Judge refuses Dellen Millard's request for mistrial at Laura Babcock murder trial

A judge swiftly quashed co-accused Dellen Millard's request for mistrial at the Laura Babcock murder trial in Toronto today.

Millard, 32, who is acting as his own lawyer, put forward a 10-page application for mistrial Thursday morning complaining the lawyer for co-accused Mark Smich tried to pin Babcock's alleged murder on him.

Justice Michael Code rejected the argument, and the plea for a mistrial.

• Read CBC News's full coverage of the Babcock murder trial​
• Laura Babcock murder trial: A timeline of the Crown's case

"There was a real possibility that Smich would get in the box and point the finger at you. But he has not done that," Code said.

"All Mr. [Thomas Dungey] has done is pointed the finger at the Crown's case, and said look closely at the Crown's case.

"It's as clear as day the case against you is a strong case."

The discussion took place in a separate room in Ontario Superior Court from where the 12-person jury is sequestered and has been deliberating since Tuesday. 

Millard and Smich, 30, of Oakville, Ont., have both pleaded not guilty to first-degree murder. They are already convicted killers, serving life sentences for the murder of Tim Bosma — something that was never mentioned in front of the jury.

Babcock was 23 when she disappeared in early July 2012. Court heard she and Millard dated briefly and continued to occasionally sleep together.

Over seven weeks of testimony, the Crown argued Millard and Smich planned for months to murder Babcock, and then burn her body inside an animal incinerator.

'Antagonistic defence'

In his mistrial application, Millard argued that Dungey put forward what's called an "antagonistic defence" — something both sides agreed they would not do during pretrial motions.

Dungey did not call any evidence, but during his closing address said the Crown had not proven Babcock was dead.

He pointed out that the Crown introduced evidence that Millard bought a handgun days before Babcock disappeared, and an animal incinerator.

"There was 101 things I could've said about Mr. Smich but I did not do that," Millard told the judge while arguing for a mistrial.

"You were very wise to do that, you would've provoked him to get in the box," Code responded.

Smich did testify at the Bosma murder trial, blaming his former best friend for shooting and killing the Ancaster, Ont.-man.

Code was steadfast Dungey did no wrong during his closing address, and said it was within his rights to refer to the Crown's evidence.

"You've had notice of the Crown's case for years now. I told you back in June you better get ready. It's common sense to me this is what was going to happen. That's your problem," Code said as he dismissed Millard's motion.

"Anything else Mr. Millard? I've beaten you up pretty badly, but that's what happens when you make a weak argument."

Millard had no further arguments.