The case against two men accused of killing a young Toronto woman whose body has not been found was put to the jury on Tuesday with the judge reminding jurors to rely on the circumstantial evidence they heard during the trial.
The instructions from Superior Court Justice Michael Code capped the nearly eight-week trial of Dellen Millard and his friend Mark Smich, who pleaded not guilty to first-degree murder in the presumed death of Laura Babcock, who disappeared five years ago.
"When you first start, it is unwise to take a firm, rigid decision," Code told jurors. "You are judges, not advocates for one side or the other."
Code's 350-page instruction to the jury over more than three days involved a comprehensive recap of the evidence and positions of the parties. The case, he said, hinges upon a "large and complex" body of circumstantial evidence about whether Babcock is dead and if Millard and Smich caused her death.
The prosecution alleges Millard, 32, of Toronto, and Smich, 30, of Oakville, Ont., killed Babcock, 23, in July 2012, a murder they had planned for months. Millard wanted her dead, the Crown asserted, because she had become the odd woman out in a love triangle involving Millard and his girlfriend, Christina Noudga.
The accused covered up their crime by burning Babcock's body in an animal incinerator that was later found on Millard's farm near Waterloo, Ont., the prosecution alleged. Both Millard, who is representing himself, and Smich's lawyer argued the Crown had not even proven that Babcock is dead.
Among things the jury were never told was that Millard and Smich were convicted of first-degree murder last year in the death of Tim Bosma, of Ancaster, Ont., who took the pair on a test drive while trying to sell his truck. Nor were they told the pair burned Bosma's remains in the same incinerator the Crown alleges was used to dispose of Babcock's body.
Jurors were also kept in the dark about Millard facing yet another first-degree murder charge, this one in the 2012 death of his father, Wayne Millard, which was initially deemed a suicide.
The Crown produced thousands of text messages – much of it gleaned from a backup copy of Millard's phone found on a computer in his home – along with phone-location data that put Babcock near Millard's house on July 3, 2012. Babcock's last outgoing phone call occurred at 7:03 p.m. that day and her phone stopped connecting with cell towers the following morning. Her family and friends have not heard from her since.
According to the prosecution, Millard and Smich killed Babcock sometime after 8 p.m. on July 3 with Millard wrapping her body in a blue tarp and hiding it at his farm near Waterloo until they got the incinerator operational. They allege the pair burned her body on July 23.
While jurors were told of the love triangle, they weren't allowed to hear an alternative prosecution theory that the pair killed Babcock for thrills and that they had both indulged in criminal behaviour that included stealing trailers and trafficking and smuggling drugs.
Code deemed the evidence too prejudicial.
Instead, court heard about an ongoing feud between Babcock and Noudga – friends said both were sleeping with Millard at the same time and there was "bad blood" among the three.
In mid-April 2012, at the height of animosity between the two women, court heard that Millard texted Noudga saying, "First I'm going to hurt her. Then I'll make her leave. I will remove her from our lives."
In his closing arguments, Millard said he didn't care enough about Noudga to kill her and the text was simply a means of placating a scorned girlfriend. Smich's lawyer Thomas Dungey said in closing his client had nothing to do with Babcock's disappearance.