‘It’s devastating’: Tim Bosma’s murderers likely to get earlier parole eligibility
There is no closure for families of homicide victims.
The heartache goes on. As does the fight for justice.
It has been nearly 10 years since Tim Bosma was shot and incinerated after taking two strangers for a test drive in the truck he was selling.
The death of the 32-year-old Ancaster family man terrified and devastated this community. Frantic searching quickly morphed into grief and disbelief.
After all, as his widow once said: It was just a truck."
Tim's killers, Dellen Millard and Mark Smich, are in prison serving consecutive life sentences - Millard has murdered three people, Smich two - yet, that is not the end.
They still have legal options.
A Supreme Court of Canada decision from May that overturned a 2011 Criminal Code provision allowing judges to impose consecutive life sentences will almost certainly lower the parole eligibility date for both offenders.
Consecutive sentencing is cruel" and removes any hope and incentive for an offender, the Supreme Court justices reasoned in R v Bissonnette.
That means serial killer Millard's three consecutive life sentences with no chance of parole for a total of 75 years will most likely change to be served concurrently, making him eligible for parole after 25 years.
For Smich, it would reduce his two consecutive life sentences to a 25-year eligibility from 50.
Furthermore, both men are appealing every one of their convictions. That is set to play out in a week of hearings at the Court of Appeal for Ontario in March.
The idea is to have them heard jointly, one right after the other, in front of the same three judges of the Court of Appeal, all in the span of one week," explains lawyer Richard Litkowski who, along with Myles Anevich, is representing Smich.
Litkowski says reducing his client's parole eligibility is essentially a done deal, now that the Supreme Court has declared the consecutive sentencing legislation unconstitutional.
I don't think there's any argument against that position," he says. Anyone who has a live case before the Court of Appeal will be able to raise this as a ground of appeal if that person has consecutive parole ineligibility."
The sentencing appeal is attached to the murder of Laura Babcock, which was the second conviction for both killers.
It's the Babcock stacking of the other 25 years that's really the issue," says Litkowski. That's why it's raised in that specific appeal. Because at that point, (Smich) was sentenced to the extra 25 years consecutive to the original 25 years that he received on Bosma."
Smich and Millard will be among the first offenders to argue for the Bissonnette decision to apply to their cases, retroactively.
The decision thrusts Tim's widow back into the limelight and makes possible a day when she will face his killers again as they go before the Parole Board of Canada to ask for their freedom.
My daughter was two-and-a-half when her father was murdered," Sharlene Bosma told a committee of MPs in Ottawa on Oct. 6. Now, because of the ruling ... when my daughter is 27, she will be asked to carry on the fight I thought I already fought for her."
Our government took away one of the very few things we as victims had to hold on to, which was consecutive sentencing," Bosma told the justice committee. It says to us that you can kill as many people as you want here in Canada because sentencing will not change. It says that Canada only places values on the first victim, with the lives of any other victims not mattering. Not here. Not in Canada."
Tim was the last victim to be murdered.
It's devastating for us," says 71-year-old Hank Bosma, Tim's father, in an interview. Twenty-five years is nothing ... It's not a justice system. It's a legal system."
I don't see any rehab for these guys whatsoever," says Tim's mother, Mary Bosma, 69. There's three deliberate, planned crimes."
The victims
The first murder victim was Millard's millionaire father, Wayne Millard, in 2012.
The 71-year-old aviation tycoon was discovered' by his son, dead in his bed on Nov. 29, 2012. He had been shot in the left eye.
Wayne's death at his Etobicoke home was at first ruled a suicide.
It was only after Millard was arrested for Tim's murder that Toronto police reopened their investigation into Wayne's death and declared it a homicide.
Millard, who inherited his father's fortune, was charged with first-degree murder.
The second murder victim was Laura Babcock, a Toronto woman with whom Millard had an intimate relationship.
Laura went missing in July 2012 and Toronto police did little to find her because of her transient and troubled life.
Millard, who lived in Toronto, and Smich, of Oakville, were convicted of shooting her and burning her body in a large animal incinerator called The Eliminator.
As with Wayne, it was only after Millard and Smich were arrested for Bosma's murder that Toronto homicide detectives took over Laura's case.
Eventually, Millard and Smich were charged with her first-degree murder.
Tim might have been spared had police in Toronto diligently investigated the circumstances around Wayne's death and Laura's disappearance.
The murder of Tim Bosma
On May 6, 2013, as it was getting dark, the killers walked up the driveway of Tim's rural Ancaster home.
They had answered an ad he had placed to sell his Dodge Ram diesel pickup truck. They were there to take it for a spin.
Millard got behind the wheel. Tim was in the passenger seat. Smich sat in the back. Sharlene watched them drive off.
The Crown theory was that Tim was shot within minutes. And later that night, his body was burned in the Eliminator.
Millard could afford to buy a truck. But, the Crown would say in its closing address, The fact is, sometimes people are just killers."
The high profile, six-month trial for Tim's murder came first.
Each accused mounted a cut throat" defence: Millard said Smich was the murderer. Smich pointed at Millard.
Smich took the stand. Millard did not.
In the end, a jury found them both guilty of Tim's first-degree murder on June 17, 2016.
Justice Andrew Goodman gave them that crime's automatic sentence: life with no chance of parole for 25 years.
Smich's appeal factum says Goodman appeared to prioritize Millard's interests over Smich's interests at almost every opportunity" and his charge to the jury was seriously deficient, overwhelmingly lengthy, convoluted, and confusing, with the result that it did not properly equip the jury to fulfil its deliberative function."
It goes on to list 10 legal errors Goodman made during the trial, the first being that he erroneously admitted irrelevant and highly prejudicial bad character evidence led by Millard against Smich."
The evidence against Smich was weak," his lawyers argue, and in the circumstances of this case, there was a real danger that Smich was convicted not on the merits, but on the basis of Millard's character assassination."
Smich's appeal documents lay out the contrast" between the two former friends.
Millard was the clean-cut heir to an aviation empire who had every advantage and privilege and no criminal history. Smich, on the other hand, was a small-time drug dealer and aspiring rapper with no significant education or employment history."
Millard has not filed a factum for his appeal of the Tim Bosma conviction.
The trial for Laura Babcock
The Laura Babcock trial came next.
The Crown theory was that Millard's girlfriend, Christina Noudga, was jealous of Laura so Millard and Smich shot her at Millard's house and cremated her in The Eliminator.
The defence argued Laura may not be dead at all, or that she died after the murder was supposed to have happened.
On Dec. 17, 2017, Millard and Smich were found guilty of Laura's first-degree murder.
The appeal filed by Smich's lawyers concedes there was strong evidence" Smich helped burn Laura's body, but says he didn't participate in the murder.
It is difficult to see a role for (Smich) in the commission of the crime," it says, even if he knew of it in advance and was in the home as it occurred."
One of the most dramatic Crown exhibits at trial was a disturbing video of Smich performing a rap on the night Laura's body was cremated.
The b---- started off all skin and bone/Now the b---- is lying on some ashy stone/Last time I saw her is outside the home/And if you go swimming you can find her phone."
Smich's appeal says the rap focuses on the disposal of the body and not the murder and does not establish or invite a reasonable inference that the appellant did anything to aid a homicide."
There is no logical connection between the content of rap lyrics and a positive inference that the person who wrote and performed the lyrics is likely to have committed a planned and deliberate murder. Rap is a form of art, and there is nothing to suggest the contents of these raps were autobiographical. Nobody suggests that a novelist who writes murder mysteries is a murderer."
The appeal also says the trial judge failed to properly warn the jury that Smich's conduct could be both unlawful and offensive, but not constitute proof of his participation in the killing of Ms. Babcock."
Ravin Pillay, the lawyer who represented Millard at the Bosma trial, has filed his appeal for the Babcock case.
It says Millard was denied his right to be represented by counsel of choice and was forced to represent himself at the Babcock trial.
A fair trial necessitated that (Millard) be represented by experienced and prepared counsel."
Millard wasn't allowed to access his own money because of court rulings, so he couldn't pay a lawyer. The $90,000 a judge eventually released to him wasn't enough to cover a lawyer's trial fees after $40,000 of that went to administrative costs," according to the appeal documents.
The trial judge denied Millard's request to delay the trial so he could retain a lawyer.
Pillay also says there is fresh evidence" that he claims could exonerate Millard.
During the trial Millard called a witness named Gabe Austerweil, the father of a man who once dated Laura. Austerweil testified he saw Laura at a bulk food store in Etobicoke months after the alleged dated of her murder.
Millard's team has since discovered another witness, David Coiro, who also told police he saw Laura after the date of her murder at the same bulk food store. Coiro was an employee at the store.
At no time did the Crown advise the trial judge or (Millard) that the police investigation uncovered a corroborating witness," says the appeal.
The two individuals saw Babcock in the same location on different dates," and had the evidence of both witnesses been entered, it could certainly have affected the trial result."
The trial for Wayne Millard
In September 2018, Millard was found guilty of Wayne's first-degree murder at a judge alone trial. On Dec. 18, 2018, Justice Maureen Forestell sentenced him to his third consecutive life sentence, sealing his fate, it seemed, for the next 75 years.
At the time it was the longest parole ineligibility ever handed to an offender in Ontario. Millard was 33.
Forestell said there was faint hope for Millard's rehabilitation.
Dellen Millard has repeatedly committed the most serious offence known to our law," she said. He has done so with considerable planning and premeditation. In the murder of his father, he took advantage of the vulnerability of his father and betrayed his father's trust in him."
Two days later, Millard filed a notice of appeal.
The verdict is unreasonable," he wrote. The sentence is unconstitutional."
Pillay lays out the same argument put forward by Smich's lawyers - that the Supreme Court has made consecutive sentences unconstitutional and therefore Millard should be eligible for parole after 25 years.
Meanwhile, Sharlene Bosma has remarried, moved away from Hamilton and tells her daughter about the dad she doesn't remember.
She has no memories of her own father," she told the MPs in Ottawa. She was never given the chance. It was ripped away from her. All she has are stories and photos I and others close to him share ... She had the right to know her father. She had the right to be raised by him and know him for the loving man that he was."
Susan Clairmont is a justice columnist at The Spectator. sclairmont@thespec.com