COURT FILE NO.: CR-23-22

DATE: 2024-08-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

Boris Panovski

Accused

Elizabeth Brown and Kelsey Good, Counsel, for the Crown

Margaret Barnes, Counsel for the Accused

HEARD: May 23, 24, 27, 28, 29, 30, 31, June 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, July 2, 3, 4, 5, 8, 9, 10, 11, 12, 15, 16, 17, 18 and 19, 2024

REASONS for judgment

Table of Contents

Background. 2

The Evidence. 3

The Accused’s Partner. 4

Events Prior to the Shooting. 7

The Shooting and the Aftermath. 14

Evidence of Motive. 31

Eva’s Identification of the Shooter. 34

Identification of the Shooter’s Vehicle. 35

Forensic Evidence. 37

After the Fact Conduct 50

The Attempt Murder (now Aggravated Assault) Count 53

The Defence. 53

The Law.. 60

Positions of the Parties. 62

Discussion. 64

Was the Accused at the Scene?. 74

Confirmatory Evidence. 76

Conclusion. 80

Final Thoughts. 80

Background

[1] Boris Panovski, the accused, stands charged with the first-degree murder of Donato Frigo, then 70 years old, (the “deceased”) and the aggravated assault of Eva Willer-Frigo (“Eva”) as the result of a shooting on September 13, 2014 (the “shooting”), at the Hullett Wildlife Management and Conservation Area (“Hullett”) in Huron County.

[2] Eva and the deceased (the “Frigos”), after competing on the last day of a bird-dog trials event at Hullett near Clinton, Ontario, were ambushed and shot by a gunman as they came out of the woods on their horses.

[3] The Frigos had just come through a parking lot on the south side of Conservation Road on horseback and with their dog and were heading west (or left) on Conservation Road when the first two of three shots were fired.

[4] The deceased was struck twice. The first shot struck his face and caused him to come off his horse. The third shot fired at him was the fatal shot delivered to the back of his head, execution style, as he lay on the north side of the road in a ditch.

[5] Eva, after being struck in the face with a shotgun pellet (from the second shot fired) managed to escape on her horse and summon for help.

[6] Shortly after the shooting, police arrested the accused on September 21, 2014, after he voluntarily returned to Toronto from Macedonia.

[7] The first trial, held with a jury in Goderich, Ontario, in 2018, ended with a finding of guilty for the first-degree murder of the deceased and a finding of not guilty to attempted murder but guilty to the lesser and included offence of aggravated assault of Eva.

[8] The accused appealed these convictions, which were later set aside by the Court of Appeal on December 17, 2021, and a new trial was ordered.

[9] The matter was remitted back to the Goderich assignment court in early 2022, and, after a series of appearances, administratively transferred to St. Thomas, Ontario.

[10] Several pre-trial applications were heard and decided in early 2024.

[11] Six weeks before trial, the accused fired his counsel (who conducted the first trial) and new counsel was designated and came on record.

[12] At the pre-hearing conference for this trial, the accused requested, and the Attorney General consented to, an order, under s. 473 of the Criminal Code, R.S.C., 1985, c. C-46, that this matter be tried without a jury and by a judge alone of the Superior Court of Ontario.

[13] Let me state the obvious at the outset. There can be little doubt that the deceased was murdered, and that the shooter intended to kill the deceased. That said, this case deals with the identity of the shooter.

[14] This is primarily a circumstantial case. Eye- witness evidence coupled with evidence of motive and opportunity as set out in both pre-offence and post-offence conduct.

[15] R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, instructs me that in these circumstances, and when drawing reasonable inferences as to the accused’s guilt, I must not do so unless guilt is the only reasonable inference available from the evidence I accept (paras. 20 and 30). I must consider other plausible theories and other reasonable possibilities inconsistent with guilt as long as they are grounded in logic and experience and not in speculation: Villaroman, at para. 37.

[16] It is against this background that I now turn to examine the evidence heard at the second trial.

The Evidence

[17] Rather than engage in a chronological witness-by-witness recitation of the testimony or the Agreed Statements of Fact (“ASF”) of each of the more than 40 Crown witnesses, I will group the evidence heard into the following categories:

(1) the accused’s partner,

(2) events prior to the shooting,

(3) the shooting and the aftermath,

(4) evidence of motive,

(5) Eva’s identification of the shooter,

(6) identification of the shooter’s vehicle,

(7) the accused’s after the fact conduct,

(8) forensic evidence; and

(9) confirmatory evidence of the accused’s presence at the scene.

[18] I note that given the lapse of time between the events of September 13, 2014, and this second trial, many witnesses, and understandably so, struggled to recall the events that day or leading up to or after the shooting with specificity.

[19] Many witnesses had to refer to their notes, statements or earlier trial or preliminary hearing (“PH”) testimony. This was a factor I considered when assessing lapses in memory or inconsistencies, both internally and with other witnesses, in assessing both credibility and reliability.

[20] Where I list a summary of relevant evidence under each category, I have done so after carefully listening to and observing the witness and accepting as credible and reliable the evidence referred to or the facts as outlined in the ASF.

[21] Where I chose to place some emphasis on or no or less reliance upon certain portions of evidence or specific witnesses, I will explain at that time my reasons for doing so.

The Accused’s Partner

[22] I begin with the evidence of Jessica Garcia (“Jessica”), 54 years old, the accused’s girlfriend at the time of the shooting. I do so because she appeared to spend more time with and have more knowledge of the accused than any other witness leading up to the shooting. She was in the best position of all identification witnesses to assist me with how the accused presented on the day of the shooting.

[23] She met the accused in June 2011, and they began dating shortly thereafter. They lived together in the accused’s 750 Morningside Avenue apartment in Scarborough, Ontario (the “Morningside apartment”), from February 2013 through to June 2014 (when he asked her to move out due to financial pressures and she readily agreed). However, they continued their relationship. After June 2014, Jessica moved back in with her sister in North York, Ontario, and was living there on the day of the shooting.

[24] She agreed that the accused’s reason for asking her to move out made sense and that she had never intended to live with the accused for as long as she did.

[25] They saw each other daily when living together and every weekend thereafter. She would usually attend at his apartment every Friday night and stay over until Sunday evening or Monday morning.

[26] On Friday, September 5, 2014, after the bus dropped her off at a gas station near his apartment, she noticed that he had changed his license plate on his 1998 Toyota Corolla from his vanity plates that read “2 NAT CH” to standard issue plates.

[27] When she asked him why he changed the plates, he explained that he “just wanted to do it.” She later noticed the old plates framed and hung up on his living room wall.

[28] On the following Friday, September 12, 2014, she recalled being in his apartment that evening when she noticed him on his computer looking at Facebook and visiting the American Field website, neither of which were unusual for the accused. She testified he was often on his computer and often on Facebook and American Field and Region 13 Field Trials sites.

[29] The next morning, Saturday, September 13, 2014, the accused told Jessica he was going geese hunting and drove Jessica to her sister’s arriving there around 12:20 p.m. (and having earlier loaded his shotgun into his Toyota Corolla). Jessica helped him load a black garbage bag into his car that she believed contained a long camouflage raincoat (although she never looked inside this garbage bag).

[30] She described this raincoat as one piece and ankle length. And when shown a picture of camouflage coats in the accused’s apartment closet she could not identify that exact coat and was not familiar with those coats shown in the photograph, describing the coats seen in the closet as thick coats and not the raincoat style coat she was referring to.

[31] I pause at this point to indicate that given Jessica did not look in the garbage bag and given that the coat seized by police and filed in evidence bears little resemblance to the coat described by Jessica, I place no weight on this part of her evidence.

[32] She also noticed that morning for the first time that the side windows of his Toyota Corolla were now tinted and that they had been clear the previous weekend. He explained to her that he just wanted to do this, that is, tint his windows. Jessica agreed that he had planned to do this months earlier in 2014.

[33] She recalled that his shotgun had broken earlier in July 2014, and she accompanied him to a gun repair shop that fixed it. She recalled firing this shotgun herself sometime near the beginning of or shortly before July 2014 and agreed that it was not firing properly and needed to be repaired.

[34] She testified that around the summer of 2014 the accused often felt unwell, complaining of terrible headaches, and having difficulty breathing. She recalled him seeing a doctor sometime near September 8, 2014.

[35] She described him as being 5’6” tall, rotund and having a round belly at this time. He complained to her that he was eating too much. He also sported a goatee during the first half of September 2014 and was dying the colour of his hair and goatee at that time.

[36] She agreed that the accused was very proud of winning two national bird dog championships and that he had various mugs, photographs, plates and a blanket of these events and the championship dog.

[37] She often helped him with his English spelling (as his first language was Macedonian) when he was sending emails and recalled writing Facebook posts for him on two occasions.

[38] Going forward, I accept and find as facts from Jessica’s evidence that:

(1) the accused switched plates and tinted the windows of his 1998 Toyota Corolla in the days and weeks leading up to the shooting;

(2) was shorter than 5’6”;

(3) complained of being unwell at the time of the shooting and sought medical attention in the week leading up to the shooting;

(4) had a belly and a goatee at the time of the shooting;

(5) left her apartment at 12:20 p.m. the day of the shooting after telling her he was going geese hunting and after putting his shotgun in his Toyota Corolla;

(6) wore jeans and a long-sleeve khaki shirt when he left and returned to her apartment at 8:25 p.m. that same evening dressed in the same clothing;

(7) told Jessica earlier that year in January 2014 that his sister in Macedonia was sick and that he had planned to go visit her;

(8) Jessica was still shocked to learn, roughly five hours before his flight departed, that he was leaving that evening for Macedonia for a few months; and

(9) while in Macedonia, the accused called Jessica and spoke with her about the land he was hoping to sell in Macedonia before returning to Canada where he wanted to live.

Events Prior to the Shooting

[39] The Crown relies on a series of events leading up to the shooting that they say permit me to reasonably infer that the accused was the shooter.

[40] Payman Afshar (“Payman”), a sales and services broker with Grey Power Insurance, reviewed a March 31, 2014 call with the accused during which the accused suspended his insurance road coverage on his Jeep for the summer.

[41] Payman acknowledged that suspending road coverage on winter or second vehicles was quite common amongst seniors and resulted in hundreds of dollars in savings and that this coverage could be reinstated at anytime, subject to a penalty if done less than 45 days later.

[42] Victoria Mitchell, also with Grey Power Insurance, reviewed a September 5, 2014 call with the accused where he asked her to return the earlier suspended coverage for his Jeep which she did and made effective for 1:00 p.m. that same day at an incremental additional cost of $62 for the remainder of the policy term.

[43] The accused acquired a Migratory Game Bird Hunting permit for 2014 on September 11, 2014 (as he had done often in the years prior, including 2012 and 2013). The permit listed Stouffville, Ontario, as a nearby hunting location.

[44] John Grech (“John”), a gunsmith by trade, operated Grech Outdoors in 2014 and recalled the accused and Jessica visiting his store on July 26, 2014, for some warranty repair work on a Mossberg Silver Reserve 20-guage shotgun (the “shotgun”) that was double-firing.

[45] John performed the necessary repair on the spot by putting a lighter trigger spring in place and then test-firing the shotgun 20 times to ensure it worked properly. He recalled a brief conversation with the accused about hunting dogs.

[46] He explained that this shotgun could only fire 3” or 2¾” mags and required 20-guage ammunition as anything smaller would not fire and anything bigger would not fit in the chamber.

[47] He confirmed that one bullet at a time can be fired, two bullets at a time can be loaded and that the time in between shots is as short as the time it takes to pull the trigger twice. He estimated no more than 15 seconds to fire twice, empty the hulls and re-load.

[48] I pause to note that I rely on John’s evidence to find as facts and confirm that:

(1) the accused possessed a Mossberg Silver Reserve 20-guage shotgun that was in proper working order as of July 26, 2014; and

(2) the shotgun required 20-guage ammunition and was capable of firing two shots in the time it took to pull the trigger twice and required roughly 15 seconds to re-load.

[49] Zorica Panovski is married to the accused’s son Toni Panovski and is the mother of the accused’s grandson Michael Panovski. She had enjoyed a decent relationship with the accused in the early years when the accused would spend time with her family outdoors with the dogs and attending dog trials but has been estranged from the accused since he left his wife roughly 15 years ago.

[50] She recalled one time in the summer of 2014, roughly a week before the shooting, that while she was in the shower, the accused appeared in her driveway in Cookstown in his Jeep and left some dog training equipment at the end of the driveway for her son Michael. This was unusual to her as they had stopped communicating for some time.

[51] She confirmed that her husband Toni worked for the deceased’s construction company for almost 20 years.

[52] Michael Panovski (“Michael” or “Mike”), born January 12, 1991, described a good relationship with the accused, his grandfather, and fondly recalled times as a child when they spent lots of time together training dogs. Several times Michael would accompany his father Toni and his grandfather to Hullett for competitions.

[53] Michael’s time training dogs and his good relationship with the accused abruptly changed after 2005 when the accused parted ways with Gabe Magnotta (“Gabe”). The accused and Gabe sold off the dogs. Michael believed this was related to incidents that occurred earlier that year in Waynesboro, Georgia.

[54] Michael recalled everything changing one day when his mother told him not to speak to the accused anymore due to an incident between his grandfather and his grandmother.

[55] Michael recalled three or four times after his mother told him to stay away that he still got together with his grandfather, including to train dogs and on the final occasion, to meet him at his Morningside Avenue apartment in Scarborough for lunch, perhaps in the spring of 2014, several months before the shooting.

[56] Michael went to the Morningside apartment that day to pick up electric dog collars for puppy training and had intended on a short visit and not staying for lunch. He did, however, sit at the dining room table for awhile.

[57] When shown several photographs of the accused’s car Michael did not think that was it, nor did he recognize the accused’s car.

[58] He recalled that when he arrived that morning, a confrontation ensued with a tenant who screamed at Michael based on where he parked his car. The accused intervened and this led to a shouting match between the accused and the tenant. Michael could not recall this shouting match spilling into the lobby or the intervention of the building superintendent.

[59] Michael testified that as he and the accused sat at the dining room table, the accused aggressively asked Michael about where Michael can find a gun and to get him a gun.

[60] He described the accused’s behaviour that day as angry and confused and watched him throwing his arms up in the air, yelling and pacing in the kitchen claiming he was God’s child and insisting he did not want Michael to be involved.

[61] When Michael told him he could not get him a gun and asked the accused what the gun was for, the accused told him “To kill somebody.” Michael agreed he had no idea who the accused wanted to kill and did not know if he was referring to the neighbor who he had argued with earlier that morning.

[62] Michael also accepted that the accused already had a shotgun and kept another shotgun he had won at an earlier shooting championship at his parents’ house.

[63] Michael corrected an earlier misstatement he made to police when he initially told police that the accused asked him to “steal” a gun and now clarified that he asked him to “get” a gun.

[64] Finding the accused’s behaviour scary and abnormal that day, Michael got up and left and believed that was the last time he saw the accused.

[65] Michael recalled seeing the accused’s early 90’s (or late 80’s) teal Camry (that he earlier failed to recognize) and black Jeep parked outside the apartment building that day.

[66] Michael was familiar with the deceased as his father worked for his construction company for most of Michael’s life and Michael house-sat for the Frigos at their home on Airport Road when they went on vacation.

[67] He agreed that the Frigos had been nervous about people breaking into their farm property and started keeping a baseball bat behind a door and a gun behind a cabinet in the dining room which was not properly stored or locked-up.

[68] Michael recalled a time during the summer of 2014, a few weeks before the Hullett dog trials in September, when he drove to his cousin Elizabeth’s house, located minutes down the road on Airport Road from the Frigos’ house. While driving southbound, he recognized the accused drive by him in the opposite direction (northbound) in his Jeep at a point in between the Frigos’ house and Elizabeth’s house.

[69] He later clarified that the date of this observation of the accused in his Jeep on Airport Road may have been closer to September 8, 2014, which was the same day the accused dropped off dog training equipment at the end of his driveway (which he learned of from his mother’s parents).

[70] Michael agreed he never asked the accused what happened in Georgia in 2005 and got all this information second-hand from his father Toni.

[71] Michael acknowledged that he was friends with Warren Harper in 2014 and has always had a very close relationship with his father Toni.

[72] I pause here to observe that Michael appeared confused about much of his evidence, including where the deceased lived at the time of the shooting, who ran the Spring 2014 field trials at Hullett and when he saw the accused on Airport Road. I will note further points of confusion later when I deal with his observations at Hullett immediately after the shooting.

[73] Michael’s description of the behaviour of the accused on the day the accused told him to get him a gun seems out of character from the behaviour of the accused as described by others.

[74] I accept and find as a fact that the accused told him, in a state of rage, to get him a gun so that he could shoot someone. I also accept that the accused did not disclose who he wanted to shoot or why he needed his grandson to get him a gun when he already had one.

[75] Farmer Dale Reesor (“Dale”), a friend of the accused, described how he met the accused in 2004 at his Steeles Avenue farm where the accused would use his farm fields to run, train and house his dogs.

[76] They struck an arrangement where the accused built a small kennel in a vacant outbuilding and kept his dogs there over the next nine years. The accused, who paid a small amount of cash for this arrangement, would visit the farm daily to feed and care for the dogs and Dale was fascinated with the skill the accused showed in training these dogs for bird-dog trials.

[77] Over those nine years the accused became a trusted close friend and barber to Dale and his family and would often look after farm animals or the property of the Reesor’s when they went away.

[78] Things changed in 2013 after the accused sold the remaining dogs and did not come around as much anymore.

[79] Dale was aware of the accused’s involvement in the bird-dog trials world and how proud the accused was of his two national championships. This was Dale’s primary exposure to the bird-dog world and Dale recalled that the accused had retired from bird-dog competitions just before he met Dale.

[80] He remembered the accused selling an incredible dog named Wayne Gretzky to someone from New York for around $5,000.

[81] He described conversations with the accused roughly a year before the shooting where the accused (who was protective of his dogs after winning the championships) felt threatened or concerned about some people in the bird-dog trials world that were after him for his success. He agreed that this conversation took on a different flavour after Dale became aware the accused was wanted for murder and that his concerns about these earlier threats were now heightened.

[82] He thought that being protective of these dogs was normal and something Dale would have done himself in similar circumstances.

[83] I pause briefly here to say that I have some difficulty connecting this perceived fear held by the accused towards others in the bird-dog world to either a motive to kill the deceased or to confirming the accused as the shooter.

[84] Dale recalled a haircut he had on September 2, 2014, when he met the accused at a Markham Road barber shop. Dale testified that the accused was not feeling well that day (and had not felt well for awhile) and appeared like he needed to be seen by a doctor.

[85] Dale knew the accused to have at least one gun at the time of the shooting.

[86] Dale felt humbled and grateful that the accused still came into the barbershop to cut his hair that day. Dale, 5’8” or 5’9”, described the accused as not taller than but shorter than he was.

[87] Dale’s son Thomas, 19 years old at the time of the shooting, also fondly recalled the accused as a generous and kind family friend. Thomas never heard the accused complain about, speak ill of or express hatred towards others, although he did tell Thomas that Thomas had to be careful with some people.

[88] In 2014, Thomas recalled the accused to have a goatee (brown in colour). Not surprisingly, Thomas struggled to recall with specificity many of the events of 2014, even after many opportunities to review his earlier statements.

[89] Jeffrey Gibson (“Jeff”) recalled visiting his family farm off Front Road near Hullett on the afternoon of September 13, 2014, the day of the shooting.

[90] While driving north up a hill on Front Road to the front entrance to the family farm between 2:30 p.m. and 2:40 p.m., he noticed someone standing at the trunk of a vehicle parked half in and half out of the entrance to the property and facing north.

[91] The male person standing by the trunk had their hand on the side of their face and Jeff noticed the person wore brown sideburns that were short on the side (mid-ear length) and had white tanned skin. He quickly passed the vehicle and proceeded to the family home.

[92] He estimated he was as close as five to six feet away from this person and the vehicle when he drove by, and that the vehicle was about 150 metres from the family farmhouse.

[93] After sharing this story with his father, and his father being weary of people previously dumping garbage or hunting on their property, Jeff and his dad jumped in his father’s truck and went out to take a further look.

[94] During the second pass by of the vehicle, Jeff (now seated in the front passenger seat) saw the same person hunched over the passenger seat on the field side of where the same vehicle was still parked.

[95] After a short drive down Front Road, Jeff and his dad turned around and did a third pass by of the same vehicle. As they approached, Jeff observed the same person to again be standing at the trunk of the vehicle and then make his way to and enter the vehicle through the driver’s door of the vehicle.

[96] Jeff described the clothing worn by the person as a knitted green toque with vertical lines sitting just below the top of the ear and folded (and without any branding or stitching), sweater, blue jeans, and a long (half-way between the knees and ankles) camouflage coat.

[97] He estimated the male to be 5’10” (and was confident with this estimate and the fact that this person was not short) and weighed between 190-200 lbs.

[98] The male observed was clean shaven, fit, and in his late 30’s or 40’s. His hands did not look old or weathered and he observed a piece of cloth or fabric in his hand. He noticed brown sideburns and a buzz cut.

[99] He described the vehicle the male was next to and eventually in (after searching the Internet with the help of police) as a 1999 Green Toyota Corolla with dark tinted windows and in good condition with no rust.

[100] He could not see through the tint to see the driver but explained that he is aware that tint reacts to sunlight and causes glare which may have been the reason why he could not see inside the vehicle. He did not see an emblem on the back of the car.

[101] Jeff was unable to see inside the trunk of this vehicle and unable to see through the windshield to the back of the car. He did not see a firearm.

[102] The day after the shooting, he noticed garbage where this car had parked and notified police.

[103] I pause briefly to comment on what an impressive witness Jeff was. He had an outstanding recall of events and gave clear, concise, and detailed evidence of his observations that day.

[104] When it comes to identifying the accused, his descriptions of the car the male drove, the clothing the male wore, including blue jeans and a long camo coat bore an uncanny resemblance to the camo coat seized from the accused’s apartment and to much of the clothing observed by Jessica when he left her earlier that day.

[105] His description of the green hat with the vertical lines is also very similar to the green hat seized from the camo coat pocket of the accused.

[106] His description of the vehicle is also remarkably like the accused’s Toyota Corolla.

[107] His description of the age, height and clean-shaven face of the male do not match the accused.

[108] I am mindful that the person seen by Jeff used a cloth and his hand to cover his face, wore a hat that covered much of his hair and a long camo coat. Jeff’s observations came from sitting in a Suburban and looking down onto the road.

[109] I will have more to say about Jeff’s evidence later.

[110] Matthew Haggis (“Matthew”) was responsible for posting much of the content of the Region 13 website known as the Region 13 Field Trials News. He posted many of the photographs and agreed that anyone could access this website and its contents. This website stopped being updated in 2013.

[111] Matthew agreed that he also maintained a Facebook page with a banner picture of his own championship dog named Mae and that he was very proud of this accomplishment.

[112] He agreed that while several people who acquire a dog from a previous owner keep the dog’s name, many others change the name to a name of their choosing.

[113] He readily acknowledged how expensive bird-dogging can be and how lots of bird-dogging activity happens on Facebook such as selling dogs and advertising upcoming events and posting previous winners.

[114] Like others, he agreed that it is a big deal to win a national championship and it is considered prestigious in the field dog world.

[115] Against this backdrop, I now turn my attention to the shooting.

The Shooting and the Aftermath

[116] Eva, who met the deceased through the field trial world and later married the deceased in January 2011, recalled attending and competing at the fall 2014 field trials at Hullett and staying behind on the Saturday (September 13, 2014) with the deceased to train their dogs.

[117] She and the deceased brought their pick-up trucks along with trailers, horses and dogs to this event and recalled that it rained on that Saturday.

[118] Jeff and Matthew Haggis were hosting this event.

[119] Eva had last seen the accused roughly eight years ago in 2006 at her father’s funeral and remembered him as having grey hair at that time.

[120] I pause to note that several photographs filed show the accused as having grey hair around that time and looking somewhat different than he did in 2014 at the time of the shooting.

[121] She recalled a dinner in Blyth on the evening before the shooting (September 12, 2014) and remembered the deceased leaving the table for an extended time (maybe 30 minutes) to take a call and agreed that the deceased would often keep his work and personal lives separate.

[122] She recalled two training runs that Saturday afternoon on September 13, 2024, both following the same route as the earlier field trials.

[123] During the first run, the deceased encountered some difficulties with his horse and turned back and walked his horse back towards the main area where everyone gathers and parks their trucks and trailers.

[124] Eva finished the course and met the deceased in parking lot 40589 where he was waiting in his truck.

[125] They returned to the main area or campground to prepare for a second run with a different dog and followed the same route that eventually ended up in the same parking lot.

[126] On this second run, Eva now noticed a car backed in and parked on the left side (her left) of parking lot 40589.

[127] She and the deceased exited the parking lot and turned left to go down the road when Eva heard a shot that struck the deceased in his head. The deceased yelled “My head, my head.”

[128] A few seconds later Eva heard, and felt, a second shot which felt like a sting on the left side of her face. She swung her horse around and while looking over her shoulder and trying to get away saw a male in the bush now running back towards the car in the parking lot. She had but a few seconds to observe this male.

[129] She next reluctantly rode her horse over the hill, not wanting to leave the deceased but needing to hide for her own safety, so that she could still observe the vehicle when it exited the lot and hopefully catch its plate number. Once safely hidden behind a knoll, she tried desperately to get the plate of the vehicle but could not do so.

[130] She saw the car exit the parking lot, turn left, pull up next to where the deceased lay on the side of the road, someone from the vehicle produced a second brown gun with the barrel protruding from the passenger window and fired a shot at the deceased as he lay on the ground in the ditch on the north side of Conservation Road.

[131] The vehicle then quickly left. She returned to where the deceased lay. He was not moving. Fearing for her safety and not wanting to see the deceased’s injuries, she grabbed the deceased’s horse and dog and fled, riding parallel to the road, in a state of shock, until she reached the campground where Jeff Haggis helped her off her horse. She recalled little else thereafter until her persistent and painful dental surgery at the hospital to remove the steel pellet from her face.

[132] She worked with a police sketch artist Duncan Way to draw a sketch of the back of the vehicle she had earlier observed with the aid of her memory and computer searches, as well as a composite sketch of the shooter and a diagram of the pattern of the camo she observed on the coat of the shooter.

[133] She was shown a series of text messages between her and Detective Phil Hordijk (commencing in September 2016 up to 2024) and explained that since the shooting her life has been turned upside down, that she constantly is looking over her shoulder and grew to trust and depend on this officer to keep her at an even level. They texted often and spoke from time to time.

[134] She considered Det. Hordijk a friend. She conversed with the officer about the accused’s son Toni and some of Toni’s actions that she found strange and odd and her frustrations with ongoing civil estate matters.

[135] She recalled text messages from Det. Hordijk referring to the accused “rotting in jail” and agreed that from as early as September 17, 2014, the officer was suggesting to her that this shooting may be connected to the field dog world, which Eva initially questioned and rejected, and found hard to believe.

[136] Eva agreed that Toni stopped working for the deceased in the summer of 2014 a few months before the shooting. She also agreed that she believed at the time of the shooting others were angry because she and the deceased were planning to start a subsidiary company to work in conjunction with the deceased’s construction company.

[137] She acknowledged that she had reached out to the Caledon OPP months prior to the shooting to complain about trespassers on their farm and told police about a businessperson who was chasing the deceased for money.

[138] She did not recall Mike Panovski sleeping in their trailer on the evening prior to the shooting nor ever asking Mike to stay over at the farm when they were away.

[139] I will have more to say about Eva’s evidence when I arrive at the all-important evidence regarding her description of the shooter and the shooter’s vehicle.

[140] I will simply indicate at this time that she agonized over her testimony and gave every ounce of effort to be accurate and forthright and honest. She struggled to remember and carefully explained why she struggled with those memories.

[141] Michael Panovski testified that he was at Hullett at the time of the shooting. He was helping the deceased and Eva who were the main organizers for the Open Shooting Dog Championships held that weekend.

[142] Michael testified that he slept overnight in the Frigos’ black trailer on the night of September 12, 2014 (a claim that runs contrary to Eva’s testimony but carries little evidentiary value) and remained behind on September 13, 2014, after the competition ended along with Matthew and Jeff Haggis and Dan Long to run his dogs.

[143] Later that afternoon he returned to the Trials Staging area or HQ when the deceased and Eva approached him about riding Eva’s horse to calm it down. He did so briefly. Eva next inquired if Michael would go riding with the deceased but Michael declined. Then the deceased, Eva and their dog rode off.

[144] Eva returned a short time later coming in from the right of the trailer and the nearby trees. She was flailing her arms and was covered in blood. The deceased’s horse and the dog were both tied to her horse. Michael testified that one of the horses was full of pellets (also a claim that was later proven untrue but also of little evidentiary value).

[145] Michael and the other three males (Jeff and Matthew Haggis and Dan Long) helped remove Eva from her horse. He saw blood and pellets on Eva’s face and noticed her gums and cheeks were bleeding and there was blood under her neck.

[146] Eva had a look of fear in her face and appeared to be in shock. She tried to get into her vehicle to flee but was restrained by Michael in a chair bear-hug style. He tried calming her down and felt that the way he was restraining her helped to calm her. Others called police and an ambulance soon arrived.

[147] Earlier on that same day (September 13, 2014) Michael recalled seeing a vehicle pass while he was returning to HQ after training his dogs in a field just off Conservation Road. He was about 30 yards from a row of hedges that line the road but was able to see the vehicle through a break in the hedges.

[148] He described the vehicle as having mirrored windows and being baby-blue or possibly green in colour. The vehicle was heading east towards the dead-end area of Conservation Road.

[149] A few hours later when back at the Trials Staging or HQ area, he observed the same car heading west back towards the Trials Staging area and described the vehicle as being the same colour and having the same tinted windows. He only caught a side view of the vehicle.

[150] Michael also recalled a series of gunshots earlier that day in the late afternoon that stood out to him while he was at the Trials Staging or HQ area. He agreed that he had never shared this information with police in the past.

[151] He testified that he stood 5’6” and that the accused was shorter. He described the accused as an experienced hunter who was experienced in the handling and storage of firearms and in the need to have a license to acquire firearms.

[152] Prior to speaking with police, Michael had received general information from Eva about what had occurred earlier with the shooting and had chatted with both the Haggises and Dan Long while they waited to speak with police.

[153] Jeffrey Haggis (“Jeff”), 65 years old, has been a life-long bird-dog amateur trainer and competitor. He knows Hullett very well. He organized and attended the Fall 2014 trials in September at Hullett.

[154] He acknowledged the significance of winning a National Championship (and that when the accused did so in 2005 it was the first time an English Setter had won this award in 35 years) and the prestige that goes along with this.

[155] He described that some of the trials required the dogs to travel east on Conservation Road through crop fields and trails and towards the swampy areas that the Bird Dog Association arranged to have mowed. He agreed that the trials took place on both the north and south side of Conservation Road along strips where the dogs could run, including near the water area referred to as Cedar Swamp.

[156] He identified lot 40589 as a main crossing for the trials and a good viewing point for spectators. Jeff recalled erecting signs along Hydro Line Road warning drivers “Caution-Dogs and Horses.” He later agreed that these signs also referenced “Field Trials.”

[157] The weather on the last day of the trials, September 13, 2014, was cloudy and rainy in the morning with the trials concluding around 11:00 a.m. He and his son Matt along with the deceased, Eva, Michael Panovski and Dan Long all stayed behind.

[158] After leaving late morning to go to a nearby hotel to shower, warm up, dry off and rest, he and his son Matt returned to the staging area or HQ at Hullett around 4:00 p.m.-4:30 p.m.

[159] After doing some paperwork in his truck and seeing Dan Long arrive, he joined Dan in Dan’s truck and soon noticed Eva riding in on her horse and leading the deceased’s horse and dog which he thought was odd.

[160] As Eva got closer, it became obvious to him that something was wrong: she looked frantic, had blood coming down by the corner of her mouth on the left side of her face and appeared to be in shock.

[161] Jeff quickly helped Eva get off her horse and brought her over to her trailer to sit down. Eva wanted to leave and drive away but he would not let her as she was in no condition to drive.

[162] He directed his son Matthew to call 911 for an ambulance. After further conversation with Eva, Jeff became concerned for his safety and the safety of his son. He drove up to the nearby Conservation Road to pick up Matthew who had gone up there to call 911 as the cell signal was better on the road than at the staging area.

[163] He recalled both the accused and the deceased participating in many past trials at Hullett and recalled the accused attending and competing in the early 2000’s and then stopping due to an incident in Georgia that led to the sale of some of the accused’s dogs. He believed that the staging area and the trial routes remained consistent over the years.

[164] He remembered that the accused came to Hullett a few times after he stopped competing to try and sell some dogs. When Gabe Magnotta stopped his involvement in field trials after becoming ill, the accused also stopped competing.

[165] Jeff’s son Matthew, 34 years old, also testified about events on the day of the shooting. He grew up in the bird-dog world.

[166] After returning to the staging area with his dad around 4:00 p.m.-4:30 p.m. that day, Matthew recalled hearing two gunshots (in quick succession) coming from the east end of Conservation Road. He found it unusual to hear shots from that direction because this was not an area where the geese usually are. He could hear buckshot hitting trees after the first two shots. Roughly a minute later he heard a third gunshot.

[167] Roughly 10 to 15 minutes later, he recalled his dad frantically running towards Eva who was on her horse at the staging area and looking distraught and terrified, with her hands flailing in the air and her mouth wide-open. She was in an obvious state of shock. His father yelled at him to call 911 and he did so, first for ambulance and later for police.

[168] Matthew identified an area where geese hunting occurs to the right of lot 80910 and agreed that the body of water or swamp to the south of this lot is where he would expect geese hunters to be.

[169] Police Constable Armstrong was the first officer on scene, dispatched at 5:19 p.m., arriving at 5:32 p.m. and immediately taking up a security perimeter at the intersection of Conservation Road near Wildlife Line, roughly 500 meters from where the deceased lay until he could confirm if the shooter was still present.

[170] He quickly decided he needed to secure the scene and made his way down the Conservation Road to determine if the deceased was still alive. Slightly more than 400 metres down the Conservation Road on the north side of the road, he came across the lifeless body of the deceased with significant trauma to the left back side of the head.

[171] He observed a dark cap laying in the south tire track of the dirt and gravel road, three large paths of fresh winding blood on the road, fresh horse hoof marks, and vehicle acceleration marks near both the deceased and in front of the nearby parking lot.

[172] He secured the scene, ensured that neither he nor others interfered with anything on scene, moved his vehicle adjacent to the scene and remained until EMS arrived, and then later the Tactical Response Unit. Many hours later, he eventually left the scene early the following morning.

[173] Officer Armstrong was an excellent witness and is to be commended for his bravery and fast action given events that had occurred a few days prior in another province that reasonably led him to believe he may be walking into an ambush. His testimony was clear, concise and unchallenged.

[174] I accept his evidence that motor vehicle acceleration marks were observed near the deceased and near the parking lot.

[175] Police Constable Amanda Maure, on duty for only her second day as an officer, arrived at the intersection of Conservation Road and Wildlife Line shortly after PC Armstrong (along with her coach officer) and was quickly instructed to head down Conservation Road towards a little mud road and retrieve Eva, who was sitting on a lawn chair outside a black pick-up truck and being attended to by EMS paramedics.

[176] She observed Eva to be wearing an oxygen mask on her face, have blood on her face and hands and to be hyperventilating. Eva quickly grabbed hold of the officer’s hand and was trying to tell her stuff about the shooting. Eva appeared amped up and in shock.

[177] Police Constable Maure accompanied the ambulance and Eva to the nearby emergency department at the Clinton hospital where Dr. Thomas Drake, both an ER doctor and a dentist, treated Eva.

[178] The officer remained with Eva over the next several hours during multiple X-rays and “poking and prodding” by the dentist and ER doctor to locate and successfully remove buckshot or a shotgun pellet and a damaged tooth. She remained at the hospital until early the following morning.

[179] She could not be sure where the pellet was lodged in Eva’s face and described Eva as panicking, terrified, shaking, wide-eyed and red-eyed. Eva was blurting things out but was easy to understand.

[180] When made aware at the hospital that her husband had died, Eva was very upset and heartbroken but calmed down once she knew that someone had been with him and had stayed with him.

[181] This officer also stood out to me as an excellent witness. She was exceptionally brave on only her second shift, wonderfully compassionate and an excellent historian of what she observed on that day.

[182] Along with a host of others who saw Eva after the shooting, I accept her evidence and find as a fact that Eva was understandably and obviously in shock. Eva was traumatized, scared, angry, helpless, desperate to know who shot her and executed her husband. I will have more to say about Eva’s testimony later.

[183] Three young men were goose hunting at Hullett on September 13, 2014: Josh McLeod, Jason Bayne and Matthew Black.

[184] Josh and Jason arrived at Hullett together in Jason’s truck. Matthew driving his father’s truck, followed shortly thereafter. After checking out various locations, they arrived at parking lot 80754, with Jason arriving first and Matthew following a few minutes later.

[185] When driving into lot 80754, Josh, seated in Jason’s front passenger seat, observed a small, early 90’s, 4-door, blue Toyota Corolla, or Camry, similar to one owned by a friend and parked at a funny angle (not 90 degrees).

[186] The Toyota had backed into the spot and Jason also backed into the adjacent spot with both vehicles facing north and the side windows of the two vehicles lining up closely and directly.

[187] The Toyota had a single occupant driver, tinted windows, and a sticker in the back window. The driver was wearing a camouflage coat with the hood up. The colouring of the coat was “old school” reflecting large patches of brown, green and dark brown.

[188] Josh agreed that he did not get a good look into the Toyota and could not say if there was a second occupant.

[189] The Toyota left the lot almost instantly after Josh and Jason arrived around 3:30 p.m. and headed south on Wildlife Line.

[190] Josh observed the same Toyota again heading northbound on Wildlife Line as Josh was getting his hunting gear ready. He explained that he could see the road all the way back from the parking lot and had a “straight shot” sightline to the road.

[191] Although he saw the front of the car, Josh did not see the Toyota insignia but was familiar with the headlights and the grill style and agreed it could have been a Nissan but said that was “not likely.” He acknowledged that he was not really paying much attention to the car at that time.

[192] While hunting nearby in an area known as Cedar Swamp, Josh recalled hearing a cluster of three gunshots around 5:00 p.m. that sounded closer than shots heard from other hunters. The three hunters remained in the swamp until one-half hour after dark which is what hunting laws permit.

[193] While waiting for the truck to pick him up in a nearby field, Josh observed a couple of police cars approach abruptly, stop and then confront him and Matt at gunpoint until police determined who they were and asked them if they saw a blue SUV, to which Josh replied that he had seen a blue car.

[194] Josh recalled that when earlier parked at lot 80910 he had observed a light blue Subaru. He described the weather that day as nice and partly cloudy.

[195] Jason, who had hunted many times at Hullett, explained that when Hunting in Zone A (where you can only hunt migratory birds) you could only park in the lot that corresponds with the marked area where you hunted compared with Zone B which allowed you to park and hunt geese anywhere in that Zone.

[196] After detailing their earlier travels and hunting successes, Jason recalled texting and meeting up with Matt and that both vehicles eventually made their way to lot 80754, with Jason arriving in his vehicle around 4:00 p.m., a few minutes ahead of Matt. Jason also recalled seeing a blue Toyota parked on an angle and also knew people who owned a similar vehicle.

[197] He observed tinted windows on the Toyota and described the car as a 90’s era Camry. He explained that he drove in and parked next to the Toyota on the west. He observed a lone male occupant driver in older-style camouflage jacket with the hood up.

[198] He similarly saw the Toyota pull out as soon as he pulled in but did not notice the direction it went and observed what he believed was that same vehicle (based on its colour and body style) later pass by the entrance to lot 80754 on Wildlife Line first going north and later travelling south while he was getting his hunting gear ready. He described traffic on the Wildlife Line gravel road as very sparse and thought it unusual to see that same car go by two times in succession.

[199] Jason was familiar with the nearby Field Trials Staging Area and knew there was a competition being held there that day. He recalled hearing two to three shots while hunting in the nearby airport pond and felt these shots seemed out of place because they sounded like they came from the northeast direction and not from other ponds.

[200] Jason accepted that it was not uncommon for hunters to go to different parking lots throughout the day and agreed that when he pulled in to 80754 his passenger window was closest to the blue Toyota (a distinction from what Josh remembered but also not a significant evidentiary discrepancy).

[201] Jason did not recall police asking him about a blue car and later agreed that his earlier description of the Toyota driver’s camouflage coat as “a bunch of light paint drops” was a more accurate description of the coat.

[202] Matt, arriving at lot 80754 five minutes behind Jason and Josh in a small black SUV did not see any other vehicles (other than Jason’s) when he arrived at the lot. He did notice a car drive by twice while getting his hunting gear ready that he described as blue-green type car on Wildlife Road, first going north and next coming south.

[203] He believed this compact car was either a Ford Escort or Hyundai Elantra or Toyota Corolla and that it appeared roughly 5-10 minutes after he arrived at the lot and again roughly 5-10 minutes later. He could not tell the number of occupants in the car and believed the windows were tinted.

[204] Matt also recalled hearing shots while hunting at Cedar Swamp and recalled police arriving after dark and asking him and the others if they saw a small four-door blueish car earlier that day.

[205] Matt was confident that the car he saw twice for only a few seconds was the same car based on the small number of cars he normally sees on that road and could not recall earlier seeing a Subaru at the airport parking lot.

[206] Matt recalled hearing four shots in quick succession while hunting in the swamp which may have come from a northeast direction.

[207] Dr. Thomas Drake, a Seaforth dental surgeon, recalled attending the Clinton hospital ER department that evening at the request of the ER doctor to assist in extracting a pellet from Eva’s face.

[208] He, like the others, described Eva as distressed and observed, bruising, swelling and a visible pellet wound on the external skin of her upper lip. He noted an entry hole for the pellet on the outside and inside of the lip and damage to the gum and gingiva covering the root surface of the distressed canine tooth.

[209] Both the bone and the tooth of the canine were distressed and shattered and required dental surgery to remove the shattered pieces as well as a bone graft to fill in the void.

[210] The pellet was eventually located at the point that it entered the soft tissue of the lip and appeared to have rebounded off the distressed canine before becoming lodged in the soft tissue. Eva was not saying much at that time.

[211] Jessica recalled a phone call from the accused at 8:22 p.m. on the evening of September 13, 2014. The accused told her he was in the parking lot at her sister’s North York apartment. She went down to see him in her pyjamas. She asked him where the geese were, and he replied he “had not seen any geese.”

[212] He was wearing blue jeans and a long-sleeve khaki colour top and asked her if she wanted to go dancing, as they had earlier tentatively planned. She declined saying it was too late and she needed to work the next day. She noticed that he still had a cold. She found nothing weird or unusual about the accused’s request to go dancing that night.

[213] He asked her to check the time on the dashboard clock if someone asked her what time he was there. She saw 8:25 p.m. She asked him why. He did not respond and said he would go. She had never been asked to do this before. He left at about 8:30 p.m.

[214] An hour later at 9:30 p.m., she phoned him, and he told her he was at a gas station gassing up.

[215] They spoke again the following day (Sunday, September 14, 2014) at 9:30 a.m. when he explained he was at the laundromat and preferred the laundromat to his building machines because it was cleaner.

[216] They spoke briefly at 5:30 p.m. that same day when he told her he had gone to church and was enjoying coffee with a friend. He had not stayed at church very long as he had a headache and did not feel very well.

[217] They next spoke on Monday, September 15, 2014, at 9:30 a.m. when she called the accused and asked if she could come over that night to his apartment and he said no but gave no reason.

[218] Later that same day at 5:00 p.m. the accused called her and asked her what time she finished work that day. She told him 5:30 p.m. and he replied, “I can’t wait for you.” He then explained that he was going back home (Macedonia) and that his flight left at 10:00 p.m. that evening. He told her he purchased the ticket earlier that day.

[219] This was the first time Jessica had heard about his flight home. She was aware that earlier that year (January-February) the accused shared with her that his sister (who lived in Macedonia) was sick, and he was wanting to visit her but had not yet made any plans. His present plan was to go to Macedonia for between two to six months.

[220] Jessica was both shocked and saddened that the accused was leaving and asked him to wait for her that Monday evening so she could see him. He agreed. She took the bus to his neighbourhood and met him at a nearby Tim Horton’s, and they returned to his apartment in his Jeep.

[221] Once at the apartment, she noticed new luggage that he told her he had purchased earlier that day. A taxi driver began loading the luggage into a cab to take the accused to the airport.

[222] The accused asked her to give the next rent check to his landlord and to post a letter to his insurance company. A metal box that normally stored the accused’s gun was placed in a black garbage bag and brought downstairs to a waiting Thomas Reesor and loaded onto his truck. The accused explained that it was not safe for Jessica to have a gun while alone in his apartment and was giving it to his friend from Reesor farm.

[223] They travelled together in the waiting taxi to the airport holding hands and crying. She watched him enter the secure boarding area before leaving the airport.

[224] She recalled his collection of awards, plates, mugs, and a blanket all with pictures of his national championships and dogs. She again estimated the accused’s height to be 5’6” or less and her height to be 5’2” or 5’3”.

[225] She spoke with the accused from Macedonia when he called her on September 17, 2014, and explained to her that he had some land there he intended to acquire for $5,000 and later sell. She understood that he had to wait two months for this land transaction to occur and that he would return to Canada after that because he told her he wanted to live in Canada.

[226] She recalled seeing a CP24 news release on September 19, 2014, about a Canada Wide Warrant for the accused’s arrest and asking people with information about the accused to contact police. She did and went straight to police from her work that day. In her mind, she could not decide whether he did or did not do what the news release said but she could not imagine that he (as a kind person) could have done something like that.

[227] Dale Reesor recalled talking to the accused on September 15, 2014, when the accused told him he was travelling to Macedonia on a last-minute trip for several months which surprised Dale. No reason was offered for the trip and Dale felt that the accused sounded a little upset at that time based on his tone.

[228] The accused wanted someone from the Reesor family to come to his apartment and pick up his firearm for safe storage and to move some of his vehicles. Dale’s son was already nearby selling corn, so Dale called his son Thomas that afternoon around 3:30 p.m. and asked him to drop by the accused apartment before 7:00 p.m.

[229] He later remembered his son returning home with a gun case and Dale decided they should store the locked case in the blacksmith shop where he figured it would be safe. He never opened or looked inside the case but stored the key to the case in his kitchen.

[230] Dale reached out to police on September 19, 2014, after seeing a warrant for the accused’s arrest on the news and told police he was storing a gun that he suspected may have been involved in the case.

[231] Dale agreed at the time of the newscast he was both highly suspicious of the accused’s guilt and in disbelief based on what he knew about the accused. He was also very upset. He later acted as a Power of Attorney (“POA”) for the accused while he was in custody in 2015.

[232] Dale believed he also arranged to bring both accused’s vehicles to his farm. He recalled hunting with the accused for pheasants on his farm on other occasions and recalled that the accused used a 20-gauge gun and was proficient with his gun (as compared to Dale).

[233] Dale’s son Thomas Reesor, 29 years old, recalled the accused as a very good family friend and mentor to him. He fondly remembered many outdoor activities, including hunting, and recalled that the accused had a shotgun when they hunted which he described as a break-open over/under 20-gauage gun. He could not recall the accused having any other gun.

[234] He recalled a telephone call from his father on September 15, 2014, asking him to go to the accused’s apartment and pick up the accused’s gun as the accused was going to Macedonia that night and lived in a rough area in Scarborough.

[235] Thomas drove to the accused’s apartment, arriving between 6:00 p.m. and 7:00 p.m. He waited in the parking lot a few minutes (he was not sure of exactly how many) until the accused and Jessica appeared from the building with luggage and a large steel toolbox.

[236] Thomas and the accused loaded the steel toolbox onto the back of Thomas’ truck. The accused shared with Thomas that he would be gone for about two months and indicated that Thomas’ older brother Clayton could have his Jeep. He gave Thomas a key ring with keys to the vehicles and the steel case. Thomas recalled the accused drove a Corolla and could not remember the Corolla ever having tinted windows before he drove it to his family farm in September 2014.

[237] Patricia McIlveen, from Bell Canada, filed an affidavit outlining records of calls made from the accused’s cell phone, which she identified as (416) 281-2111, and showing the cell towers utilized by that phone between August 13-September 15, 2014.

[238] Detective Phil Hordijk was the primary investigator alongside file coordinator Mike Matijek and case manager Detective Inspector Chris Avery. The three formed the “Command Triangle” that oversaw and led the investigation. This was Det. Hordijk’s first role as primary investigator of a homicide.

[239] Det. Hordijk visited Eva at the hospital at 7:50 p.m. on September 13, 2014, describing her as angry, upset, suspicious and in shock.

[240] By September 15, 2014, based on information provided by the Gibsons, the investigation was now focussed on a Toyota Corolla.

[241] By the next day (September 16, 2014) Toni Panovski had become a person of interest but was quickly cleared after investigation. The officer agreed that he maintained a relationship with Toni throughout the case.

[242] By the following day (September 17, 2014) and after information received and a composite sketch prepared, the accused became a person of interest and quickly moved to a suspect.

[243] After executing a warrant at the accused’s apartment on September 17, 2014, police now formed a hypothesis that the accused and the deceased had a relationship in the field-trial world that was related to the shooting and a Canada wide warrant was sought and obtained the following day (September 18, 2014) for the accused’s arrest.

[244] Det. Hordijk learned that the accused had left the country and, upon learning of his return on September 21, 2014, put a plan into place for his arrest at Toronto Pearson International Airport that same evening.

[245] Several documents, some cash and $5,000 in Euros traveller’s cheques were seized from a small duffle bag belonging to the accused.

[246] Det. Hordijk identified several photographs of the accused’s Toyota Corolla taken on October 23, 2014, and identified tint on the front and back side windows.

[247] The officer confirmed that no DVR recordings were recoverable from the Petro Canada location in Scarborough for the September 13 date and could only recover video from September 1, 2014.

[248] He identified an article, published in the True Citizen Newspaper, a small-town local newspaper, on January 26, 2005, about the accused being arrested in Waynesboro, Burke County, Georgia, known as the “Bird Dog Capital of the World”.

[249] The newspaper had a weekly circulation of about 6,000 customers and was found by the officer in boxes of materials collected from the desk of the deceased on November 11, 2014. Also located in these same boxes from the deceased’s desk was a March 2005 email from the deceased to Joyce Taylor, a field dog colleague, referencing the above Georgia arrest and incident, the fact that the field trial community is aware of this and that the deceased was embarrassed to campaign a dog bearing the accused’s name.

[250] Det. Hordijk confirmed the date of Gabe Magnotta’s death as December 30, 2009.

[251] When asked about a series of text messages between himself and Eva, the officer agreed that he texted Eva a lot since the shooting and explained that it was for witness maintenance, ongoing disclosure obligations, to block concerns regarding tunnel vision and for reasons of sheer compassion.

[252] He explained that Eva was hyper-vigilant and initially concerned that she was being followed and often brought forward these concerns to the officer who would follow up. This included checking license plates provided and then assuring her she had nothing to be concerned about. He did not take notes of all these text exchanges with Eva and only did so if it had relevance to the case.

[253] He was familiar with the Major Case Management Manual (the “MCM”), dated October 1, 2004, and identified D/I Avery as the decision-maker in this investigation. When shown the roles of a primary investigator as set out in the MCM, he agreed that they did not always prepare and present daily activity reports and explained a lack of resources and the need to prioritize public safety as reasons why he did not always do so.

[254] When shown 328 pages of his Action Detail Folder, he explained that the first 64 actions are standard pre-loaded actions to assist and ensure they do not miss anything.

[255] He agreed that the MCM had the force of law as an Ontario Regulation and that it was still not followed in every case due to the public safety concerns and limited resources.

[256] He was unaware why the accused returned to Toronto on September 21, 2014, and agreed the accused made the decision to return on his own and did so.

[257] He agreed that the specific requirements set out in MCM, such as those for interviewing witnesses, were not always followed and explained that it was simply not practical for everyone to report back to him the contents of these interviews in the first 48-72 hours of the investigation.

[258] He agreed that he exchanged emails with Eva and was not in the habit of retaining such communications pre-2016.

[259] He outlined training he received regarding tunnel vision and how to avoid it and recalled this topic being heavily discussed at his March 2011 MCM week-long training course. He repeatedly denied having tunnel vision in this investigation.

[260] He was unaware of who highlighted the American Field magazines seized from the accused’s apartment and agreed that the most recent magazine dated back to 2005. He accepted that the accused’s apartment “memorialized his own championships.”

[261] He agreed that after receiving information from Eva and by September 16, 2014, he got the ball rolling to arrange for Toni to be interviewed around 4:00 p.m. that same day. He could not recall speaking with Toni’s two interviewers later that same day, including when he met in person with one of them in Niagara at 6:45 p.m., about the contents of that interview.

[262] He recalled speaking with Eva during the first four days of the investigation roughly 15 times.

[263] He formed his reasonable grounds for arrest by the end of day on September 17, 2014, and remained concerned at that time that Eva remained a potential target.

[264] He agreed that one of his listed grounds for arrest was a neighbour confirming she recalled the accused clean shaven at the time, despite other neighbours offering contrary descriptions, including one suggesting he had a goatee.

[265] Det. Hordijk agreed another ground he relied on for his arrest warrant was that Toni had alluded in his interview with police that the accused was likely responsible for the shooting and that information received from Eva allowed him to believe this was related to a long-standing grudge the accused held towards the deceased over his prior involvement in and exit from the bird-dogging world.

[266] He agreed that the colour of the seized camo jacket does not match the colour of the seized Eukanuba hat seized from the Toyota Corolla.

[267] He agreed that Eva’s description of the age of the shooter (early 40’s) was not consistent with the accused’s age at that time (70’s) nor was Eva’s description of all the clothes matching in a beige camo colour, particularly the pants and hat found and seized.

[268] He agreed that after removing more than $10,000 from the accused’s RBC bank account, the accused was still left with a balance of roughly $28,000.

[269] Det. Hordijk accepted that any evidence he relied on for the grounds for arrest suggesting a long-standing feud between the accused and the deceased could not have included the information received from Warren Harper, who was not interviewed until three days later on September 20, 2014.

[270] When shown a copy of the accused’s drivers license, he noted the height listed as 163 cm (or roughly 5’4” if converted to imperial from metric).

[271] I pause here to note that of all the evidence received about the height of the accused, I chose and accept this evidence as the best evidence and find as a fact that the accused was roughly 5’4” at the time of the shooting.

[272] When shown a video of the accused in church on the day after the shooting, he agreed that the accused appeared in the video to have facial hair.

[273] He recalled that at the time of arrest and booking, the accused was in possession of several prescription medications, including a drug for a chest condition and a skin cream.

[274] He agreed that many of the persons police interviewed were not asked to describe the accused’s physical appearance at the time nor were they shown the composite photograph(s).

[275] He came to learn that the accused reached out to his travel agent George Lazarevski before the shooting on September 9, 2014.

[276] He did not have concerns that witnesses were colluding and did not follow up with concerns raised by the deceased’s ex-wife regarding concerns expressed about the mafia and a possible previous attempt to poison the deceased.

[277] He confirmed that Eva identified two separate firearms used in the shooting – a beige firearm and a brown firearm – and that this caused him to consider the possibility of a second suspect but that he was not himself convinced that two separate firearms were used in the shooting.

[278] He confirmed that Eva raised concerns that the deceased may have been living a “double life” and that he could find no evidence to support this concern. Eva’s repeated calls in the early days of the investigation were done to offer names and information and get updates.

[279] He was aware that after Toni Panovski’s interview with police, Toni told police he was taking steps to relocate or move his family out of fear.

[280] He recalled that after the autopsy results, he returned to the crime scene to do a “hand and knee” search of the scene for evidence of felt wadding and found none.

Evidence of Motive

[281] Warren Harper (“Warren”), who previously was very active in the dog field trials community for roughly 20 years, explained the sport of dog field trials and the popularity of the sport in both Canada and the USA.

[282] He referred to Waynesboro, Georgia, as the “bird-dogging capital of the world” and himself as an amateur handler and trainer. He described the accused as an initial amateur who then became a professional handler and trainer, meaning he started to receive compensation for his work.

[283] He explained that he used to belong to the Ontario Bird Dog Conservation Association and that many bird dog trials took place at the Hullett fields in Clinton, with his final involvement being at an event at Hullett in September 2014.

[284] He outlined how Zone B or the southwest side of Hullett, was where the field dog trials took place and roughly 10-20 field trials existed. Participants would often gather at the intersection of Conservation Road and Wildlife Line at the start of trials. He explained that the northeast side or Zone A of Hullett was where waterfowl hunting (duck and geese) occurred.

[285] Warren described how he met the accused early on in his field trials at Hullett. He remembered that the accused had a very young and very broke dog named Panovski Silver. The accused later helped Warren purchase a dog from Gabe Magnotta. They would communicate a few times a year as friends and he considered the accused’s son Toni, and grandson Michael, also to be his friends.

[286] He detailed a conversation with the accused where the accused told him that he was “framed in Georgia” and blamed the deceased and Mike Hester for bringing an end to his involvement in field trials and ruining his life.

[287] He believed the accused “hated” the deceased and Mike Hester and the accused described these two as “nothing more than dirt” and stated that at some point in time “they would pay.” He testified that they “framed him - set him up in Georgia” and that “he would not forget.” The accused told him he was “the only person he could trust.”

[288] He believed this conversation occurred months before the shooting and was familiar with both the deceased and Mike Hester.

[289] He professed a fascination with English Setters and believed there was no better trainer for these types of dogs than the accused and this was the main reason he selfishly befriended the accused.

[290] He described the accused’s vehicle as a bluey-green Toyota, a four-door small car. He said he was familiar with the car and had driven behind it many times.

[291] When shown pictures of the accused’s Toyota Corolla taken by police after seizure, Warren identified it as the car he recognized. When shown the composite sketch of the accused’s vehicle prepared by Eva and Duncan Way, he did not recognize that vehicle as being like the accused’s Toyota Corolla.

[292] He recalled the accused owning a dog named Panovski Silver and that later the same dog became known under a different name, Belfield Silver, and went on to win many championships and a nomination, albeit unsuccessful, to the Field Trials Hall of Fame.

[293] He agreed that most trainers would want a dog like Belfield Silver and that things were very competitive amongst trainers with much trash-talking between them.

[294] He stopped taking calls from the accused prior to the shooting because he did not want to hear what the accused was saying anymore about Georgia or the deceased or negativity towards people in the field trials world and wanted to distance himself from all of this.

[295] He reached out to police a couple of days after the shooting as he felt compelled and that it was his duty to tell police what he knew. He did so after speaking with Sean Wright and getting the cell phone number of a detective from Sean and calling that detective directly.

[296] In 2012-2013, Warren described the accused as having dark hair and sporting a goatee and standing around 5 foot 3 or 4 inches. The accused speaks with a very thick accent but was not difficult to understand.

[297] He bought a dog from Gabe Magnotta (who he was introduced to by the accused) fathered by Magnotta Red Ice Wine and known as Magnotta Pinot Noir in 2002 or 2003. He was involved in the sale of a dog named Sidney Crosby from the accused to Travis Gelhaus for $5,000 and later bought the same dog back for considerably less money and took the dog to Mike Hester to be trained.

[298] In 2013, Warren and the accused teamed up and the accused brought a dog to his house so he could breed Magnotta Pinot Noir.

[299] He remains friends with Toni Panovski, Michael Panovski and Sean Wright. He was aware of bad blood between Toni and the accused and testified that Toni “detests his father.” Warren agreed that he and Shawn discussed and shared “theories” after the shooting.

[300] He believed the accused stopped competing in 2005 but still attended some field trials afterwards. He never attended or wanted to attend at the accused’s apartment and was never invited to do so. He was familiar with the accused’s car and described it as bluey-green and on one occasion to police as bluey-red.

[301] He considers the accused a friend and agrees that the accused never threatened to kill anyone and was accommodating to him.

[302] His friendship with the accused is why he told him he was bringing Sydney Crosby to Mike Hester for training and that the accused was accommodating and made clear he (Warren) could do whatever he wanted with his dog.

[303] I accept Warren’s evidence on the issue of the accused’s conversations with him and find as a fact that the accused, a few months prior to the shooting, blamed the deceased and Mike Hester for his exit from the dog field trials world. I also accept that the accused never said he would kill the deceased or Mike Hester.

[304] Nell Mobley, 88, has been the secretary-treasurer of the Georgia Field Trial Association for the past 43 years. She described the very prestigious yearly field trials and championships held on January 2 of each year in Waynesboro since 1903. People and dogs from all over the world attend, including the accused in 2005 when he entered three dogs in the trials and met Nell.

[305] She recalled speaking with the accused daily until his departure on January 13, 2005. She testified that he was escorted out of the County by the local sheriff’s department and sometime in 2008-2009 she remembered two phone calls from the accused asking her (as a prominent and upstanding citizen) to talk to the sheriff to allow the accused to return to run dogs at future trials in the County. She politely declined to get involved.

[306] She agreed that the deceased and Mike Hester were never participants in Waynesboro trials or championships.

[307] Although at times a tad forgetful, she was an otherwise very good witness whose evidence I accept and I find as facts that the accused tried on two occasions to have her help him get back to these prestigious trials in Georgia and she politely refused to do so.

[308] Mike Hester, 68, has been a professional dog trainer for more than 40 years and has run dogs in field trials all over North America. He first met the accused around 2000 when he came to Canada for the Canadian Shooting Dog Championship. At that time, he recalled the accused was working for the deceased and that most of the competitions in Canada took place at Hullett, where he also saw the dog Panovski Silver for the first time.

[309] Mike later became the deceased’s trainer and friend for more than 20 years and trained several English Setters and Pointers for the deceased, including Belfield Silver (formerly known as Panovski Silver).

[310] He began training this dog when the dog was 14-15 months old and felt that the accused “over broke” the dog and ran him at too young an age. Mike decided to let the dog be a puppy again before he re-broke him.

[311] The dog went on to win seven championships and fifteen runners-up and was described by Mike “as one of the greatest dogs in the history of the sport.”

[312] In February 2005, Belfield Silver won the US Invitational Championship.

[313] Mike recalled some conversations with the deceased about problems the deceased was having with his business.

[314] He recalled Warren Harper giving him a dog named Sydney Crosby and which he trained between 2012-2013.

[315] He received more than 300 calls from people in the dog trials world over many months asking for information as word of the deceased’s death spread.

[316] He estimated the height of the accused at 5’4” and knew that the accused trained dogs for Gabe Magnotta and had won back-to-back National Championships with dog Magnotta Red Ice Wine.

[317] Retired Police Constable Kevin Walker confirmed a series of times and distances he measured to drive from the scene to the accused’s home and various other pertinent locations (see Exhibit 115). I specifically note the 1 hour and 40-minute time estimate to drive from lot 40589 to the first cell tower in Fergus, Ontario, which I will return to later along with a second measurement relating to the distance from Hullett to Jessica’s apartment.

Eva’s Identification of the Shooter

[318] Eva was the only witness to see the shooter at the time of the shooting. Looking over her shoulder after she was shot on the left side of her face (and the deceased, her husband, was shot and lying on the ground) she saw a side profile of the shooter running through the bushes near the parking lot towards the parked car.

[319] During the few seconds she had to make observations from roughly 15-20 feet away, and feeling scared, angry, and helpless, she described the shooter as dressed in beige camouflage with everything matching, including his clothes, his ball cap and his shotgun. He had a brush cut and very short hair with some grey in his sideburns and was fit and clean shaven (no beard or moustache).

[320] She identified an irregular circular pattern for the camouflage (which Duncan Way sketched for her) and said this was the pattern on his pants, and that his top was more of a fitted tunic style pullover sweater with camouflage sleeves and was the same beige colour as the pants.

[321] She was sure that everything he wore that day matched or was similar in colour, including the shotgun she observed when the shooter was running through the bush.

[322] He was fit – neither fat nor thin – and proportioned with a strong jawbone and appeared in his 40’s although she was unsure of his age. He was sure-footed and able to move through brush quickly. His hair colour appeared to be two different tones with a darker colour above the sideburns although she was not sure whether that darker colour was brown.

Identification of the Shooter’s Vehicle

[323] Eva briefly saw the car that the shooter fled in. She first saw the vehicle backed in and parked in the lot where the dog training run came through on the second occasion. She could only see the right side of the vehicle and described it as having heavily tinted windows, square lights (that she later observed from the road), and believed it was blue in colour (although she acknowledged that she has a problem recalling the colour).

[324] She could not see inside the vehicle to tell if anyone was inside but could see the dashboard which contained a map-size folded pamphlet on the black dashboard that was orange and yellow in colour.

[325] She testified that the windshield appeared to be tinted and she could not see the seats inside or any other interior features except the dashboard and the sunset colour map or pamphlet.

[326] She next saw the same vehicle exit the parking lot and turn left to enter onto the road. She was further down the road, more than 40 feet away hiding at a knoll over the hill and saw the rear of the vehicle which had square taillights, chrome lines, and a chrome sign or word on the back. She recalled an “S” on the back that may have stood for Senza, but she was not sure of the name on the back of the car.

[327] Although she desperately tried to capture the license plate number, she could not see the plate number because the plate was pale but agreed it did not look like a new plate.

[328] Although initially thinking she saw silver or chrome trim around the windshield, upon further reflection, she clarified that the chrome was only around the side windows and not the windshield.

[329] When presented with a photograph of a 1998 Toyota Corolla, and asked whether the taillights resemble the ones she saw and which the police sketch artist drew, she said she did not remember the taillights and did not know if the drawing was accurate, given she met with the artist three to four days after her husband was killed.

[330] She agreed that she initially told police she did not think the accused, or the dog field trials world had anything to do with the shooting, but overtime did come to accept the police charged the person responsible.

[331] When shown a photograph of the interior of the accused’s Toyota Corolla, she identified the interior as grey in colour.

[332] When shown a photograph of a left side passenger view of the accused’s Toyota Corolla, she agreed that she could see the wheel of an adjacent truck through the front side passenger window.

[333] When shown a photograph of the side windows of the accused Toyota Corolla, she agreed that there was no silver or chrome trim on the side of the windows.

[334] Debbie Ponte (“Debbie”), an Information Retrieval Data Analyst with the Ministry of Transportation (“MTO”), identified several documents confirming the accused’s ownership and registration of a 1994 Black Jeep and a 1998 Blue Toyota Corolla.

[335] She also identified a document outlining the plate history for license plate “2 NAT CH,” which was attached to the Toyota Corolla on August 25, 2011, and removed September 5, 2014, and replaced with stock license plate “BVPD057.”

[336] A summary of plate “2 NAT CH,” prepared by an MTO Supervisor and reviewed by Debbie, confirmed that the validation tag or sticker for the plate was renewed on June 2, 2014, and later detached with the plate on September 5, 2014.

[337] She explained that you cannot buy a partial year validation tag which expires on your birthday in the following year or two. She agreed that when licence plate “2 NAT CH” was purchased in 2006, it remained unattached initially and then attached to two other vehicles before the Toyota Corolla.

[338] She reviewed the reported address history for the accused which confirmed an address on Airport Road in Caledon, Ontario, for three months in 1996.

[339] Tammy Thompson sold Toyotas at Goderich Toyota from 2014-2018. She fielded a police request to search the accused’s Toyota Corolla VIN on the Toyota database. The search confirmed a 1998 Corolla Sedan LE with colour 0760 or Mystic Teal Pearl which she described as a blue green. This car was a sub-compact car and comparable in size to the Nissan Sentra.

[340] She could not speak to sales volumes for 1998 or 2002 Toyota Corollas, or the number of units sold in a particular colour.

[341] When shown a sketch made by Duncan Way and Eva of the back of a vehicle with stacked rectangular rear lights, she agreed that it looked comparable to and more like the lights on the rear of the Sentra than the taillights of the 1998 Corolla, which obviously had a different style.

[342] As her database lacked information for the 1998 model year, she searched a similar 2002 model and confirmed the standard features list excluded tinting.

[343] She described an available 1998 Toyota Corolla colour 932 Plum Mist Metallic as close to but not identical to a light blue or powder blue colour.

[344] I need not repeat the earlier evidence from other witnesses who made observations on the day of the shooting about seeing a vehicle near or at Hullett that resembled the accused’s vehicle.

[345] I found Tammy to also be an excellent witness: she was helpful, straightforward, and knowledgeable in many areas regarding car design and car colours. I accept her evidence as to the make model and colour of the accused’s car and that the sketch of the back of the shooter’s car resembles a Nissan Sentra far more than a Toyota Corolla.

Forensic Evidence

[346] Identification Police Constable (as he then was) Myatt was the designated Forensics Identification Services or FIS Officer, responsible for collecting, preserving and packaging physical evidence and for submission of some of that evidence to the Centre of Forensic Sciences (the “CFS”) for testing. In total, he took roughly 1,000 photographs in this case.

[347] He arrived at the scene command post at 8:21 p.m. that September 13, 2014 evening and shortly thereafter attended at the Clinton hospital to seize Eva’s clothing, photograph Eva’s injuries, seize the shattered canine tooth and recovered steel pellet.

[348] He described Eva at that time as distraught, very anxious and upset with police who she wanted to go find the shooter.

[349] Thereafter, he returned to the scene at approximately 10:30 p.m. and commenced taking a series of photographs of the deceased and the surroundings, including the bloodstains on the roadway and several wadding cups (the inside projectile in a shotgun shell) found near the deceased.

[350] He arranged for a mapping of the area by another identification officer using a Total Station Laser Device (“Total Station”) to survey and map the immediate area. He arranged for scene documentation through a series of drone photographs and a video.

[351] On September 16, 2023, he attended the postmortem examination of the deceased performed by Dr. Tugaleva. He seized the deceased’s fleece jacket and shirt and noted heavy blood staining on the right arm and collar of the shirt and some apparent brain matter on the collar of the jacket.

[352] He seized some pieces of wadding cup located in the deceased’s brain cavity and a representative sampling of the numerous small steel pellets removed from the brain and facial area of the deceased.

[353] On September 17, 2014, he attended at the accused’s one bedroom apartment at 750 Morningside Ave, Toronto, apartment number 603, where he seized a Thermo King camouflage jacket with a 20 gauge 3” shotgun shell found in a pocket from the accused’s bedroom closet, some insurance policies, some American Field magazines, a framed set of license plates with the inscription “2 NAT CH” from the wall of the dining room, tags from luggage, and several photographs depicting the accused with other persons.

[354] He seized and searched the accused’s Jeep Grand Cherokee and Toyota Corolla (both registered in the accused’s name, and both insured by him) from the front parking lot of his residence.

[355] He described the Toyota as blue in colour that “sometimes looks green” and when shown a sales brochure for the Toyota found in the glovebox, he believed the official colour was Plum Mist Metallic (not the colour identified by Tammy earlier through the Toyota database) while observing that the vehicle registration listed the vehicle colour as blue and explained the limited number of colour choices available to the MTO when identifying car colours.

[356] He identified the side windows of the Toyota Corolla as having after-market tinting by PPG Tint Safety.

[357] He identified a series of gas and Easy Lube receipts found in the Jeep and dated September 8-9, 2014.

[358] He conducted a second search of the accused’s residence on September 19, 2014, seizing a gym membership termination form, and the accused’s HP Computer Tower.

[359] Later on, that same day on September 19, 2014, the officer attended at 8327 Steeles Avenue East, a rural farm property belonging to Dale Reesor where he seized a set of keys for both of the accused’s vehicles as well as for a trigger lock, an aluminum box containing a Mossberg International Silver Reserve double-barrel, break action 20-gauge shotgun (the “gun”) with a trigger lock.

[360] The gun was in a gun sleeve with two shots in the barrel but no magazine. An ammunition box containing several 20-gauge shells and plastic chocks and numerous gauges and boxes of shotshells was also found in the same box and seized. Some of the shotshells found were size five and six.

[361] He was made aware that the culprit in this matter may have “laid in wait” for the deceased and Eva behind a tree line across from where the deceased body was found and near an adjacent parking lot identified as lot 40589.

[362] He observed and photographed tire impressions going through the blood trails on the road near where the deceased was found. He used AutoCAD, a 2D and 3D computer-aided design software, to take measurements.

[363] He agreed that wadding cups located south of the south edge of the road and near parking lot 40589 (where he believed the shooter may have laid in wait) were not sent to the CFS for analysis and were not the same class characteristics as those found in and near the body of the deceased.

[364] He was unable to determine the location of the deceased when he was first shot.

[365] He confirmed that a Gatorade bottle and discarded fast food packaging found near the Gibson farm (where the suspect vehicle was observed) both with DNA were not linked to the accused.

[366] When shown a series of photographs depicting the accused’s Corolla, he agreed that in those photographs one could clearly see through the windshield of the car into the interior (both front and back) and that no 12-gauge shotgun, size 4 shotshell or DNA of the deceased was located inside the vehicle.

[367] When shown a photograph of the driver’s side window of the Toyota Corolla, the officer agreed that he could see through that window and explained that he was not the officer who took these photographs and this was due to the angle in which the photograph was taken, and that the camera sees more than the human eye. He maintained that this window was tinted in the same manner as the other front side and rear side windows.

[368] He explained that with the help of a second officer, he plotted out points to take measurements for tire tracks and track widths which he labelled as T1, T2, T4 and T5. T1 and T2 were taken from Conservation Road near where the deceased’s body was found while T4 and T5 were taken from parking lot 40589 near where Eva observed a vehicle. Although never formally trained on Total Station, he was very familiar with the device and how to record the accurate measurement of angles.

[369] He accepted that track width measurements for the tire tracks found on Conservation Road and labelled as T1 and T2 were at 90 degrees and each measured 1.3 metres and explained that these measurements were guesses at best as he did not have clear edges for the tracks.

[370] He defined track width as the distance on a single axle between the centre of the right tire and the centre of the corresponding left tire. He explained that you could also measure from the outside edge of a tire to the inside edge of a corresponding tire. He agreed that two points are required to establish width and that he did not have well-defined edges for track width when he plotted the centre points.

[371] He confirmed that the track width for the accused’s front Toyota Corolla tires was 1.45 metres and for the rear Toyota Corolla tires 1.46 metres. These were accurate measurements.

[372] He accepted that he had recorded the Toyota Corolla tire widths on the back of the last page of his notebook and did not recall or disclose this note until October 2023 for which he accepted responsibility and explained he felt horrible for forgetting he made this entry and did so at the end of his notebook because he was in the middle of doing other tasks and did not want to lose this information.

[373] He agreed that the discrepancy between the measurements he took at the scene and the Toyota Corolla tires exceeded the acceptable 10 cm tolerance or margin for error.

[374] He was next referred to track width measurements found in the parking lot 40589 and known as T4 and T5 and agreed they measured 1.31 metres in width.

[375] He explained that he measured all these widths by measuring tape and that he did his best to measure from the most clearly defined edge and from a 90-degree angle and noted that these measurements had some potential for error.

[376] He agreed that it was possible that these four tire track widths were left there at the time of the shooting and that it was possible that they were left simultaneously or from a single event but that he simply could not say when they were laid down.

[377] He agreed that T4 and T5 looked like they were laid down simultaneously and he focussed on them because they had some detail to them. He agreed that T4 and T5 had “some edge detail” but that the edges weren’t clearly defined.

[378] He clarified that Total Station was not used to measure width and that those measurements were done by the officer physically with a measuring tape and after doing his best to make 90-degree angles.

[379] When he explained to the Crown in a 2024 email that his opinion was that these measurements were not associated with the track width measurements of the accused’s Corolla (as the vehicle that left these 4 tire impressions), he made clear that he had assumed that the tire tracks were laid down simultaneously. He made this assumption as “an investigative aid” but not as part of any scientific report. He was hesitant to rely on the track width measurements alone due to the lack of or incompleteness of edge detail and lack of specificity or distortion which could both lead to some form of known error.

[380] He went on to explain that there were 2 qualifiers to this information he wrote to the Crown-one of which he included in his correspondence and the other which he raised in his testimony. These were that he cannot say the impressions went down simultaneously or from a single event and that the measurements may be inaccurate based on the partial tire impressions identified.

[381] He confirmed that some of the wadding cups found at the scene did not match the wadding cup contained in the shotgun shell found in the pocket of the camouflage coat seized from the accused’s closet and that no camouflage clothing was found in the Toyota Corolla.

[382] Dr. Elaina Tugaleva, forensic pathologist, was qualified as an expert in the post-mortem examination of persons to determine cause of death and mechanism of injuries.

[383] She conducted a post-mortem examination of the deceased on September 16, 2014. After observing soiled hair and clothing on the deceased as well as loose pellets and brain tissue in the body bag, she grouped the injuries observed into the following two categories:

a) Shotgun wounds to the left side of the face and head: she observed multiple pellet wounds and defects some of which perforated the nose and nasal spectrum and oral cavity and came to rest in soft tissue causing significant blood loss; and

b) Shotgun wounds to the back of the head in the left occipital region: she identified a 5 x 2.4 cm central wound with a 2 x 0.8 cm irregular central defect along with multiple round satellite defects around the central defect signifying where the group of pellets distributed into the head and brain and caused significant damage. She could not find any gun shot residue (“GSR”) but did observe significant defects in the skull and significant brain fragmentation and laceration of the internal carotid artery.

[384] She found deformed plastic wadding embedded in the right brain and when examining the external injuries (abrasions and entry wounds), including a mark at the base of the back of the head, she opined that she “favoured” those injuries to be caused by wadding that is disc shaped but would defer to a firearms specialist for a stronger conclusion. In other words, this could be caused by wadding or something else.

[385] She placed the found wadding, and extracted pellets into containers and turned these over to the police in attendance.

[386] She opined that the deceased had an overall depleted blood volume because of the injuries and concluded that cause of death was from shotgun wounds to his head and face. She explained that the shotgun wound to the face, while not immediately fatal, could potentially cause death due to the risk of blood that could have aspirated in the airways. The second shotgun wound to the head and brain was fatal.

[387] She agreed that two shots – back of head and left side of face – contributed to the cause of death and that a third shot did not cause any injury and, therefore, was of no forensic consequence.

[388] Although she only extracted some of the pellets from the deceased head and face, she formed an overall impression that all the injuries were probably from the same size shot or pellets and that the defects observed were similar in size. Although she was satisfied that a shotgun was used to fire the shots, she could not speak to the type of shotgun.

[389] She agreed that the pellets extracted from deep in the brain tissue were mixed with loose pellets found in the body bag. She also acknowledged the presence of insects on the body which she believed appeared fast but would defer to a specialist in that field for a precise time estimate as to how long the body was present.

[390] Dr. David Ruddell was qualified as an expert in the collection, analysis, and interpretation of GSR by microscopic and instrumental technique. He interpreted and adopted the contents of reports earlier prepared by now retired scientist Dr. Robert Gerard.

[391] He explained that GSR is the particles emitted from a firearm when fired and can travel at least one metre to the side and back from where the gun is fired and up to 60 feet in the direction the gun is fired. The majority of GSR comes out of the muzzle but some comes from the area where shell casings eject.

[392] He explained how GSR is collected which involves identifying a stub or surface area roughly 4” by 4” and then dabbing the area within the stub 40 times.

[393] He explained that GSR can be removed through hand or face washing after no more than eight hours or through activity but does not degrade spontaneously.

[394] He reviewed and adopted the contents of two reports prepared by Dr. Gerard. The first, dated October 1, 2014, reviewed testing using the SEM-EDX instrument and four stubs containing 40 dabs/stub on the accused’s Toyota Corolla including the steering wheel, roof liner, passenger window and passenger seat, with only the passenger seat testing identifying five particles of GSR and the other three areas showing no GSR.

[395] The second report, dated November 10, 2014, examined the Thermo King Camo jacket seized from the accused’s closet and containing a toque and glove in the pocket, a long green sleeve shirt and a Eukanuba baseball hat seized from the passenger visor of the accused’s Corolla.

[396] One stub (with 40 dabs) was identified and tested for the toque, the glove and the Eukanuba hat with one GSR particle located on each of these items.

[397] Four stubs were identified for testing on the jacket, with no GSR found on the left sleeve and back of the jacket, one particle found on the front of the jacket and four particles found on the right sleeve for a total of five particles.

[398] Dr. Ruddell explained that the unfired shotgun shell also found in the pocket of the camo jacket could have picked up GSR if it were cycled through a firearm but not fired.

[399] He confirmed that GSR does not degrade and that a hunter who earlier fired his gun would likely have GSR on his hands and his clothes and could easily transport and deposit this GSR on other surfaces including a vehicle and clothing.

[400] He agreed that SEM-EDX testing can only detect the presence of GSR and cannot determine when the GSR got there, who put it there or the type and calibre of the gun from which the GSR originated. This was simply a presence or absence test.

[401] He accepted that tens or hundreds of thousands of GSR particles can be expelled from the firing of a gun. He agreed that the driver’s door of the Toyota Corolla had the seal broken before the GSR testing took place and that it was standard practice for the GSR tester to enter a vehicle first before others enter and break the seal. He could find nothing in the file to suggest the Forensics Identification Services Officer Myatt was physically present while Dr. Gerard conducted his tests.

[402] He agreed with the contents of published study, where Dr. Gerard was the lead author, that when officers from three Ontario police services were tested after a shift for the presence of GSR on themselves, their equipment and their vehicles, 25 percent had at least one particle on their hands, while some of those with higher concentrations appear to have handled and disassembled a firearm on the date of sampling.

[403] He could not locate a submission form for the testing of the Toyota Corolla in his rather voluminous paper casefile, although he believed one existed.

[404] Jennifer Plath (“Jennifer”), a Forensic Scientist with the Firearms Unit of the Centre for Forensic Science, was qualified as an expert in the examination and comparison of firearms and firearm components, ammunition and ammunition components, firearms function, safety testing, distance determination and trajectory analysis.

[405] Jennifer prepared two reports: the first, dated December 17, 2014, dealing with a seized shotgun and shotshell from the accused, and the second, dated March 3, 2015, examining distance determinations between the shooter and the target.

[406] She identified the firearm tested as a multi-break, 20-guage, Mossberg Silver Reserve shotgun, capable of firing both 2 ¾” and 3” shotshells. This shotgun had an adjustable choke and after test firing the gun, Jennifer concluded that the gun was operable and met the definition of a firearm.

[407] She examined the bore of the gun where she found some light dirt which meant that at some earlier unspecified point in time, this gun had been fired.

[408] She explained that every shotshell has some type of wad that protects the shot during discharge and keeps the shot together while it travels down the barrel of the gun and gets expelled. There can be more than one wad in a shotshell.

[409] The wad is typically a plastic cup or collar that protects the sides of the propellant and comes in several different colours, designs and construction.

[410] In her report dated December 17, 2014, she concluded that the class characteristics of the wadding recovered from two fired 20-gauge shotshells from the brain of the deceased and from the north ditch of the road where the deceased was found were “in agreement.” This meant they had the same gauge, colour, and construction.

[411] She next compared the above two wads with the unfired 20 gauge 3”, size 4 shotshell recovered from the coat of the accused and concluded that the class characteristics of all three wads were “in agreement” and had the same gauge and the same materials.

[412] She identified the recovered shotgun steel pellet from Eva’s face as either number 5 or number 6 shot and the steel pellets removed from the deceased’s brain and left side of his face as number 4 size shot.

[413] In her report dated March 3, 2015, she conducted an experiment to attempt to determine the distance from the muzzle of the firearm to the target at discharge.

[414] She explained that firearms discharge residue (“FDR”) also exists on the muzzle at time of firing of the gun and consists of soot, partially burnt propellant and dirt. FDR travels a certain distance and may deposit itself on surfaces.

[415] Her experiment involved using foam core test panels at a known distance and then examining the speed of the propellants and the dispersion of the shot. She identified the wound at the back of the deceased’s head as displaying a sufficiently complete pattern usable for distance determination testing.

[416] Jennifer fired 20 shots at various distances using 20-gauge 3” size 4 shot and from both barrels of the seized shotgun. She concluded that if a similar shotgun and similar shotshell were used in the shooting, the distance between the shooter and the target (back of the head of the deceased), at the moment of discharge, would have been between four and fifteen feet.

[417] She explained that over distance, the steel pellets start to spread out with scalloping around the edges and pellet strikes begin to appear around the edges of the main defect. After travelling a few feet, the slits on the side of the wadding that exits the barrel start to peel back like pedals and eventually separate and fall off from the main column.

[418] She could not find any FDR and was advised that none was observed where the wadding was found.

[419] Although Jennifer acknowledged many similar shotgun shells in the large ammunition reference collection maintained at CFS (at least 210 types of shotshells), she could not identify any that had similar wadding to the unspent shotgun shell seized from the accused.

[420] She agreed that the clear white or opaque colour of the exterior of the wadding cup was the most popular colour and agreed they come in many colours.

[421] She pointed out that wad manufacturers can supply wadding to different shotshell or ammunition manufacturers.

[422] While agreeing that the CFS reference collection would include Winchester 20-gauge, 3” size 4 shot, she maintained that those shotshells would have been different from the shotshell seized from the accused’s coat pocket, given its yellow hull shell and stamping.

[423] When shown the shotshell seized, she agreed that there was some additional wadding that appeared to be a felt or cork material that she had not noted and could not say whether the OPP supplied test ammunition had this similar wadding material. She was sure that the wadding material she used was in an opaque cup and had the same characteristics as the shotshell seized.

[424] She recalled seeing wadding travel as far as 30 feet or more from point of discharge and explained that the velocity of the shotshell was determined by the ammunition and the length of the barrel of the gun.

[425] Jennifer explained that the size of a pellet or shot is a combination of the diameter and weight of the pellet. She could not determine if the pellet found in Eva’s cheek was number 5 or number 6 size and agreed that the wadding found on the side of the road and in the deceased’s brain could have been fired from any 20-gauge shotgun.

[426] She had the OPP bring her size 4, 3”, 7/8-ounce steel shot with the same yellow hull case and markings on the plastic wadding cups with slits. She accepted that this ammunition was not disassembled (like the seized shotshell found in the accused coat pocket) and she did not confirm the presence of the fiber filling wad she found in the seized shot nor was she aware that police (unsuccessfully) searched the area of the shooting for the type of fiber wadding.

[427] When shown a diagram of the components of the seized shotshell, she agreed that materials in the middle of the shotshell resembled wadding type material that did not appear to be plastic but could not say if it was felt, cork or cardboard like materials.

[428] She agreed that FDR can be left on a target fired at close range but could not say if black markings near the back of the head wound of the deceased were FDR.

[429] Jennifer explained that she could not identify a specific distance determination but only a range and that results from her testing would not be exactly like the head wound relied on. She was focused on identifying a similar amount of spread and separation of pellets and wounds and that is what allowed her to identify four feet as the closest distance and 15 feet as the furthest or outer distance. She did not test other firearms.

[430] She agreed she could not identify the type of firearm that propelled the shot in Item 7 of her report and that it could have been fired from any gauge and any brand of firearm.

[431] She conducted her testing with the firearm straight on and parallel to the floor and to the target.

[432] Officer Christopher Onslow was asked to do an Opensource search regarding a social media presence for the accused. He did so through Google and located Facebook pages linked to the accused.

[433] A shot at the top of the accused’s Facebook page revealed a banner or cover photograph of a dog named Magnotta’s Red Ice Wine, the English Setter who won the national Open Shooting Dog Championship in 2005, updated on August 29, 2013, and a series of profile pictures that were changed many times between July 30 and September 14, 2014.

[434] More specifically, he counted seven profile picture changes on both July 31, 2014, and September 1, 2014, and a total of 67 profile picture changes between July 30 and September 14, 2014.

[435] Neither could Officer Onslow find a Facebook page for the Frigos nor for Jessica Garcia.

[436] He also searched and captured the webpage or BlogSpot for Region 13 Field Trials News for bird-hunting taking place at Hullett. The screen capture covered various events, photographs and entries between April 2010 and August 2013. This webpage has not been updated since then.

[437] He acknowledged that email retention was a problem for his group in 2014. He agreed that you cannot determine who posted the profile pictures or when the Facebook page was opened. He agreed that the date stamp on a June 29, 2014 photograph of a dog appeared to be inaccurate.

[438] He agreed that a search of the accused’s computer did not show any communications by the accused on September 13 and 14, 2014, other than messaging to someone in Macedonia. Earlier date searches revealed a March 2013 search of Western Union and a September 6, 2014 query to Western Union about an address in Macedonia.

[439] Officer Onslow confirmed that after the shooting, he found no evidence on the accused’s computer that he researched anything about the shooting, the Frigos or Mike Hester.

[440] Michael Ryder, a civilian Investigator and Forensic Analyst with the OPP, prepared a report on the contents of the accused’s HP Tower Computer seized from his apartment. His task was to create readable content to be sent to investigators who then flagged the data they had asked him to extract which then formed the basis for his report.

[441] He identified several photographs found that depict the accused, photographs of the accused’s dogs and national championships and mugs, plates, hats and blankets displaying these championships. Several photographs depict the accused attending field trials, and on one occasion in July 2013, sporting a long camouflage jacket.

[442] He reviewed the Google Chrome history and identified the three most frequently accessed sites, including Facebook, American Field Sporting Dog and Field Trial News and Region 13 Field Trial News.

[443] He identified Facebook activity between September 8-15, 2014, activity at the American Field website, noting various days of repeated visits, including the evening of September 12, 2014, and the morning of September 15, 2014, and the internet history in relation to Region 13, including repeated visits to the site between September 1-12, 2014.

[444] He explained that where the visit count to a URL showed a high number count, for example, 61 visits to the American field site referred to as “villagesoup” on the evening of September 12, 2014, and 54 visits to that same site on the morning of September 15, 2014, this count was cumulative and did not mean 61 or 54 separate visits. Rather, this number reflected the number of visits overtime since the Internet history was last reset.

[445] Further, the visit counts in the report are added to each time a page is refreshed and pages can refresh automatically and without human interaction (i.e., the user goes to one site such as Facebook which automatically opens other sites such as American Field or Region 13). If the same site is opened in multiple tabs, this can also add to the cumulative count.

[446] Phil Wilkinson (“Phil”), an Operational Intelligence Analyst, was tasked with reviewing the affidavit of Patricia McIlveen (“Patricia”), sworn April 10, 2018, (responding to a Production Order obtained and served on Bell Mobility) and turning the contents of her affidavit into a more reader friendly and understandable format.

[447] The attachments to the affidavit included call records for the accused’s cell phone 416-218-2111, subscriber information identifying the accused and his place of residence, and information about cell phone towers and their relationship to the accused’s cell phone location when used during the period of August 13-September 15, 2014.

[448] Patricia’s affidavit outlined the general rule that a cell phone will register at the tower with the strongest signal, which is usually (but not always) the closest tower. Phil explained that cell towers permit one device to connect with another over the network and assist with the location of the subscriber, whose phone actively pings until it locates the closest available cell tower.

[449] Phil identified three dates, September 7, 8 and 12, 2014, when the accused’s cell phone registered cell tower activity with cell towers close to the Frigos’ residence on Airport Road in Caledon, Ontario. Six separate cell towers in or near Caledon registered activity over those three days.

[450] Dealing with the day of the shooting, Phil identified activity at cell towers at 10:07 a.m. on the morning of September 13, 2014, near the accused’s Morningside residence, then a lull in activity for the next eight hours and 49 minutes, and then activity at 6:56 p.m. at a Fergus area tower near 250 Queen Street West, and 12 minutes later, at a nearby tower in an area near 5592 Highway 6 in Guelph, Ontario.

[451] Phil identified a term on the Bell records known as Azimuth and outlined how this refers to and controls the direction of a cell tower’s range and the direction that it broadcasts.

[452] Phil explained that with respect to the two cell towers referred to above near Fergus, the Azimuth attached to the 250 Queen Street West tower in Fergus was able to identify a pie-shaped area that showed an area close to the cell tower 120 degrees due north with a beam of 65 degrees. The Azimuth attached to the 5592 Highway 6 tower also identified a pie-shaped area close to the cell tower 120 degrees due north and with a beam of 45 degrees. It is within these defined areas that the accused’s device would have been generally located at those times.

[453] While agreeing that there are many factors that could interfere with the functioning of the Azimuth and the tower such as signal frequency and use, weather, and antenna height, Phil maintained his view that the accused’s cell was generally or likely in the pie-shaped areas identified and on that side of the tower.

[454] He accepted that his review is an approximation or theoretical assessment and does not rely on retrieved data but only information provided by Bell. He pointed out that the cell user has no control over which cell tower connects to the phone.

[455] He maintained it was his idea to identify the eight hour and 49-minute gap in cell phone use on September 13, 2014, and acknowledged similar lengthy gaps in use on August 15, 16, 18, 21-24, 2014, as well as September 1, 2014.

[456] He agreed that several towers were in the vicinity of the Frigo’s residence and that a cell phone jumps from available tower to available tower as one travels.

[457] He observed that although the production order sought information up to September 21, 2014, Bell only provided information until September 15, 2014

After the Fact Conduct

[458] Paul Yang, a sales broker for Gray Power and Bel Air Insurance recalled a conversation with the accused on September 15, 2014, at 4:49 p.m. where the accused called and asked to cancel his car, truck and home insurance (covered under two policies) all of which were set to renew on October 1, 2014.

[459] Paul agreed that cancelling policies was very common as is paying premiums monthly and agreed the cancellation would save the accused a couple hundred dollars.

[460] Kursty Allison, a Customer Service Manager with Walmart at store 3111 at 799 Milner Avenue in Scarborough recalled being summoned to the jewellery counter shortly after 2:00 p.m. on September 15, 2014, to do an override for a customer on two sets of CDN luggage.

[461] She identified a series of surveillance stills depicting herself and the accused between 2:23 p.m. and 2:25 p.m. processing the reduction in the price of one of the luggage sets.

[462] Although initially describing the accused as a white middle-aged male with dark hair standing between 5’9” and 5’10’’, she later agreed that she was guessing and did not recall his height. When taken to a photograph (Exhibit 158-C) she agreed she stood 5’3” and that from the ceiling camera photograph, she appeared to stand taller than the accused.

[463] Andrea Soriano, an Investigation Analyst from the Royal Bank of Canada (“RBC”), swore an affidavit (Exhibit 160) in response to a production order for debit card and client card activities of the accused between August 13, 2014, and September 21, 2014.

[464] She confirmed that on September 15, 2014, the accused purchased 5,000 Euros in traveller’s cheques for $7,346.50 CDN (plus $91.75 in bank fees). On that same day and visit, the accused also withdrew $5,000 CDN from his account. This left a balance (post transactions) of $27,512.69 in the accused’s RBC account.

[465] Donka Trifunovski (“Donka”), a Financial Security Advisor for Freedom 55 for 25 years, and the godparent to the accused’s daughter Vesna, testified that she sold the accused a $25,000 last expenses life insurance policy in April 2003 with guaranteed fixed monthly premiums of $67.46 per month.

[466] Although the accused initially named his ex-wife Dragica as the beneficiary, he changed this designation in 2009 and replaced her with his son Toni after the accused became estranged from Dragica and other family members.

[467] On September 15, 2014, Donka received a call from the accused at her office and the accused asked her to cancel this policy. This was his first request to do so since the policy began. He explained that he could not afford the policy. Donka told the accused he would need to come to her office to sign a cancel form and he was unable to do so because he was going out of the country.

[468] When shown a document confirming proof of delivery of this policy and containing handwriting on the bottom reading “I LIKE TO CANCEL POLICY” and apparently signed by the accused, Donka replied that she had never received this form.

[469] Donka acknowledged that after 12 years of premiums, the accused had paid in excess of $10,000 for this policy with only $857 surrender value if cashed in after that time.

[470] She agreed that she was close with his estranged family and knew that he and his ex-wife divorced and that his children were no longer communicating with him.

[471] She agreed she never followed up with the accused after that conversation because she believed they had agreed to meet when he returned from his vacation. She also never told him that the policy would lapse if he ceased payment.

[472] Pamela McKenzie, a representative from Petro Canada, filed an affidavit outlining purchases made by the accused for gas and a car wash on September 13, 2014, at a Petro Canada location in Scarborough (Exhibit 135).

[473] Abdulla Yusef was site manager at the Petro Canada at the intersection of Morningside and Ellesmere (3100 Ellesmere) in Scarborough on September 13, 2014. He identified a series of surveillance photographs or stills, showing the accused pumping gas, entering the store, and paying for purchases.

[474] When shown Exhibit 135, he confirmed that the accused purchased $21 of gas and paid with cash and received Petro points at 11:48:51 a.m., and later that same day at 9:36:07 p.m., purchased $40 of gas and a SuperWorks car wash for $11.99 (which included wash, wax, body spray, power clean and underneath clean) that was used at that time.

[475] He identified a measuring stick or tape affixed to the door frame of this gas station and agreed that the top number represents six feet.

[476] Ron Schistad (“Ron”), a Forensic Video Analyst with the OPP since 2011, was asked by Det. Hordijk to examine seized surveillance video and stills from Petro Canada and Walmart with a view to identifying and utilizing the specialized and proprietary software necessary to make these videos easier to view.

[477] Ron identified a September 1, 2014 Petro Canada video, roughly nine minutes long, and containing over 1,100 images, depicting the accused’s Toyota Corolla purchasing gas that day in accordance with the stills earlier filed as Exhibit 161.

[478] He next identified a September 15, 2014 video, just shy of two minutes in length, and containing 545 images, depicting the accused acquiring luggage at Walmart in accordance with the stills earlier filed as Exhibit 158.

[479] He explained that these videos could not be played without the use of proprietary software and that he was not asked to use the software to enhance all supplied video surveillance other than those two videos requested by Det. Hordijk.

[480] He agreed that he started to attempt full conversion of all the videos seized but later abandoned this exercise as it would take too long, and the contents could already be viewed by using the DV player software provided.

[481] When taken to specific stills, he agreed that Still 516 in the Walmart video seems to show some protrusion from the heel of the accused’s shoe and that the face of the accused was not clear or smudgy.

[482] Amr Saber worked at World Gym at 1455 McCowan Road in Scarborough in 2014. When shown Exhibit 83, he remembered entering into this Membership Agreement with the accused on July 16, 2014, at a rate of $10 per month with a small enrolment and card fee due on signing.

[483] He described the accused as an elderly gentleman, black hair, goatee, average height (5’9”-5’10”) with a regular build and in decent shape. He later clarified that he did not have a specific memory of how tall the accused was and that he (Amr) was 5’8” and could not recall if the accused was taller or shorter than him.

[484] He identified an administration form terminating the accused’s membership on September 15, 2014, at a cost of $110 (or the balance of the year’s fees). When he asked the accused why he was leaving the gym, the accused told him he was moving and leaving the country.

[485] He agreed they never discussed personal issues and that he could not say how often the accused attended the gym, but the accused did tell him he was happy with the gym.

[486] George Lazarevski (“George”), now deceased, had his evidence played back from his earlier PH testimony in 2017 and in accordance with s. 715 of the Criminal Code.

[487] George, a travel agent, and friend of the accused since 1980, recalled speaking to the accused on September 15, 2014, when the accused asked him to book him a flight to Macedonia that same day.

[488] George did so and after refusing to accept a cheque from the accused, arranged for the accused to come to his travel agency that morning between 11:00 a.m. and 12:00 p.m. with $1,370 in cash.

[489] The ticket, booked on Turkish Airlines, was leaving that evening and was good for a year. It had a scheduled return date of March 14, 2015 (or just shy of six months later). The two talked about whether the accused’s pension would be paid to him in Macedonia and how much cash the accused can carry while there.

[490] The accused told George he was going because his sister was not feeling good. George had booked some recent trips to Cuba for the accused but had not booked a trip to Macedonia for roughly 20-30 years. He noted that very few trips to Macedonia are booked in September with most of his clients leaving in the summer and returning in mid-September.

[491] George testified that the accused never mentioned to him over their 40-year friendship any negative feelings towards the deceased or anything at all about the deceased.

The Attempt Murder (now Aggravated Assault) Count

[492] At the end of the Crown’s case, and on consent, Count 2, originally an attempt murder allegation, was amended to conform with the evidence heard at this trial and to now allege the offence of aggravated assault by shooting.

The Defence

[493] The defence called several witnesses. Some were recalled Crown witnesses and others gave evidence through an ASF.

[494] Retired Det. Inspector Chris Martin was the Detachment Commander for the five various Huron County detachments at the time of the shooting.

[495] He detailed a phone call he received on September 16, 2014, from an unknown male who relayed third-hand information that the wife of the deceased was uncooperative, that a shotgun was used, that people should “shut their fucking mouths” and that he would call back if this information became common knowledge. The caller refused to identify himself or provide contact information. The caller did not refer to any police intelligence ahead of the shooting.

[496] D/I Martin passed this information along to Det. Randy Wright and did not do any other follow-up.

[497] Detective Myatt was briefly recalled to confirm he conducted the hands and knees search at the scene on September 17, 2014, looking for shotgun wads and felt wadding around the area where the deceased was found and where the blood trail was found on the road with negative results.

[498] Inspector Chris Avery, the Case Manager, explained that he was responsible for the speed, flow and direction of this investigation and that he oversaw the Command Triangle and occupied the top spot in the case “food chain.” He is familiar with the MCM and its contents.

[499] He explained that briefings were the primary method for communication, as well as phone calls and e-mails. He explained that anything considered time sensitive was subject to a more expedient form of reporting than the daily briefing meetings. He agreed that investigative tips in the early days that could impact public safety were tips that would likely be considered time sensitive. He would detail important calls he received at the following day’s briefings.

[500] He was aware of the MCM requirement for a detailed chronology of the investigative steps as they unfolded and could not recall seeing one in this case.

[501] He was aware of the MCM policies and procedures for conducting witness interviews. He believed the MCM requirements were followed closely and that report backs to the primary and lead investigators were largely done at the briefings.

[502] He agreed that his responsibilities included direct oversight of Det. Hordijk.

[503] He testified about attending a December 10, 2014 meeting with Det. Randy Wright to meet with Eva and to inform her that they had met with the Caledon OPP Crime Unit and ensured they would support her in her concerns about recent prowlers on her farm property and others who may have expressed an interest in doing her harm.

[504] Detective Randy Wright, the area crime supervisor for Huron County at the time of the shooting, assisted the Command Triangle with resourcing and some of the investigation, including the arrest of the accused.

[505] He was aware of the MCM and believed he did his very best to follow the requirements and protocols set out in the MCM manual. He disclosed his notes in this case to the file coordinator and was always in the vicinity or area and available to the Command Triangle.

[506] He recalled a conversation with Inspector Martin about an unknown male that called the Inspector on September 16, 2014, but in addition to Inspector Martin’s recall, he believed the Inspector told him, “Police had intelligence about this ahead of time.” He brought this anonymous tip to the attention of the people in the briefing meeting that same day. He described this tip as vague, and erroneous in part (as he believed Eva was cooperating and was unaware of any intelligence police previously had about this). He did not follow up although he was alive to the fact that this killing could have been a “hit.” Rather, he chose to follow the evidence police had in hand.

[507] Detective Wright was aware the deceased had his life threatened in the past.

[508] The officer arranged for a sketch artist from the Barrie Police Service, Duncan Way, to interview Eva and prepare composite sketches.

[509] He recalled at least four meetings with the local Crowns during the first week of the investigation and recalled assigning a Victim Liaison officer to escort the body of the deceased to the hospital.

[510] When shown several photographs of the accused’s Toyota Corolla (Exhibits 108 A, B, C, 109 and 110) he agreed that he could see inside the vehicle through the driver’s side window, through the windshield and was able to identify the colour of the interior seating, rearview mirror, dashboard and steering wheel. He was not present when some of the photographs may have been taken and was unsure if they were done using artificial light at night.

[511] He was aware of what tunnel vision is and believed he did not have that but simply followed the evidence.

[512] He recalled a visit to Eva’s in December 2014 with Inspector Avery and agreed the visit was to reassure her that police were available for her. They spoke to her about her safety concerns and assured her the Caledon detachment would promptly respond to any concerns raised.

[513] Retired Detective Michael Waechter was assigned to assist in this investigation as an experienced homicide investigator.

[514] He was assigned to interview Toni Panovski on September 16, 2014, along with Det. Colin Darman. The interview took place at 4:00 p.m. that day in Mississauga. Toni suggested he may have someone in mind who may have shot the deceased but was not willing to divulge particulars other than to say it was someone who resembled him. Toni said he would do some poking around to see if this person wanted to come forward (which the officer discouraged). Toni was aware of a person with a grudge against the deceased arising from a past bird-dog training issue, had a specific male person in mind and would reach out to that person to see if they would give themselves up.

[515] Toni told police he feared for his safety and that of his family. Toni also noted that the person he is thinking of has a vehicle that does not match the current vehicle of interest. The officer does not recall who he notified about the contents of this interview but did submit a synopsis at the briefing the following day.

[516] The officer was aware of the MCM and the requirement to report pertinent information up the chain of command to the lead investigator. When shown a number of written action details, the officer had vague recollections about some of the interviews he conducted and explained that he was given short notice of his attendance at court and had little time to review the voluminous briefing file materials and his notes.

[517] Paul Dobos was the affiant for the many warrants and production orders sought and obtained in this investigation. He specifically recalled a production order for the accused’s Petro Points for the period August 13-September 24, 2014. He explained that he chose the start date based on information from Michael Panovski that he believed he saw the accused in an area near the Frigos’ property driving his Jeep a few weeks prior to the shooting and that he chose the end date to coincide with the arrest of the accused.

[518] He too was aware of tunnel vision in 2014.

[519] Zorca Panovski, the accused’s sister-in-law, has known the accused for 58 years and was married to his brother. She testified that the accused’s father was a farmer in Macedonia and owned land in Optichari, which he gifted a few years before his death in 1982 in equal shares (25-30 acres each) to her late husband and the accused.

[520] She explained that the accused’s sister pays the taxes on the land and because the sister is sick and of limited means neither she nor the accused took any money from the rents that came in for the lands.

[521] She also described a huge plot of land the accused’s late father had and the family’s ongoing efforts to get this land back and referred to a newspaper article for a local Macedonian newspaper that wrote about this piece of land in Kalavezana.

[522] She was aware that the accused’s sister currently rents or rents out the land owned by the accused and believed the accused wants to hold onto that land for now. She believed the accused came to Canada approximately 30 years ago and prior to that he lived in both the U.S.A. and Australia. She recalled the accused coming over to say goodbye before he left for Macedonia but could not remember the date.

[523] The evidence of Rosanna Magnotta was played from her previous testimony at the first trial on May 8, 2018, as part of an ASF.

[524] She described how her late husband Gabe, who passed in 2009, employed the accused as a bird-dog trainer from 2003-2005, which included the accused taking the dogs and competing with them at trials in the U.S.A., as Gabe was too ill to travel and compete at that time.

[525] She explained how much Gabe loved his dogs, how proud and satisfied he was of the success and national championships achieved through Magnotta’s dog Red Ice Wine, whom she described as the best bird dog in the world.

[526] She agreed that Gabe was a gentleman who would not speak ill of others publicly and who would not tolerate others doing the same if it brought dishonour to him. She was aware that Gabe and the deceased were friends due to their mutual interests in the bird-dog world.

[527] John Gibson recalled his son arriving at the family home around 3:00 p.m. on September 13, 2014, and asking him to drive down the road to look at a “suspicious” vehicle at the end of the lane way.

[528] John hopped in his Chevy Suburban with son Jeff in the passenger seat and observed a male in the back passenger seat of a vehicle but could only see the person from the waist down due to the location of this person and the fact that John was looking over the trunk lid of the vehicle. He described seeing a person with beige pants and a green shirt who was not overweight.

[529] He drove past the vehicle, turned around at the next laneway and came back for a further look. At this time, the same person John had seen earlier crouched down in the back seat had moved to the trunk and then rapidly got back in the driver’s door of the car. From a distance of 4-5 car lengths away, he observed the person wearing a long, medium chestnut brown camo trench coat (possibly with extra shoulder protection flaps) and having his hand held up to his head and covering his face.

[530] He described the person’s clothes as normal hunting gear meant to blend in with the surroundings and the vehicle as being in really good shape with dark tinted windows and chrome wheels. He believed it was a 4-door green, blue or turquoise in colour with a Toyota emblem on the trunk. He confirmed that he learned it was a Toyota emblem because he talked with his son Jeff about the type of emblem it was and that his son is better with car types.

[531] He estimated the height of the lone occupant at less than 6’ and no taller than 5’9”. He believed his son was in a better place to observe the vehicle and the driver because he was focused on driving.

[532] I pause here to note that John candidly acknowledged that his son Jeff was better positioned to make observations and that John’s primary focus was on the road as driver. Accordingly, where John’s descriptions differ from Jeff’s, I accept Jeff’s as more accurate and reliable.

[533] Danche Evtimovski, a retired mechanical engineer and friend of the accused, testified about attending a Macedonian festival with the accused on Sunday September 14, 2014, in Markham. He recalled the accused coughing a bit after he picked him up at his apartment and they drove to the festival.

[534] He remembered they left the festival after a few hours because it was a bit rainy, and the accused said he was not feeling too good. He described the accused that day as well dressed and well groomed with short hair.

[535] Monica Muhanlal’s evidence was received by way of an ASF (Exhibit 221). She was associated with Joe’s Barber Shop on Markham Road in Scarborough (the “shop”) in September of 2014 where the accused worked one day a week and she described him as a punctual employee over the 10 years she had known him.

[536] She recalled the accused attended the shop on the morning of September 13, 2014, around 10:00 a.m.-10:30 a.m. after having retrieved his suit from a nearby dry cleaner and sharing his plans to go dancing that evening and to church the following day. No mention was made of his plans to go hunting.

[537] She received two calls the next day (September 14, 2014) from the accused at 3:00 p.m. and 3:30 p.m. but was unavailable to speak both times and advised she would call back. When she returned his call a short time later, he advised that everything was OK.

[538] The accused never complained to her about being upset with any known or named person. She knew his blue Toyota Corolla but was not sure about knowing if the windows were tinted. She was familiar with the “2 NAT CH” license plate and had not noticed the change in plate.

[539] She knew the accused coloured his hair chestnut brown and had been doing so for 6-7 years, including a time or two a few years ago when she coloured his hair for him. He sported a chestnut brown goatee on September 13, 2014, and acted as he normally did. She had not noticed any change in his demeanour or behaviour in the weeks or months leading up to the shooting.

[540] She cut the accused’s hair around September 3 or 4, 2014, and used a number 5 clipper attachment for the top and number 3.5 on the sides.

[541] She was not made aware of his plans to return to Macedonia. Efforts by her to reach the accused by cell phone on September 17-19, 2014, were unsuccessful.

[542] I pause to indicate that I accept Monica’s evidence to confirm that the accused had hair and a goatee that was chestnut brown in colour and trimmed with an attachment length 3.5 or more on the sides at or near the time of the shooting.

[543] Duncan Way gave evidence of his interview of Eva on September 17, 2014, by way of ASF. Eva described the shooter’s skin to him as having lighter skin. After looking through several FBI picture books of photographs, Eva paused at photograph E6-5 and indicated that it was the features in that particular photograph that caused here to stop on and focus on that photograph.

[544] Kamal Yousf, an experienced pharmacist, briefly explained that the prescription drug Avelox, which was prescribed to the accused at the time of his arrest, is an antibiotic most often prescribed for upper-respiratory infections. He had no personal knowledge as to why this was prescribed to the accused.

[545] Toni Panovski, the son of the accused, was the last defence witness. He recalled speaking to police several times after the shooting, with the first interview being held on September 16, 2014.

[546] He became aware of the shooting through his son Michael. He knew the deceased as his former boss of 20 years when he worked for Hady Construction. He described the deceased as a great boss and said he left for a better opportunity, although he agreed he also left over a refusal to increase his travel expense allowance.

[547] He explained the deceased was a private person.

[548] When police first spoke with Toni, he told police he had a hunch as to who may have been responsible for his murder and that this person looked a lot like him. He also told police this had to do with a long-standing grudge over dogs and that he (Toni) feared for the safety of himself and his family.

[549] He explained that some of this fear related to an intervention that took place between his father and mother shortly after they separated.

[550] He gave police few details and told police he was “fishing myself and did not know who it was” that murdered the deceased.

[551] Toni’s evidence was of little evidentiary value and he clearly did not want to participate in these proceedings.

The Law

[552] The accused is charged with a single count of first-degree murder and a single count of aggravated assault.

[553] He is presumed innocent of these charges unless and until the Crown establishes his guilt beyond a reasonable doubt. This is a heavy burden on the Crown that never shifts.

[554] Proof beyond a reasonable doubt is not equal to proof of probable or likely guilt. It requires that I be sure that the accused committed the offences. This standard of proof applies to each of the essential elements of the offences but not to every piece of circumstantial evidence and requires that I determine if the evidence as a whole is sufficient to establish proof beyond a reasonable doubt. See R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 362.

[555] Instead, I must assess the evidence in a cumulative fashion: “it is the cumulative effect of all the evidence that must satisfy the criminal standard of proof, not each individual item which is merely a link in the chain of proof:” R. v. Smith, 2016 ONCA 25, 333 C.C.C. (3d) 534, at para. 81. See also Morin, at p. 361; R. v. Khalid, 2022 ONCA 501, at para. 23; R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 37.

[556] As noted in Smith, at para. 82:

Often, individual items of evidence adduced by the Crown examined separately lack a very strong probative value. But it is all the evidence that a trier of fact is to consider. Each item is considered in relation to the others and to the evidence as a whole. And it is all the evidence taken together, often greater than the sum of individual pieces, that is to be considered and may afford a basis for a finding of guilt… [Citations omitted.]

[557] In order to prove the offence of first-degree murder, the Crown must prove:

(1) That the accused committed an unlawful act;

(2) The unlawful act caused the death;

(3) The accused had the required intent; and

(4) The murder was planned and deliberate.

[558] As stated in my introduction, the unlawful act, namely the discharging of a firearm is not in dispute, nor is there an issue that the death was caused by the gun blasts. Similarly, the nature of the execution style shot to the back of the deceased’s head makes it clear that whoever pulled the trigger meant to cause death and that this act was intentional.

[559] I will address the fourth element, or planning and deliberation, later in these reasons. I note at this point that I must find some form of considered scheme or design rather than an impulsive or sudden act.

[560] The parties agree that the main or central issue for determination in this case is identity: who shot and killed the deceased and wounded Eva?

[561] To prove the offence of aggravated assault, the Crown must prove:

(1) That the accused intentionally applied force to Eva without her consent and with knowledge that she did not consent, and

(2) That the intentionally applied force wounded, maimed, disfigured or endangered her life.

[562] Again, that Eva was hit with a shotgun pellet in the face and did not consent to this and was wounded because of this is not in dispute.

[563] The parties agree that Villaroman sets out the current law when dealing with circumstantial evidence.

[564] What is clear from Villaroman is that I am not to “fill in the blanks” with speculation or every possible conjecture but only with reasonable inferences after considering all the evidence and filtering such evidence through the lens of human experience and common sense.

[565] In the words of Villaroman, at paras. 37-41, I must decide whether the evidence “viewed logically and in light of human experience” excludes all reasonable inferences other than guilt. See also R. v. Anderson, 2020 ONCA 780, at para. 24; R. v. Edwards, 2022 ONCA 78, at para. 33; and R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 124.

[566] Further, inferences consistent with innocence may also arise from a lack of evidence rather than proven facts: see Villaroman, at para. 35. See also R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; and R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 30.

[567] Counsel points me to a series of Court of Appeal cases that remind me to exercise caution when dealing with eyewitness evidence and that an honest witness can still be unreliable.

[568] Other inculpatory evidence must exist to give weight to resemblance evidence. Dissimilarities are to be assessed considering the description evidence overall. I must focus on the failure to see distinctive features: R. v. Alvarez, 2021 ONCA 851, 159 OR (3d) 1; and R. v. Huerta, 2020 ONCA 59.

[569] The frailties of eyewitness evidence are further heightened when witnesses get only a “fleeting glimpse” of the unknow person and do so in stressful situations: R. v. Miaponoose (1996), 1996 CanLII 1268 (ON CA), 30 O.R. (3d) 419 (Ont. C.A.); and R. v. Pelletier, 2012 ONCA 566.

[570] I will have more to say on the law on eyewitness evidence later in these reasons.

[571] When dealing with the evidence of possible collusion, I must accept that hearing another witness’ description may colour further descriptions and taint such evidence: R. v. R.I., 2024 ONCA 185.

[572] Given the defence evidence called, I must apply the framework set out in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, that if,

(1) I believe the defence evidence, I must acquit,

(2) if I disbelieve the defence evidence but it raises a reasonable doubt I must acquit, and

(3) even if neither of the above applies, I can only convict if the evidence I do believe proves guilt beyond a reasonable doubt.

[573] As will be seen later in my Reasons, it is difficult in this case to rigidly apply the W.(D.) formula. I will remain governed by the principles that the accused need prove nothing, that defence evidence called need only raise a reasonable doubt and that guilt must be proven beyond a reasonable doubt and be the only reasonable and rational inference after considering all of the evidence.

Positions of the Parties

[574] The Crown relies on witness testimony suggesting a long-standing and deep-seeded grudge they allege the accused held towards the deceased.

[575] The Crown argues that the accused blamed the deceased (and others) for his loss of reputation in the bird-dog trials world after the Georgia incident in 2005 and the subsequent renaming of his former champion dog Panovski Silver to Belfield Silver.

[576] This long held and deep-seeded grudge, argues the Crown, culminated in the planned and deliberate and targeted murder of the deceased and wounding of Eva. The Crown’s theory is that after taking steps to confirm where the deceased would be, the accused, knowing Hullett and knowing where to hide and where the trails cross, lay in wait for the deceased to appear and then pounced.

[577] The Crown points to a string of difficulties post 2005, including the breakdown of the accused’s family, a divorce and bankruptcy. These, based on Warren Harper’s evidence of motive, are all fueling the deep and longstanding grudge the accused apparently holds over the deceased and Mike Hester.

[578] The Crown points to a series of events, leading up to and following the shooting, that point to and confirm the identity of the shooter as the accused.

[579] While acknowledging that the case against the accused is a circumstantial case, the Crown characterizes the cumulative weight of such evidence as a mountain of overwhelming evidence that squarely, firmly and solely points the finger of guilt at the accused.

[580] While conceding that much of the evidence standing alone would be insufficient, the Crown points to the cumulative weight of the pre-shooting, shooting, and post-shooting evidence to demonstrate both motive and opportunity for this carefully planned crime.

[581] While accepting many errors in Eva’s and other eyewitnesses’ identification, the Crown reminds me that not all discrepancies are fatal and some reflect understandable and expected mistakes in stressful circumstances.

[582] The Crown argues that this carefully planned ambush followed by the accused’s immediate efforts to distance himself from the evidence make clear his guilt for both offences. The Crown urges me to find Eva’s eye witness descriptions unreliable given her horrific circumstances and to place little weight on the track width evidence which was only gathered for investigative purposes.

[583] The defence counters that there may be several unfortunate coincidences, such as the timing of the tinting, his being near Fergus after the shooting, and of his sudden departure to Macedonia, suggesting these are all explainable with equally plausible alternative reasons and pointing to a number of fatal flaws in the Crown’s case.

[584] While accepting that the accused may look younger than his biological age, the defence points out that he does not look 30 or more years younger, and that at 5’4”, he is certainly not, nor was ever tall or anywhere near 5’9” or 5”10”.

[585] The defence argues that the composite sketch of the accused does not look anything like him. The composite sketch of his car does not look like his Toyota Corolla. He was neither clean shaven nor light skinned at the time. He was not fit and had a clear belly. His gun was black, not beige or brown. His camo coat was not beige. The letter M was not on his hat. The tint on his car was not heavy and many witnesses saw through it and into the vehicle although many eyewitnesses said they could not do so.

[586] The defence goes further to allege inadvertent collusion amongst witnesses that taints their evidence and its reliability. The defence says the police investigation was inadequate and the result of tunnel vision.

[587] The defence disputes much of the forensic evidence and specifically focuses on the track width measurements testified to by Sgt. Myatt and his evidence that such measurements would exclude the accused’s Corolla as the vehicle that left the tracks on the road near the deceased and in lot 40589 if they were fresh tracks left simultaneously and were accurately measured.

[588] While conceding that whoever shot the accused did so in a planned and deliberate fashion, the defence suggest his actions on the day of the shooting are explainable and point to concerns about evidence of motive given the manner in which Warren contacted police and his affiliations with others known to despise the accused.

[589] The defence reminds me that any inferences I draw must be reasonable and that the accused voluntarily returned to face these allegations after learning of the warrant for his arrest.

Discussion

[590] As earlier referenced, and it bears repeating, this is largely a circumstantial case where the evidence on the issue of identity is based primarily on circumstantial evidence. I must be satisfied that the accused’s guilt, or in this case, the identity of the accused as the shooter, is the only reasonable inference that arises from the evidence that I accept.

[591] In doing so, I must carefully consider whether any alternative plausible and reasonable inferences arise from the evidence. If they do, I must conclude that the Crown has not satisfied me beyond a reasonable doubt on that element.

[592] Unreasonable inferences based on speculation or not rooted in ordinary common sense or human experience do not constitute alternatives or plausible reasonable inferences.

[593] In a case of this nature, I am required to thoroughly canvass and examine the central issue of identification and the reliability of the evidence I accept.

[594] I need not repeat that obvious: well-intended eyewitnesses can, and do, make mistakes. Frailties and inconsistencies are expected. Not all discrepancies are fatal, and it is the extent and nature of the discrepancies that matters.

[595] In this case, I have some eyewitness evidence of the alleged shooter as well as extensive circumstantial evidence, including evidence as to possible motive and opportunity as well as some post-offence conduct and some prior discreditable conduct.

[596] I am mindful that I do not examine each individual piece of identification in assessing whether the Crown has proven identity beyond a reasonable doubt but rather the total sum of such evidence.

[597] The defence need not prove anything. It is the Crown that must prove identity beyond a reasonable doubt.

[598] I also pause to observe that I must be equally careful not to rely on some of the available identification evidence for impermissible inferences or conclusions.

[599] For example, the fact that some witnesses may have mis-calculated the height of the accused at 5’9” or 5’10” cannot be used to draw an inference that helps explain why other witnesses would make a similar miscalculation or estimate.

[600] Similarly, what has emerged from the evidence is that there are clearly discrepancies between what witnesses describe about the shooter and the physical description of the accused at that time (September 13, 2014) as well as discrepancies between some witnesses’ description of the shooter’s vehicle involved and the accused’s vehicle.

[601] Like any case where eyewitness identification is a central factor, I must carefully assess the reliability of such evidence and be mindful of factors such as the relationship and any prior knowledge the witness may have of the person observed.

[602] I must consider the state of mind of the witness and whether the witness was affected by any form of mental or physical impairment. This factor particularly comes into play regarding the state of shock and bewilderment Eva was clearly in at the time of the shooting and when she made her observations about the shooter and the vehicle involved.

[603] Put another way, it may be open to me to assess whether her state of mind impacted her ability to recognize the shooter and the vehicle involved such that she was simply mistaken.

[604] I also consider the length of time and the distances from which the witnesses had to make the observations and the quality of those observations.

[605] I may also rely on photographs or video stills or footage of what the accused and his vehicle looked like at the time of the shooting as probative to the issue of identification: R. v. Araya, 2015 SCC 11, [2015] 1 S.C.R. 581, at para. 37. This means that I can examine the photographs filed, and the composite sketches made, compare them, and draw my own conclusions.

[606] In accordance with recent direction from the Court of Appeal in R. v. Layne, 2024 ONCA 435, which both parties urge me to follow as the most recent binding statement of the law on eyewitness evidence, I must examine witness identification evidence and its reliability with a focus on where such descriptions are like and not like the accused.

[607] I must scrutinize the identification evidence and look for both similarities and dissimilarities.

[608] I will attempt to assess this evidence against existing exculpatory evidence and lastly, I will review and evaluate the relevant evidence keeping in mind the following four factors referred to in Layne, at para. 23, as the Tat factors:

(1) the witness is identifying a stranger;

(2) the circumstances of the viewing raise accuracy concerns;

(3) the pre-trial identification procedure is flawed; and

(4) there is no independent confirmatory evidence.

[609] In cases like this, strong confirmatory evidence and other evidence of motive and opportunity may go a long way in addressing some of the inherent dangers or frailties in eyewitness identification. I also note that unlike many cases where the risk of misidentification exists, no witnesses directly identified the accused as the shooter and all evidence of identification is circumstantial in nature.

[610] Before addressing the central issue, I repeat there can be little doubt that what took place at Hullett that September day in 2014 was an execution-style killing. The deceased was murdered, and the shooter had the required intent to kill. This was a carefully planned and deliberate act.

[611] The deceased and Eva, were well known and long-standing participants in the bird-dogging world and were familiar with the accused.

[612] The accused previously worked for and, during a short time in 1996, lived with the deceased (at a time when Eva was not married to or living with the deceased). Eva last saw the accused in 2006 when he had grey hair.

[613] The accused was also well known in the bird-dogging world, both as a highly respected and sought out trainer and a participant in some competitions.

[614] His pride in winning two national championships in 2005 is everywhere-his licence plates, Facebook page, mugs, plates, pictures, throw blankets and in conversations with anyone who would listen.

[615] Like other bird-doggers, dog trials and competing were a huge part of his life. Like other bird-doggers, he spoke about it, posted about it and could be accurately described as being obsessed with it.

[616] His life as a highly respected trainer seemed to end abruptly in 2005. Whether this was due to Gabe Magnotta’s declining health and pending decision to sell his dogs and end the accused’s employ as his dog trainer and a competitor at dog trials, or solely due to the incident in Georgia is unclear.

[617] What is clear is the name of one of his best trained dogs, Panovski Silver, was changed around that time to Belfield Silver due to deceased’s desire to end his affiliation with and ties to the accused shortly after the Georgia incident and the broad publicity it received in the tight-knit and gossipy bird-dogging community.

[618] I note that the accused went on to enjoy much success after parting ways with the deceased and win two national championships with another dog he trained for Gabe Magnotta.

[619] The Crown’s evidence of motive arises primarily from Warren Harper who testified that a few months before the shooting the accused told him that the deceased and Mike Hester ruined his life and they would pay. Warren stopped taking calls from the accused to try and distance himself from this negativity.

[620] Warren also acknowledged that it was the accused who came to his house the year prior in 2013 to breed a dog and that the accused never made a threat that Warren heard to kill anyone.

[621] Although mindful that Warren was friends with Toni Panovski, who Warren agreed “detested” the accused, this friendship with Toni does not convince me that Warren’s evidence of what the accused told him is untrue or unreliable.

[622] At one point in his testimony, Warren accepted that the accused’s comments about the deceased were akin to “hockey room locker talk.”

[623] I have some difficulty embracing the concept that Warren and the accused were friends or that Warren was the only person the accused could trust. I also consider the non-reaction of the accused when Warren shared with him that he was taking a dog formerly trained by the accused (Sidney Crosby) to Mike Hester. His response was unexpected. Acquiescence. No negativity. No rant. No rage.

[624] Hardly the reaction one might expect from someone who allegedly hated Mike Hester, blamed him for his lot in life and made clear Mike “would pay” along with the deceased for his actions against the accused in Georgia.

[625] The Crown also relies on the evidence of Michael Panovski for both motive and planning. More specifically, Michael’s testimony that the accused told him he needed him to get him a gun so that he could kill someone but would not reveal who he wanted to kill.

[626] Michael described the accused’s behaviour that day as erratic and bizarre. This behaviour scared Michael to the point that he left quickly and early. Michael was afraid of his own grandfather.

[627] Although I am satisfied this behaviour occurred, I cannot say that it clearly related to the deceased and more specifically, to Michael getting a gun for the accused to allow the accused to shoot the deceased. In reaching this conclusion, I consider the many memory lapses shown by Michael throughout his testimony.

[628] I pause to address the recurring theme and defense arguments of witness collusion and coaching and of inadequate police investigation.

[629] I need not spend much time on these allegations by defence.

[630] Did police follow the strict letter of MCM?

[631] No.

[632] Did they have tunnel vision?

[633] No.

[634] Was the investigation inadequate?

[635] No.

[636] Like every investigation, more could have been done. This was not a perfect investigation, but it was more than sufficient.

[637] Although I heard repeated allegations of witness collusion or coaching, I saw none of it. Witnesses often speak to one another, both before and after they become witnesses. It is not against the law. Witnesses also give statements. Not one witness agreed or admitted to being coached by police about what to say.

[638] Not one witness appeared to me to taint their evidence to conform with another. Just the opposite. The many minor inconsistencies tell me that it is just the opposite. The three hunters are a perfect example.

[639] I will have more to say about Eva’s evidence and the influence police may have had on her testimony later.

[640] In my view, this endless inquiry into witness collusion and coaching were an unnecessary distraction that unduly lengthened proceedings.

[641] Although there is no doubt that police did not strictly comply with the MCM, that alone does not create a remedy at trial. It must impact trial fairness or the right to make full answer and defence. Neither were affected.

[642] This was yet another unnecessary detour that unnecessarily prolonged, distracted, and complicated proceedings.

[643] Simply put, neither the investigation nor disclosure were perfect, but both were done in a manner that did not infringe any Charter rights of the accused nor deny him a fair trial. In fact, the Crown took herculean steps before and during this trial to ensure all reasonable disclosure requests were responded to in a timely fashion. They are to be commended for such efforts.

[644] As for the allegation that tips were not followed up on by the police, I need only address the concern raised by the unknown tipster that provided third-hand information as an example. The tipster told police that Eva was not cooperating, that police had intelligence about this shooting in advance and that people should “shut their fucking mouths”.

[645] As was properly alluded to by Det. Inspector Randy Wright, how do you follow up with an unknown person who provides inaccurate information? Not every tip can be followed-up with and not every follow up takes much time. Follow the evidence, not the hunches. Exactly what police attempted to do.

[646] I now return to focus squarely on the central issue of identification.

[647] As earlier indicated, I accept Jessica’s evidence including:

(1) That the accused replaced his “2 NAT CH” vanity plates with standard issue plates on September 5, 2014, for no apparent reason (confirmed by the MTO documents) and then framed the vanity plates and displayed them on his living room wall.

(2) The following week, on September 12, 2014, for the first time, the accused tinted the windows on his Corolla and spent much of that evening, as he often did, on his computer looking at Facebook and American Field (later confirmed by forensic searches of his computer).

(3) That at the time of the shooting, the accused had a goatee and a round belly and that he dyed his hair and his goatee a darker colour (confirmed by photographs and the accused’s co-worker as being chestnut brown) and that the accused had complained of being unwell the week prior to the shooting and sought medical consultation on the week prior for his ailment; and

(4) That at 8:25 p.m. on the eve of the shooting, she observed the accused to be wearing blue jeans and a long-sleeve khaki coloured top (the same clothes he left with earlier that afternoon) and still suffering from a cold.

[648] I next go to Jeff Gibson, who was not previously familiar with the accused or his vehicle. He had three separate occasions on the afternoon of September 13, 2014, to view a vehicle at the end of his parents’ driveway off of Front Road as well as the lone male occupant.

[649] He described the unknown male as wearing a folded knitted green toque, sweater, blue jeans and a long camouflage coat. He estimated him to be 5’10” weighing between 190-200 lbs and as being fit, clean-shaven and in his late 30’s or early 40’s.

[650] He described the vehicle as a 1999 Green Toyota Corolla with dark tinted windows and in good condition. Jeff could not see through the windshield to the back of the car.

[651] Although some of his observations were inaccurate, many were spot on. I have little difficulty concluding that the vehicle seen that day and the person seen by and in that vehicle was the accused and his 1998 Toyota Corolla.

[652] I next turn to a group that I collectively refer to as the three hunters: Josh, Jason and Matt, none of whom were familiar with the accused or his vehicle. Although none can sufficiently identify the driver, they were able to get a good look at a vehicle.

[653] Josh and Jason first saw a vehicle in lot 80754 around 3:30 p.m. on the day of the shooting and parked at a funny angle. Josh is clear in his evidence that he saw a 4-door blue Toyota Corolla with tinted windows and what appeared to be a single male occupant inside in an older style or old-school camouflage jacket.

[654] Jason saw a similar 90’s era Camry with a lone male in a camouflage jacket. Both observed the vehicle immediately pull out of lot 80754 after they arrived.

[655] As they were getting their hunting gear ready and standing in lot 80754, Josh again observed the same vehicle heading northbound on Wildlife Line. Josh agreed this could have been a Nissan but that it was “not likely” that it was.

[656] Jason also saw the same vehicle pass by going north on Wildlife Line while he was getting his gear ready and later south on the same road while he was still in the lot and described traffic at that time as very sparse.

[657] Jason later agreed that a better description of the camouflage coat he saw was that it resembled a bunch of “light paint drops.”

[658] Matt, although not seeing the Toyota at lot 80754 when he arrived a few minutes behind, also saw a Toyota Corolla with tinted windows drive by their parking lot on two occasions while they were getting ready to hunt, which he described as a compact car (either an Escort, an Elantra or a Corolla) with tinted windows.

[659] Michael Panovski, familiar with both the accused and his Toyota Corolla, testified that he saw a vehicle pass along Conservation Road heading east while he was returning to HQ after training dogs and a few hours later observed that same vehicle heading west past HQ. He described the vehicle as having mirrored windows and as being baby-blue or possibly green in colour.

[660] Was the accused’s Toyota Corolla at Hullett and at parking lot 80754?

[661] This is not Yonge Street in Toronto or the 401 where these various persons are making their observations. This is a sparsely travelled dirt road in a rural wildlife reserve. By all accounts (from the witnesses who testified), most people there that day drove a pick-up truck or an SUV. A green or blue or turquoise small car would likely stick out at a hunting or dog trials event.

[662] I have little difficulty concluding that the three hunters and Jeff Gibson all saw the same vehicle. The slight discrepancies make sense given the passage of time, the normal frailties of eyewitness evidence and the fact that many police officers and a longtime Toyota salesperson were not certain of the colour.

[663] I accept and find that the 3 hunters saw the accused’s Toyota Corolla vehicle around Hullett that day.

[664] I do not reach the same conclusion about the vehicle Micheal Panovski saw.

[665] He described the vehicle he saw as baby blue (possibly green) with tinted windows that you could not see through. He did not recognize the car as his grandfather’s and did not recognize actual photographs of his grandfather’s car. I have earlier commented on his many memory lapses and take those into account in this regard.

[666] I recall Josh testifying about a light blue Subaru seen earlier that day in another Hullett parking lot and simply cannot be satisfied that Michael saw the accused’s vehicle pass by him at HQ on two separate occasions that day.

[667] I must now turn to the vehicle and the shooter seen in lot 40589 and more specifically to:

(1) Eva’s description of the car and the composite drawings she helped develop; and

(2) Sgt. Myatt’s track width evidence that if accurate, excluded the fresh tire tracks at the scene coming from the accused’s Corolla.

[668] I start with the composite sketches. I reviewed them each carefully. The defence argues that the process was tainted and that both Eva and Duncan Way were unduly influenced by comments and suggestions made by other officers about the accused.

[669] I disagree. Eva told me she spent many hours, looked through many books and websites and did her best to help police. She was and remains honest and genuine in those efforts. Her descriptions have remained consistent almost 10 years later. She was neither tainted nor unduly influenced in helping police develop these composite sketches.

[670] Starting with the drawing of the accused’s vehicle, I compared it to the back of the accused’s Toyota Corolla. I agree with the evidence of Tammy Thompson. The taillights depicted in the sketch are obviously different from the accused’s Toyota Corolla taillights and more consistent with the square taillights of a Nissan Sentra.

[671] The vehicle drawn is not the Toyota Corolla. The license plate is new, not pale. There is no chrome around the passenger windows. The word Corolla on the back cannot be confused with the vertical chrome lines depicted in the drawing. The square taillights in the drawing look nothing like the accused’s Toyota Corolla but do clearly resemble a Nissan Sentra or Senza.

[672] I recall Eva testifying that she doesn’t know if the information she provided at that time regarding the shooter’s vehicle was accurate or remember the taillights. What is abundantly clear is how hard she tried her best to do so. How motivated and determined she was to help police find the shooter.

[673] As I will discuss later, there may be compelling reasons to justify and explain her evidence that clearly describes the back of a vehicle that is not the accused’s Toyota and more closely resembles a small Nissan. After all, what is pristine in clarity to me is that Eva was anxious, distraught, and desperately searching for the shooter at this time.

[674] I now turn to the second and more concerning issue: Sgt. Myatt’s discovery of and measurement of tire track widths found on the road and in parking lot 40589.

[675] After measuring the tire track widths found on the road and comparing them to the tire track widths on the accused’s Toyota Corolla, his evidence was clear in his communication with the Crown: “I would rule out the Corolla” as the vehicle responsible for these tracks. The same conclusion applied to tracks found in parking lot 40589. This conclusion came after applying an up to 10 cm margin of error.

[676] I could say he measured wrong. The Crown urges me to do so. Tells me he is basing his measurements on weakly defined and unclear edges and that no scientific validity attaches to these measurements.

[677] But doing so and accepting that argument throws into doubt the many other things he did that day and the days that follow. There is no evidence to suggest he made a mistake, that he was sloppy, and that he was not trained on Total Station, which relies on lasers for measurement. That he was not careful with his hand measurements and his formulation of 90-degree angles.

[678] He did his best to get it right. He was an experienced forensics officer and knew the importance of what was at stake. I accept from Officer Armstrong that the acceleration marks were fresh and were from recent motor vehicle tracks and that no vehicle entered the scene after he secured it shortly after 5:30 p.m. on the day of the shooting.

[679] Sgt. Myatt did his best to get a 90-degree angle. I find that fresh accelerations marks were there and that some went through the blood trail. I accept that the rain coupled with the dirt road would only make those marks more pronounced, not less and that the weather by the time of the shooting had improved and it was no longer raining. This was a lightly travelled road, and the scene was secured shortly after the shooting.

[680] Measurements were made using a reliable laser device and later with a measuring tape and the best efforts of an experienced and trained forensics officer trying his best.

[681] I pause here to note that Officer Myatt’s evidence regarding track width was not expert evidence. He need not be an expert to testify about observations he made or measurements he took at the scene.

[682] He could not say whether the tire track widths found and measured were left simultaneously-he could also not say that they were not.

[683] This evidence and these measurements were neither complicated nor convoluted. Like any evidence, I may accept some, none, or all of it. What I am not prepared to do is to ignore it, or place no evidentiary weight on it, particularly given its potential exculpatory nature. I reject the Crown’s argument that this evidence should have no weight and was merely done for investigative purposes.

[684] I also note several other concerns raised about the presence of the accused’s Toyota Corolla.

[685] First, although blood was found on the accused’s Toyota Corolla, it was tested and found not to be the deceased’s blood.

[686] Second, other waddings cups found at the scene that were not consistent in class characteristics with the shotshell found on the accused or in the deceased’s brain were not tested.

[687] Third, no camouflage clothing, including pants were ever found in the Toyota Corolla.

[688] Fourth, although Eva was clear that this was dark tinting that you could not see through into the car, other police and civilian witnesses confirmed that you could see the back seat and through the side windows to the other side of the vehicle and beyond. You could see through the windshield. You could see the colour of the seat fabric.

[689] I accept the officer’s explanation for why the track width measurements of the Toyota Corolla were not disclosed until this trial. Although it was perhaps unwise at the time for him to make these recordings separately and at the back of his notebook, I am not prepared to find that this was intentional or done with any form of malice. Simply put, he forgot and acknowledged at trial both his regret and his remorse.

[690] However, that does not take away from the fact that his evidence alone may be sufficient to rule out the accused’s Toyota Corolla at the scene.

[691] I next return my focus to the accused.

Was the Accused at the Scene?

[692] Let me start with the obvious. The accused was not (and is not) 5’9”-5’10”. Not even close.

[693] Jessica tells me he was 5’6” or shorter. She is generous. His license tells me he is roughly 5’4”. Warren and Mike Hester were the only witnesses that got it right. I accept that evidence, coupled with my own physical observations of the many photographs and videos filed, of his actual height at that time.

[694] He had chestnut brown dyed hair and a goatee at the time which indeed made him look considerably younger than his biological age. Maybe 50’s or 60’s. Not 30’s or 40’s.

[695] He was not fit and slim. I accept Jessica’s description that he had a belly, which, perhaps, was not rotund but not lean or athletic looking. He was feeling unwell, but I place little weight on this as he was well enough to hunt, to want to go dancing later that evening and to attend to several errands the next day.

[696] I turn next to the composite photograph and the police photographs. I acknowledge some similarity. I also note many discrepancies. He was and remains olive skinned, was not clean shaven at the time and did not resemble someone 30-40 years younger. This composite shows a younger looking, clean-shaven white skinned male. There is some modest resemblance. Put simply, this may look like a much younger version of the accused.

[697] His hair was short but not brush cut short and not grey. There is no evidence other than he wore jeans that day. The Eukanuba ball hat seized was neither beige in colour nor camouflage style. Neither matching beige pants nor a beige nor brown gun was found.

[698] The drawing of small circular or irregular circular style camo Eva made with Duncan Way does not closely resemble, in my view, the pattern of camouflage seen in the coat filed as an exhibit which, in my view, is composed of irregular shapes, few of which resemble circles.

[699] Taking a deeper dive, his neck or “turkey neck” as his counsel referred to it does not resemble the neck in the composite photograph and the jaw line also looks dissimilar.

[700] I pause here to note that Eva was familiar with the accused, albeit eight years previous and when he clearly looked older with grey hair. She had mere seconds to make these observations and did so under unfathomable anguish and stress.

[701] Can I conclude that most of or all her descriptions are unreliable and inaccurate and that she simply failed to recognize him in these incredibly trying circumstances?

[702] If I conclude that she is accurate, even partially, this may raise a doubt as to the identity of the shooter, particularly when coupled with the track width evidence.

[703] I now turn to what other evidence exists that may establish the presence of the accused at the shooting.

Confirmatory Evidence

[704] So, I have thus far concluded that the accused and his Toyota Corolla were at the Gibson farm between 2:30 p.m.-3:00 p.m. and later at Hullett at lot 80754 after 3:30 p.m.

[705] What clearly emerges from Eva’s evidence are descriptions of both the shooter and the shooter’s vehicle that are inconsistent with and different from the appearance of the accused at that time and of his Mystic Teal Pearl 1998 Toyota Corolla.

[706] So, I turn to the large and strong body of circumstantial evidence and ask whether it is cumulatively sufficiently reliable and compelling to compensate for these inaccurate descriptions and otherwise confirm the accused’s presence at the scene and the identity of the accused as the shooter?

[707] Leading up to the shooting, the accused:

(1) Replaced his vanity plates and tinted his windows of the Corolla in the weeks and days before the shooting.

(2) Repaired his shotgun in late July 2014 such that it was in working order and capable of firing at the time of the shooting.

(3) Purchased 2014 Migratory Bird hunting permit three days before the shooting.

(4) Spent many days in early September 2014 accessing American Field and Region 13 Field trials websites from his home computer that would have contained information about the fall 2014 field trials at Hullett and changed his Facebook profile picture 68 times between July 30-September 14, 2014.

(5) As confirmed by cell phone pings, was around the Frigos’ residence (that is on Airport Road, Caledon, Ontario) on multiple days leading up to the shooting, including September 7, 8, 2014 (the same day Michael saw him near the Frigos’ residence and the accused dropped dog training items at Michael’s home) and September 12, 2014; and

(6) Dropped off Jessica shortly after noon on the day of the shooting and told her he was going geese hunting and had his shotgun with him in his Toyota Corolla.

[708] After the shooting, the accused:

(1) As a result of cell phone pings, was near Fergus, Ontario, at 6:56 p.m. on the day of the shooting, which would require someone driving at normal speeds and taking the fastest route from Hullett to depart Hullett at approximately 5:15 p.m.

(2) Arrived at Jessica’s apartment at 8:22 p.m. that evening and advised her to look at the dashboard clock and remember the time “...if someone asks what time I’m here”.

(3) Fills his car with gas and buys and uses a SuperWorks car wash (which includes an underneath clean) that evening at 9:36 p.m. at a station near his home and Petro Points records show he has not purchased a car wash in the previous 30 days.

(4) Attends at the laundromat Sunday September 14, 2014, in the morning explaining to Jessica that it is cleaner than his building’s laundry.

(5) Cancels (or attempts to cancel) his apartment, auto and life insurance policies and his gym membership (incurring a $110 fee to do so for the gym).

(6) Acquires new luggage and a last-minute open ticket to Macedonia with a planned return six months away.

(7) Withdraws 5,000 Euros and $5,000 from his bank and makes inquiries about receiving Canadian pensions in Macedonia and monetary limits for the amount of cash you can bring to Macedonia; and

(8) Leaves on September 15, 2014, for Macedonia after giving his longtime girlfriend less than a day’s notice he is leaving.

[709] Relying on the forensics evidence, the accused:

(1) Possessed a 20-gauge shotgun and police later located a 3” size 4 shotshell in his seized camouflage coat pocket, both consistent with the type of firearm used to shoot the deceased and the size of the pellets recovered from the deceased.

(2) Possessed a size 4 shotshell with wadding that had an agreement of characteristics with the wadding recovered from the brain of the deceased and found in the ditch near where the deceased was discovered.

(3) Possessed ammunition stored in a steel case that was seized from the utility shed at Dale Reesor’s farm that was the same size shotshell (5 and 6) as the steel pellet removed from Eva’s cheek; and

(4) Five particles of GSR were located on the passenger seat of the accused’s Toyota Corolla along with five particles located on the accused’s camouflage jacket, and a particle on each of his green toque, ball cap and glove.

[710] I pause at this point to explain why I place very little weight on both the distant testing done by Jennifer Plath and the GSR particles located.

[711] Jennifer’s testing was conducted with the firearm parallel to the floor while the evidence from Eva was that the third shot was fired from inside the vehicle with the gun being placed through the open passenger front window. Given that the deceased was found lying in a ditch it would make sense that this third shot would have been fired at a downward angle. Jennifer was unaware that police later searched but could not locate any fiber wadding at the scene that would be consistent with the fiber wadding identified in the shotshell (unfired) recovered from the accused’s camo coat pocket.

[712] Regarding the presence of a total of 13 particles of GSR, Dr. Ruddell made it clear that he could not say when they got there, who put them there or the calibre of the firearm they came from. He could say that 10’s to 100’s of 1,000’s of GSR particles is not an unreasonable assumption as to the number of particles released when a shotgun is fired, with most of the particles coming out of the muzzle.

[713] He explained the many alternative explanations for the presence of the particles, including transference from a hunter (their clothes or their hands), from a police officer and noted the absence of GSR on the roof of the Toyota Corolla or on the passenger windowsill.

[714] So, is the presence of strong circumstantial evidence of motive and opportunity enough to overcome the issues raised about identity?

[715] I accept that the accused was obsessed with bird-dogging and had some animus towards the deceased and Mike Hester, and that this is some evidence of a possible motive.

[716] Yet, other than Mike Hester, he speaks ill of the deceased to no one else and nothing on his much-used Facebook account or internet searches suggests confirmation of this professed hatred. Police uncovered, amongst other things, a September 6, 2014 search for Western Union regarding transfers to Macedonia.

[717] Jeff Haggis testified that the accused stopped participating in field trials after Gabe sold the dogs and stopped employing him. Matt Haggis remembers him still attending at Hullett trying to sell dogs after 2005. The events in Georgia may be one of many reasons for why the accused got out of the field trials world.

[718] Michael Panovski’s evidence about the accused’s bizarre and erratic behaviour that day several months before the shooting and his request to get a gun to kill someone could equally apply to the deceased as it could to the neighbor that fought with his grandson that day or to a third unknown party or as part of an otherwise delusional and nonsensical rant that the accused went on. This behaviour again appears to be out of character and isolated.

[719] I also struggle with the notion of two separate guns as described by Eva. Where is the second gun? Was it brown? Did the accused crawl across the driver’s seat to the passenger window and then take aim or was a second passenger in the vehicle? Was the accused in someone else’s Nissan Sentra?

[720] Jessica’s evidence that the accused requested that she should note the time at 8:25 p.m. in case anyone asks is strange. The Crown suggests I look negatively upon this as the accused considering an alibi. The helpful distance chart prepared by Officer Walker tells me it takes two hours and 28 minutes from the Gibson farm to Jessica’s apartment and then nine minutes from the Gibson farm to lot 40589. So roughly two hours and 40 minutes to get from lot 40589 to Jessica’s, assuming similar traffic and weather.

[721] If the shooting occurred shortly before 5:19 p.m. when Officer Hunter was dispatched (and we know Matt called EMS first) this means, there was at least a three-hour window to return to Jessica’s and the alibi would make little sense. This utterance is equivocal at best and simply noting the time, although unusual, may mean more than a proposed and untenable alibi.

[722] I also struggle with the Crown’s theory. The accused does three probable drive-bys of the deceased’s and Eva’s home in the days leading up to the shooting. Why? Why in a Jeep others might recognize as his? Why in the daylight? Why three times? This theory assumes I infer he actually drove by the residence as opposed to along the same busy main road. No one or nothing placed the accused at the Frigos residence.

[723] I am next asked to conclude that once he saw no vehicles or trailers at the Frigos’ home, the plan was to next go to Hullett because he knew the Frigos would be there. We know he does not arrive until after 2:30 p.m. at the Gibson farm. We know the competition ended in the morning.

[724] How did the accused know the Frigos would stick around and would do two training runs and follow the same route as the trials? The deceased and Eva were in lot 40589 after the first training run and saw no sign of the accused or his vehicle.

[725] I am not persuaded that by telling different witnesses different reasons for leaving he is somehow hiding his flight from crime. More importantly, he voluntarily returned or, as the defence suggested, demonstrated a consciousness of innocence.

[726] When did he arrive at the scene of the shooting? When did he reload? Where are the spent shotshells? Where is the second gun?

[727] At the end of carefully reviewing the 225 exhibits and listening to almost 60 witnesses, I simply cannot conclude that guilt is the only available inference based on the identification evidence I accept.

[728] There is clearly strong circumstantial evidence. It is, however, not strong enough.

[729] Am I suspicious? Absolutely. Do I think he may have been involved in the shooting. I do. Was he in the area? He was. Am I sure he was the shooter? I am not. Am I sure his car was in lot 40589 at the time of the shooting? I am not.

[730] Has the Crown proven his identity as the shooter beyond a reasonable doubt. They have not.

Conclusion

[731] For the above reasons, I find the accused not guilty on both counts.

Final Thoughts

[732] I know how hard this decision must be for the family of the deceased. I need to make clear one thing. As the Crown ably noted, Eva was true to her oath or affirmation. She did not embellish. Neither did she exaggerate or fabricate. She agonized through her evidence and through the trial.

[733] To this day, she still looks over her shoulder and her life remains turned upside down. My heart goes out to her and the children of the deceased. This is a senseless and tragic killing. Nothing I do or say can take away her pain or that of the family. However, I could not conclude these proceedings without commending her for her honesty and her painstaking efforts to assist the court.

[734] Although she may struggle to accept or agree that the outcome is just, she has, hopefully, understood the reasons why I am left with a reasonable doubt. The trauma of being shot and seeing your partner shot and killed is a heavy and unfair burden to put on anyone and I am truly sorry that Eva has and must continue to do her best to move forward in these difficult and unimaginable circumstances.

[735] Not only do I not look negatively on police for regularly following up with and texting Eva to this day to continue to offer her comfort, support, and a sense of safety, I commend them for doing so and urge them to continue to do so if requested. No person is more deserved of support and assurance and protection today than Eva.

The Honourable Mr. Justice Marc Garson

Date: August 16, 2024