Judge reads riot act as slow-moving murder re-trial begins closing arguments

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ST. THOMAS – Just before Boris Panovski’s re-trial finally made it to the home stretch, there was one more potentially devastating snag.

Nine weeks into the case, the judge was told Panovski was close to firing defence lawyer Margaret Barnes over a disagreement about calling more witnesses and reviewing additional evidence before she began her closing address.

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The trial came within a whisker of a troubling impasse that only was avoided after Superior Court Justice Marc Garson reminded both the Crown and the defence of the Herculean efforts that have been made to keep the re-trial on track.

Thursday was set aside to begin closing arguments in the case, where the 80-year-old former dog breeder has pleaded not guilty of first-degree murder for the shooting death of Toronto-area businessperson Donato Frigo, 70, and not guilty to attempted murder for the wounding of Frigo’s wife, Eva Willer-Frigo, 56, at the Hullett provincial wildlife area in Huron County on Sept. 13, 2014.

Barnes eventually made her arguments stressing the Crown did not prove its case that it was Panovski who ambushed and shot the couple while they were on horseback.

“It’s tunnel vision all day long,” she said of the Ontario Provincial Police probe. “It was somebody else and the police didn’t find out who it was.”

Barnes made the comment late into her presentation and hours after the court entered its 225^th exhibit into the record – a document verifying Panovski divorced his wife in 2008 – then laid out what could happen as the court held its breath.

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Barnes asked earlier this week that she be able not to close her case until Thursday to keep open the possibility of further evidence, although she had indicated she was finished calling witnesses. When court opened Thursday morning, she told Garson after meeting with her client “there are some witnesses that I did not seek to have subpoenaed.”

Also, she requested disclosure of hundreds of emails from the Crown, which she had reviewed, but Panoviski indicated to her he wanted to review them as well.

“I am working on imparting the legal principle regarding what Mr. Panovski has to prove or doesn’t have to prove and that’s proving to be difficult and not necessarily landing,” she said. “What appeared to be start(ing) is a breakdown of communication, which, of course, puts me into an extremely difficult situation as well as everybody else who’s here waiting for this to be resolved.”

The usual routine, she said, had been for her to meet her client for an hour before court “going over things to sort of quell this anxiety, is how I’m going to phrase it, about the case.” But on Thursday, she had been focused on her closing address.

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While she made “a strategic decision” the additional evidence wasn’t necessary, Panovski wanted time to review the decision, leading to the potential impasse.

Assitant Crown attorney Elizabeth Brown said Barnes’s decision weren’t “strategic” but legal and the prosecution “would have opposed their admission in the case.”

Throughout the re-trial, Barnes has requested additional disclosure that wasn’t requested for the original 2018 jury trial in Goderich and Brown said most of it was “irrelevant” to the trial and never made it before Garson.

The re-trial before Garson without a jury already has lasted longer than the original jury trial. Panovski was convicted of first-degree murder and aggravated assault, then successfully appealed the verdict at the Ontario Court of Appeal, which found the original judge gave unfair instructions.

The case was ordered moved to St. Thomas a year ago and was supposed to start in early May. But in late April, Panovski fired his former defence lawyer and hired Barnes. Garson made rulings on May 7 to adjourn the case to later that month and, after Panovski decided on a judge-alone trial, has made allowances for Barnes to keep pace and get the decade-old case concluded.

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“In my 33 years in the criminal law field, more than 22 of them as a lawyer and the last 11 of them as a judge, I’ve never been involved in a case where the type of indulgences that have been granted to date have been granted,” he said, calling it “unprecedented.”

“I’ve never given more time to a defence as the case proceeded. I’ve never given more time in between questions in cross-examination. I’ve never permitted more consultation between an accused person and their lawyer. I’ve just never done it.”

But time is ticking and the Macedonian interpreters Panovski requires to translate some English phrases won’t be available after Friday. Garson reminded the lawyers he would not hear the case “on the installment plan” and was willing to work into Thursday evening to get the defence arguments heard.

“Trials can’t be endless. Accommodations can’t be endless. And I say that because at some point, the proceeding has to come to a conclusion. It has to,” he said.

Garson reminded the lawyers that the initial estimate for the re-trial was six weeks “and here we are in the ninth week without a jury and we’ve bounced around witnesses, we started and stopped witnesses, we moved mountains.”

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He told Barnes to remind her client that as an accused person, he needs to prove “absolutely, positively, unconditionally nothing. I can’t say it enough, and I can’t make voice any louder than I’m saying right now.”

Garson praised both sides for their hard work and that the court has been “exceedingly and . . . to an almost unprecedented level of ensuring fairness by granting at almost every turn a sought-out indulgences and that at some point, at some point, those indulgences have to reach a reasonable limit.”

After a short recess, Barnes closed her case and began her closing. The Crown’s closing expected on Friday.

jsims@postmedia.com

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