Tim Bosma trial: What the jury wasn't allowed to hear

The jury in the Tim Bosma trial in Hamilton never heard about Dellen Millard's drug dealing, nor the facthe and Mark Smichmay have owned more than one gun.

Those are just two of thenumerous pieces of evidence that Justice Andrew Goodmanruled as inadmissible in the trial of thetwo men accused of killing Bosma in 2013.

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The jurors arenow in deliberations, so for the first time, CBC News is legally abletopublish some of the details they weren'tallowedto hearin court.

During the four-month trial in Superior Court in Hamilton, the jury was ushered out of the room dozens of times for legal arguments, as lawyers forMillard, 30, and Smich, 28, argued for specific evidence surrounding their clients to be disallowed.

In many cases, it was evidence about drug use, weapons and other areas was ruled out,because it was deemed "bad character evidence," orwas too closely linked to other charges the twoaccused are facing.

Millard andSmichhave pleaded not guilty to first-degree murder charges in the case of Bosma, who disappeared in May 2013 after taking the twoon a ride in the pickup truck he was trying to sell. The Crown alleges the co-accusedshot and killed Bosma,and burned his body in an incineratoron the Millard family's farm.

Millard and Smich also face first-degree murder charges in connection with the death of Toronto resident LauraBabcock.Millard is additionallycharged with first-degree murder in the death of his father something the jury wasn't allowed to know, as theBosmacase has to be judged on its own merits.

Usually after ajury is sequestered, reporters are allowed to write about almost everything that was said in court whilejurors areout of the room.

But in theBosma case, many things that were discussed still can't be reported. Goodman has ordered an extended publication ban on more than a dozen other areas until the completion of theBabcock trial, which is set to begin in early 2017.

As the jury examines the facts to decide whetherMillard and Smich are guilty or not guilty, here is some of what they weren't told.

An affinity for guns, and more than 1

Though the jury heard its fair share about Millard's and Smich's affinity for guns, lots of evidence was ruled out.

Some of that evidence came from texts between Millard and alleged gun dealer Matthew Ward Jackson also known as "lisho."

In one text message exchange from February 2012, when talking about brokering a deal for what is believed to be the gun used to shoot Bosma, Millard said toJackson: "BTW, is it clean or dirty?" Jackson responded, "clean," and then "bring her back safe plz."

Millard then wrote, "By the time I let her go, she'll be a dirty girl." Jackson responded, "[that's] fine lol. I can change her print."

Several times, the jury saw a photo of a Walther PPK sitting on a tablethatwas recovered from a device backup on a computer in Millard's home.What the jury didn't see is that in the lower right-hand redacted portion of the photo, there was another gun.

Another photo that was excluded came from Smich's Facebook page. The photo was of a bullet with "your name here" written on it with a marker, court heard.

Smich's affinity for bullets didn't end there. In a voir dire, his friendBrendan Daly talked about how Smich showed him a YouTube video for "zombie bullets," and said Smich told him, "The gun that went with thosebullets is what he wanted."

Both legal teams for Millard and Smich said during the trial that a number of other gun and bullet photos were excluded in pretrial motions.

Perhaps most bizarrely, Smich'sex-girlfriendMarlena Meneses said in one of her police statements that Millard asked her to wear a prosthetic, hollowed out pregnancy belly to smuggle ammunition back to Canada from the U.S. "It's kind of like a bathing suit and then it had a skin-coloured plastic belly," Meneses said.

This plot never actually happened, she said, adding that Smichtold her not to do it.

Millard, Smich sold and useddrugs

The jury heard that Millard and Smich smoked pot, that Smich used Oxycodone and was once arrested for cocaine possession, and that Andrew Michalski rounded up all the drugs in Millard's home and dropped them in a stairwell for Smich after Millard's arrest.

The jury wasn't told, however, that Millard and Smich were involved in a lot more than just marijuana and while Millard's lawyers made sure to point out that Smich sold drugs every chance they could, Millardsold drugs too.

That waspulled out of evidenceat Goodman's order that the trial not "degenerate into a free-for-all" about drug abuse, and thus, bad character evidence.

Millard's friendMichalskiprovided a stark look into Millard's affinity for drugs both using them and selling them.

"Dell used heroin once. Cocaine, we all did it," Michalski said in one of his police statements, adding that Millard also used steroids. The bag that Michalski used to round up drugs from Millard's house had "more than just weed" in it, prosecutor Craig Fraser said during onelegal argument.

Millard also sent a computer packed with drugslike steroids and pot to Michalskiat one pointwhen he was in Winnipeg, court heard.During Arthur Jennings's testimony, there was a voir dire whereMillard's lawyers talked abouta trailer that mechanic Shane Schlatman was building for Millard with secret compartments built inside.

Speculation was that it was designed to import narcotics.

Smich's drug use often popped up when the jury was out of the room, too. He used cocaine, LSDandthe powerful prescription painkiller Oxycodone.

At one point in a voir dire of Michalski, Millard's lawyer Nadir Sachak said, "Mr. Smich sold crack," before Goodman abruptly stopped him.

Robert Burns hates his nephew

Robert Burns's hostility towards his nephew,Millard, was palpable when he testified but the jury never got to see the full extent of his feelings.

Burns said in a police statement read in court that he believes his nephew is a "sick, twisted prick."

This wasn't allowed to go before the jury atGoodman's instruction to not go into areas of character.

Lawyers on all sides tiptoed around Burns when he was testifying, for fears that he could say something incriminating enough to cause a mistrial.

Defence pushed for a mistrial, twice

On two separate occasions, the defence for the accused did applyfor a mistrial, which would have started the gruelling trial process all over again.

The first came three weeks in, and was a joint application between lawyers representing Millard and Smich. The details of the application are under an extended publication ban, and cannot be reported.

In the end, Goodman denied it.

A second mistrial application came on April 11, when Smich's legal team alleged that lawyer RavinPillay's cross-examination of witness Brendan Daly impugned their client's ability to get a fair trial. They based that application on what Daly told the jury about Smich's anger issues, and his sometimes violent rap lyrics.

Again, the application was thrown out.

Bad behaviour from witnesses

Millard's friends weren't angels. The jury heard several of them were involved in criminal plots to steal everything from construction equipment to plants. Some conduct, though, wasn't talked about in open court.

When police went to question Lisa Whidden (who said she had an "intimate relationship" with Millard), she tried to run after saying she had information about the case. That's why she was put in handcuffs and her phone was seized because they were afraid she would delete things that were on it. The officer's notes at the time describeher as "unco-operative, combative and rude."

As well, Millard didn't solely write letters to his thengirlfriend, Christina Nouga. Healso wrote letters to his mechanic, Shane Schlatman, and in doing so, breached a second court order to not contact someone. Those letters were mostly centred on Schlatman caring for Millard's cars, court heard.

It is expected the jurorswill deliberate from 9:30 a.m. to 8:30 p.m. ET each day theirwindow to decide on a verdict.

adam.carter@cbc.ca