Laura Babcock's father was "concerned" about being questioned in court by the man accused of killing his daughter, but despite a pretrial effort by the Crown to avoid the scenario, a judge allowed it to happen.
Dellen Millard, 32, of Toronto, and Mark Smich, 30, of Oakville, Ont., are accused of the first-degree murder of Laura Babcock, 23, who disappeared from Toronto in 2012. Smich had two defence lawyers at the seven-week trial, while Millard represented himself.
Jury deliberations began on Tuesday.
In 2016, Millard and Smich were convicted of the first-degree murder of Tim Bosma, of Ancaster, Ont. Both are currently serving life sentences.
Last September, with the Babcock trial just weeks away, Superior Court Justice Michael Code dismissed a motion asking for a lawyer to fill in for Millard for the questioning of three Crown witnesses: the victim's father, Clayton Babcock; her ex-boyfriend, Shawn Lerner; and Marlena Meneses, Smich's former girlfriend.
The Crown's submission said Babcock was "concerned" about his ability to give "full and candid" testimony with Millard questioning him and believed he would be "more comfortable and less emotional" with a court-appointed lawyer asking him questions.
Lerner, according to the motion, was "more comfortable" being questioned by a lawyer instead of Millard and said he would "prefer" it.
Meneses was "a little uncomfortable" and preferred the idea of a lawyer stepping in.
Millard opposed the motion, saying he wished to "personally cross-examine all witnesses at trial."
Although Code sympathized with the witnesses, Millard's wish was granted.
On the trial's opening day, the prosecution called Clayton Babcock as the first witness.
After tearfully answering Crown questions about his daughter and family life, Babcock was still watery-eyed as Millard stood up in court, his ankles shackled, and approached a lectern in the centre of the courtroom.
"Are you nervous?" Millard asked Babcock, before going on to question him about his daughter's personal life, their relationship, her drug use and work as an escort.
At one point Millard asked Babcock if he ever abused his daughter. He said no.
Millard's money and defence
Exactly why Millard and his witnesses ended up in this uncommon situation isn't quite clear. Leading up to the trial, Millard is on the record saying he wanted to act as his own lawyer, but then changed his mind.
What is certain is that Millard did not wind up self-representing for the reason most people do: lack of money.
The case could have been an attractive job for one of Toronto's many experienced defence attorneys — a high-profile trial centred on a notorious convicted killer.
"I don't see any practical or principled reason why a lawyer wouldn't take on this case," Toronto-based criminal defence lawyer Tyler MacDonald, who is not involved with the case, said in an interview.
As an only child from a wealthy family and heir to his father's once successful aviation business, Millard had substantial financial assets. But they are complicated by a number of factors.
Millard and Smich are both being sued by the family of Tim Bosma.
Six months after the $14-million lawsuit was filed in 2015, Millard's assets were frozen and put under the control of a court-appointed receiver.
The lawsuit is ongoing, Bosma family lawyer Jennifer Chapman told CBC Toronto. Millard and Smich both filed statements of defence in the form of handwritten letters from prison.
Millard also owes hundreds of thousand of dollars in unpaid taxes, court records show.
Millard owns a 50 per cent stake in the family businesses Millardair and Millard Properties Ltd. His late father, Wayne Millard, left him the other 50 per cent, but that inheritance is complicated by another murder charge.
Dellen Millard has been charged with first-degree murder in his father's 2012 death, which was originally ruled a suicide. The trial on that matter is set to begin in the spring of 2018.
Even with the lawsuit, debt and questions about his inheritance, financial information contained in a pretrial judgment shows Millard could have paid for a top-notch defence team.
'Substantial real estate holdings'
After his 2013 arrest in the Bosma case, court documents show Millard liquidated his "substantial real estate holdings."
In his pretrial judgment, Justice Code said that the exact proceeds from the sale of five properties in and around Toronto are unclear but in the "millions of dollars."
The money was then transferred, in the form of shareholder loans, to Millard Properties Ltd. The company used the funds to pay off its bank debt, which permitted the sale of its Waterloo airport hangar for $4.8 million in April 2015, according to the judgment.
Millard was able to access his money to pay for his defence in the Bosma case.
Self-represented or not?
According to the pretrial judgment, Millard told the court in 2016 that he would "likely be self-represented" at the Babcock trial.
But three months after he was convicted of murdering Bosma, Millard changed his mind and said he was seeking a lawyer to represent him in the Babcock case.
Millard then filed a motion applying to adjourn the trial until 2018, even though he had still not retained a lawyer.
At one point, he tried unsuccessfully to get legal aid. His excuse was that he couldn't get his hands on his money.
But in June 2017, Code requested documents that showed Millard was able to access money for legal fees and an order was made to free up $90,000 to retain a lawyer for the Babcock trial.
According to Code's judgment, the "total assets Millard still has access to … are somewhere between $2 million and $3 million."
"I strongly urged Millard to get moving," Code wrote.
"Millard is an intelligent, educated and wealthy young man who has the means to retain counsel privately," the judge wrote.
But instead of retaining a lawyer, Millard spent the summer of 2017 arguing for another adjournment in the Babcock trial.
Millard told the court he wanted to know the full amount of money he would have access to before using any to pay for a lawyer.
Code became increasingly suspicious that Millard was stalling.
"I have been unsure as to whether he really wants to be represented," he wrote.
Nowhere in the judgment does Millard formally tell the court he will self-represent, so it's unclear what his intention or motivation may have been.
While there was money available to him, the decision notes Millard's resources were "undoubtedly depleted" by the Bosma trial. It was also suggested that he planned to hire a lawyer for his father's murder trial.
At a pretrial hearing, Ravin Pillay, Millard's lawyer for the Bosma trial, told the court he anticipated being retained for the Wayne Millard matter. Pillay would not confirm this when asked by CBC Toronto.
It was also clear during the Babcock trial that Millard, having already sat through a lengthy murder case, is at ease in a courtroom and possesses more than a basic understanding of the legal system.
The cost factor aside, Tyler MacDonald, the criminal lawyer not involved with the case, says that an accused's decision to self-represent comes down to the "peculiarities of their personality, intellect and experience."
Whatever Millard was planning, he ran out of time.
Justice Code dismissed his final adjournment motion on July 27, ruling that Millard had an "abundant amount of time" to find a lawyer, but "repeatedly delayed and failed to take this step."
With the Babcock trial just two months away and assuming Millard would not have a lawyer, the Crown brought its motion on behalf of three witnesses worried about being questioned by a convicted killer.
Millard allowed to question
The law gives courts the power to appoint a lawyer to ask questions for a self-represented accused and under some circumstances there's little flexibility.
For example, when the witness is under the age of 18 or the alleged victim of certain offences, such as sexual assault, the court will often appoint a lawyer for questioning.
But when this is not the case, a judge must find that questioning from a self-represented accused prevents a witness from giving a "full and candid" account or be otherwise contrary to the proper administration of justice.
In his dismissal of the Crown motion, Code empathized with Babcock, Lerner and Meneses.
"I accept that it will be difficult and emotional for Mr. Babcock to be questioned by the man who is accused of killing his daughter," Code wrote. "It will also be awkward and not particularly comfortable for Mr. Lerner."
But Code was reluctant to deny Millard the long-standing legal right he has to represent himself and question witnesses.
Code cited Canadian case law going back to 1948 that prevents a person accused of a crime from having counsel forced upon them against their will.
"Nothing before me suggests that they [the three witnesses] lack the ordinary resilience to be able to cope with difficult circumstances," the ruling said.