Tim Bosma trial decision now in the hands of the jury

After 4½ gruelling months, the jury is now deliberating on a verdict at the trial of the two men accused of killing Hamilton man Tim Bosma.

Dellen Millard, 30, of Toronto, and Mark Smich, 28, of Oakville, Ont., are waiting for the 12 men and women of the jury to decide their fate. Both have pleaded not guilty in Ontario Superior Court in Hamilton.

In the second day of an extremely technical charge to the jury, Justice Andrew Goodman told jurors they must disregard lawyers' suggestions that have no evidentiary foundation.

"Suggestions or theories put to a witness by a lawyer, and not agreed to or adopted by that witness, is not evidence," Goodman said.

The judge made sure to point out the incendiary closing address of the lawyer for co-accused Mark Smich, Thomas Dungey, who referred to Dellen Millard as having a "demonic mind."

"A lawyer's personal opinion is not helpful or relevant to you," Goodman said.

• What the jury wasn't allowed to hear at the Tim Bosma trial
• Tim Bosma trial: Crown must prove planning to get 1st-degree murder conviction: judge
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Live from inside the Tim Bosma trial: What do you want to know? Join our Facebook live chat Tuesday starting at noon ET with three CBC reporters who have been covering the trial from Day 1. Shannon Martin, Adam Carter and Colin Butler will talk about the trial, and the key moments and evidence, and take your questions and comments.

Bosma was killed after taking Millard and Smich on a test drive in his pickup truck the evening of May 6, 2013. The Crown alleges the co-accused shot and killed Bosma soon after, and burned his body in an incinerator at the Millard family farm.

Judge tells jury not to consider Bosma family

During the trial, court has heard myriad suggestions as to what happened on the night Bosma was killed, from the Crown and both defence teams. The Crown's theory is that Bosma was shot in a field near his home. Millard's lawyers suggested that Bosma had been accidentally shot on Highway 403, a theory not supported by evidence, Goodman said.

For the second time, Goodman told the jury Monday to ignore what the Crown said about considering Bosma's family when deliberating on a verdict. "You shall not internalize the victimization of this crime in the evidence," Goodman said.

He said Friday that the only way jurors can find Millard and Smich guilty of first-degree murder is if the Crown had successfully proved beyond a reasonable doubt that Bosma's death was planned and deliberate.

Goodman told jurors they cannot return a verdict of first-degree murder by virtue of Millard or Smich unlawfully confining Bosma.

"That route to first-degree murder is not available for your consideration," Goodman said. He did not explain his reasons for that order.

The jury will also be able to consider verdicts of second-degree murder and manslaughter, as well as not guilty.

Decision trees to help guide jury

Also Monday, the judge began running through his decision trees — which act as a kind of flow chart to those verdicts depending on how the jury interprets the evidence. The trees, which can be exceptionally complex, provide four different avenues in which the jury can reach a verdict. 

"Your duty is to consider all of the evidence, not just the parts that I referenced," Goodman said.

Of the four trees:

• The first considers if an accused is a principal (i.e., the person who shot Bosma).
• The second considers if the accused is an aider or abettor (knowingly helping or aiding the other in the murder).
• The third considers if there's a common unlawful purpose (which Goodman referred to as the "theft of truck gone badly scenario").
• The fourth is a supplementary tree, which he instructed the jury to only use if it can't decide which person shot Bosma.

While the jury is deliberating, it will be sequestered away from any outside information and not permitted to speak to police or access television, newspapers or the internet.

It is expected the jurors will deliberate from 9:30 a.m. to 8:30 p.m. each day. That will be their available window to decide on a verdict.

The CBC's Adam Carter is in the courtroom each day, and you can read a recap of his blog below. On mobile? View it here. 

adam.carter@cbc.ca