A judge dismissed a mistrial request Thursday from a man accused of killing a former lover and burning her body as the jury continued to deliberate on a verdict in the case.
Dellen Millard, who is representing himself, argued that the lawyer of his co-accused, Mark Smich, crossed the line in his closing address to the jury when he purportedly blamed Millard for the death of Laura Babcock.
The judge presiding over the case said Smich's counsel simply pointed at the evidence brought forth by the Crown during the eight-week trial.
"I've beaten you up badly in oral arguments, which is what happens when you make a weak argument," Justice Michael Code said to Millard when he dismissed the application.
The Crown alleges Millard and Smich killed Babcock in the summer of 2012 because she was the odd woman out in a love triangle with Millard and his girlfriend.
They contend the pair covered up their crime by burning Babcock's remains in an animal incinerator. Babcock's body has not been found.
Smich's lawyer, Thomas Dungey, told the jury that if they conclude that Babcock is dead and her death was caused by an unlawful act then Millard was the principal offender — he had the opportunity, a motive and bought a gun the day before the 23-year-old Toronto woman vanished.
Millard argued he should have been given advance notice of Smich's "antagonistic" position from the outset.
Both Millard and Smich had said in pretrial motions that they did not intend to put forth a "cut-throat" defence, where the co-accused blame each other for an alleged crime.
Millard said Smich changed his position during Dungey's closing address, and called it "an unfair ambush" and a "surprise attack."
Code disagreed and said it was well within Dungey's rights to take the position he did in his closing address.
"It was clear as day that the case against you was a strong case and the case against Smich was a closer case," Code said. "I don't see how you've been taken by surprise or think this is an unfairness to you."
Both Millard and Smich have pleaded not guilty to first-degree murder in Babcock's presumed death.
Meanwhile, the jury continues to deliberate the case.