R. v. Panovski, 2021 ONCA 905

COURT OF APPEAL FOR ONTARIO DATE: 20211217 DOCKET: C66802

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Boris Panovski Appellant

Counsel: James Lockyer and Zachary Kerbel, for the appellant Michael Dineen, for the respondent

Heard: October 12, 2021 by video conference

On appeal from the conviction entered on June 29, 2018 by Justice Joseph M. Donohue of the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

Overview

[1] Don Frigo and Eva Willer-Frigo (“Ms. Frigo”) were ambushed and shot by a gunman at a “bird-dogging event”. Uncontested evidence supports the conclusion that Mr. Frigo, who tragically died, was effectively executed. Ms. Frigo escaped on horseback after being struck in the face with shot-gun pellets. The gunman, who Ms. Frigo observed but did not recognize, made his get-away in a motor vehicle. Shortly after the shooting, she provided a detailed description of the gunman and of the motor vehicle.

[2] Within days of the shooting, the appellant, Boris Panovski, was arrested and charged as the gunman. He was ultimately tried before a jury. Despite strong circumstantial evidence implicating Mr. Panovski as the gunman, the Crown case was not without its challenges. Most notably, in material respects, Ms. Frigo’s description of the gunman was inconsistent with Mr. Panovski’s appearance at the time. Moreover, Ms. Frigo had not recognised Mr. Panovski as the gunman, despite having known Mr. Panovski for many years, including a six-week period when he lived on the Frigo farm property. The jury nonetheless convicted Mr. Panovski of first-degree murder in the death of Mr. Frigo, and aggravated assault in the shooting of Ms. Frigo.

[3] Mr. Panovski now appeals those convictions. He does not challenge the reasonableness of the convictions, nor could he do so realistically. He challenges the adequacy and fairness of the jury charge, its compliance with the rule in R. v. W.(D.), [1991] 1 S.C.R. 742, and the trial judge’s decision to admit testimony from Mr. Panovski’s girlfriend, Jessica Garcia, that on one occasion she herself had failed to recognize a photo of Mr. Panovski that had been taken during the time that Ms. Frigo and Mr. Panovski shared the same social circle.

[4] For reasons that follow, I would allow the appeal. I agree with Mr. Panovski that the jury charge was unfair. The trial judge also erred in his W.(D.) charge, and in admitting the impugned testimony of Ms. Garcia. Despite the strong circumstantial evidence implicating Mr. Panovski in the crimes for which he was convicted, this is not an appropriate case to invoke the curative proviso, and I would decline to do so. I would set aside Mr. Panovski’s convictions and order a new trial.

Material Facts

A. The Crown’s Evidence of Motive

[5] For many years the Frigos and Mr. Panovski were heavily involved in “bird-dogging”, an activity that includes competitions in which participants are graded on their ability to track game birds, including while on horseback, using highly trained hunting dogs. Mr. Panovski, a gifted dog-trainer, was so proficient at bird-dogging that he was sponsored by patrons, including winemaker Gabe Magnotta. He won two national championships in 2005. He had met Mr. Frigo in 1988. Ms. Frigo did not remember when she met Mr. Panovski. Until 2002, Ms. Frigo encountered Mr. Panovski periodically, but regularly, at bird-dogging events. Mr. Panovski trained dogs for the Frigos, and for a six-week period in 1996, lived on the Frigos’ farm property.

[6] Mr. Panovski stopped participating in bird-dogging after a 2005 incident in which he allegedly solicited a woman and indecently exposed himself in her presence in Georgia, while he was there for a bird-dogging event. Mr. Panovski, who denies this allegation, claims that he simply retired from competition because his main patron, Mr. Magnotta, had become ill. However, the Crown presented evidence that attributed the end of Mr. Panovski’s bird-dogging career to the Georgia incident. Whichever version is true, after 2005 Ms. Frigo no longer had occasion to encounter Mr. Panovski. The last time she had seen him was at her father’s funeral in 2006.

[7] The Crown theory is that, on September 13, 2014, Mr. Panovski shot the Frigos after nursing a festering grievance against Mr. Frigo arising from the Georgia incident more than nine years earlier. Warren Harper, who was involved in the bird-dogging community, testified for the Crown. He said he had many conversations with Mr. Panovski relating to the Georgia incident, including six to twelve months before the shooting. Mr. Harper testified that in those conversations Mr. Panovski blamed Mr. Frigo and another dog trainer, Mike Hester, for “setting him up” and ruining his bird-dogging career. Mr. Harper also testified that Mr. Panovski said that he “will not forget”, that he “do[es] not forget things” and “there will come a day”.

[8] Evidence was led that Mr. Frigo, who had previously named one of his dogs after Mr. Panovski, changed the name of the dog because he was embarrassed by the name association with Mr. Panovski. An article in a bird-dogging association newspaper in April 2005 reflected the dog’s name change.

[9] Mr. Panovski’s grandson, Michael Panovski (“Michael”), also a member of the bird-dogging community, testified as a Crown witness that, in late 2013 or early 2014, he witnessed Mr. Panovski get into a heated verbal exchange at his apartment building with a fellow tenant. Shortly afterwards, Mr. Panovski asked Michael if he could get him a gun “[t]o kill someone”. Mr. Panovski was yelling about being God’s son and asking why he was being punished. The Crown theory was that Mr. Panovski had asked Michael to get him a gun so that he could kill Mr. Frigo.

B. The Crown Evidence of Preparation

[10] Approximately one week before the September 13, 2014 shooting, Mr. Panovski replaced the “2 NAT CH” vanity licence plates that he had on his 1998 “mystic teal pearl” (or “blue-green”) coloured Toyota Corolla, with standard issue licence plates that were in good condition. In the following days, he also had the windows of the car tinted. On July 26, 2014, Mr. Panovski had his shotgun repaired and, on September 11, 2014, he purchased a government-issued migratory game bird hunting permit.

[11] Cellphone triangulation evidence solidly supported the conclusion that on September 7th, 8th, and 12th, 2014, Mr. Panovski’s cellphone was in the immediate vicinity of the Frigos’ farm in the Caledon area.

[12] A forensic analysis of Mr. Panovski’s computer showed that on September 1st, 3rd, 6th, and 12th, 2014, he accessed the Region 13 Field Trials website with information and photographs of past Hullett Field Trials, and on September 13th he also visited the American Field webpage, that advertised the Hullett Field Trials.

C. The Crown Evidence of Opportunity

[13] Jessica Garcia, who was Mr. Panovski’s girlfriend at the time, testified that she stayed at his Scarborough apartment the night before the shooting. She said that the day of the shooting, they left his apartment in his 1998 Toyota Corolla. Ms. Garcia testified that he dropped her off at her home in the area of Lawrence Ave. W. and the Allen Expressway at approximately 12:30 p.m. She also testified that when they left Mr. Panovski’s apartment, he told her he had his 20-gauge double-barrel shotgun in the car. It was later determined that Mr. Frigo had been shot with a 20-gauge shotgun shell, which would typically be fired from a 20-gauge shotgun.

[14] Cellphone triangulation evidence confirmed that Mr. Panovski travelled past Guelph. He acknowledged that he travelled near Clinton, Ontario, which is proximate to where the Hullett Field Trials were being held and the shooting occurred.

D. Crown Evidence Relating to the Shooting

(1) The Shooting

[15] The Hullett Field Trials, which took place from a staging area on Conservation Road, ended around noon on September 13, 2014. The Frigos, who had participated in the event, remained in order to conduct training runs with their dogs.

[16] During one of their training runs, Mr. Frigo encountered difficulties with his horse. He returned to the staging area, and shortly after Ms. Frigo followed. Mr. Frigo secured a new mount and they left the staging area on horseback for another training run as 5:00 p.m. was approaching. They went east towards the nearby parking lot 40589 on Conservation Road. When they rode through parking lot 40589, Ms. Frigo noticed a motor vehicle. Suddenly, she heard a gun shot and heard Mr. Frigo say, “my head, my head”.

[17] Ms. Frigo saw that Mr. Frigo had fallen from his horse but was on his feet. He began to walk towards her when she heard another gun shot. Pellets, likely from that second shot, struck Ms. Frigo’s face. She then escaped on her horse. As she began to ride away, Ms. Frigo saw a man running towards the parking lot through the bush. She saw his profile, his dress, and his ambulation. She noted that he carried a beige gun.

[18] Ms. Frigo rode her horse to the protection of a knoll on the north side of Conservation Road. From her position on the knoll, she could see that Mr. Frigo had apparently fallen beside Conservation Road near the parking lot. She observed the motor vehicle, that she had seen in parking lot 40589, move to where Mr. Frigo was laying and then stop. She watched as a shotgun – a different gun than she had observed the gunman carry, brown barrelled and not beige – protruded from the passenger-side window and was then discharged in the direction of Mr. Frigo’s head. It would later be determined that Mr. Frigo died from a shotgun blast to the back of his head.

[19] Ms. Frigo rode on her horse in the direction of the motor vehicle in effort to get the motor vehicle licence number, without success. Injured, she returned to the staging area to seek help.

(2) Ms. Frigo’s Description of the Gunman

[20] Ms. Frigo formally described the gunman to the police only a few hours after the shooting, in a manner that was consistent with the testimony she provided at trial. Based on her observations of the gunman, she described the gunman as white, not olive skinned, handsome, in his early to mid-40s, clean-cut and clean shaven, with short brown and grey hair, including grey hair in his sideburns. He was athletic, “[s]ure-footed” and fit, running like a “jack rabbit”, causing her to think the gunman was “young”, but given the grey hair she noticed, “not young, young”.

[21] She said the gunman was carrying a “single-barrel” shotgun with a beige stock and barrel. He was wearing light beige camouflage pants, and a matching beige fitted tunic-type top that may have had an “M” patch on it. He had a beige or camouflage ball cap on his head. She said, “He looked like he came out of a catalogue. Everything was clean.”

[22] Ms. Frigo said she had never seen this man before. She assisted the police in producing a composite drawing of the profile of the suspect.

[23] It is not contested that the day of the shooting Mr. Panovski was 70 years of age, not in his mid-40s as Ms. Frigo had described the suspect. However, there was evidence that Mr. Panovski looked young for his age. Although Mr. Panovski had grey hair at the time when he associated with Ms. Frigo, at the time of the shooting he had been wearing his hair dyed black, showing no grey around the sideburns. He was not clean shaven but wore a goatee. He was around 5 foot 6 inches tall, with a “belly”, and a short goatee.

[24] Evidence was received that the day of the shooting Mr. Panovski was not wearing camouflage pants or a beige top, but jeans, black pants to put on top of the jeans if he was going to be hunting in a blind spot, and a blue sweater. He had a camouflage jacket with him.

[25] The degree of similarity between the composite photo and Mr. Panovski’s appearance a few days after the shooting is somewhat subjective. The Crown contends that the composite photo resembles Mr. Panovski. Mr. Panovski’s counsel, both at trial and on appeal, maintain that the composite drawing does not look anything like Mr. Panovski. Without intending to suggest that it is impossible that some might conclude that the composite photo is suggestive of Mr. Panovski’s appearance, there are objective differences between the person depicted in the composite drawing and the photographic image of Mr. Panovski taken at the time of his arrest, approximately a week after the shooting. These differences include apparent age (with the composite subject appearing to be much younger than Mr. Panovski appears in the photo), the facial hair (the subject in the composite drawing is clean shaven and Mr. Panovski has a goatee in the photo and, according to the evidence, wore a goatee on the day of the shooting), and the neck (the composite subject has a slighter, tight neck while Mr. Panovski has a looser, larger and apparently more squat neck).

[26] In an apparent effort to assist in explaining why Ms. Frigo may not have recognized Mr. Panovski, and over trial counsel’s objection, the Crown obtained testimony from Ms. Garcia that she had once failed to recognize Mr. Panovski from a photograph that was taken of him around the time he and Ms. Frigo would have known one another, a period prior to Ms. Garcia having met Mr. Panovski.

(3) Ms. Frigo’s Description of the Motor Vehicle

[27] Ms. Frigo was unsuccessful in obtaining the vehicle licence plate number. She said that she did not succeed because the blue and white licence plate was faded, and “probably” old.

[28] She described the motor vehicle as an older “box-like” model, possibly from the ‘90s, with square taillights. She said the windows, including the windshield, were heavily tinted. She described a large emblem on the trunk of the vehicle which had a stylized “S” in an oval logo that may have said “Senza”. She said there were about five chrome lines spaced about 3 inches apart along the back, below the emblem. With the assistance of a police sketch artist, a rendering of her description of the car and logo were produced.

[29] Mr. Panovski’s Corolla motor vehicle was seized after the shooting. Unlike the vehicle that Ms. Frigo described, it had an Ontario licence plate in good condition. Its taillights were not square, its windshield was not tinted, and the emblem on the trunk was a standard Toyota logo, not the emblem that Ms. Frigo had detailed. Mr. Panovski’s car did not have five chrome lines, or any chrome lines across the back, but there was a stylised “S” in the upper left-hand corner above the driver’s side taillight, in the dealer’s logo that had been added next to the word “Toyota”.

(4) Michael’s Description of a Suspect Vehicle

[30] Like the Frigos, Michael, who had attended the Hullett Field Trials, remained in the area late in the afternoon. He saw the Frigos in parking lot 40589 on Conservation Road, and after, between 4:30 p.m. and 4:45 p.m., he observed what he identified to be an older “baby blue” Corolla motor vehicle driving east. He testified that this was not Mr. Panovski’s car. Michael then encountered the Frigos again in the staging area before watching them depart on what was likely the training run during which the shooting occurred. At some point after the Frigos left the staging area, Michael saw the same baby blue motor vehicle that he had observed earlier drive west towards the intersection of Wildlife Line and Conservation Road. A short time later, Ms. Frigo arrived injured at the staging area with Mr. Frigo’s horse and dog.

E. Forensic Evidence Consistent with Mr. Panovski’s Involvement

(1) Shotgun Shell Components

[31] Crown firearms expert, Jennifer Plath, explained that shotgun shells tend to be loaded with pellets, or “shot”. Those pellets can vary in size. Pellet size is designated by number. Inside the shell the pellets are loaded against a wadding that separates the pellets from the propellant. When the shell is fired, the propellant ignites, and the wadding and pellets are ejected.

[32] Ms. Plath was able to determine that Mr. Frigo was struck by size 4 steel shot. Wadding from a shotgun shell was found embedded in his brain, and a similar wadding was found at the scene of the shooting. It could be determined from the diameter that in each case the wadding was from a 20-gauge shell, which is “typically” fired from a 20-gauge shotgun. Mr. Panovski’s shotgun was a 20-gauge shotgun.

[33] A 20-gauge 3-inch Winchester brand shotgun shell loaded with size 4 steel shot was found in the pocket of the jacket Mr. Panovski was known to have in his possession on the day of the shooting. The wadding found in shotgun shells varies in shape, size and construction. The characteristics of the wadding in the shotgun shell found in Mr. Panovski’s coat pocket was “in agreement” with the wadding linked to the crime scene, including having four petals, and a circular indentation on its base. The Centre of Forensic Sciences has a non-exhaustive ammunition reference collection library containing approximately 200 20-gauge wadding samples. The library did not include a sample comparable to the wadding that was found at the crime scene and in the shell that had been in Mr. Panovski’s possession, but Ms. Plath agreed in her testimony that she could not say only one manufacturer uses this kind of wadding.

[34] The Crown’s firearm expert testified that the pellet removed from Ms. Frigo’s cheek was “between” a number 5 and 6 shot. The precise shot size could not be determined because of the lack of a precise agreement between the diameter and weight of the recovered shot and the typical specifications of number 5 and 6 shot. Shotgun shells from an ammunition box linked to Mr. Panovski were of various sizes, including but not confined to 5 and 6 shot shells.

(2) The Gunshot Residue Evidence

[35] Robert Gerard provided expert evidence for the Crown related to the collection, analysis and interpretation of gunshot residue (“GSR”). GSR is comprised of invisible chemical and metal particles that are released in the gas that is emitted from a firearm after it has been fired. GSR can be extracted from testable surfaces and its presence can be identified with the assistance of instrumentation.

[36] Five particles of GSR were detected on the passenger seat of Mr. Panovski’s Toyota Corolla. No particles were detected on the roof liner where it is quite common to find a large number of particles after a firearm has been discharged in a vehicle. Nor were any GSR particles found on the passenger window ledge or the steering wheel. Mr. Gerard was not able to determine, based on his findings, whether the GSR particles on the seat resulted from a firearm having been fired and then put on the passenger seat, but that was a possible explanation for their presence. There were alternative explanations, including transference from persons or articles that have been in the proximity of discharged firearms.

[37] Perhaps not surprisingly, GSR was also found on the camouflage hunting jacket that Mr. Panovski had possessed, as well as a camouflage toque and gloves found in the jacket.

(3) Tire Tread Impression Evidence

[38] Mr. Panovski’s motor vehicle was found to be equipped with MotoMaster tires, a common brand of tires available, for example, at Canadian Tire stores. Subsequent forensic examination would determine that these tires were similar in shape, design and physical size to tire impressions recovered from the scene of the shooting, although no distinguishing characteristics were identified that could link the tire impressions and the tires on Mr. Panovski’s vehicle.

F. After the Fact Conduct Evidence

[39] The Crown presented evidence of Mr. Panovski’s conduct, as circumstantial evidence capable of supporting inferences that he had been complicit in the shooting. Specifically, Ms. Garcia testified that, when Mr. Panovski returned to her apartment around 8:25 p.m. on the day the shooting occurred, he asked her to note the time he was there. The next day he went to the bank and withdrew CAD $5,000 and EUR 5,000 in traveller’s cheques and purchased an air ticket with cash for departure to Macedonia that night, with a flexible return date for within six months from departure. He cancelled his gym membership and the insurance on his vehicles and gave Ms. Garcia a cheque for one month’s rent on his apartment and instructed her to give it to his landlord. He delivered his 20-gauge shotgun and ammunition box to his friend, Dale Reesor to hold until his return and arranged to park his vehicles at Mr. Reesor’s place. He signed the vehicles, including the Toyota, over to Mr. Reesor’s son Thomas, and asked Thomas to give the licence plate on the Toyota to his grandson Michael. He then left the country and went to Macedonia.

[40] Mr. Panovski returned to Canada on September 21, 2014, after he received a call accusing him of killing Mr. Frigo. He was aware, when he returned, that Macedonia does not have an extradition treaty with Canada. He was arrested on his return.

G. Other Relevant Investigative Steps

[41] Cellphone records would suggest that Mr. Panovski arrived at Ms. Garcia’s apartment around 8:30 p.m., the day of the shooting.

[42] When Mr. Panovski’s camouflage jacket was seized, it was found to have a 20-gauge shotgun shell in its pocket.

H. Mr. Panovski’s Defence Evidence

[43] Mr. Panovski testified in his own defence over the course of two and one-half days. He described the sport of bird-dogging and his connection to it, outlined his relationship with Mr. Frigo and denied having animus against him, who he claimed to be friendly with. He denied leaving the sport because of the Georgia incident, explaining that he left because he could not expect to replicate the success and support he had from his sponsor, Mr. Magnotta, who had fallen ill. He also described his long association with Ms. Frigo, and denied speaking to Mr. Harper about Mr. Frigo, as they had no friendship or relationship and met only rarely. Mr. Panovski testified that, on the day of the shooting, he travelled from Toronto to within a 10-minute drive of where the Hullett Field Trials were being held. He said that he parked in a farmer’s field to look for goose hunting spots. He denied being present at the Hullett Field Trials or shooting Mr. Frigo and Ms. Frigo.

[44] During his testimony, Mr. Panovski gave evidence that, if true, would answer much of the circumstantial evidence that the Crown was relying upon to support his conviction. That testimony is described below, in para. 63.

The Jury Charge

[45] Over the objection of defence counsel, the trial judge did not provide the parties with a draft jury charge. He told counsel during a pre-charge conference that he would ask them what they thought should be included under each head of instruction and that he would receive submissions after the charge, inviting corrections. He did ask for counsel’s input on some but not all aspects of the charge.

[46] When the jury charge began, the trial judge explained to jurors that he had been unable to finalize the jury charge prior to delivering it. He said that, when he came in early to complete the finalization of the charge, he found himself locked out of the courthouse, and he shared what he described as a “lighthearted story” about sitting in the police station, like an impaired driving suspect, waiting for someone to let him into the courthouse. He alerted the jury that he might “have to take breaks more frequently than typically”. During the jury charge he advised jurors on several occasions that he would have to get back to them on topics he was charging them on, after asking counsel for input or information. But the trial judge never did so.

[47] I will describe the content of the charge that is relevant to this appeal.

(1) The Identification of the Issue

[48] When setting out the elements of the first-degree murder charge, the trial judge said, “The real issues are the identity of the shooter and the level of culpability”, a point he repeated shortly after first making it.

[49] Then, after instructing jurors on the elements of first-degree murder and guiding them in the reasoning process they would engage in, he described the elements of the offence of attempted murder. He told the jury that there were two essential elements that the Crown had to prove beyond a reasonable doubt to prove attempted murder, namely, “[o]ne, that Mr. Panovski meant to kill [Ms. Frigo], and two, that Mr. Panovski discharged a shotgun towards her head.”

[50] Subsequently, closer to the end of his charge, the trial judge returned to the issues in the trial:

The real issue in this case that overrides or stands at the top for your consideration, is whether the events alleged to form the basis of the crimes charged ever took place. It is for Crown counsel to prove beyond a reasonable doubt that the events alleged in fact occurred and that Mr. Panovski was the person involved in them. It is not for Mr. Panovski to prove that these events never happened. If you have a reasonable doubt whether the events alleged ever took place you must find Mr. Panovski not guilty.… You have to consider all the evidence and decide whether you have been satisfied beyond a reasonable doubt that the events that formed the basis of the crimes charged, in fact, took place and that Mr. Panovski was the culprit.

(2) The Attempted Murder Charge

[51] In directing the jurors on their deliberations relating to the offence of attempted murder, the trial judge said with respect to whether Mr. Panovski intended to kill Ms. Frigo:

This element has to do with Mr. Panovski’s state of mind at the time he discharged the shotgun towards her head.… Crown counsel must satisfy you beyond a reasonable doubt that when he did the things that amounted to an attempt, Mr. Panovski meant to kill Ms. Willer-Frigo.

[52] He continued:

To determine whether Crown counsel has proven beyond a reasonable doubt that Mr. Panovski meant to kill Ms. Willer-Frigo when she was riding her horse at Hullett, you must consider all the evidence. You should consider what Mr. Panovski did or did not do, how he did or did not do it, and what he said or did not say. Consider what Mr. Panovski said and did before, at the time and after he fired the shotgun at her head. All these things and the circumstances in which they occurred may shed some light on Mr. Panovski’s state of mind at the time. They may help you decide what Mr. Panovski meant or didn’t mean to do.

To help you determine whether Crown counsel has proven beyond a reasonable doubt that Mr. Panovski meant to kill her when he discharged the firearm towards her head, you may conclude as a matter of common sense that a person usually knows what the predictable consequences of his or her conduct are and means to bring them about.

[53] The trial judge also elaborated on what he identified as the second essential element of the attempted murder charge:

Did Mr. Panovski discharge his shotgun towards the head of Ms. Willer-Frigo? This has to do with Mr. Panovski’s conduct. Mr. Panovski is alleged to have fired toward her and struck her head. If you are satisfied beyond a reasonable doubt that he did do that this conduct amounts to an attempt to kill Ms. Willer-Frigo.

(3) Ms. Frigo’s Identification Evidence

[54] In introducing Ms. Frigo’s evidence about the gunman, the trial judge explained that she did not provide the type of evidence where a witness says she knows who the suspect was or picked him out of a lineup. Rather, he described her evidence as “an attempt in all the circumstances which prevailed to describe the shooter”, “in effect, a description given by a victim of a shooting”.

[55] The trial judge then instructed the jury that “[s]he has stated her opinion, that she had never seen the shooter before” and he alerted the jury that if this evidence raises a reasonable doubt, “considering that in fact, she had had contact with Boris Panovski previously in the field dog context”, they must acquit Mr. Panovski of all of the charges. He instructed the jury to consider all of the circumstances implicating Mr. Panovski, when deciding whether this evidence left them in a reasonable doubt.

[56] He then continued:

In deciding whether her inability to recognize the shooter raises a reasonable doubt you should consider the following factors. Her opportunity for observation was sudden, brief and unexpected. She had been shot at and wounded. Her focus was on escape. She was traumatized by seeing her husband killed.

Further factors. You have the evidence that she had limited contact with Boris Panovski in the immediately preceding years. You have the photographic evidence of Boris Panovski’s changes in appearance in the preceding years, with respect to hair colour and physic [sic]. You have the evidence that the shooter was wearing a hat. You will consider the passage of time and emotional upheaval which elapsed between the shooting and her attempts to describe the shooter. Ms. Willer-Frigo has described, not identified the shooter…. If her failure to recognise the shooter in all the circumstances of the rest of the evidence which you do accept leaves you with a reasonable doubt you must give the benefit of that doubt to the accused and acquit him of all counts. [Emphasis added.]

[57] The trial judge then listed a number of “questions that arise with respect to a person who makes a brief observation and then tries to assist the police with their investigation on the basis of her observations”. Included in the list of questions he provided were the following comments:

The question arises was there anything that prevented or hindered a clear view? In this regard you will be aware that this was a rural, heavily vegetated location.

The question arises, did anything distract the witness’s attention at the time she made the observation? I would think that being a victim of a shooting might be a distraction.

(4) The Circumstantial Evidence Review

[58] After directing the jury on the principles that apply in a circumstantial evidence case, the trial judge “itemize[d]” the circumstantial evidence that comprises “[t]he case against Mr. Panovski” [^1]:

You have heard evidence that, Mr. Panovski requested his grandson to get him a gun to kill someone (“gun request”).

Mr. Panovski had his 20 gauge shotgun repaired (“shotgun repair”).

Mr. Panovski, in the period before the murder, accessed field trial websites (“website visitation #1”).

Mr. Panovski, on September 7th, 8th and 12th, drove by Mr. Frigo’s residence in the Caledon area (“presence near the Frigo residence”).

Mr. Panovski, eight days before the shootings, exchanged his personalized boastful plates from his Toyota Corolla (“exchanged vehicle plates”).

Mr. Panovski, in days before the shootings, tinted the windows of his 16-year-old car (“tinted windows”).

Mr. Panovski, on the night before the shootings posted a photo of his 2 NAT CH plates on Facebook (“boastful vehicle plates”).

Mr. Panovski had Moto Master on his car which were capable of leaving tire impressions similar in nature to those left at the shooting scene. The similarities were in shape, design and size (“tire impressions”).

Mr. Panovski, in his car, along with his shotgun on the day of the shooting was in the geographical area which includes the Hullett Conservation Area within it (“possession of shotgun and proximity”).

Mr. Panovski visited a website less than 24 hours before the shooting. Mr. Frigo was killed at an event which was advertised on the website which Mr. Panovski visited (“website visitation #2”).

Mr. Panovski was very familiar with the Hullett Wildlife area and the patterns of participants at the annual September meet. This area was a remote rural one. Mr. Panovski had a 20-gauge shotgun and number four shot. Mr. Frigo was killed by a 20-gauge shotgun using number four shot (“possession of similar shotgun and similar shot”).

Mr. Panovski’s car was found to have shotgun residue on the front passenger seat. The shot which killed Mr. Frigo came from the front passenger side of the shooter’s car (“gun shot residue”).

Mr. Panovski had shotgun ammunition of size five and six shot (“similar shot”).

Ms. Willer-Frigo was hit in the face by a size five or six shot (“similar shot”)

Mr. Panovski’s camouflaged coat pocket was found to contain a shotgun shell with wadding sharing the same class characteristics of size, colour, four petal construction, base indent as the 20 gauge wadding found at the scene and the 20 gauge wadding found at autopsy in Mr. Frigo’s brain (“similar wadding”).

Mr. Panovski’s appearance in September of 2014, as distinct from his appearance at other times, was generally consistent with the description given my Ms. Willer-Frigo. The composite drawing which she assisted in preparing was also generally consistent with Mr. Panovski’s appearance in September of 2014 (“similar appearance”).

Mr. Panovski’s phone as recorded by cell towers showed movement from west to east within hours of the shootings (“cellphone tower evidence”).

Mr. Panovski on arrival at his girlfriend’s told her to note the time, “if anyone asks”. He then checked American Field online and Facebook (“Garcia request”).

Mr. Panovski paid for a car wash late on the date of the shooting. And on that date Mr. Panovski purchased gas for the second time. The shooting location is 223 kilometres from his apartment (“car wash and gas”).

Mr. Panovski on the second day after the shooting made rapid arrangements to and did depart for Macedonia. His arrangements included cancelling car and apartment insurance and his gym membership. An attempt to cancel life insurance, storage of his gun and signing of ownership of his two vehicles (“sudden departure”).

(5) The Defence Evidence Review

[59] Immediately after itemizing the circumstantial case against Mr. Panovski, the trial judge told the jury he was going to “briefly refer now to the defence evidence”. He began with Mr. Panovski’s evidence, which he described in six lines of his charge:

He made a categorical denial of involvement in these shootings in his testimony. He denied that he had the personal features or the clothing described by Ms. Willer‑Frigo. He denied having a car with the features described by various witnesses.

[60] The trial judge advised that he would only “highlight what [the other defence witnesses] spoke about.” He referred to the testimony of Michael Panovski, a Crown witness, in the summary of defence evidence, reminding the jurors that “Michael Panovski says he saw a car on Conservation Road which he said was not Boris Panovski’s car.” The trial judge gave no more detail about Michael Panovski’s evidence relating to the car.

[61] The trial judge also said that Mr. Panovski’s sister “gave the circumstances of Mr. Panovski’s surprise arrival in Macedonia” and “indicated that there were family concerns that he could look into while he was there.” He said that “Rossana Magnotta … described a history of interaction with the accused in the dog culture world” and reminded jurors that she spoke of a dog named after one of Magnotta’s ice wines that had a brilliant career.

[62] In preparation for his jury charge the trial judge had asked the Crown and defence counsel for their “positions”. He read those positions to the jury. Before he did so he said, “I am not stating facts here. I am just reciting the argument of the two sides”. The defence position he recounted included the submissions that:

• Ms. Frigo’s description and the drawing of the shooter prepared at her direction show that Mr. Panovski was not the shooter. They are of “a man much younger, thinner and better looking than Mr. Panovski.”
• “On the day of the crime, Mr. Panovski had facial hair, a goatee, while the shooter was clean shaven.”
• The clothing described did not match clothing Mr. Panovski was known to possess.
• The car described by Ms. Frigo did not match Mr. Panovski’s car, including because Mr. Panovski’s car “did not have any vertical chrome pieces on the trunk, was not boxy, did not have square lights and did not says ‘Cessna’ on the back.… However, Nissan makes a car that says Sentra on the back.”
• The car Michael Panovski saw was a light blue Toyota Corolla or Camry and “clearly was not Boris Panovski’s car”.
• Mr. Panovski’s car tires and those that made the tread marks at the scene are similar to thousands of car tires, and there is no evidence that they were left by the suspect vehicle.
• The shotgun wadding and pellets could have come from any 20-gauge and other gauge shotguns.
• There were five particles of gun shot residue on the front passenger seat and he fired his shotgun twice on September 12, 2014 at the Ressor Fields, and the gunshot residue expert said that if a gun was fired inside a vehicle there would be a significant amount of particles on the ceiling and roof but there were none.
• Mr. Panovski immediately returned voluntarily to Canada to assert his innocence.
• “Boris Panovski testified at this trial under oath for days and adamantly denied that he was the shooter and he was unshaken in cross examination.”

[63] When the trial judge recounted the circumstantial evidence against Mr. Panovski, recounted in para. 58 above, he did not reference explanations that Mr. Panovski provided in his testimony that, if true, would neutralize the incriminating circumstantial inferences the Crown asked the jury to draw. For example, in recounting the circumstantial case against Mr. Panovski the trial judge never mentioned the following explanations:

• Gun request – Mr. Panovski admitted asking Michael to get him a gun so that he could kill someone but said that this was not a serious request and that he made the comment in response to a dispute he had just had with a neighbour in Michael’s presence, a dispute that Michael confirmed witnessing.
• Shotgun repair – Mr. Panovski explained that he had his double-barrelled hunting shotgun repaired because when he attempted to fire one barrel, both barrels would discharge, which could cause the barrels to explode. He therefore had it repaired, on July 26, 2014.
• Website visitations – Mr. Panovski testified that he often went on the American Field website, because he had friends in the bird-dogging sport and he maintained an interest in their dogs. He agreed that he may have gone on the website on September 12, 2014, as Ms. Garcia claimed. He acknowledged going on the Region 13 Field Trial (Hullett Field Trials) website on more than one occasion in September 2014 to look at the dogs, but he said that the website was “frozen” in 2013 and so it contained no news relating to the upcoming field trials.
• Presence near the Frigo residence – Mr. Panovski explained that he was familiar with the Caledon area where the Frigo residence was, having lived there. He would go hunting and fishing in the area. He testified that on September 7, 2014 he went to the area apple picking with Ms. Garcia, but the orchard was not open. He instead purchased apples. He testified that on September 8, 2014, he travelled to his friend, Dale Reesor’s farm to pick up kennel boxes he had stored there so that he could give them to Michael. After dropping off the boxes at Michael’s he drove through Caledon on route to Newmarket, while looking for goose hunting locations, as the goose hunting season had opened that day. He said that as an avid hunter he often drove great distances looking for hunting spots. He testified that he returned to the area to hunt on September 12, 2014 but did not see anything, so he drove to Mr. Reesor’s farm to hunt.
• Exchanged vehicle plates – Mr. Panovski testified that he acquired the 2 NAT CH plates to celebrate his national championships. After using them on his vehicles for many years in 2014 he decided to mount and hang them on his wall as a trophy, so he acquired and installed new licence plates on his vehicle.
• Tinted windows – Mr. Panovski gave evidence that he made a spontaneous decision to have his car windows tinted, when the auto shop that was repairing his car brakes offered to do so very inexpensively, after Mr. Panovski saw them tinting the windows on another vehicle. Mr. Panovski testified that the tinting would reduce the risk of theft from the car in his high-risk neighbourhood and would give him more privacy including when he kisses Ms. Garcia in the vehicle.
• Boastful vehicle plates – see “exchanged vehicle plates”, above.
• Possession of shotgun and proximity – Mr. Panovski testified that the day of the shooting was the last day of the goose hunting season, so he went hunting, bringing his 20-gauge shotgun with him. He had travelled west to drop Ms. Garcia off, so he decided to head west, and to hunt in the area. He testified that he ultimately stopped near a farmer’s driveway to look for geese, without success, and drove through the area stopping periodically, again without success, before heading back to his Toronto home, with the intention of taking Ms. Garcia dancing.
• Gunshot residue – Mr. Panovski testified that he had fired his shotgun while hunting at Mr. Reesor’s farm on September 12, 2014. [^2]
• Cellphone tower evidence – see “possession of shotgun and proximity” above, for Mr. Panovski’s innocent explanation for the cellphone tower locations relied upon by the Crown.
• Garcia request – Mr. Panovski testified that it was during a conversation he had with Ms. Garcia about how she could be too tired to want to go dancing with him, that he asked her to note the time he arrived.
• Car wash and gas – Mr. Panovski testified that he required gas after his hunting trip, and he had a discount coupon for a car wash, so he used it after having driven the car that day on “messy” sideroads.
• Sudden departure – Mr. Panovski said he had been planning for a long time to go to Macedonia. There were problems with family property in Macedonia, and with his sister’s health, and he had not seen her in many years. While at mass observing others with their families he decided to go, without delay, which was possible because he was retired. He contacted his travel agent and found there was a flight that night. He purchased a return ticket with a flexible return date that would allow him to stay up to six months. Believing that he would be gone for some time, he arranged to cancel contracts that required monthly payments he would not be using, withdrew the funds he would need, and arranged to have Mr. Reesor’s son bring his vehicles, and his firearm and ammunition, to Mr. Reesor’s farm for safekeeping. He signed over the vehicle ownerships to Mr. Reesor’s son and offered to allow Mr. Reesor’s son to drive his jeep, if he wanted to do so. He arranged to have Ms. Garcia pay one month’s rent and to cancel his life insurance.

(6) Other “Innocent” Explanations for Circumstantial Evidence

[64] Other evidence had been presented that was capable of neutralizing or weakening the circumstantial inferences the Crown relied upon but was not mentioned by the trial judge when setting out the circumstantial case against Mr. Panovski. Specifically:

• Tire impressions – The trial judge did not remind jurors that although the crime scene tire impressions were made by the brand of tires that were on Mr. Panovski’s motor vehicle, thousands of other vehicles have similar tires, and no distinct similarities were observed between the tire treads on Mr. Panovski’s motor vehicle, and the tire treads left at crime scene.
• Similar shot and similar shotgun - The trial judge did not remind the jury of evidence that 20-gauge shotguns are common among hunters. Nor did he advise the jury that Mr. Panovski possessed shot sizes that were not linked to the crime scene.
• Similar wadding – The trial judge did not remind jurors that expert witnesses were unable to confirm how common it is for shotgun wadding to have the characteristics of the wadding linked to the crime scene.
• Gunshot residue – The trial judge did not remind jurors that no gunshot residue was found on the steering wheel of Mr. Panovski’s motor vehicle, or on the roof liner were it is commonly found after a firearm is discharged in a motor vehicle, and that the traces of residue found in the car could have been the result of transfer from someone who has fired a firearm, which Mr. Panovski testified to having innocently done the day before the shooting.
• Similar appearance – When directing the jury that Mr. Panovski’s appearance in September 2014 was “generally consistent” with Ms. Frigo’s description of the gunman and the composite drawing, the trial judge did not allude to or identify any of the differences between Mr. Panovski’s appearance in September 2014 and Ms. Frigo’s description of the gunman or the composite drawing.

[65] As paragraph 62 above indicates, elsewhere in his charge, the trial judge advised the jury of arguments defence counsel was making, that raised some of these points.

(7) The W.(D.) Direction and the Recharge

[66] The principles in R. v. W.(D.), [1991] 1 S.C.R. 742, assist jurors in understanding how to apply reasonable doubt when evaluating the credibility and reliability of evidence that is inconsistent with the guilt of the accused. Those principles include the obligation of a trier of fact to acquit if exculpatory evidence leaves them in a reasonable doubt, even if they do not affirmatively believe that evidence: R. v. Hoffman, 2021 ONCA 781, at para. 36. In the underlined portion of this charge in para. 56 above, the trial judge effectively gave the jury a W.(D.) charge relating to Ms. Frigo’s evidence that she did not recognise the shooter, when Mr. Panovski was known to her. The jury was told to consider whether that testimony left them in a reasonable doubt. Shortly after, he gave a more general but related charge, directing jurors to ask whether Ms. Frigo’s testimony leaves them in a reasonable doubt “in all the circumstances of the rest of the evidence”.

[67] The Crown objected to this portion of the charge, arguing that it is an error to apply reasonable doubt standards to individual pieces of evidence. The trial judge acceded to the objection. He recharged the jury, telling them that he was incorrect to have directed them that if Ms. Frigo’s evidence left them in a reasonable doubt they must acquit. He told them that it is contrary to law to apply the reasonable doubt standard to her evidence alone. He continued:

So you do not apply the reasonable doubt standard to [Ms. Frigo’s] evidence alone. Rather you must consider all of the evidence in determining if you are convinced beyond a reasonable doubt that [the Crown] has proved the guilt of Boris Panovski.

[68] Early in his charge the trial judge had given the general W.(D.) instruction, but he described the principle as applying to the evidence of Mr. Panovski and his witnesses. He accepted the Crown’s additional objection that his wording of the W.(D.) charge was confusing, and he recharged the jury, linking the charge only to the testimony of Mr. Panovski.

(8) Defence Counsel’s Objections to the Charge

[69] Defence counsel, who had not been provided with a draft charge or written charge, made many objections to the trial judge’s charge, including that the charge had been disorganized and was incapable of fulfilling its purpose.

[70] He objected that by identifying the essential issue as “whether or not this happened” the trial judge had misstated the essential issue, which was identity.

[71] Trial counsel also objected that the trial judge had not adequately presented the defence case to the jury, and that the charge “lacked essential balance”. He submitted that the trial judge had not put that case as fully, fairly and carefully as he had put the Crown’s case, resulting in a partial or biased charge.

[72] He noted, in particular, that the trial judge’s failure to describe the details of Ms. Frigo’s description of the gunman and Michael’s description of the gunman’s vehicle amounted to a failure to put the defence to the jury.

[73] He also protested the challenges the trial judge identified to Ms. Frigo’s opportunity to observe, given that she had been calm and confident both in her police statements and her testimony. He objected to the trial judge telling the jury that Ms. Frigo would have been distracted by having been shot, in the absence of evidence from Ms. Frigo to this effect. He objected as well to the trial judge’s failure to mention indicia that Ms. Frigo’s observations were reliable, including that she had been close enough to give a complete description of the gunman, including seeing the gray hair at his temples, and this, too, should have been put to the jury.

[74] Defence counsel also objected that the trial judge “hardly ever advert[ed]” to Mr. Panovski’s testimony, failing to give his account of the Georgia incident, and by giving a long list of circumstantial evidence relied upon by the Crown without communicating the competing position of the defence.

[75] He objected, as well, to the judge’s “prejudicial” charge to the jury on the attempted murder offence. Specifically, trial counsel objected that in instructing the jury on how to resolve the mens rea issues related to that charge, the trial judge spoke repeatedly not of the inferences that could be drawn from the gunman’s actions, but from Mr. Panovski’s actions, as if his identity as the gunman was not in issue.

[76] The trial judge did not give effect to any of these objections.

The Issues

[77] In his factum Mr. Panovski identified numerous grounds of appeal relating to the jury charge. During oral argument those objections coalesced into identified shortcomings that Mr. Panovski submits resulted in an inadequate, unbalanced, and unfair jury charge. Those shortcomings can therefore be considered together, and not analyzed as discrete errors.

[78] In my view, the material issues on appeal that warrant attention can therefore be described, as follows:

A. Did the trial judge commit a W.(D.) error in his recharge? B. Was the jury charge inadequate, unbalanced, and unfair? C. Did the trial judge err in admitting Ms. Garcia’s non-recognition evidence? D. If any or all of these errors occur, should the appeal be dismissed pursuant to the curative proviso?

[79] I would answer “yes” to the issues A, B and C, and “no” to issue D. I would therefore allow the appeal and order a new trial.

A. Did the trial judge commit a W.(D.) error in his recharge?

[80] I would find that the trial judge committed a W.(D.) error in his recharge relating to the testimony of Ms. Frigo. Given that there were aspects of Ms. Frigo’s testimony that, if accurate, would exclude the possibility that Mr. Panovski was the gunman, the trial judge’s initial direction to the jury to consider whether Ms. Frigo’s evidence left them in a reasonable doubt was correct. But in his recharge, he erred by retracting this direction and by instructing jurors “not [to] apply the reasonable doubt standard to [Ms. Frigo’s] evidence alone”.

[81] I have already described the general rule in R. v. W.(D.), in para. 66 above. The decision of this court in R. v. T.L., 2008 ONCA 763, confirms that this rule applies to the exculpatory features of eyewitness testimony. This court recognized in R. v. T.L. that eyewitness descriptions of a robber that contained significant and discernibly different features than those of the appellant were exculpatory evidence requiring a W.(D.) direction. That evidence was exculpatory because, if accurate, those features excluded the possibility that the appellant was the robber. This court therefore held that the trial judge erred by failing to make clear to jurors that they were required to acquit even if they did not believe this evidence, as long as it left them with a reasonable doubt.

[82] As R. v. T.L. illustrates, the rule in W.(D.) applies to exculpatory evidence even if that evidence is embedded in testimony that includes inculpatory content. The decision in R. v. Rowe, 2011 ONCA 753, 281 C.C.C. (3d) 42, provides further support for this proposition. In Rowe the testimony of an unsavoury Crown witness included both inculpatory and exculpatory evidence. The trial judge erred by giving a Vetrovec caution relating to that witness’s testimony without distinguishing between the inculpatory and exculpatory content of the testimony, and by failing to direct jurors on the application of the principles of reasonable doubt to the exculpatory content. Doherty J.A. provided the following guidance, at para. 34:

Where, as in this case, the inculpatory portions of the witness’s testimony are easily demarcated from the exculpatory portions, the best course is to specifically refer the jury to the exculpatory portions and to instruct the jury that with respect to those portions, the question is … whether the evidence alone or in combination with the other evidence heard in the case leaves the jury with a reasonable doubt.

[83] In my view, a similar error occurred in this case. Ms. Frigo’s testimony relevant to the identity of the gunman, although including some inculpatory information, contained features that were significant and discernably different than Mr. Panovski. Specifically, Ms. Frigo’s description of the suspect included that he was fit and “young”, in his early to mid-40s, clean shaven with short brown and grey hair, including grey hair in his sideburn, which she could see in the profile she viewed. In contrast, Mr. Panovski was, at the time of the shootings, 70 years old with a belly, sporting a short goatee and black hair, with no grey in his sideburn.

[84] In addition, Ms. Frigo testified that the motor vehicle used by the gunman had a faded, “probably old” licence plate, square taillights, a heavily tinted windshield, a large emblem on the middle of the trunk of the vehicle that included a stylized “S” that may have said “Senza”, and five chrome lines spaced about 3 inches apart along the back, below that emblem. The motor vehicle that Mr. Panovski was known to have driven on the day of the shooting had a licence plate in good condition, and did not have square taillights, a tinted windshield, a large emblem on the trunk of the vehicle that said “Senza”, or chrome lines beneath the emblem.

[85] Moreover, Ms. Frigo, who knew Mr. Panovski and had been in his company on numerous occasions, said that she did not recognize the gunman.

[86] I appreciate that it was open to jurors to conclude that in the circumstances Ms. Frigo’s description of the gunman and of his motor vehicle were unreliable, and that Ms. Frigo simply failed to recognize Mr. Panovski. But this is not the standard to apply in deciding whether to provide a W.(D.) direction. The question is whether, if accurate, the evidence would exclude the possibility of guilt. This approach respects the relative functions of the trial judge as the trier of law, and the jury as the trier of fact. Quite simply, it was open to jurors to accept Ms. Frigo’s description and/or to find based on her inability to recognize the gunman that the gunman was not Mr. Panovski. And it was open to jurors to be left in a reasonable doubt by Ms. Frigo’s evidence. The trial judge was therefore required to equip jurors with proper instructions, but he did not do so. Instead, he misdirected jurors during the recharge by effectively telling jurors not to apply the W.(D.) principles to Ms. Frigo’s evidence.

[87] Given that the trial judge effectively instructed the jury not to apply the W.(D.) principles to Ms. Frigo’s evidence, I cannot accede to the Crown submission that given the charge as a whole, which included proper instruction on the principles of reasonable doubt and the rule in R. v. W.(D.), the jury would not have been misled by the recharge. It cannot fairly be inferred that jurors would ignore a specific misdirection and follow instead a general direction.

[88] Moreover, as I have explained, the evidence requiring a W.(D.) direction in this case was found in the Crown’s case. In his general instruction the trial judge directed the jury to apply the W.(D.) principles to the evidence of Mr. Panovski and his witnesses, in other words, to defence evidence. In his recharge he narrowed the application of W.(D.) to Mr. Panovski’s evidence. These general W.(D.) directions were therefore thoroughly incapable of assisting the jury in understanding the need to apply the principles in R. v. W.(D.) to Ms. Frigo’s evidence.

[89] I would therefore give effect to this ground of appeal.

[90] Before moving onto the next ground of appeal, I make one more point. In order to persuade the trial judge to recharge the jury and instruct them not to apply the W.(D.) principles to Ms. Frigo’s testimony, the Crown invoked the principle in R. v. Morin, [1988] 2 S.C.R. 345, affirmed in R. v. Rojas, 2008 SCC 56, at para. 43. According to the principle in R. v. Morin, the standard of proof beyond a reasonable doubt does not apply to individual items of evidence but applies instead to the case as a whole. This principle is undoubtedly correct, but it has no bearing on the assessment of individual items of evidence that, if accurate, would exclude the possibility of guilt. If such evidence raises a reasonable doubt, the accused is entitled to be acquitted. A W.(D.) direction will therefore be required.

B. Was the jury charge inadequate, unbalanced and unfair?

[91] I am persuaded that the trial judge’s charge was inadequate and unbalanced, and therefore unfair. Although there is obvious overlap between the adequacy and balance of the jury charge, it is helpful analytically to treat each consideration in turn.

The Charge Was Inadequate

[92] An adequate jury charge generally includes an explanation in understandable language of the position or theory of the defence and the Crown on the essential issues, and will include a review of the substantial parts of the evidence supporting each party’s position: R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at p. 386; R. v. Newton, at paras. 11, 13; R. v. Minor, 2013 ONCA 557, at paras. 79-82; R. v. Daley, 2007 SCC 53, at para. 54. A failure to explain the positions of the parties and identify the substantial evidence requiring consideration will render a trial unfair, except in simple or short trials where it is unnecessary to give such assistance to jurors: Newton, at paras. 13, 19; R. v. P.J.B., 2012 ONCA 730, at para. 44; R. v. Daley, at para. 54.

[93] However, as is always the case, a functional approach is to be taken on appellate review. The task of the appeal court is to determine whether the impugned jury charge, even if imperfect, adequately fulfills its purpose when viewed in the context of the trial as a whole. Substance prevails over form, with substantial deference being afforded to trial judges relating to how much evidence to review, what structure to use, and how to organize that charge: R. v. P.J.B., at paras. 40-50; R. v. Newton, 2017 ONCA 496, at paras. 11, 13; R. v. Zebedee (2006), 81 O.R. (3d) 583 (C.A.), at para. 109. As Watt J.A. explained in R. v. Huard, 2013 ONCA 650, at para. 73, leave to appeal refused, [2014] S.C.C.A. No. 13:

The obligation is to review the substantial features of the evidence and to relate that evidence to the critical issues in the case so that the jurors will appreciate the value and effect of the evidence.

[94] To discharge these obligations, it is unnecessary for the trial judge to set out all of the evidence, or all of the arguments made. The obligation of the trial judge is to decant and simplify: R. v. Largie, 2010 ONCA 548, at para. 125, leave to appeal refused, [2010] S.C.C.A. No. 460, [2011] S.C.C.A. No. 119.

[95] In my view, even allowing for appropriate deference and respecting the admonition that a charge must decant and simplify, the trial judge did not succeed in reviewing the substantial features of the evidence or in relating it to the critical issues in the case. Two shortcomings in particular drive me to this conclusion.

[96] First, the theory of the defence included heavy reliance on the distinctions between Ms. Frigo’s description of the gunman, and Mr. Panovski’s physical appearance, as well as the discrepancies between Ms. Frigo’s description of the gunman’s motor vehicle, and the motor vehicle that Mr. Panovski was known to have been driving that day. Yet the trial judge did not direct the jury to consider these features of the defence case. Instead he spoke only of the case against Mr. Panovski depending “to some extent” on Ms. Frigo’s testimony. Nor did he recount the descriptions of the gunman and the motor vehicle that Ms. Frigo had provided.

[97] In my view, these were substantial features of the defence case that related to critical issues in the case that should have been reviewed. Without question, where a witness identifies the accused as the person who committed the offence a trial judge is required in their charge to draw to the attention of jurors any specific features of that witness’s description that do not match the appearance of the accused: R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 88; R. v. Mariani, 2007 ONCA 329, at para. 14; R. v. Brown, 2007 ONCA 71, at paras. 17-19. I reject any suggestion in that this same obligation did not apply in this case because Ms. Frigo had not identified Mr. Panovski as the gunman. Put simply, it is a non sequitur to suggest that since discrepancies can weaken an identification, discrepancies between the suspect and the accused will not be substantial when there has been no identification. Ms. Frigo testified that the gunman had features that Mr. Panovski did not have. Ms. Frigo also testified that the gunman’s motor vehicle had features that Mr. Panovski’s motor vehicle did not have. If her evidence was accurate, then Mr. Panovski was not the gunman, and the motor vehicle evidence she provided would assist the defence. Yet the trial judge failed to assist jurors in appreciating the value and effect of this evidence by omitting from his charge a recital of these critical issues, and by failing to recount substantial evidence relating to these issues.

[98] Second, the trial judge’s treatment in his charge of the testimony of Mr. Panovski was thoroughly inadequate. Mr. Panovski testified for approximately two and one-half days, yet the trial judge’s recitation of his testimony was cursory and conclusory, consisting of only six lines of a jury charge that took more than 80 pages to transcribe. The trial judge alerted the jury to Mr. Panovski’s “categorical denial of involvement in these shootings” and his denial of “having a car with the features described by various witnesses”, but Mr. Panovski’s testimony went far beyond this.

[99] Of note, Mr. Panovski provided extensive testimony to counter the Crown’s motive theory. Motive was undoubtedly a critical issue for the Crown, who presented a significant body of evidence of simmering animosity on Mr. Panovski’s part against Mr. Frigo, including a triggering event that allegedly produced devastating consequences for Mr. Panovski – the loss of his bird-dogging career – as well as testimony that Mr. Panovski blamed Mr. Frigo for this and threatened revenge. When directing jurors on the concept of motive, the trial judge did say that in his testimony Mr. Panovski rejected the motive for the offences provided by Mr. Harper, but the trial judge gave no details in his charge about Mr. Panovski’s extensive testimony denying the triggering event, disclaiming animosity towards Mr. Frigo, and repudiating the Crown’s evidence that he had threatened revenge.

[100] In addition, Mr. Panovski’s testimony included evidence that, if believed, would neutralize large swaths of the Crown’s considerable circumstantial case against him. I have recounted much of that evidence in para. 63 above. Yet this evidence went unmentioned when the trial judge was directing the jury on the issues in the case and the evidence it should consider, a point I will return to below.

[101] I am persuaded that as a result of these shortcomings in the jury charge, the trial judge failed “to review the substantial features of the evidence and to relate that evidence to the critical issues in the case so that the jurors will appreciate the value and effect of the evidence”.

[102] I do not share the Crown’s position that, in light of the defence submissions and the trial judge’s recitation of the defence position, the jury charge was adequate. I accept that in deciding what to include in a jury charge, trial judges are entitled to consider the submissions made by the parties, and that summaries by the trial judge of the positions of the parties are relevant in assessing the sufficiency of a charge. However, since trial counsel are advocates, appeal courts should be cautious about placing too much weight on the submissions trial counsel have made in the case, or on summaries of trial counsel’s position that the trial judge has read: R. v. Minor, at paras. 84-88. The positions of counsel are “no substitute for the entitlement of the jury to a trained, authoritative and independent review by the judge of the critical evidence touching the real issues in the case”: R. v. Selbie, 2002 ABCA 58, at para. 3; Minor, at paras. 85, 103. This is particularly so in this case, where the positions of counsel were presented as conclusions and not as summaries of the substantial features of the evidence, and where the trial judge cautioned jurors that in reviewing the positions of counsel he was not stating facts, but was reciting the arguments of the two sides.

The Charge Was Not Balanced

[103] In addition to setting out the relative positions of the parties relating to the essential issues and the substantial parts of the evidence supporting each of their positions, “a jury charge must… be even-handed, the instructions fair and balanced”: R. v. Huard, at para. 69. A trial judge will err where the charge as a whole steers the jury in the Crown’s direction: R. v. Paredes, 2014 ONCA 910, at para 41. Put simply, a charge that has “unduly promoted the case for the Crown and effectively ignored or denigrated the case for the defence” will have been unbalanced, and will have undermined the fairness of the trial: R. v. Baltovich, at para. 113; R. v. Li (2005), 183 C.C.C. (3d) 48 (Ont. C.A.), at para. 42.

[104] To be clear, a trial judge is not obliged to review all of the evidence or to repeat every defence argument to achieve a balanced charge: R. v. Huard, at paras. 70-73. Nor is the trial judge “obliged to spin a web of exculpatory inferences, turning each piece of circumstantial evidence every which way to reveal its every possible inference”: R. v. Stubbs, 2013 ONCA 514, at para. 139. Moreover, the “balance” of a charge cannot be measured by the relative attention or time that is given to inculpatory and exculpatory considerations. “[I]n some cases, evidence that tends to show an accused committed an offence far exceeds the evidence to the contrary”: R. v. Stubbs, at para. 139. Indeed, it will not be uncommon for a balanced charge to contain more inculpatory than exculpatory content: R. v. Speers, 2017 ONCA 333, at para. 26. And in judging the balance of the jury charge, an appellate court must not “divorce the jury charge from the greater context of the trial” and must consider “[t]he comments of counsel during their addresses, including comments on legal issues”: R. v. Pomeroy, 2008 ONCA 521, at paras. 115-117.

[105] However, if a trial judge chooses “to review the Crown’s evidence in substantial detail, the trial judge [is] obliged to provide a similar review of the defence evidence in order to maintain an appropriate balance”: R. v. Li, at para. 42.

[106] I am persuaded, when bearing in mind the caveats that I have just expressed, that the jury charge provided in this case was not balanced. Instead, it unduly promoted the case for the Crown and effectively ignored or denigrated the case for the defence. The trial judge chose to review the Crown case in substantial detail but failed to provide a similar review of the defence evidence. There were sundry other less significant areas of the charge that arguably indicate imbalance, but my conclusions on this issue are based primarily on the cumulative effect of the following considerations:

• The circumstantial case – Based on the Crown submissions, the trial judge provided a detailed summary of the incriminating circumstantial evidence. As indicated, he did so without mention of the extensive testimony Mr. Panovski offered that, if accurate, may have neutralized many of the inculpatory inferences the Crown was inviting (see para. 63 above). Nor did he direct the jury when recounting the circumstantial case to consider other evidence in the case that could have neutralized or weakened other inculpatory inferences (see para. 64 above). There would have been no need for the trial judge to “spin a web of exculpatory inferences” or “turn[ ]… circumstantial evidence every which way to reveal” the inferences the defence was seeking. The exculpatory inferences were a major feature of the defence case and should have warranted the same attention that the inculpatory inferences did, but that attention was not provided.
• The treatment of Ms. Frigo’s identification evidence – There were three features of Ms. Frigo’s eyewitness testimony that may have assisted the defence: (1) the descriptive discrepancies relating to Mr. Panovski; (2) the descriptive discrepancies relating to Mr. Panovski’s vehicle; and (3) the failure to recognize. In my view the trial judge’s treatment of each of these issues was unbalanced:
  • (1) As indicated, the trial judge failed to earmark the descriptive discrepancies as relevant to the defence, nor did he recount them. Instead, he described, as a fact, rather than as an expression of his opinion, that Mr. Panovski’s appearance in September 2014 was “generally consistent with the description given by [Ms. Frigo]”, and that the composite drawing was “generally consistent with Mr. Panovski’s appearance in September of 2014”. At no point did he mention the significant foundation in the evidence that may have inspired jurors to disagree with those claims.
  • (2) The trial judge never mentioned the discrepancies between the vehicle Ms. Frigo described, and Mr. Panovski’s vehicle, which he was known to have been driving on the day of the shooting.
  • (3) The trial judge identified Mr. Panovski’s reliance on Ms.Frigo’s failure to identify him as the gunman. Immediately upon alerting the jury to this issue the trial judge identified numerous factors that would have inhibited her ability to recognize Mr. Panovski. In contrast, he did not direct the jury to consider features of Ms. Frigo’s evidence that could support the defence position that Ms. Frigo had an appreciable opportunity to view the gunman, including the detailed and confident descriptions she offered almost immediately after the shooting, her focus on the gunman as she made her escape, or the dedicated effort she made to identify the motor vehicle. The trial judge also suggested to the jury that Ms. Frigo would have been distracted by the shooting, which was not established in evidence and was arguably contradicted by the strategic decisions she made to take refuge behind a knoll in the road, and to ride towards the gunman’s car in an effort to secure a licence plate number.
• Dismissive messaging relating to the issue of identity – After initially and correctly identifying “the identity of the shooter” as a real issue in the case, the trial judge described the issues on the attempted murder charge as if there was no issue that Mr. Panovski was the gunman (see para. 49 above). Then, when directing the jury on how to resolve the issues of mens rea and actus reus relating to that offence, the trial judge spoke repeatedly about how the jury should proceed in drawing inferences from “Mr. Panovski’s” actions (see paras. 51-52 above). When addressing Ms. Frigo’s description of the shooter the trial judge did not refer to the observations she testified to having made, but instead described her “attempt in all the circumstances which prevailed to describe the shooter”. After reviewing the evidence in the case, the trial judge said that “[t]he real issue in this case that overrides or stands at the top for your consideration, is whether the events alleged to form the basis of the crimes charged ever took place”, an issue that was not in contention. In my view, these features of the charge could only serve to denigrate the importance of Mr. Panovski’s identity defence.
• The treatment of the defence evidence – As indicated, the trial judge gave only a curt and cursory summary of Mr. Panovski’s evidence, making no mention of the specific evidence he gave relating to motive, or his efforts to explain the circumstantial evidence against him. The trial judge then chose to “briefly” “highlight” the other defence evidence. In doing so the trial judge alluded to Mr. Panovski’s sister’s testimony about family concerns in Macedonia, without identifying what those concerns were. This passing reference to family concerns could only have blunted the force of Mr. Panovski’s claim that he relied on these concerns to explain his sudden trip to Macedonia. Rosanna Magnotta was called by the defence to confirm her husband’s retirement from the sport of bird-dogging, which, if true, could add support to Mr. Panovski’s claim that it was Mr. Magnotta’s retirement that inspired his voluntary decision to leave the sport of bird-dogging. But the trial judge did not mention this feature of Ms. Magnotta’s testimony. He simply said that in her testimony Ms. Magnotta described her involvement with dogs. In contrast, the trial judge included in his charge a substantial review of the Crown case against Mr. Panovski, including detailed references to the evidence supporting the Crown’s motive theory.

[107] I am therefore persuaded that the trial judge’s charge was inadequate and unbalanced, and therefore unfair.

C. Did the trial judge err in admitting Ms. Garcia’s non-recognition evidence?

[108] I would find that the trial judge erred in admitting testimony of Ms. Garcia that she had once failed to recognize Mr. Panovski from a photograph that was taken at the time that he and Ms. Frigo would have known each other. The trial judge accepted the Crown’s submission that Ms. Garcia’s failure to recognize Mr. Panovski from a photograph was relevant in explaining why Ms. Frigo may not have recognized Mr. Panovski during the shooting. I see no probative value in this evidence, only the risk of prejudice. It should not have been admitted.

[109] It is important to appreciate that recognition evidence is non-expert lay opinion evidence: R. v. Berhe, 2012 ONCA 716, at para. 13. It reflects that, at the time and in the circumstances in question, the witness formed the subjective conclusion that the person or image that they observed was the individual identified. Evidence of non-recognition, reflecting a witness’s conclusion that they do not believe they know the subject, is also non-expert lay opinion evidence based on a subjective appraisal made in the relevant circumstances. There may be much to be said for the view that one witness’s subjective opinion is of no relevance in demonstrating the reliability of the subjective opinion of another witness.

[110] However, I do not base my decision on that alone. Evidence that Ms. Garcia did not recognize Mr. Panovski from a still photograph taken at an approximate time in the past tells us little or nothing helpful about the accuracy of Ms. Frigo’s opinion arrived at based on dynamic in-person observations of an individual over time, on a different occasion. Yet, given that Ms. Garcia intimately knew Mr. Panovski at the time, her testimony carried the significant risk of prejudice that the jury would reason that if she did not recognize him, how could Ms. Frigo have done so? This is the precise inference the Crown invited the jury to make. In my view, even allowing for the judicial discretion that is owed to assessments of probative value and prejudice, the trial judge erred in admitting this evidence.

[111] To be clear, I take no issue with the admission of the photograph itself. The jury could draw its own relevant conclusions by seeing an authenticated photograph of how Mr. Panovski appeared at the time he and Ms. Frigo traveled in the same circles. Nor do I mean to suggest that independent coincidental identifications of the same individual cannot work together to support an inference that the identified individual was the subject. In those circumstances, if each of the coincidental identifications are reliable on their own, together they can only strengthen the case for identity. The instant point is that Ms. Garcia’s non‑recognition opinion, formed under markedly different circumstances, could tell jurors nothing useful about the accuracy of Ms. Frigo’s non-recognition opinion and should not have been admitted.

D. Should the appeal be dismissed pursuant to the curative proviso?

[112] The Crown argues that the curative proviso in s. 686(1)(b)(iii) should be applied to any legal errors this court may find, because the evidence against Mr. Panovski is “so overwhelming that a reasonable and properly instructed jury would inevitably have convicted”: R. v. Van, 2009 SCC 22, at para. 36. I am not persuaded that the curative proviso should be invoked, and I would not do so.

[113] It is important to bear in mind that the “overwhelming” standard is a “substantially higher one than the requirement that the Crown prove its case ‘beyond a reasonable doubt’”: R. v. Trochym, 2007 SCC 6, at para. 82. This elevated standard is required because the proviso should not be invoked unless doing so is in the interests of justice, and appeal courts should exercise caution before finding it to be in the interests of justice to supplant itself for a jury in “evaluating the strength of the Crown’s case retroactively, without the benefit of hearing the witness’ testimony and experiencing the trial as it unfolded”: Van, at para. 36.

[114] In my view, although the Crown has a case to make against Mr. Panovski, it is not so overwhelming as to inevitably lead to a conviction. It is of considerable importance that the only witness to observe the gunman and to see his motor vehicle at the crime scene described physical characteristics that quite arguably exclude both Mr. Panovski and his motor vehicle from consideration. Moreover, Ms. Frigo knew Mr. Panovski but did not recognize him as the gunman, which is a complication for the Crown case. I appreciate that there may be persuasive reasons to discount this evidence, and that there is an imposing net of circumstantial evidence that could well ensnare Mr. Panovski, as well as evidence that he had motive and opportunity. However, he offers testimony to the contrary that deserves careful and appropriate scrutiny by a jury that is adequately and fairly equipped to do so.

[115] I would therefore deny the application of the proviso in these circumstances, regardless of the charges Mr. Panovski faced. It is not lost on me that, on the first‑degree murder charge, he faces a sentence of life imprisonment with no likely eligibility for parole within his natural lifetime, a charge that the Criminal Code requires be determined by a jury. It is in the interests of justice that a jury having had the benefit of observing the testimony should determine whether to find Mr. Panovski’s guilty.

[116] I would reject the Crown’s request that we apply the curative proviso.

Conclusion

[117] I would therefore allow the appeal, set aside the convictions, and order a new trial.

Released: December 17, 2021 “David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.” “I agree. J.A. Thorburn J.A.”

[^1]: To facilitate the analysis that follows I have added, in round brackets, descriptive names for each item of circumstantial evidence. Those descriptive names are not found in the actual jury charge. [^2]: Mr. Panovski did not say explicitly that he had used the Toyota Corolla that day. He also had a jeep that he had put on the road to use for hunting.