Accused in murder trial loses bid to be exempt from body scans at jail

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St. THOMAS – The argument that body scanning machines cause unwanted potassium exposure was about, and a bit, bananas.

While Boris Panovski’s retrial trundled along Friday with evidence about his social media posts and his call to an insurance company to cancel the coverage on his winter vehicle a decade ago, the former dog breeder received a ruling from a different judge that made sure he would be treated like everyone else at the local jail.

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Panovski, 79, has pleaded not guilty to first-degree murder in the death of Toronto-area businessperson Donato Frigo, 70, and not guilty to attempted murder for the wounding of Frigo’s wife, Eva Willer Frigo, on Sept. 13, 2014, at the Hullett provincial wildlife area, north of Clinton in Huron County. He successfully appealed his convictions in 2021 from a 2018 Goderich jury trial and began his retrial in St. Thomas last month.

Panovski is being housed at the Elgin-Middlesex Detention Centre in London for the duration of his trial before Superior Court Justice Marc Garson and without a jury. The retrial is expected to last at least six weeks and Panovski has to be transported to the Elgin County Courthouse each morning and returned to the jail at the end of the day.

Anyone entering the jail is asked to undergo a body scan to ensure no contraband is being smuggled inside. Any inmate who refuses the 10-second screening will be put in a “dry cell” – although it does have water and a sink – away from other inmates overnight.

But Panovski said either option is dangerous to his health. In an affidavit he filed with his application for a temporary injunction that would have prohibited the jail from using the body scanning machine on him, Panovski said every time he’s scanned, it’s the equivalent of eating two bananas.

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Panovski, who has been in custody for almost a decade, is turning 80 this month. He has renal disease he says has left him with only 30 per cent kidney function. He is on a low-sodium, no potassium diet monitored by the jail’s medical staff.

Bananas contain potassium, which Panovski says he can’t have. “Put simply, the consumption of potassium is detrimental to Mr. Panovski’s health. This causes the applicant concern that his kidney function will cease as a result of the scan,” said Justice Joseph Perfetto, while reviewing the submission before rejecting the application Friday.

The dry cell option wouldn’t work either, Panovski argued in his submission, because dry cell inmates are awoken every hour. Being housed in that area “would interfere with his ability to meaningfully participate in this criminal trial as he would be fatigued.”

Panovski swore in his affidavit he has never smuggled contraband into a jail and would never be pressured into doing it, dismissing the jail’s concerns.

Perfetto said there was no evidence to support any of the assertions. While the body scan does emit an ultra-low level of radiation, there is no proof it can cause potassium exposure or inject potassium into the body.

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“The real issue in the applicant’s position is that there is no evidence to support the finding that body scanning results, or even could result, in potassium exposure or that potassium … can be introduced into the human metabolism through the body scanning machine,” Perfetto said.

Panovski’s defence lawyer argued people are told to eat bananas as a source of potassium. “Accepting this to be true, the difficulty with this position is that the body scanner does not require anyone to eat bananas,” Perfetto said.

So, how did Panovski’s get the idea that the scanner was a potassium risk?. Perfetto noted there is a poster by the machine at the jail with a rendering of a banana to indicate the amount of X-ray radiation from the scan is the equivalent to the radiation exposure from eating one banana, meaning miniscule.

“It is not intended to convey that they body scan procedure has any of the other nutritional impacts of consuming a banana,” Perfetto said.

Perfetto noted that there is another symbol beside the banana on the posting – a sun, indicating that the radiation exposure is about equal to three minutes of sunshine.

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The judge pointed to the submissions from the provincial solicitor-general and jail staff that said the body scans were a “time-effective and minimally evasive” means to stop contraband drugs and weapons from entering the jail.

Perfetto pointed to “the devastating harm that’s caused when contraband is brought in to EMDC, sometimes by unwilling persons who, despite their desire not to participate, do so often by threat or other forms of compulsion.”

It would not take long, he said, before other inmates would find out someone had been able to bypass the scanning system, putting them, other inmates and jail staff at risk.

Panovski’s application was dismissed and his retrial continues Monday.

jsims@postmedia.com

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