Mission accomplished. Right, Mr. Smich?”
“I don’t know where she got this ‘celebratory mood’ from,” says Smich.
“From you and Dellen Millard, right in that truck,” says Fraser, as he ends his cross-examination, “celebrating the death of another human being.”
SEVENTEEN
THE VERDICT
The closing arguments begin on May 31, 2016, after four long months of trial. Ravin Pillay appears first, followed by Thomas Dungey and then Tony Leitch. Each lawyer will take almost a full day to present his case. In a nutshell, Pillay’s argument is that Dellen Millard couldn’t have killed Tim Bosma because it makes no sense. Dungey’s argument is that Mark Smich told the truth about a situation that makes no sense. And Leitch’s argument is that while none of this makes sense, it is exactly what happened: Millard and Smich plotted for more than a year to steal a Dodge Ram 3500 and kill and incinerate its owner.
Pillay’s and Dungey’s closing arguments are in keeping with their style throughout the trial. Cool, calm, and methodical, Pillay has a high-tech presentation complete with audio and video and timed right down to the minute. Dungey, who says it’s not his habit to rehearse, works with handwritten notes and leans so heavily on the lectern that it tilts. He looks at times as if he might keel over.
Throughout the closing arguments, the lawyers’ lectern is positioned to face the jury, allowing them to talk directly to the six men and seven women, twelve of whom will decide this case. Even when they are seated and watching their colleagues, counsel will often turn their chairs so that they can see and be seen by the jurors, who now number one fewer than at the start of trial. In mid-May a jury member was dismissed after her brother died and the judge decided she would be too distracted to continue to serve.
Pillay tells the thirteen remaining jurors that in May 2013 Mark Smich was in desperate need of money. He wanted to move to Calgary, and Millard had promised him a Cadillac. He was ready to leave, but his friend felt no sense of urgency. Smich was worried that once again “Mr. Millard’s overly cautious attitude would result in him backing out of the scoping mission.” He was tired of living on the scraps Millard tossed him, so he brought “his chrome piece, his .380,” says Pillay, quoting Smich’s rap lyrics. “It was on the highway Smich pulled the gun,” Pillay tells the jury. “[He] fucked up,” as he later said to Marlena Meneses and Brendan Daly, and Tim Bosma died. It was an accident, not intentional. “Nobody kills somebody for a truck,” says Pillay, “not even Mr. Smich.”
Despite what he describes as the “sea of evidence” presented during four months of trial, Pillay maintains that none of it proves the Crown’s theory that Dellen Millard and Mark Smich planned for a year to steal a truck and to kill and incinerate its owner. In fact, he says, it shows just the opposite, that there was no intention to kill, no planning and deliberation.
That night in May 2013 when he showed up in the Bosmas’ driveway, Dellen Millard made eye contact with their tenant, Wayne De Boer. Similarly, he made no secret of the fact that he wanted to get a truck, texting Lisa Whidden about it and even going so far as to tell Andrew Michalski he would steal it.
He hid neither his incriminating internet browser history nor his tattoos. The week of May 6, Millard arranged business meetings with colleagues and breakfasts with ex-girlfriends. “Why would he plan to have breakfast with Jenn [Spafford] on Thursday if he’s planning to commit murder on Monday?” Pillay asks.
Millard never attempted to hide the Bosma truck. Waterloo Airport security came and looked through the Millardair windows and saw it sitting on the hangar floor. “What kind of plan is this?” says Pillay.
Millard even took Pedo along with him when he drove down to Ancaster for the test drive with Tim Bosma. “Why would anyone bring their dog on a planned and deliberate murder?” asks Pillay. “It makes no sense.”
Everything Dellen Millard did was in reaction to an unforeseeable and unforeseen event. “The murder-for-a-truck allegation is simply absurd,” he says.
“Consider what must have been racing through [Millard’s] mind when Mr. Smich pulled a firearm,” Pillay prompts the jury, attempting to explain why Millard helped incinerate Tim Bosma’s body. Because there was never any plan other than to scope and steal, Millard left “a body of evidence that could identify him. He couldn’t just dump the Bosma truck and run.” He was trapped, and as a result “he dug a deeper and deeper hole for himself,” says Pillay. “He involved others that he cared about,” including his mother and Christina Noudga.
Pillay says the Super Sucker video shows that Smich is a liar. He argues that the mystery truck that drove past at 9:05 P.M. and again at 9:15 has to be the Bosma vehicle. The video corroborates Millard’s version of events, and the anomalies in the timing can be accounted for by human error. Video analyst Michael Plaxton erred in not pointing out the complete story of the truck’s travels, he says, and the police officer who collected the video did not follow proper procedure and failed to adequately verify the times. “The Super Sucker video establishes Mr. Smich lied to you under oath,” Pillay tells the jury. “Mr. Smich’s lie was designed to fit the Crown case as he knew it.”
Pillay rejects the prosecution’s theory that Tim Bosma was killed in the Bullmann field. A shot would have been heard. Pedo and the dog being walked by Rick Bullmann would have reacted. “Where is the glass?” he asks. “Where is the bullet?”
Millard’s lawyer warns the jury not to put too much stock in the testimony of Marlena Meneses, whom he calls a proven liar. In her original statement to the police, she told them she didn’t know about the incinerator and did not admit to cancelling Smich’s phone almost immediately after Millard’s arrest. “Relying on her evidence is very dangerous,” says Pillay, who needs to discredit Meneses’s testimony about Millard and Smich being in a celebratory mood the morning after the murder.
While Pillay concedes that Millard was involved in scoping out the truck to be stolen, that is as far as he is prepared to go. “There was no motive, no plan, no deliberation, no intention to kill, no attempt to conceal his identity,” he says. “Mr. Millard is not guilty.”
By the time he wraps up, precisely on schedule, Pillay has done almost everything a clever lawyer with a very weak case can do. The sentiment of many in the courtroom is that Pillay might well have succeeded in raising reasonable doubt for other people, but he didn’t fool me.
—
AS HE BEGINS HIS closing arguments, Thomas Dungey stresses a point he will make repeatedly throughout the day. Sworn testimony is evidence, but theories floated by lawyers are not. This means that Mark Smich’s version of events, given under oath, constitutes evidence. But, he says, the scenario of what happened on Highway 403, brought forth first by Nadir Sachak in his cross-examination of Smich and then by Ravin Pillay in closing argumen
ts—in which Smich was alleged to have shot Bosma from the back seat of the truck while Millard drove—is nothing more than speculation, or “smoke and mirrors.” Smich subjected himself to cross-examination and never wavered through more than a week of questioning by highly experienced defence and Crown lawyers, Dungey says. No part of the 403 scenario was ever tested in any way. “Millard’s lawyers didn’t call any evidence to support it,” he stresses to the jury.
“Mr. Smich was not lying, and when you don’t lie, you cannot break a person,” he says. (Indeed, on social media, Smich’s ability to stand firm was often fallaciously cited as a reason that his testimony must be true even though it was an obviously self-serving version of events.)
Dungey cannot provide an explanation of what happened in the truck that night or why. “We will never know why, as my client termed him, Lunatic Millard shot Mr. Bosma,” he says. “All we know is that a man was killed for a truck for no reason. All we can know is a man flipped out, for whatever reason.”
On a few points, Dungey actually agrees with Ravin Pillay. “It doesn’t make any sense that there was planning and deliberation for over a year to steal, kill, and burn an individual. That theory is nonsense,” says Dungey, nonsense being one of his favourite words. “All the evidence the Crown put forward was evidence to steal a truck, not to murder someone.”
The motive of killing someone just for the thrill of it makes no sense to Dungey, he says, and he doesn’t buy the prosecution’s theory that Igor Tumanenko survived partly because of his size. “A gun kills anyone,” he says. “Mr. Bosma was not a small man.”
While Pillay tried to discredit Marlena Meneses’s testimony by billing her as a liar out to protect Smich, Dungey takes a different tack. She has a “frail mind” and isn’t the “fastest kid in town,” he tells the jury. She may well have used the word celebrate to describe Smich’s and Millard’s behaviour after Bosma died because she was confused.
The red Cadillac is a red herring, Dungey goes on to say. The Super Sucker video can’t corroborate a highway killing, because there is no evidence of a shooting on the 403. And Smich’s raps are artistic expressions, nothing more.
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