Another day, another glitch at lengthy retrial of dog trainer

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ST. THOMAS – The judge at Boris Panovski’s protracted first-degree murder retrial made the understated comment that much of what has happened over the past eight weeks is “not usual.”

Rarely, if ever, has there been a judge-alone retrial concerning a decade-old homicide, especially one involving an 80-year-old accused who has denied shooting a field dog hobbyist and his wife while they were on horseback over what the Crown has characterized as a festering grudge over a championship dog and a loss of reputation.

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Superior Court Justice Marc Garson pointed to other “not usual” features of the case. Six weeks before the retrial was supposed to start, Panovski fired his previous lawyer and hired criminal defence lawyer Margaret Barnes to take over his case. And it’s not usual to see the Crown passing over “mountains of material,” mostly at the defence’s request, at such a late date.

There have been considerable bumps along the road to re-try Panovski’s case and monumental efforts made to keep it on track. Panovski has pleaded not guilty to first-degree murder in the death of Toronto-area businessperson Donato Frigo, 70, and not guilty to attempted murder in the wounding of his widow, Eva Willer Frigo, 56, on Sept. 13, 2014, at the Hullett Provincial Wildlife Area, north of Clinton in Huron County.

At its heart, the Crown’s case surrounds the close-knit world of field dog training in which Panovski had once been a high-flying dog breeder and winner of two national championships. The Crown has argued that Panovski’s arrest during a field dog event in Waynesboro, Ga., led to his shunning from the community and Frigo to change the name of a champion dog Panovski sold him from Panovski Silver to Belfield Silver.

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But the nuts-and-bolts of the case centre on the identification of the shooter. Now in its eighth week, the latest glitch in the trial was on Friday, when Barnes was set to argue for a directed verdict for acquittals, telling Garson that the Crown has failed to prove the shooter was Panovski and there is “no road to a reasonable prospect of conviction.”

But, only an hour into her argument, Barnes asked for a break. After a recess, she said she was unable to continue and asked Garson if she could submit a written argument. Assistant Crown attorney Elizabeth Brown took no issue with the request, providing she has enough time to respond.

Garson agreed and adjourned the case until Monday. Should the judge reject the directed verdict motion, Barnes will start her defence. She has indicated she has 16 potential witnesses and one of them is Panovski, but there is no guarantee he will testify.

Before the break, Barnes had argued that the eye-witness accounts of the shooter aren’t consistent nor reliable and don’t match Panovski’s appearance. And, she said, nothing turns on the information given to the court by the Centre for Forensic Sciences.

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But even before hearing those submissions, Garson raised another issue that needs to be resolved.

Panovski had a high-profile jury trial in Goderich in 2018 where he was found guilty of first-degree murder and not guilty of attempted murder as charged, but guilty of aggravated assault.

The convictions were successfully appealed by Panovski at the Ontario Court of Appeal in 2021 and a new trial was ordered. However, Garson pointed out that there was no cross-appeal by the Crown of the not-guilty verdict to attempted murder, and that’s a problem.

“Although neither his former counsel nor present counsel have raised this issue, I am,” he said.

The judge is concerned that the retrial indictment includes the charge of which he was found not guilty and was never appealed. “I will need to be convinced that he is to be retried on the offence of aggravated assault and not attempted murder,” he said.

There have been moments of high tension between the Crown and the defence as the case has worn on. Even before the legal issues were discussed Friday, there were concerns raised over a perceived lack of supervision of Panovski while inside the courtroom.

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Panovski, who requires a Macedonian interpreter present to translate any confusing English terms, has been in custody for 10 years. As part of his efforts to keep the retrial on track, Garson agreed that during the trial, he could sit with Barnes and not in the prisoner’s box to allow him to communicate with his defence lawyer.

But, that has also allowed Panovski to walk around parts of the courtroom during breaks to talk to his lawyer or stretch. This week when Frigo’s widow was in the back of the courtroom, Brown said Panovski was “wandering.”

She wanted Garson to instruct him to stay seated. Barnes said her client wasn’t wandering but rather “pacing” between the defence table and the front of the public gallery, in the sights of a police officer.

“At the end of the day, yes, Mr. Panovski is in custody but he has behaved in no way that has been inappropriate,” Barnes said. “The fact is nothing was wrong. He wasn’t near Ms. Willer Frigo.”

Garson noted the “incredibly generous latitude (that) has been afforded in the ability of counsel to communicate with her client,” but recognized that the retrial has taken an emotional toll on Willer Frigo.

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His solution was to ask the guard to restrict Panovski to the barrister’s area on the defence side of the courtroom and not in the public seating for the safety of both the public and Panovski.

Garson added that he agreed with the Crown on a key point. “I have never seen the extent of the liberty afforded to a person in custody in this trial, but I also will say there are many unprecedented components to this trial,” he said.

“Trial fairness, as I have repeatedly said, has been first and foremost in my mind. I believe this court, for lack of a better phrase, has bent over backwards to ensure almost unfettered opportunities.”

The retrial continues on Monday.

jsims@postmedia.com

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