



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Panovski, 2021 ONCA 905

DATE: 20211217

DOCKET: C66802

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Boris Panovski

Appellant

James Lockyer and Zachary Kerbel, for the appellant

Michael Dineen, for the respondent

Heard: October 12, 2021 by video conference

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

Paciocco J.A.:

OVERVIEW

[1]

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

[2]

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

[3]

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

[4]

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

MATERIAL FACTS

A.

The Crowns Evidence of Motive

[5]

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

[6]

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

[7]

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

[8]

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

[9]

Mr. Panovskis grandson, Michael Panovski (Michael), also a member of
    the bird-dogging community, testified as a Crown witness that, in late 2013 or
    early 2014, he witnessed Mr. Panovski get into a heated verbal exchange at his
    apartment building with a fellow tenant. Shortly afterwards, Mr. Panovski asked
    Michael if he could get him a gun [t]o kill someone. Mr. Panovski was yelling
    about being Gods son and asking why he was being punished. The Crown theory
    was that Mr. Panovski had asked Michael to get him a gun so that he could kill Mr. Frigo.

B.

The Crown Evidence of Preparation

[10]

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

[11]

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

[12]

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

C.

The Crown Evidence of Opportunity

[13]

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

[14]

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

D.

Crown Evidence Relating to the Shooting

(1)

The Shooting

[15]

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

[16]

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

[17]

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

[18]

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

[19]

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

(2)

Ms. Frigos Description of the Gunman

[20]

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

[21]

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

[22]

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

[23]

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

[24]

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

[25]

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

[26]

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

(3)

Ms. Frigos Description of the Motor Vehicle

[27]

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

[28]

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

[29]

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

(4)

Michaels Description of a Suspect Vehicle

[30]

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

E.

Forensic Evidence Consistent with Mr. Panovskis Involvement

(1)

Shotgun Shell Components

[31]

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

[32]

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

[33]

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

[34]

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

(2)

The Gunshot Residue Evidence

[35]

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

[36]

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

[37]

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

(3)

Tire Tread Impression Evidence

[38]

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

F.

After the Fact Conduct Evidence

[39]

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

[40]

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

G.

Other Relevant Investigative Steps

[41]

Cellphone
    records would suggest that Mr. Panovski arrived at Ms. Garcias apartment
    around 8:30 p.m., the day of the shooting.

[42]

When
    Mr. Panovskis camouflage jacket was seized, it was found to have a 20-gauge
    shotgun shell in its pocket.

H.

Mr. Panovskis Defence Evidence

[43]

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

[44]

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

THE JURY CHARGE

[45]

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

[46]

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

[47]

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

(1)

The Identification of the Issue

[48]

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

[49]

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

[50]

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

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

(2)

The Attempted Murder Charge

[51]

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

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

[52]

He
    continued:

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



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

[53]

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

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

(3)

Ms. Frigos Identification Evidence

[54]

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

[55]

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

[56]

He
    then continued:

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

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

[57]

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

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



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

(4)

The Circumstantial Evidence Review

[58]

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Panovskis car was found to have shotgun residue on the
    front passenger seat. The shot which killed Mr. Frigo came from the front
    passenger side of the shooters car (gun shot residue).

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

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

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

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

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

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

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

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

(5)

The Defence Evidence Review

[59]

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

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

[60]

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

[61]

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

[62]

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

·

Ms. Frigos description and the drawing of the shooter prepared
    at her direction show that Mr. Panovski was not the shooter. They are of a man
    much younger, thinner and better looking than Mr. Panovski.

·

On the day of the crime, Mr. Panovski had facial hair, a goatee,
    while the shooter was clean shaven.

·

The clothing described did not match clothing Mr. Panovski was
    known to possess.

·

The car described by Ms. Frigo did not match Mr. Panovskis car,
    including because Mr. Panovskis car did not have any vertical chrome pieces
    on the trunk, was not boxy, did not have square lights and did not says
    Cessna on the back. However, Nissan makes a car that says Sentra on the back.

·

The car Michael Panovski saw was a light blue Toyota Corolla or
    Camry and clearly was not Boris Panovskis car.

·

Mr. Panovskis car tires and those that made the tread marks at
    the scene are similar to thousands of car tires, and there is no evidence that
    they were left by the suspect vehicle.

·

The shotgun wadding and pellets could have come from any 20-gauge
    and other gauge shotguns.

·

There were five particles of gun shot residue on the front
    passenger seat and he fired his shotgun twice on September 12, 2014 at the Ressor
    Fields, and the gunshot residue expert said that if a gun was fired inside a
    vehicle there would be a significant amount of particles on the ceiling and
    roof but there were none.

·

Mr. Panovski immediately returned voluntarily to Canada to assert
    his innocence.

·

Boris Panovski testified at this trial under oath for days and
    adamantly denied that he was the shooter and he was unshaken in cross examination.

[63]

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

·

Gun request
 Mr. Panovski admitted asking Michael to get
    him a gun so that he could kill someone but said that this was not a serious request
    and that he made the comment in response to a dispute he had just had with a
    neighbour in Michaels presence, a dispute that Michael confirmed witnessing.

·

Shotgun repair
 Mr. Panovski explained that he had his
    double-barrelled hunting shotgun repaired because when he attempted to fire one
    barrel, both barrels would discharge, which could cause the barrels to explode.
    He therefore had it repaired, on July 26, 2014.

·

Website visitations
 Mr. Panovski testified that he often
    went on the American Field website, because he had friends in the bird-dogging
    sport and he maintained an interest in their dogs. He agreed that he may have
    gone on the website on September 12, 2014, as Ms. Garcia claimed. He
    acknowledged going on the Region 13 Field Trial (Hullett Field Trials) website on
    more than one occasion in September 2014 to look at the dogs, but he said that
    the website was frozen in 2013 and so it contained no news relating to the
    upcoming field trials.

·

Presence near the Frigo residence
 Mr. Panovski explained
    that he was familiar with the Caledon area where the Frigo residence was,
    having lived there. He would go hunting and fishing in the area. He testified
    that on September 7, 2014 he went to the area apple picking with Ms. Garcia,
    but the orchard was not open. He instead purchased apples. He testified that on
    September 8, 2014, he travelled to his friend, Dale Reesors farm to pick up
    kennel boxes he had stored there so that he could give them to Michael. After
    dropping off the boxes at Michaels he drove through Caledon on route to Newmarket,
    while looking for goose hunting locations, as the goose hunting season had opened
    that day. He said that as an avid hunter he often drove great distances looking
    for hunting spots. He testified that he returned to the area to hunt on
    September 12, 2014 but did not see anything, so he drove to Mr. Reesors farm
    to hunt.

·

Exchanged vehicle plates
 Mr. Panovski testified that he
    acquired the 2 NAT CH plates to celebrate his national championships. After
    using them on his vehicles for many years in 2014 he decided to mount and hang them
    on his wall as a trophy, so he acquired and installed new licence plates on his
    vehicle.

·

Tinted windows
 Mr. Panovski gave evidence that he made a
    spontaneous decision to have his car windows tinted, when the auto shop that
    was repairing his car brakes offered to do so very inexpensively, after Mr. Panovski
    saw them tinting the windows on another vehicle. Mr. Panovski testified that the
    tinting would reduce the risk of theft from the car in his high-risk
    neighbourhood and would give him more privacy including when he kisses Ms.
    Garcia in the vehicle.

·

Boastful vehicle plates
 see exchanged vehicle plates,
    above.

·

Possession of shotgun and proximity
 Mr. Panovski
    testified that the day of the shooting was the last day of the goose hunting
    season, so he went hunting, bringing his 20-gauge shotgun with him. He had
    travelled west to drop Ms. Garcia off, so he decided to head west, and to hunt
    in the area. He testified that he ultimately stopped near a farmers driveway
    to look for geese, without success, and drove through the area stopping periodically,
    again without success, before heading back to his Toronto home, with the
    intention of taking Ms. Garcia dancing.

·

Gunshot residue
 Mr. Panovski testified that he had fired
    his shotgun while hunting at Mr. Reesors farm on September 12, 2014.
[2]

·

Cellphone tower evidence
 see possession of shotgun and
    proximity above, for Mr. Panovskis innocent explanation for the cellphone
    tower locations relied upon by the Crown.

·

Garcia request
 Mr. Panovski testified that it was during
    a conversation he had with Ms. Garcia about how she could be too tired to want
    to go dancing with him, that he asked her to note the time he arrived.

·

Car wash and gas
 Mr. Panovski testified that he required
    gas after his hunting trip, and he had a discount coupon for a car wash, so he used
    it after having driven the car that day on messy sideroads.

·

Sudden departure
 Mr. Panovski said he had been planning for
    a long time to go to Macedonia. There were problems with family property in
    Macedonia, and with his sisters health, and he had not seen her in many years.
    While at mass observing others with their families he decided to go, without
    delay, which was possible because he was retired. He contacted his travel agent
    and found there was a flight that night. He purchased a return ticket with a
    flexible return date that would allow him to stay up to six months. Believing
    that he would be gone for some time, he arranged to cancel contracts that
    required monthly payments he would not be using, withdrew the funds he would
    need, and arranged to have Mr. Reesors son bring his vehicles, and his firearm
    and ammunition, to Mr. Reesors farm for safekeeping. He signed over the vehicle
    ownerships to Mr. Reesors son and offered to allow Mr. Reesors son to
    drive his jeep, if he wanted to do so. He arranged to have Ms. Garcia pay one
    months rent and to cancel his life insurance.

(6)

Other Innocent Explanations for Circumstantial Evidence

[64]

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

·

Tire impressions
 The trial judge did not remind jurors
    that although the crime scene tire impressions were made by the brand of tires
    that were on Mr. Panovskis motor vehicle, thousands of other vehicles have
    similar tires, and no distinct similarities were observed between the tire
    treads on Mr. Panovskis motor vehicle, and the tire treads left at crime
    scene.

·

Similar shot and similar shotgun
- The trial judge did not remind
    the jury of evidence that 20-gauge shotguns are common among hunters. Nor did
    he advise the jury that Mr. Panovski possessed shot sizes that were not linked
    to the crime scene.

·

Similar wadding
 The trial judge did not remind jurors
    that expert witnesses were unable to confirm how common it is for shotgun wadding
    to have the characteristics of the wadding linked to the crime scene.

·

Gunshot residue
 The trial judge did not remind jurors
    that no gunshot residue was found on the steering wheel of Mr. Panovskis motor
    vehicle, or on the roof liner were it is commonly found after a firearm is
    discharged in a motor vehicle, and that the traces of residue found in the car
    could have been the result of transfer from someone who has fired a firearm,
    which Mr. Panovski testified to having innocently done the day before the
    shooting.

·

Similar appearance
 When directing the jury that Mr.
    Panovskis appearance in September 2014 was generally consistent with Ms.
    Frigos description of the gunman and the composite drawing, the trial judge
    did not allude to or identify any of the differences between Mr. Panovskis
    appearance in September 2014 and Ms. Frigos description of the gunman or the
    composite drawing.

[65]

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

(7)

The
W.(D.)

Direction and the Recharge

[66]

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

[67]

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

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

[68]

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

(8)

Defence Counsels Objections to the Charge

[69]

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

[70]

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

[71]

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

[72]

He
    noted, in particular, that the trial judges failure to describe the details of
    Ms. Frigos description of the gunman and Michaels description of the gunmans
    vehicle amounted to a failure to put the defence to the jury.

[73]

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

[74]

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

[75]

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

[76]

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

THE ISSUES

[77]

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

[78]

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

A.

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

B.

Was the jury charge inadequate, unbalanced, and unfair?

C.

Did the trial judge err in admitting Ms. Garcias non-recognition
    evidence?

D.

If any or all of these errors occur, should the appeal be dismissed
    pursuant to the curative proviso?

[79]

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

A.

DID THE TRIAL JUDGE COMMIT A
W.(D.)
ERROR IN HIS RECHARGE?

[80]

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

[81]

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

[82]

As
R. v. T.L.
illustrates, the rule in
W.(D.)
applies to exculpatory
    evidence even if that evidence is embedded in testimony that includes inculpatory
    content. The decision in
R. v. Rowe
, 2011 ONCA 753, 281 C.C.C. (3d)
    42, provides further support for this proposition. In
Rowe
the
    testimony of an unsavoury Crown witness included both inculpatory and exculpatory
    evidence. The trial judge erred by giving a
Vetrovec
caution relating
    to that witnesss testimony without distinguishing between the inculpatory and
    exculpatory content of the testimony, and by failing to direct jurors on the
    application of the principles of reasonable doubt to the exculpatory content.
    Doherty J.A. provided the following guidance, at para. 34:

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

[83]

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

[84]

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

[85]

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

[86]

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

[87]

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

[88]

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

[89]

I
    would therefore give effect to this ground of appeal.

[90]

Before
    moving onto the next ground of appeal, I make one more point. In order to
    persuade the trial judge to recharge the jury and instruct them not to apply
    the
W.(D.)
principles to Ms. Frigos testimony, the Crown invoked the
    principle in
R. v. Morin
, [1988] 2 S.C.R. 345, affirmed in
R. v.
    Rojas
, 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 43. According to the principle
    in
R. v. Morin
, the standard of proof beyond a reasonable doubt does
    not apply to individual items of evidence but applies instead to the case as a
    whole. This principle is undoubtedly correct, but it has no bearing on the
    assessment of individual items of evidence that, if accurate, would exclude the
    possibility of guilt. If such evidence raises a reasonable doubt, the accused
    is entitled to be acquitted. A
W.(D.)
direction will therefore be
    required.

B.

WAS THE JURY CHARGE INADEQUATE, UNBALANCED AND UNFAIR?

[91]

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

The Charge Was Inadequate

[92]

An
    adequate jury charge generally includes an explanation in understandable
    language of the position or theory of the defence and the Crown on the
    essential issues, and will include a review of the substantial parts of the
    evidence supporting each partys position:
R. v. MacKinnon
(1999), 43
    O.R. (3d) 378 (C.A.), at p. 386;
R. v. Newton
, at paras. 11, 13
R.
    v. Minor
, 2013 ONCA 557, 303 C.C.C. (3d) 382, at paras. 79-82;
R. v.
    Daley
, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 54. A failure to explain
    the positions of the parties and identify the substantial evidence requiring
    consideration will render a trial unfair, except in simple or short trials
    where it is unnecessary to give such assistance to jurors:
Newton
, at
    paras. 13, 19;
R. v. P.J.B.
, 2012 ONCA 730, 298 O.A.C. 267, at para.
    44;
R. v. Daley
, at para. 54.

[93]

However,
    as is always the case, a functional approach is to be taken on appellate
    review. The task of the appeal court is to determine whether the impugned jury
    charge, even if imperfect, adequately fulfills its purpose when viewed in the
    context of the trial as a whole. Substance prevails over form, with substantial
    deference being afforded to trial judges relating to how much evidence to
    review, what structure to use, and how to organize that charge:
R. v.
    P.J.B.
, at paras. 40-50;
R. v. Newton
, 2017 ONCA 496, at paras.
    11,13;
R. v. Zebedee
(2006), 81 O.R. (3d) 583 (C.A.), at para. 109. As
    Watt J.A. explained in
R. v. Huard
, 2013 ONCA 650, 302 C.C.C. (3d)
    469, at para. 73, leave to appeal refused, [2014] S.C.C.A. No. 13:

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

[94]

To
    discharge these obligations, it is unnecessary for the trial judge to set out
    all of the evidence, or all of the arguments made. The obligation of the trial
    judge is to decant and simplify:
R. v. Largie
, 2010 ONCA 548, 101 O.R.
    (3d) 561, at para. 125, leave to appeal refused, [2010] S.C.C.A. No. 460, [2011]
    S.C.C.A. No. 119.

[95]

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

[96]

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

[97]

In
    my view, these were substantial features of the defence case that related to
    critical issues in the case that should have been reviewed. Without question,
    where a witness
identifies
the accused as the person who committed the
    offence a trial judge is required in their charge to draw to the attention of
    jurors any specific features of that witnesss description that do not match
    the appearance of the accused:
R. v. Baltovich
(2004), 73 O.R. (3d)
    481 (C.A.), at para. 88;
R. v. Mariani
¸ 2007 ONCA 329, 220 C.C.C. (3d)
    74, at para. 14;
R. v. Brown
, 2007 ONCA 71, at paras. 17-19. I reject
    any suggestion in that this same obligation did not apply in this case because
    Ms. Frigo had not identified Mr. Panovski as the gunman. Put simply, it is a
non
    sequitur
to suggest that since discrepancies can weaken an identification,
    discrepancies between the suspect and the accused will not be substantial when
    there has been no identification. Ms. Frigo testified that the gunman had
    features that Mr. Panovski did not have. Ms. Frigo also testified that the
    gunmans motor vehicle had features that Mr. Panovskis motor vehicle did not
    have. If her evidence was accurate, then Mr. Panovski was not the gunman, and
    the motor vehicle evidence she provided would assist the defence. Yet the trial
    judge failed to assist jurors in appreciating the value and effect of this evidence
    by omitting from his charge a recital of these critical issues, and by failing
    to recount substantial evidence relating to these issues.

[98]

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

[99]

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

[100]

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

[101]

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

[102]

I do not share the
    Crowns position that, in light of the defence submissions and the trial
    judges recitation of the defence position, the jury charge was adequate. I
    accept that in deciding what to include in a jury charge, trial judges are
    entitled to consider the submissions made by the parties, and that summaries by
    the trial judge of the positions of the parties are relevant in assessing the
    sufficiency of a charge. However, since trial counsel are advocates, appeal
    courts should be cautious about placing too much weight on the submissions trial
    counsel have made in the case, or on summaries of trial counsels position that
    the trial judge has read:
R. v. Minor
, at paras. 84-88. The positions
    of counsel are no substitute for the entitlement of the jury to a trained,
    authoritative and independent review by the judge of the critical evidence
    touching the real issues in the case:
R. v. Selbie
, 2002 ABCA 58, 361
    A.R. 202, at para. 3;
Minor
, at paras. 85, 103. This is particularly
    so in this case, where the positions of counsel were presented as conclusions
    and not as summaries of the substantial features of the evidence, and where the
    trial judge cautioned jurors that in reviewing the positions of counsel he was
    not stating facts, but was reciting the arguments of the two sides.

The Charge Was Not Balanced

[103]

In addition to setting
    out the relative positions of the parties relating to the essential issues and
    the substantial parts of the evidence supporting each of their positions, a
    jury charge must be even-handed, the instructions fair and balanced:
R.
    v. Huard
, at para. 69. A trial judge will err where the charge as a whole
    steers the jury in the Crowns direction:
R. v. Paredes
, 2014 ONCA
    910, 317 C.C.C. (3d) 415, at para 41. Put simply, a charge that has unduly
    promoted the case for the Crown and effectively ignored or denigrated the case
    for the defence will have been unbalanced, and will have undermined the
    fairness of the trial:
R. v. Baltovich
, at para. 113;
R. v. Li
(2005), 183 C.C.C. (3d) 48 (Ont. C.A.), at para. 42.

[104]

To be clear, a trial
    judge is not obliged to review all of the evidence or to repeat every defence
    argument to achieve a balanced charge:
R. v. Huard
, at paras. 70-73. Nor
    is the trial judge obliged to spin a web of exculpatory inferences, turning
    each piece of circumstantial evidence every which way to reveal its every
    possible inference:
R. v. Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181,
    at para. 139. Moreover, the balance of a charge cannot be measured by
    the relative attention or time that is given to inculpatory and exculpatory
    considerations. [I]n some cases, evidence that tends to show an accused
    committed an offence far exceeds the evidence to the contrary:
R. v.
    Stubbs
, at para. 139. Indeed, it will not be uncommon for a balanced
    charge to contain more inculpatory than exculpatory content:
R. v. Speers
,
    2017 ONCA 333, at para. 26. And in judging the balance of the jury charge, an
    appellate court must not divorce the jury charge from the greater context of
    the trial and must consider [t]he comments of counsel during their addresses,
    including comments on legal issues:
R. v. Pomeroy
, 2008 ONCA 521, 91
    O.R. (3d) 261, at paras. 115-117.

[105]

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

[106]

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

·

The circumstantial case
 Based on the Crown submissions,
    the trial judge provided a detailed summary of the incriminating circumstantial
    evidence. As indicated, he did so without mention of the extensive testimony
    Mr. Panovski offered that, if accurate, may have neutralized many of the
    inculpatory inferences the Crown was inviting (see para. 63 above). Nor did he direct
    the jury when recounting the circumstantial case to consider other evidence in
    the case that could have neutralized or weakened other inculpatory inferences
    (see para. 64 above). There would have been no need for the trial judge to
    spin a web of exculpatory inferences or turn[ ] circumstantial evidence
    every which way to reveal the inferences the defence was seeking. The exculpatory
    inferences were a major feature of the defence case and should have warranted
    the same attention that the inculpatory inferences did, but that attention was
    not provided.

·

The treatment of Ms. Frigos identification evidence
 There
    were three features of Ms. Frigos eyewitness testimony that may have assisted
    the defence: (1) the descriptive discrepancies relating to Mr. Panovski; (2)
    the descriptive discrepancies relating to Mr. Panovskis vehicle; and (3) the
    failure to recognize. In my view the trial judges treatment of each of these
    issues was unbalanced:

o

(1) As
    indicated, the trial judge failed to earmark the descriptive discrepancies as
    relevant to the defence, nor did he recount them. Instead, he described, as a
    fact, rather than as an expression of his opinion, that Mr. Panovskis
    appearance in September 2014 was generally consistent with the description
    given by [Ms. Frigo], and that the composite drawing was generally consistent
    with Mr. Panovskis appearance in September of 2014. At no point did he
    mention the significant foundation in the evidence that may have inspired
    jurors to disagree with those claims.

o

(2) The trial
    judge never mentioned the discrepancies between the vehicle Ms. Frigo described,
    and Mr. Panovskis vehicle, which he was known to have been driving on the day
    of the shooting.

o

(3) The trial
    judge identified Mr. Panovskis reliance on Ms.Frigos failure to identify him
    as the gunman. Immediately upon alerting the jury to this issue the trial judge
    identified numerous factors that would have inhibited her ability to recognize
    Mr. Panovski. In contrast, he did not direct the jury to consider features of
    Ms. Frigos evidence that could support the defence position that Ms.
    Frigo had an appreciable opportunity to view the gunman, including the detailed
    and confident descriptions she offered almost immediately after the shooting, her
    focus on the gunman as she made her escape, or the dedicated effort she made to
    identify the motor vehicle. The trial judge also suggested to the jury that Ms.
    Frigo would have been distracted by the shooting, which was not established in
    evidence and was arguably contradicted by the strategic decisions she made to
    take refuge behind a knoll in the road, and to ride towards the gunmans car in
    an effort to secure a licence plate number.

·

Dismissive messaging relating to the issue of identity
 After
    initially and correctly identifying the identity of the shooter as a real
    issue in the case, the trial judge described the issues on the attempted murder
    charge as if there was no issue that Mr. Panovski was the gunman (see para. 49
    above). Then, when directing the jury on how to resolve the issues of mens rea and
    actus reus relating to that offence, the trial judge spoke repeatedly about how
    the jury should proceed in drawing inferences from Mr. Panovskis actions
    (see paras. 51-52 above). When addressing Ms. Frigos description of the
    shooter the trial judge did not refer to the observations she testified to
    having made, but instead described her attempt in all the circumstances which
    prevailed to describe the shooter. After reviewing the evidence in the case, the
    trial judge said that [t]he real issue in this case that overrides or stands
    at the top for your consideration, is whether the events alleged to form the
    basis of the crimes charged ever took place, an issue that was not in
    contention. In my view, these features of the charge could only serve to
    denigrate the importance of Mr. Panovskis identity defence.

·

The treatment of the defence evidence
 As indicated, the
    trial judge gave only a curt and cursory summary of Mr. Panovskis evidence,
    making no mention of the specific evidence he gave relating to motive, or his
    efforts to explain the circumstantial evidence against him. The trial judge
    then chose to briefly highlight the other defence evidence. In doing so the
    trial judge alluded to Mr. Panovskis sisters testimony about family concerns
    in Macedonia, without identifying what those concerns were. This passing
    reference to family concerns could only have blunted the force of Mr. Panovskis
    claim that he relied on these concerns to explain his sudden trip to Macedonia.
    Rosanna Magnotta was called by the defence to confirm her husbands retirement
    from the sport of bird-dogging, which, if true, could add support to Mr.
    Panovskis claim that it was Mr. Magnottas retirement that inspired his
    voluntary decision to leave the sport of bird-dogging. But the trial judge did
    not mention this feature of Ms. Magnottas testimony. He simply said that in
    her testimony Ms. Magnotta described her involvement with dogs. In contrast,
    the trial judge included in his charge a substantial review of the Crown case
    against Mr. Panovski, including detailed references to the evidence supporting
    the Crowns motive theory.

[107]

I am therefore
    persuaded that the trial judges charge was inadequate and unbalanced, and
    therefore unfair.

C.

Did the trial judge err in admitting Ms. Garcias non-recognition
    evidence?

[108]

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

[109]

It is important to
    appreciate that recognition evidence is non-expert lay opinion evidence:
R.
    v. Berhe
, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 13. It reflects that,
    at the time and in the circumstances in question, the witness formed the
    subjective conclusion that the person or image that they observed was the
    individual identified. Evidence of non-recognition, reflecting a witnesss
    conclusion that they do not believe they know the subject, is also non-expert
    lay opinion evidence based on a subjective appraisal made in the relevant
    circumstances. There may be much to be said for the view that one witnesss subjective
    opinion is of no relevance in demonstrating the reliability of the subjective
    opinion of another witness.

[110]

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

[111]

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

D.

Should the appeal be dismissed pursuant to the curative proviso?

[112]

The Crown argues that
    the curative proviso in s. 686(1)(b)(iii) should be applied to any legal errors
    this court may find, because the evidence against Mr. Panovski is so
    overwhelming that a reasonable and properly instructed jury would inevitably
    have convicted:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at para.
    36. I am not persuaded that the curative proviso should be invoked, and I would
    not do so.

[113]

It is important to
    bear in mind that the overwhelming standard is a substantially higher one
    than the requirement that the Crown prove its case beyond a reasonable
    doubt:
R. v. Trochym
, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82.
    This elevated standard is required because the proviso should not be invoked
    unless doing so is in the interests of justice, and appeal courts should
    exercise caution before finding it to be in the interests of justice to
    supplant itself for a jury in evaluating the strength of the Crowns case
    retroactively, without the benefit of hearing the witness testimony and
    experiencing the trial as it unfolded:
Van
, at para. 36.

[114]

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

[115]

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

[116]

I would reject the
    Crowns request that we apply the curative proviso.

CONCLUSION

[117]

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

Released: December 17, 2021 David M. Paciocco J.A.

David M. Paciocco
    J.A.

I agree. I.V.B.
    Nordheimer J.A.

I agree. J.A.
    Thorburn J.A.





[1]

To facilitate the analysis that follows I have added, in round
    brackets, descriptive names for each item of circumstantial evidence. Those
    descriptive names are not found in the actual jury charge.



[2]

Mr. Panovski did not say explicitly that he had used the Toyota
    Corolla that day. He also had a jeep that he had put on the road to use for
    hunting.


