Tim Bosma trial: Crown must prove planning to get 1st-degree murder conviction, judge says

The only way the jury at the Tim Bosma trial can find Dellen Millard and Mark Smich guilty of first-degree murder is if the Crown has successfullyproven beyond a reasonable doubt that Bosma's death was planned and deliberate, the judge said Friday in his final charge to the jury.

Justice Andrew Goodman began his extremely technical two-day instructions tojurorsto help guide themon the legal principles of the case, and on how they should weigh theevidence they have heard over the last four months before reaching a verdict.

Goodman's charge in Ontario Superior Court in Hamiltonis the final step in the trial process before jurorsare sent todecidethe fate ofMillard, 30, of Toronto, andSmich, 28, ofOakville, Ont. Both are charged with first-degree murder andhave pleaded not guilty.

• Tim Bosma trial: The closing arguments
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The notion of longtime planning and deliberation ofthe alleged murder is a cornerstone ofthe Crown's case, and came up several times in cross examination and in closing statements.

"The plan that youandDellenMillard had was to steal, was to kill, and was to burn," prosecutor CraigFrasersaid while cross-examiningSmich.

They are not on trial for their lifestyle choices.- Justice Andrew Goodman

At the outset of the trial, Goodman told the jury thattwo possible routes to first-degree murder might arise from the evidence in thecase as alleged by the Crown one would be planning and deliberation, and the other would be forcible confinement.

However, on Friday, Goodman told the jury that they cannotreturn a verdict of first-degreemurder in this case by virtue of Millard orSmichunlawfully confiningBosma which leaves the Crown with only one route to first-degree murder, instead of two.

"That route to first-degree murder is not available for your consideration," Goodman said. He did not explain his reasons for that order. On top of first-degree murder, the jury will also be able to consider verdicts of second-degree murder and manslaughter.

Aiding and abetting

Goodman also touched onaidersand abettors in the case.Anaideris aperson who helped somebody commit an offence. An abettor is a person whoencouraged a person to commit an offence. In both of those cases, a person can be found guilty of murder, even if they didn't commit the actual murder.

"In Canadian criminal law,principals,aidersand abettors of criminal offences are all equally culpable," Goodman said."This means that, in Canada, the distinction between those who personally commit an offence and those who aid or abet the offence is legally irrelevant.

"All are equally culpable in the eyes of the law."

That's something the jury will have to consider when deliberating on a verdict. However, just being there whenBosmadied doesn't automaticallymake someone anaideror abettor, Goodman said. The crux of the argument is state of mind.

"Sometimes people are in the wrong place at thewrong time."

Jury shouldn't consider sympathy for Bosma in verdict, judge says

Though Bosmahas been a focal point throughout the trial, Goodman instructed the jury that they are not to consider sympathy for him or his family while deciding the fate of Millard and Smich.

Goodman began hisinstructions tojurors by telling them they should disregard this remark inthe Crown's closing address:"'When you retire to consider your verdict, don't forget about Tim, who is not here to tell you what really happened.'"

Goodman said:"Those concluding comments were improper, and ought not to have been said you must totally disregard those remarks."

Goodman told the jury not to be swayed by sympathyor fear.

"You must not be influenced by public opinion," he said.

"You, not the media or anyone else, are the only judges of the facts."

Smich testified, Millard didn't

The judge also addressed the fact that only one of the accused testified. Smich opted to,Millard didn't.

"Millard elected not to testify. That is his right," Goodman said. "Millard's decision not to testify is not evidence."

Goodman also examinedthe fact that Smichdid not provide a statement to police something Millard's lawyers made sure to point out in their cross-examination.

"As a person charged with an offence, Smich had the absolute right to remain silent on and after arrest," he said."The right to remain silent is fundamental."

Goodman told jurors they can't use the factSmichchoseto staysilentas part of proving the Crown's case.

Lifestyle choices not on trial

The judge also addressed the mountain of bad-character evidence brought forward against Millard and Smichat trial, spanning from drug use to thievery and gun ownership.

Goodman said just because Millard and Smich committed othercriminal offencesdoesn't mean they're guilty of murder.

"They are not on trial for their lifestyle choices," he said.

The judge's charge also delved into the after-the-fact conduct that has weighed in to the case, like moving the Eliminator incinerator and Bosma'sstripped truck.

"After-the-fact conduct is not to be considered in isolation," Goodman said, adding thatthe conduct must be considered alongside all the other evidence.

Goodman's charge is expected to conclude on Monday, after which, the jury will deliberate on a verdict.

TheCBC'sAdam Carteris in the courtroom each day, and you can read a recap of hisblogbelow.On mobile? View it here.

adam.carter@cbc.ca