Court upholds convictions against Babcock’s killers, Millard loses all 3 appeals

Thomas Dungey (Mark Smich's lawyer) (left to right), Ravin Pillay (Dellen Millard's lawyer), Justice Michael Code, Crown Attorney Jill Cameron, Dellen Millard, Mark Smich and Laura Babcock's mother, Linda are shown in this courtroom sketch from the sentencing hearing for Millard and Smich in Toronto, Monday, Feb.12, 2018. THE CANADIAN PRESS/Alexandra Newbould. THE CANADIAN PRESS/Alexandra Newbould

Ontario’s top court upheld convictions against Dellen Millard and Mark Smich for killing a 23-year-old woman more than a decade ago, marking back-to-back appeals dismissed this week against the multiple murderers.

The appeal decision released Thursday in the murder case of Laura Babcock came a day after the Court of Appeal for Ontario upheld Millard’s and Smich’s convictions for the 2013 murder of Tim Bosma.

For Millard, the heir to an aviation fortune turned infamous murderer, the decision caps a trio of unsuccessful appeals after the three-justice appeal panel in March dismissed his attempt to overturn his conviction for murdering his father.

Babcock’s mother said Thursday’s decision was both a relief and a painful reminder of what cannot be undone.

“We are relieved, greatly,” Linda Babcock said in an interview. “Nothing really changes. She’s still gone every day. This is extremely emotional.”

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Smich’s appeal lawyer, Richard Litkowski said the decisions in both the Babcock and Bosma cases deal with a number of substantive legal issues arising from “two very lengthy and complex trials.”

While the decisions were still being reviewed, Litkowski said in a statement it was “very likely that leave to appeal to the (Supreme Court off Canada) will be sought” by Smich.

It was not immediately clear whether Millard planned to seek leave to appeal to the Supreme Court and his lawyer did not immediately return a request for comment.

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The 2017 trial for Babock’s murder saw prosecutors argue that Millard and Smich, once close friends, were motivated to kill Babcock to settle a love triangle between her, Millard and his then-girlfriend.

In the lead-up to Babcock’s disappearance in July 2012, Millard sent texts to his then-girlfriend telling her he would hurt Babcock and remove her from their lives. He would later acquire a gun and an incinerator, which prosecutors theorized he used to get rid of Babcock’s body, and then Bosma’s body almost a year later.

Phone records placed Babcock, Millard and Smich in the area of Millard’s house on July 3, 2012, the night she made her last outgoing call, to her own voicemail, before her disappearance. At trial, the court was presented with rap lyrics written and performed by Smich, which referred to a woman’s burned body and her phone being tossed in a lake.

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Millard and Smich would murder again more than a year later, in May 2013. That’s when prosecutors say the two men set out to kill 32-year-old Bosma, a stranger to them both, and steal his truck. The jury at the 2016 trial heard evidence to suggest the men stripped the truck, hid the murder weapon and burned Bosma’s body.

The Bosma murder prompted police to reopen an investigation into the November 2012 death of Millard’s father, which was originally ruled a suicide. At trial, the judge found Millard purchased the gun that killed his father, was at the house the night of the murder, and had set up a false alibi to conceal the crime.

Millard developed a reputation for representing himself in court dating back to the Babcock trial. More recently, he represented himself in March when he appealed his conviction for killing Bosma and his own father, as well as in a recent trial where he was found guilty of an inmate prison assault.

His appeal in the Babcock case argued the judge denied his fair trial rights by denying him an adjournment, claiming he needed more time to find a lawyer. The appeal court dismissed the argument, noting the trial judge found Millard had the means to retain counsel and wanted to represent himself.

The appeal decision, written by Justice David Paciocco and endorsed by the other two justices on the panel, also dismissed Millard’s argument that Smich’s rap lyrics should not have been permitted as evidence against him. The appeal panel found there was ample circumstantial evidence to link Millard with the rap lyrics, including that he was with Smich when the lyrics were penned.

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The decision dismissed a number of Smich’s arguments, including that the trial judge did not properly instruct the jury how to properly balance the cases against each co-accused. In particular, his lawyer argued the judge did not properly tell the jury how to determine Smich’s liability for murder, since much of the evidence against him related to his conduct after the fact.

The panel disagreed. The decision noted the trial judge repeatedly told the jury what was required to establish whether after-the-fact conduct was proof of guilt.

The decision added, “even lay jurors would quickly recognize that it would be absurd to convict someone of murder based on inferences that they may have acted unlawfully as an accessory after the fact.”

The panel did, however, accept one of Smich’s arguments. The court agreed the trial judge was wrong to direct jurors to determine the facts before applying the law. But the appeal panel said it did not amount to a reversible error in the circumstances of the case.

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