CITATION: R. v. Matin, 2026 ONSC 392
NEWMARKET COURT FILE NO.: CR-23-91107307-0000
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
DANIIL MATIN
DEFENDANT
Ramandeep Gill and Dan Mideo, for the Crown Applicant
Joel Hechter and Shabestary for the Respondent
HEARD: January 16, 2026
REASONS FOR JUDGMENT – ADMISSIBILIty OF EXPERT EVIDENCE
HENSCHEL J.
A. Overview
1Daniil Matin is charged with first degree murder. He is alleged to have killed Marina Nagolia, his former intimate partner between August 24 and 25, 2023. Mr. Matin’s trial is scheduled to commence with a judge and jury on February 9, 2026.
2Mr. Matin returned from a trip to Cuba with Ms. Nagolia and her daughter, A.N. , in the early morning hours of August 24, 2023. They took a taxi from the airport to Ms. Nagolia’s home at 382 Taylor Mills Drive South, Richmond Hill, Ontario.
3On August 25, 2023, the police received a call from the Applicant’s brother. He feared the Applicant was attempting to commit suicide. York Regional Police officers and Emergency Medical Services (EMS) were dispatched to 382 Taylor Mills Drive South, Richmond Hill, Marina Nagolia’s home.
4When police arrived, Mr. Matin exited the house. He had visible injuries to both temples and to his neck. He was treated by EMS.
5Police entered the home and found a bloody knife in the front entrance on the floor. They located Marina Nagolia, deceased, in her bedroom, lying on the floor. She was on her back, wrapped in a blanket. She was naked from the waist down. A second blanket was covering her top half. Her head was facing toward the headboard of the bed. Her left arm was positioned up by her head/neck area, and there was a knife in her hand. She had injuries to her head, neck, and hands. Blood spatter was observed on the wall in the bedroom near the bed. There was underwear underneath her right thigh that appeared to have been cut off. Her vaginal area was exposed.
6Ms. Nagolia was pronounced dead at 6:47 p.m. by an EMS paramedic. Shortly after she was pronounced dead, Mr. Matin was arrested for murder by PC Kogan. He was in an ambulance. He was transported to Sunnybrook hospital where he was treated for his injuries.
7On August 27, 2023, Dr. Carolyn Lemieux completed the post-mortem examination of Marina Nagolia at the Provincial Forensic Pathology Unit in Toronto.
8Dr. Lemieux completed the Post-Mortem Examination report on March 8, 2024. In the report, she concluded that the cause of death was “incised wounds of the head and face and neck compression.”
9The Crown Applicant seeks a ruling admitting Dr. Lemieux’s expert opinion evidence at the trial. The Crown seeks to qualify her to give expert opinion evidence in the area of Forensic Pathology including in regard to:
a. Cause of death;
b. Mechanism of death;
c. The nature and signs of injuries and observations made during the postmortem examination; and
d. Sexual assault evidence kit collection, absence of genitalia injuries in relation to sexual assault and presence of bodily fluids and variables that may affect such existence and duration.
10The Crown submits that Dr. Lemieux’s evidence meets the two-stage test established by the Ontario Court of Appeal in R. v. Abbey (No. 1), 2009 ONCA 624, 97 O.R. (3d) 330, and adopted by the Supreme Court of Canda in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 for the admission of expert opinion evidence.
11The Applicant submits that at stage 1, the proposed evidence meets the threshold requirements of admissibility first established by the Supreme Court of Canada in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at para. 17. The Applicant submits:
i.) The expert evidence is logically relevant to a material issue;
ii.) The expert evidence is necessary to assist the trier of fact, in the sense that the expert evidence deals with subject matter about which ordinary people are unlikely to form a correct judgment without assistance;
iii.) The expert evidence does not run afoul of any other exclusionary rule; and
iv.) Dr. Lemieux is a properly qualified expert. This includes the requirement that she is willing and able to fulfill the expert’s duty to the Court to provide evidence that is impartial, independent and unbiased.
12The Applicant further submits that Dr. Lemieux’s evidence also meets the Stage 2 requirements for the admission of expert evidence.
13At Stage 2, the “discretionary gatekeeping stage” the trial judge must engage in a costs and benefits analysis. The cost-benefit analysis is case specific and serves to determine whether the benefit of admitting the evidence outweighs potential risks and dangers, taking into account factors such as probative value, prejudice, necessity, reliability, and absence of bias. At Stage 2, “[t]he trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the process to warrant its admission despite the potential harm to the trial process that may flow form the admission of the expert evidence”: White Burgess, at paras. 24 and 54; R. v. France, 2017 ONSC 2040, citing Doherty J.A. in R. v. Abbey, 2009 ONCA 624, at para. 76, leave to appeal refused, [2010] S.C.C.A. No. 33656.
14The Respondent submits that Dr. Lemieux’s evidence is presumptively inadmissible and fails to meet the Stage 1 and Stage 2 requirements for admission. The Respondent does not dispute the relevance or necessity of the evidence and does not allege that the evidence is inadmissible due to another exclusionary rule. The Respondent submits that Dr. Lemieux’s evidence should not be admitted because Dr. Lemieux is not a properly qualified expert because she is biased.
15The Respondent further submits that at Stage 2, Dr. Lemieux’s evidence will operate so unfairly against Mr. Mattin due to bias that, as gatekeeper, I must exclude Dr. Lemieux’s evidence. The Respondent submits that any benefits of the evidence are outweighed by the prejudicial and misleading nature of Dr. Lemieux’s evidence.
16In the alternative, the Respondent submits that if Dr. Lemieux’s evidence is not entirely excluded, the Court must exclude Dr. Lemieux’s evidence in relation to neck compression.
17The Respondent’s allegation of bias is primarily related to her opinion that neck compression is a component of the cause of death. The Respondent submits that Dr. Lemieux’s opinion that there was neck compression is based on evidence of contusion/abrasion on the left and right side of the neck, and petechiae in the right and left palpebral conjuctivae and epiglottic petechiae. The Respondent submits that Dr. Lemieux’s evidence is unreliable, biased, and highly prejudicial. The Respondent submits her conclusions are biased as a result of intransigence and flawed methodology. They submit:
Dr. Lemieux failed to consider alternative causes of petechiae such as coughing when there was reason for her to do so. The presence of therapeutic level of pseudoephedrine together with reason to believe Ms. Nagolia was coughing undermined Dr. Lemieux’s conclusion that there was neck compression. Her failure to consider additional relevant considerations demonstrated a lack of objectivity.
Dr. Lemieux failed to make necessary inquiries relevant to her conclusion that neck compression was a component of the cause of death. At the preliminary hearing, Dr. Lemieux was alerted by the defence to the potential that Marina Nagolia was ill and coughing in the period leading up to her death and failed to seek out information about the state of Ms. Nagolia’s health.
Dr. Lemieux did not carry out tests to determine the age of the bruises. Such tests may have established that the bruises occurred prior to, rather than at the time of the death. Despite a journal article suggesting that such tests are possible to determine the age of bruising, Dr. Lemieux maintained that timing bruises is unreliable and not part of forensic pathology best practice.
Dr. Lemieux’s opinion about the cause of death changed. In her preliminary autopsy report, she concluded that the cause of death was “incised wounds of the head and face.” In her final report she concluded the cause of death was “incised wounds of the head and face and neck compression.” Her opinion is speculative.
Dr. Lemieux’s evidence demonstrates confirmation bias or professional credibility bias because having formed the opinion that neck compression is a component of the cause of death, she refuses to reconsider that opinion when confronted with “evidence” to the contrary.
The Respondent submits that Dr. Lemieux’s conclusions are biased, speculative, and prejudicial. The Respondent submits that the issue is not misuse but any use of the evidence, and as a result a jury instruction cannot address or minimize the potential for prejudice and unfairness should the evidence be admitted.
Similarly, the Respondent submits that the opportunity for cross-examination cannot justify the admission of biased, speculative, and prejudicial evidence.
The Respondent submits that he should not have to call expert evidence to mitigate damage caused by prejudicial evidence that should never have been put before the jury in the first place. As such, the opportunity for the defence to call expert evidence, does not permit the admission of biased, speculative, and prejudicial evidence. The Respondent submits that the potential helpfulness of the evidence is not outweighed by the risk of the dangers associated with that expert evidence. See R. v. Natsis, 2018 ONCA 425, 140 O.R. (3d) 721, at para. 11.
B. Summary of the Evidence of Dr. Lemieux
18In order to provide context to my findings, I will briefly summarize the evidence of Dr. Lemieux tendered during the voir dire, which included Dr. Lemieux’s August 27, 2023 autopsy notes, diagrams, and preliminary autopsy report, Dr. Lemieux’s March 8, 2024 post-mortem report, Dr. Lemieux’s September 3, 2023 preliminary hearing evidence, and Dr. Lemieux’s November 10 and 13, 2025 evidence on the voir dire. My focus will be on the evidence of neck compression and the allegations of bias.
Brief Summary of Qualifications
19Dr. Lemieux is a well-qualified forensic pathologist. She completed her medical degree in 2013, and thereafter attained her qualifications as a forensic pathologist, qualifying as a Fellow in Forensic Pathology with the Royal College of Physicians and Surgeons of Canada in 2019.
20Dr. Lemieux worked as a forensic pathologist with the Ontario Forensic Pathology Service for five years between 2019 and 2024. Between July 2019 and February 2024, she worked as a forensic pathologist with the BC Coroner/Postmortem Diagnostic Service. Dr. Lemieux is now completing a Neuropathology Fellowship at the Mayo Clinic in Rochester, Minnesota.
21Dr. Lemieux has been qualified as an expert witness in the field of forensic pathology and testified in Ontario approximately 15 to 20 times. Her extensive curriculum vitae was filed as an exhibit during the voir dire.
Autopsy of Marina Nagolia and March 8, 2024 Report
22Dr. Lemieux performed the autopsy on Marina Nagolia on August 27, 2023 at the Provincial Forensic Pathology Unit (PFPU), in Toronto, Ontario. In her report, Dr. Lemieux indicated that the postmortem examination was performed using the Practice Manual for Pathologists (2022) produced by the Ontario Forensic Pathology Service and she declared as follows:
I understand that my overriding duty is to the court, both in preparing reports and in giving oral evidence. I have complied with and will comply with that duty. I have done my best in preparing this report to be accurate and complete. I have mentioned all matters that I regard as relevant to the opinions I have expressed.
23Dr. Lemieux confirmed her understanding of her duty to provide objective truthful evidence to the Court in her evidence during the voir dire.
24A CT scan was completed on Mr. Nagolia’s body prior to autopsy. The autopsy was documented. Photographs were taken by a Forensic Identification Officer with the York Regional Police, and by a PFPU photographer.
25Dr. Lemieux conducted a “standard” external and internal examination. Physical exhibits were collected from the external surface of the body by a Forensic identification officer, and Dr. Lemieux collected physical exhibits from the internal organs and cavities of the body that were transferred into the custody of the Forensic Identification Officer. Toxicological, biochemical, and histological samples were obtained for ancillary studies. The samples were sent to the CFS for toxicological analysis and a toxicology report was completed.
26During the autopsy, Dr. Lemieux completed post-mortem examination notes and diagrams. She documented numerous injuries primarily to the head, face, neck, upper back/shoulder and the right hand of Ms. Nagolia
27In respect of petechiae, in her notes, Dr. Lemieux noted conjunctival right and left petechial and palpebral hemorrhages and “focal petechiae of epiglottis.”
28In her notes, under the heading preliminary cause of death Dr. Lemieux noted “incised wounds of head and face” and underneath noted “*features of neck compression”.
29On August 27, 2023, upon completion of the autopsy, Dr. Lemieux completed a document titled “Preliminary Autopsy Findings.” She noted the preliminary cause of death as “pending,” and under immediate cause of death noted “A. Incised wounds of the head and face” and below, in a box titled “notes” she indicated “Features of neck compression discussed with law enforcement.” In a box titled “Studies Pending” she checked “Histology” and “Toxicology.”
30Dr. Lemieux completed the detailed Post-Mortem Examination report on March 8, 2024. In the report, she concluded that the cause of death was “incised wounds of the head and face and neck compression.”
31In her diagrams, notes, and Post-Mortem Report Dr. Lemieux documented “sharp force injuries” including nine incised wounds to the head and face, one incised wound to the torso, a superficial incised wound to the anterior aspect of the right shoulder, and four incised wounds to the right hand and fingers.
32Dr. Lemieux also documented blunt force injuries to Ms. Nagolia’s head and face, neck, torso, and extremities, including a focal fracture of the surface of the right temporal aspect of the calvarium of the skull.
33The blunt force injuries to the neck were described in Dr. Lemieux’s report as follows:
Red-purple contusion-abrasion, 1.8 x 1.2 cm, right side of the neck, 21 cm below the top of the head and 8.5 cm right of the anterior midline.
Red-purple contusion-abrasion, 2.2 x 1.5 cm, left side of the neck, 19.5 cm below the top of the head and 12.5 cm left of the anterior midline.
The contusions were on either side of the neck.
34Under the heading “Features of Asphyxia,” Dr. Lemieux indicated:
Petechiae of the right upper palpebral and left palpebral conjunctivae; and
Epiglottic petechiae.
35Dr. Lemieux explained that the petechia were in the inner aspects of the eyelids. It was present in the upper eyelid on the right side and in the upper and lower eyelids on the left side. There was petechiae involving the epiglottis, which is in the neck structures.
36The petechial hemorrhages in the left palpebral conjunctivae were “florid.” The epiglottic petechiae were not. Florid refers to when there are many petechial hemorrhages versus a single or occasional hemorrhage.
37With respect to the toxicological findings, Dr. Lemieux noted that “a therapeutic concentration of pseudoephedrine was detected in postmortem blood.” No alcohol or illicit or prescription drugs were detected in the postmortem blood or urine.
38The computed tomography scan identified two metal fragments in the head hair and defects of the scalp in keeping with acute traumatic injuries. No appreciable anatomic abnormality or pathologic disease process was identified.
39Dr. Lemieux collected samples for a sexual assault kit during the post-mortem examination.
40Under the heading “Summary and Opinion,” Dr. Lemieux stated as follows:
This 43-year old woman was found deceased with visible traumatic injuries of her head, face, upper back, and right hand lying on a bedroom floor in her shared residence by first responders after receiving a report of a male person [her partner] sustaining stab wounds. There was marked hemorrhage in the vicinity of where she was found.
Postmortem imaging and examination showed an appropriately developed adult woman with incised wounds involving the head and face capable of precipitating marked hemorrhage and characteristic features of neck compression causing death. There were defensive-type injuries involving the dorsal aspect of the right hand. The internal viscera were anatomically unremarkable and without appreciable pathologic disease….
Toxicology testing of postmortem blood detected a therapeutic concentration of pseudoephedrine (an over-the-counter drug with stimulant and decongestant properties). Ethanol and illicit and prescription drugs were not detected in postmortem blood or urine.
Microscopic examination was unremarkable with no contributory findings.
Death is attributed to incised wounds of the head and face and neck compression.
Evidence at the Preliminary Hearing
41At the preliminary hearing, Mr. Hechter questioned Dr. Lemieux about alternative explanations for petechiae. Dr. Lemieux agreed during cross-examination that petechiae can be found in the head and face from coughing, vomiting, straining to defecate, strenuous exercise, or a combination of those things.
42Mr. Hechter suggested to Dr. Lemieux that Ms. Nagolia was coughing in the time frame leading up to her death and that she may have been suffering from COVID. The evidentiary basis relied upon for this assertion was outlined in the Respondent’s factum at para. 8. It included testimony from 9-year-old A.N., Marina Nagolia’s daughter, and testimony from Oksana Leus, Marina Nagolia’s friend and downstairs tenant.
43A.N. testified that her mother was sick while in Cuba and agreed with the suggestion put to her that her mother was coughing a lot:
Q. And your mom, she was pretty sick on that vacation, wasn’t she?
A. Yes.
Q. She was coughing a lot?
A. Yes. But the doctor didn’t even help.
Q. Yeah. I was going to ask about that. So she went to a doctor how many times?
A. She went to the doctor many times, but nothing changed. Like, everything was the same.
Q. Okay. So…
A. I feel like that doctors not an actual doctor.
Q. Yeah. I mean, that’s a concern, eh?
A. Because she didn’t have trouble breathing. She was fine at breathing. And they just gave her a thing to breathe in.
Q. Right. But she was coughing a lot. Yeah?
A. Yes
Q. And she had a headache?
A. Yes. Because of that tube that they gave her to breath in.
Q. Two things to breathe with?
A. She – she – she had this tube, and then he said, oh, you need to, like, you need to use it.
Q. I’m not sure what you just said. Can you say that again?
A. They – they were using this tube that she’s supposed to, like, breath from, but she was perfectly fine in breathing.
Q. Okay.
A. I don’t get why they needed that breathing thing.
Q. Well, I wasn’t there, so I don’t know either. She had body aches too. Is that right?
A. Body aches? What?
Q. Like, in her body her neck was sore, her muscles were sore. Yeah?
A. Yeah. Kinda.
Q. Yeah. And her tummy was upset?
A. Yes.
Q. Do you remember if she had difficulty pooing? I mean, that’s an embarrassing question, but…
A. I don’t know.
Q. You don’t know? Okay.
A. Nobody told me that.
44Ms. Leus testified that she texted and exchanged voice messages with Ms. Nagolia while Ms. Nagolia was in Cuba and she sounded very ill. She speculated that Ms. Nagolia might have COVID. She did not say that Ms. Nagolia was coughing. Her evidence at the preliminary hearing on September 9, 2024 included the following:
Q: The two of you exchanged a lot of messages when she was in Cuba?
A. Yes, through WhatsApp.
Q: She told you that she was feeling sick?
A: She’s very ill. I could hear it in her voice. When she called me, I could hear she sounded like she was really sick. Her voice was – it sounded as if she was going through something very serious, possibly COVID.
Q. Did you hear her coughing?
A. The voice was very hoarse. I don’t remember hearing her coughing, but the voice was unrecognizable.
Q. Do you- and you- you guys exchanged voice messages back and forth through WhatsApp, yes?
A. Yes.
Q. It’s kind of like sending a voicemail to someone?
A. Yes
Q. And they’re relatively short, these messages?
A. I don’t remember. I would have to look at that.
Q. All right. Just to be clear, because you talk about hearing her voice when she was away that wasn’t like phone calls, that was more these WhatsApp voice messages going back and forth?
A. I clearly remember hearing her voice.
Q. Yeah.
A. Other than that, I can’t give you anything further.
Q. Fair enough.
A. I remember the voice sounded as if she’s very sick.
Q. And do you remember getting text messages from her about headaches or coughing or anything like that?
A. I don’t remember that.
45Mr. Hechter did not share the above evidence of A.N. or Ms. Leus with Dr. Lemieux. However, he suggested in cross-examination to Dr. Lemieux that Ms. Nagolia “was reported to have COVID” and “was coughing for days.” This was a liberal interpretation of a slim evidentiary basis. The evidence unfolded as follows:
Q. Okay, and we’ll get to those in a second. You knew she was reported to have had COVID, yeah?
A. Not to my knowledge or recollection.
Q. Did you know she’d been coughing for days?
A. Not to my knowledge or recollection.
Q. You knew she had over the counter cough medication in her system?
A. There was a therapeutic concentration of pseudoephedrine detected in pos-mortem blood.
Q. Over the counter cough medication in her system.
A. Pseudoephedrine can be found in over-the counter cough medication, but it can be found in other things, and this is within the purview of the forensic toxicologist.
Q. Did the pseudoephedrine make you think maybe some further questions should be asked?
A. It did not in this case as the therapeutic concentration of pseudoephedrine did not reflect or change the cause of death findings.
Q. What alternative mechanisms for creating the petechiae that you observed did you consider, and where is there evidence of it?
A. I’ve considered all the differentials of petechiae, Mr. Hechter, but I also had contusion/abrasions on either side of the neck.
Q. You did, but you didn’t ask anyone if she’d been coughing. Didn’t occur to you.
A. Contusion/abrasions on either side of the neck in context of both epiglottic and palpebral conjunctival petechiae are in keeping with neck compression. This was a finding reviewed by the peer reviewer, and agreed upon as reasonable.
Q. That wasn’t my question. Did you ask anyone about whether she’d coughed recently?
A. No, I did not.
Q. Okay. Does knowing about the fact that she’s believed to have had COVID – or, let me just make this a hypothetical – you’ve got the case you’ve got. You’ve got the report you’ve got. Let’s just say we’re the day before you submit it as your final report, okay? And you find out that Ms. Nagolia was coughing and straining to defecate for days before she died. Does that lead you to reconsider any of your findings?
A. I might consider – I might reconsider, but I would discuss with the peer reviewer because the abrasions/contusion on either side of the neck in the context of her other findings are most concerning for neck compression.
Q. The abrasion/contusion need to be considered in context, would you not agree?
A. Correct.
Q. The context for those abrasion/contusions, primarily, is the results of your dry neck dissection, which showed no hemorrhages in the strap muscles immediately below those abrasion/contusion, right?
A. As stated earlier in testimony, hemorrhages in the strap muscles of then neck are not an absolute requirement to prove neck compression.
Q. I didn’t ask whether they were an absolute requirement to prove neck compression. Would you agree with me that they suggest that those abrasion/contusions that you’ve referred to several times in the last few minutes, were superficial?
A. They were superficial, relatively, yes.
Q. Does anything I’ve asked you or told you specifically about the possibility that Ms. Nagolia was suffering from Covid and coughing quite a bit, and possibly even straining to defecate, does any of that undermine your confidence in your conclusions?
A. It does not undermine my confidence, Mr. Hechter, but certainly if there is more information pertaining to Ms. Nagolia’s state prior to death, all of that information is important to me, and I would want to consider every finding – every bit of information.
Q. Have you ever changed the conclusion stated in a report upon receiving new evidence?
A. If I received new evidence, I am happy to consider it and always change a report. I will note for the court, Mr. Hechter, that in the context of COVID 19 that has been brought up, if you’ll note in the histopathologic examination of the lungs, features of viral pneumonitis were not otherwise identified. So, it – if there is more information that you have pertaining to this case, respectfully, I would appreciate all information.
Q. I did ask whether you’ve ever changed a report. Have you? After receiving new information after finalizing it?
A. I’ve never had to change a report to date, but certainly I’ve been provided more information that has been assessed by both myself and a peer reviewer on a rare occasion.
Q. Okay. Thank you very much, those are my questions.
Voir Dire Evidence – November 10 and 13, 2025
46In her evidence on the voir dire, Dr. Lemieux explained that asphyxia is a general term for a lack of oxygen that can owe to compression of the chest or neck.
47Dr. Lemieux explained her conclusion that there was neck compression, and the relationship between the observations of bruises on both sides of the neck and the conjunctival and epiglottal petechiae. She explained that below the skin surface there are structures on either side of the neck that are important for bringing blood to and from the head and face and neck regions. These are the jugular veins and carotid arteries which are present on either side of the neck. The carotid arteries bring blood from the heart into the head and face and supply blood flow to the brain. The jugular veins drain blood from the head and brain and brings it back to the lungs for oxygenation as part of circulation. Dr. Lemieux explained that the Vagus nerve, in the same area, helps control the heartbeat.
48Dr. Lemieux testified that petechiae are small red pinpoint hemorrhages that arise when there has been increased pressure and disruption within small vessels in organs and bodily tissues. The jugular veins on both sides of the neck are much more compressible than the carotid arteries. When there is compression of the neck, (supported by the bruises on either side of the neck), and the jugular veins are obstructed or occluded due to the pressure, there is a build up of blood coming from the heart, into the head, face and neck, because the carotid arteries are less likely to be obstructed or occluded relative to the veins. As a result, the small vessels are filling with blood that cannot drain. This ruptures the small vessels, which leads to petechiae. Petechiae were noted in the eyelids in the right and left side and in the epiglottic tissue.
49Dr. Lemieux determined there was evidence to support that there was pressure on the neck and no other findings in the post-mortem supported why the petechiae had occurred. Testing established there was no infection. Ms. Nagolia did not have COVID.
50Dr. Lemieux testified that petechiae can arise from other means than chest or neck compression. She explained petechiae can arise in traumatic circumstances like an avalanche, from hanging, or in settings where there is reduced oxygen like drowning. They can arise when there is increased pressure from straining to pass a bowel movement, or coughing due to respiratory infection, or heart failure.
51In respect of coughing, Dr. Lemieux indicated there was no indication of infection in the post-mortem examination. The lungs were microscopically examined and did not show evidence to support a viral infection. There were no signs of pneumonia. The CT scan did not show any sign of a respiratory infection.
52Dr. Lemieux indicated that petechiae in and of themselves are not specific markers of a particular cause of death. She agreed that she could not rule out coughing as a cause of epiglottic petechiae.
53Mr. Hechter asked Dr. Lemieux if coughing remained a viable explanation for all the petechiae she observed. Dr. Lemieux said petechiae is not a common finding with coughing and that typically a person will present with occasional petechiae rather than florid petechiae, but there are many confounding variables including how long a person was coughing. Dr. Lemieux was not aware of any literature that discussed the frequency of petechiae from coughing versus neck compression and agreed it is hard to know how frequent petechiae from coughing occurs because it may be undetected.
54When Mr. Hechter suggested to Dr. Lemieux that she could not rule out coughing as an alternative explanation for the petechiae she observed. Dr. Lemieux testified she could not rule out coughing, but she had no evidence as to why Ms. would be coughing. There was no evidence of infection or heart failure.
55Dr. Lemieux testified that she performed a dry neck dissection, which included examination of the larynx, epiglottis, and trachea. The skeletal structures of the neck, including deep structures, did not show injury or hemorrhage. Dr. Lemieux testified that deep muscle tissue hemorrhage or fractures do not have to be seen in a setting of neck compression.
56In respect of the absence of deep muscle hemorrhage, or fracture, Dr. Lemieux considered that Ms. Nagolia’s neck structures had not calcified and had elasticity. Over time, as persons age, neck structures become more calcified. Calcification was not present with Ms. Nagolia.
57During the voir dire, in cross-examination Mr. Hechter challenged Dr. Lemieux’s objectivity on the basis that she did not take steps to ascertain if Ms. Nagolia had been coughing in the days leading up to her murder, even though he suggested to her at the preliminary inquiry that she was coughing prior to her death. Dr. Lemieux agreed that she did not make inquiries. She indicated that she would not typically do that without knowledge as to whether that is permitted prior to trial and she advised that she was not provided with information from any of the parties, Crown, defence, or police. She agreed she did not contact the Crown to ask whether it was appropriate to request additional information.
58Mr. Hechter suggested to Dr. Lemieux that she did not want to increase her data set. Dr. Lemieux responded that she always wants to increase her data set, but she had no support for the assertion that Ms. Nagolia was coughing and there was no clinical evidence that there was an infection that required follow-up. Dr. Lemieux reiterated that she is an objective witness and will consider any evidence provided from the police, Crown or defence, but she was not provided any additional information to consider.
59Dr. Lemieux said the questions about coughing and the presence of pseudoephedrine did not cause her to question the reliability of her conclusion. She indicated her conclusions were reasonable and peer reviewed and she was not provided any information from any party that suggested that the petechiae could be accounted for by coughing. She indicated that the presence of pseudoephedrine was not a reason to seek additional information because the respiratory examination microscopically showed no findings of infection. There was no evidence of underlying infection or concern that would support coughing.
60Dr. Lemieux indicated that pseudoephedrine is a medication that can be obtained over the counter to assist with cold and flu symptoms, primarily decongestion. Its presence suggested use of an over-the-counter remedy for congestion and did not mean that Ms. Nagolia was coughing. She said that it could mean that Ms. Nagolia had a runny nose. She noted that pseudoephedrine could be present because of symptoms, or it could be related to ingestion of another substance.
61Dr. Lemieux also agreed that petechia cannot be reliably dated. She agreed she did not have evidence to support whether the petechiae were present for days before Ms. Nagolia’s death. She agreed that her findings could not rule it out.
62Mr. Hechter also showed Dr. Lemieux a scene photo depicting a bag containing a plastic bottle and capsules on the bedside table in Ms. Nagolia’s bedroom which he characterized as “meds.” No further evidence was led about the content of the bag. Dr. Lemieux agreed that she looked at the scene pictures and she did not ascertain what was in the Ziploc bag beside the bed. Dr. Lemieux testified that she was not given any information that the bag was thought to contain anything illicit and there was no evidence to suggest a disease process that precipitated symptoms of illness. Further, Dr. Lemieux reiterated that the toxicology results did not show any substance other than pseudoephedrine in her system. As a result, the contents of the bag were not relevant to determining cause of death.
63Dr. Lemieux agreed it was possible Ms. Nagolia was coughing before she died, and use of pseudoephedrine could be related to symptoms prior to her death but she reiterated that there was no evidence of an illness from the postmortem.
64When it was suggested to Dr. Lemieux that she had to rule out alternative explanations for petechiae before making a finding of neck compression, Dr. Lemieux testified that she did not reach the finding of neck compression solely on the basis of petechiae but in the context of the complete case and positive and negative findings. Dr. Lemieux testified that in reaching her conclusions she looks at all the factors in the postmortem not a single factor on its own.
65Dr. Lemieux indicated that she did not make further inquiries of the parties, but she considered other possibilities for the petechiae, and her determination included consideration of histological and toxicological findings. She testified that she did not have any support from the postmortem examination that Ms. Nagolia was coughing chronically with great force to limit respiratory function. She said that she had no reason to seek out additional information because there were no pathological findings that suggested that Ms. Nagolia was unwell.
66Mr. Hechter suggested that Dr. Lemieux also failed to consider other causes of the neck contusions and suggested that a black object, possibly used as a massage device, depicted in a photo on the night table next to the bed may have caused the bruises. Dr. Lemieux indicated that she did not inventory every item in the photos and she did not know what the object was.
67During cross-examination, Mr. Hechter suggested to Dr. Lemieux that if the abrasions on the side of the neck were more than four hours old at the time of death she would not be able to say that they were a contributing cause of death. She responded that if she had evidence to prove the contusions/abrasions (to the neck) occurred four hours or more before the time of death she would have concerns for neck compression and would mention it in her report but would be less likely to ascertain it as a cause of death. She said a peer reviewer might disagree. Her concerns would be based on petechial hemorrhages because they need to be accounted for.
68Mr. Hechter suggested that Dr. Lemieux should have examined the tissue for leukocytes, (white blood cells), but failed to do so. He suggested that the presence of leukocytes would have provided critical information about the timing of the neck bruises, and when the injury occurred. Dr. Lemieux testified that she is familiar with the examination of tissues to look for a cellular response, but literature has shown that aging contusions is dangerous as a forensic pathologist because there are many confounding variables. Dating of bruises is not traditionally performed by forensic pathologists following qualitative guidelines.
69Mr. Hechter provided Dr. Lemieux with an article from the Journal of Clinical Pathology which discussed dating bruises. Dr. Lemieux testified that the subject matter involving dating bruises is a very controversial topic and requested time to review the article, conduct a reference review, and determine if there was any updated literature. A brief adjournment allowed Dr. Lemieux to do so.
70After Dr. Lemieux had an opportunity to review the article, the cross-examination continued. Dr. Lemieux testified that bruises develop and resolve over time. Mr. Hechter suggested to her that that in respect of a superficial bruise, that while blood pooling around the superficial bruise may be observed in short order after injury, the influx of leukocytes will not occur for hours or in some cases days. Dr. Lemieux agreed that blood pooling can be seen in short order, but she testified that leukocytes “can appear within minutes and they can also appear and pool in the postmortem interval.”
71Mr. Hechter suggested to Dr. Lemieux that the article he sent her talked about the time required for leukocytes to appear. He asked whether Dr. Lemieux disagreed with its premise. Dr. Lemieux testified that she disagreed with the premise that injury can be dated. Dr. Lemieux testified that in forensic pathology, forensic pathologists have limitations and have identified that “the dating of abrasions and contusions of injuries is a very dangerous practice because there are marked confounders and independent individuals’ physiologic differences that can affect the development of an injury.” She testified that there is no ability to date bruises minute-to-minute or hour-to-hour. She testified that one of the confounding variables is that different persons have different immune responses. Dr. Lemieux reiterated that in accordance with best practices, dating of bruises is not traditionally performed by a pathologist.
72Dr. Lemieux testified that she looked at the article and at some of the citations. She said some are cited in more recent textbooks and literature that refer to the fact that there are limitations. She said the articles postulate a theory and tried to use scientific methods to establish the dating of injuries, but there is no consistent absolute dating minute-to-minute or hour-to-hour reflective of cellular reaction.
73She said that she looked at some of the articles that cited the article, but not all of them because it would take weeks to look at them all.
74Mr. Hechter then sought to cross-examine Dr. Lemieux on a chapter of a textbook written by Dr. Michael Pickup, “Forensic and Legal Medicine”, “The Pathology of Wound Healing”. Dr. Lemieux was aware of the textbook, but said she required time to review it and conduct a reference review in order to discuss the chapter in detail.
75I advised that I intended to provide Dr. Lemieux an opportunity to review the Chapter because it had not been provided to her in advance. Prior to the adjournment on the previous day, I requested further articles be provided to Dr. Lemieux in advance to avoid delay. Mr. Hechter decided not to pursue cross-examination of Dr. Lemieux on Dr. Pickup’s textbook chapter in order to complete the cross-examination and avoid delay.
C. Legal Framework and R. v. France, [2017 ONSC 2040](https://www.minicounsel.ca/scj/2017/2040)
76In White Burgess, at para. 2, the Supreme Court of Canada made clear that for a witness to be qualified as an expert, they must understand their duty to give impartial, unbiased evidence, and carry that duty out:
Expert witnesses have a special duty to the court to provide fair, objective and non-partisan evidence. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.
77In White Burgess, the Supreme Court of Canada explained that bias can lead to exclusion of expert evidence both at the threshold stage — where the requirement of a "properly qualified expert" will not be met by expert witnesses who are unable or unwilling to fulfill their duties of impartiality to the court — and at the gatekeeper stage — where bias and impartiality can be considered as part of the balancing of the costs and benefits of the evidence.
78In Natsis, at para. 11, the Ontario Court of Appeal summarized the guiding principles concerning the admissibility of expert evidence as derived from White Burgess, at paras. 46-54:
(a) Expert witnesses have a duty to assist the court that overrides their obligation to the party calling them. If the witness is unable or unwilling to fulfil that duty, their evidence should be excluded.
(b) An expert’s attestation or testimony recognizing and accepting their duty to the court will generally suffice to meet the threshold for admissibility as it relates to bias.
(c) Where a proposed expert testifies that they will abide by their duties “to provide fair, objective and non-partisan assistance” to the Court, the burden shifts to the party opposing the admission of the evidence to show a “realistic concern” as to why the expert might be unable or unwilling to comply with that duty.
(d) Once a realistic concern is shown, the burden shifts back to the party proffering the evidence to demonstrate, on a balance of probabilities, that the proposed expert is properly qualified. The party proposing to call the evidence must establish that the expert is able and willing to comply with their duty to the court on a balance of probabilities. If this is not done the evidence, or those parts of it that are tainted by a lack of independence or impartiality should be excluded. White Burgess, at para. 48. Natsis, at para. 24; R. v. Johnson, 2019 ONCA 145, at para. 62.
(e) Even if the evidence satisfies the threshold admissibility inquiry, any concern about the expert’s impartiality and independence is still a relevant factor in weighing the Mohan factors for admissibility – such as relevance, necessity, reliability, and absence of bias. Bias remains a factor to be considered in determining whether the potential helpfulness of the evidence is outweighed by the risk of the dangers associated with that expert evidence.
(f) Expert evidence will rarely be excluded for bias; anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not result in exclusion. Rather, bias must be taken into account in the overall weighing of the costs and benefits of receiving the evidence. Context is important. Both the extent of the expert’s alleged bias and the nature of the proposed evidence are relevant.
R. v. France, 2017 ONSC 2040.
79The defence argued that the circumstances of this case are factually comparable to France, wherein Justice Malloy excluded a portion of the evidence of Dr. Pollanen because of unconscious bias.
80In France, the accused was charged in the death of two-year-old N.C., the son of his partner. Prior to his death, N.C. lived with his mother and Mr. France. Mr. France and N.C.’s mother took him to hospital. He was already deceased. He had many cuts and bruises, some new and some older. The undisputed cause of death, after a post-mortem examination, was septic shock arising from injuries to N.C.’s intestines caused by blunt force trauma to his abdomen. The Crown’s theory was that Mr. France deliberately hit or punched N.C. with such force that his intestines ruptured and, after days of suffering, he died. At issue in the trial, was whether the injury that caused N.C.’s death could have occurred because of a short fall.
81At trial, the defence objected to the admissibility of portions of Dr. Pollanen’s proposed evidence, including in respect to whether blunt force trauma to the abdomen was deliberately inflicted as opposed to being accidental; and whether Dr. Pollanen could testify as to the probabilities of the abdominal injuries being accidentally caused.
82In detailed reasons, Justice Molloy, referencing the Goudge Report and an article by Professor David Paciocco (as he then was)1 identified basic safeguards integral to an “evidence based approach” and outlined different types of potential bias. She stated as follows at paras. 16 and 17:
Both the case law since Mohan, and the Goudge Report advocate an "evidence-based approach" to evaluating the expertise of a witness to offer an opinion on a particular point. Professor Paciocco identifies four predicates upon which this approach is synthesized in the Goudge Report as follows (at p. 156):
The Goudge Report demonstrates the most basic safeguards — things such as the clear articulation of the expert's competence, and the need to appreciate the quality of expert training — but its most profound contribution is in the central place it gives to the "evidence based approach" to expert evidence. The Mohan test has long insisted on an evidence based approach, but the Goudge Report now shows how best to achieve it, describing as it does, the four predicate conditions for practicing a "show me" strategy for ensuring the integrity of expert evidence:
(1) the theory or technique used by the expert must be reliable, and so too must the use of that theory or technique by the expert;
(2) the expert must not be biased;
(3) the expert must be objective and complete in collecting evidence, must reject all information that is not germane to the theory or technique being used, and must be transparent about all information and influences they have been exposed to; and
(4) the expert must clearly express not only the opinion, but also the complete reasoning process that led to it and must be candid about the shortcomings of the theory or technique employed and the opinion reached, offering fair guidance on the level of confidence that can be placed in the opinion expressed.
With respect to the second of these points, Professor Paciocco stresses the importance of the expert maintaining an "open mind to a broad range of possibilities" and notes that bias can often be unconscious. He refers to a number of forms of bias: lack of independence (because of a connection to the party calling the expert); "adversarial" or "selection" bias (where the witness has been selected to fit the needs of the litigant); "association bias" (the natural bias to do something serviceable for those who employ or remunerate you); professional credibility bias (where an expert has a professional interest in maintaining their own credibility after having taken a position); "noble cause distortion" (the belief that a particular outcome is the right one to achieve); and, a related form of bias"confirmation bias" (the phenomenon that when a person is attracted to a particular outcome, there is a tendency to search for evidence that supports the desired conclusion or to interpret the evidence in a way that supports it). Confirmation bias was a particular problem identified in the Goudge Report as Dr. Smith and other pathologists and corners at the time approached their investigations with a “think dirty” policy, an approach “inspired by the noble cause of redressing the long history of inaction in protecting abused children,” and designed to “help ferret out and address it.” Unfortunately, as commented on by the Goudge Report and by Professor Paciocco, such an approach raises a serious risk of confirmation bias. [citations omitted; emphasis added]
83At the preliminary hearing, Dr. Pollanen testified that the injuries were caused by “significant force” to the front of the abdomen. He agreed that the injury could have been caused by an object hitting the child’s abdomen or the child’s abdomen hitting something but denied that the type of injury could be caused by a fall, even if the fall was from a height of three feet onto a fixed protuberance.
84Shortly before the voir dire, Dr. Pollanen provided a supplementary report in which he indicated that on a review of the literature, he was unable to find a case of injury to the duodenum from a short fall and that the fatal abdominal injuries were unlikely to have occurred by an accidental fall and were most likely due to a blow. He said that an unprecedented accident was a possible explanation for the fatal injuries, but it was improbable.
85In examination-in-chief, on the voir dire, Dr. Pollanen testified that in his review of the medical literature he had located only three cases where a fall had caused a similar internal injury. However, during cross-examination, defence counsel identified 26 articles where a short fall had caused a similar injury, including the three articles identified by Dr. Pollanen.
86Dr. Pollanen agreed that the articles showed many examples of children sustaining perforation of the intestines after falls from a short height. He testified that it was possible for the injury to be caused by a short fall, but he maintained that such a conclusion was misleading in light of the statistical data showing the infrequency of such injuries resulting from falls. One of the articles relied upon by Dr. Pollanen supported the conclusion that low velocity accidents were actually more likely to cause abdominal trauma than assaults, the opposite conclusion than that asserted by Dr. Pollanen. In re-examination, Dr. Pollanen said his opinion remained unchanged, about the injury being caused by a short fall, because the injury was sustained in the context of multiple other injuries and they had to be taken into account.
87Justice Molloy concluded that Dr. Pollanen (1) failed to properly prepare before testifying and nevertheless expressed an opinion with certainty; (2) offered opinions beyond his area of expertise; (3) looked for ways to support a position hastily taken (professional credibility bias); and (4) started from a position that this was a case of abuse, which he then sought to prove (confirmation bias).
88Justice Molloy found that at the preliminary hearing, Dr. Pollanen cited two reasons for his opinion that it was not possible that a short fall caused the injury: (1) a fall would not have been a sufficiently energetic force to generate the injury; and (2) the issue had been studied in the medical literature and the possibility of short falls was rejected. He stated “there is no literature to support short fall related abdominal injury.” Justice Molloy found the approach was rigid, dogmatic, and incorrect. Dr. Pollanen acknowledged during the voir dire that his answer at the preliminary hearing was incorrect and that he should properly have said that he did not know the answer because he had not looked at the literature. Justice Molloy said that Dr. Pollanen took a rigid position while knowing that he had not done any research to back it up.
89Justice Molloy also found that notwithstanding that Dr. Pollanen knew as a scientist that it was not possible to measure the degree of force that had caused the trauma, he nevertheless testified that a significant force would be required to cause the injuries. He readily accepted that numerous scholarly articles established that even trivial force can cause intestinal injuries because of the dynamic by which the injuries can occur. Justice Molloy expressed concern that Dr. Pollanen did not mention the studies at the time of his evidence at the preliminary hearing. She found that “consistently describing the degree of force required as being “significant” without mentioning that a minor degree of force can in fact cause the same injury is misleading and a breach of the duty of impartiality to the court. On the other hand, if Dr. Pollanen was not aware of the medical literature about the minimal degree of force required, it troubles me that he offered the opinion without doing even the most rudimentary amount of research.” France, at para. 48.
90Justice Molloy expressed further concern that after Dr. Pollanen was cross-examined at the preliminary hearing he did not research the matter further until the eve of the pre-trial motion and was evasive about the amount of time he spent doing his research. She found that when the brief research he did caused him to realize that he needed to file a supplementary report because the evidence he had given at the preliminary hearing was incorrect, he refused to abandon his bottom-line conclusion that the injury was caused by an assault. Rather, he based his opinion on the improbability of an accident having caused the injuries. However, Justice Molloy found that the statistics he relied upon were inaccurate and he did not have the necessary expertise to analyze the statistics.
91Justice Molloy did not question the professional expertise of Dr. Pollanen and did not doubt his integrity. However, she held that it was a circumstance of unintentional professional credibility bias and that having taken a position at the preliminary hearing, Dr. Pollanen looked for a means to support it, rather than looking objectively at the research and autopsy findings.
92Ultimately, Justice Molloy held that although Dr. Pollanen was well qualified to give opinion evidence in the field of forensic psychiatry, he was not permitted to offer an opinion as to whether an assault was more likely to have caused the fatal injury than an accidental fall and was not permitted to use the word “significant” to describe the degree of force that caused the injury. He was not permitted to say the injuries are “consistent with” any particular cause.
93The Respondent submits that this case bears “striking similarity” to France. The Respondent submits there is evidence of Dr. Lemieux’s unscientific inflexibility in the face of relevant “new” information. He submits that Dr. Lemieux’s intransigence is necessarily disqualifying. The Respondent submits that an “expert witness can hardly be expected to fulfill their fundamental duty to the court by simply ignoring additional relevant considerations”: R. v. Chen, 2019 ONSC 3088.
D. Analysis and Conclusions
94Dr. Lemieux’s evidence does not raise concerns analogous to those identified by Justice Molloy in France. The Respondent has not established that Dr. Lemieux’s evidence is tainted by confirmation bias, or professional credibility bias, or that Dr. Lemieux was improperly “entrenched” in her opinion requiring that her evidence be excluded.
i.) Dr. Lemieux did not hastily express an opinion with certainty because of failing to properly research the opinion.
ii.) The foundation for Dr. Lemieux’s conclusions is not demonstrably false.
iii.) Dr. Lemieux did not find an alternative means of supporting her opinion after factual underpinnings were proven to be false.
iv.) Dr. Lemieux did not testify beyond the scope of her expertise.
v.) Dr. Lemieux did not intentionally or unintentionally ignore relevant evidence. She did not fail to make necessary inquiries.
vi.) Dr. Lemieux did not overstate her opinion. Rather, she was even-handed in how she presented her evidence and clearly expressed the limitations of her opinion.
95In my view, Dr. Lemieux was a well prepared careful witness. She was aware of the importance of communicating the limitations of her findings and sought to do so.
96In my view, Dr. Lemieux’s request for time to carefully review and conduct a reference review of the article and chapter referred to by Mr. Hechter was appropriate. It was representative of the thorough and cautious manner in which she prepared the postmortem report and her evidence. I note that one of the observations made by Justice Molloy in France, at para. 45, was that “no pathologist can possibly be an expert in every variable of every cause of death that can occur in the human body”, a comment made in the context of her concerns about Dr. Pollanen expressing an opinion without carefully researching the issue. Dr. Lemieux exercised appropriate caution and recognized the dangers of giving evidence about literature without careful consideration and research.
The Significance of the Variation Between the Preliminary Conclusion and the Final Cause of Death
97Unlike in France, Dr. Lemieux did not hastily arrive at a conclusion and then refuse to change her opinion when elements fundamental to her opinion were proven to be demonstrably false.
98The difference in the cause of death identified in Dr. Lemieux’s preliminary autopsy report and the final Postmortem Report does not represent a change that undermines Dr. Lemieux’s reliability or credibility and does not support a finding of bias or lack of objectivity. Dr. Lemieux’s autopsy notes, and notes on the preliminary autopsy form, make clear that she considered neck compression to be an important consideration with respect to cause of death from the outset but chose to proceed with caution.
99As referenced above, on August 27, 2023 in the “Goudge Form” Dr. Lemieux noted the preliminary cause of death as “pending”, and under the heading immediate cause of death noted “A. Incised wounds of the head and face”. Below her notation, in a box titled “notes” she indicated “Features of neck compression discussed with law enforcement”. In a box titled “Studies Pending” she checked “Histology” and “Toxicology”. Dr. Lemieux’s autopsy notes completed at the time of the postmortem examination indicated under the heading “Preliminary Cause of Death” “Incised wounds of head and face. * Features of neck compression”.
100Dr. Lemieux testified that she made this notation because in the context of Ms. Nagolia’s death there were findings that suggested neck compression which refers to pressure on the neck that could contribute to or cause death on their own. She identified and noted the features of neck compression for further review in the context of preparing the final report.
101Dr. Lemieux explained that in the “Goudge Form” she checked “pending” to show the preliminary cause of death was not final. The pending box communicates that there is additional review to be conducted before completion of the final report.
102The “Goudge Form” is used to record preliminary findings in writing. It is a product flowing from the recommendations of the Goudge Report as is the “pending box” on the form. Recommendation 79 of the Goudge Report recommended preparation of a written preliminary report that identifies any limitations of the findings or conclusions at that time including if they are subject to further consideration or investigation. Goudge Report, Volume 3, at p. 396-398.
103I accept Dr. Lemieux’s evidence regarding the care and additional steps she took before finalizing her report. Dr. Lemieux explained that she takes a conservative approach and does not finalize her postmortem report until she has the complete data including any tests she has requested, such as toxicology and histology, and until she has conducted a close review of all imaging. Caution and careful consideration of all the postmortem information is important to the preparation of an impartial, objective, and reliable report.
104After the postmortem, Dr. Lemieux reviewed photos of Ms. Nagolia carefully with proper monitors to allow for increased visualization of areas of concern. The photographs helped her to view the petechiae. She reviewed 3D imaging. She also consulted relevant literature. She obtained the toxicology and histology results. Dr. Lemieux testified that she wanted the toxicology results to determine if there was a substance in Ms. Nagolia’s circulation at the time of her death which may have played a role in her death. The toxicology results showed there was no substance present in her system that played a role in her death. There was a therapeutic concentration of pseudoephedrine. No Alcohol or illicit or prescription drugs were detected.
105After carefully viewing the information gathered during the post-mortem, the results of the ancillary tests, and relevant literature, Dr. Lemieux completed her final report. Her opinion was that the cause of death was incised wounds of the head and face and neck compression. Dr. Lemieux did not hastily take a position and then look for ways to support it. Rather she reached her conclusions after thorough consideration.
There Was No Failure By Dr. Lemieux to Conduct Further Investigation
106The Respondent submits that Dr. Lemieux failed to consider alternative causes of petechiae such as coughing when there was reason for her to do so and alleges that she failed to make necessary inquiries after being alerted by defence counsel at the preliminary hearing that Ms. Nagolia was reportedly suffering from COVID and had been coughing for days leading to her death. The Respondent, citing Justice Molloy in France indicated that “an expert must be objective and complete in collecting evidence”. France, at para. 16,
107In France, Dr. Pollanen failed to adequately research matters within the field of forensic pathology. He expressed the opinion that the abdominal injury could not be caused by a short fall when it could. He said that significant force was required to cause an injury when it was not. It was not a circumstance where the court faulted Dr. Pollanen for failing to conduct a factual investigation and reach into the investigative file or beyond the investigative file for extrinsic witness statement information or testimony. In fact in France, Justice Molloy recognized that a forensic pathologist does not have the breadth of knowledge of the facts arising from a wide range of sources, such as witness statements/testimony, that the jury will have, a reason that the expert should not opine on inferences to be drawn on the ultimate issue. France, at para. 57.
108In challenging the reliability and objectivity of Dr. Lemieux’s evidence in their factum at para. 7 the Respondent stated as follows:
At the time of the preliminary inquiry, Dr. Lemieux had no “knowledge or recollection” of Marina Nagolia being reported to have had COVID in the period leading up to her death. She was not aware of evidence that Marina Nagolia “had been coughing for days” before her death. Dr. Lemieux was aware of a “therapeutic concentration of pseudoephedrine detected in post-mortem blood” and knew that “pseudoephedrine can be found in over-the counter cough medication” but pointed out that it can also be “found in other things”. When asked whether the “pseudoephedrine [made] you think maybe some further questions should be asked”, she testified “it did not in this case as the therapeutic concentration of pseudoephedrine did not reflect or change the cause of death findings”.
109Firstly, the suggestion made to Dr. Lemieux that Ms. Nagolia “reportedly had COVID” in the days prior to her death, without context, was potentially misleading. Ms. Leus testified that she thought Ms. Nagolia might have COVID because of the way her voice sounded on voice notes. This is a highly questionable foundation for the suggestion that Ms. Nagolia “was reported to have COVID”, even when combined with the evidence of 9-year-old A.N. who agreed in cross-examination with the suggestion that her mother was coughing a lot while on vacation in Cuba.
110In respect of the suggestion that Ms. Nagolia had been “coughing for days”, A. N. was not asked for detail about the coughing, nor did she provide any. She did not say that her mother was coughing “for days”. She did not say that her mother was coughing after her return from Cuba, and she did not agree with the suggestion that her mother was straining to defecate.
111At the preliminary hearing, Dr. Lemieux made clear she would consider any evidence provided to her and would change her conclusions if appropriate. She invited the Respondent to provide her with any additional evidence. The Respondent chose not to provide any additional evidence to Dr. Lemieux during or after the preliminary hearing and did not do so on the voir dire. He did not share the evidence of A.N. or the evidence from Oksana Leus with Dr. Lemieux. Neither did the Crown or the police.
112The Respondent was not obligated to share the witness testimony with Dr. Lemieux or any other defence evidence. However, to fault Dr. Lemieux and allege serious bias because she did not make inquiries flowing from the defence questioning, while at the same time choosing not to share the information with her after an invitation to do so, is not in keeping with the collaborative approach recommended by the Goudge Report.
113The questions of counsel are not evidence. Moreover, contrary to the assertion that Dr. Lemieux did nothing to investigate “coughing”, Dr. Lemieux did testing as part of the postmortem examination that established that Ms. Nagolia did not have COVID or any other infection that would create a reason to believe she was coughing.
114While Crown counsel and police may have a duty to bring relevant information from the file to the attention of a pathologist, and defence counsel may choose to do so, it is not the pathologist’s role to conduct an investigation outside of the field of pathology.
115If Crown counsel or defence counsel are in possession of circumstantial evidence that might be relevant to Dr. Lemieux’s opinion, they may raise relevant issues by posing hypothetical questions.
116In the Goudge Report, Justice Goudge considered to what extent a pathologist should rely on extrinsic non-pathology information in forming their opinion. He indicated that the extent to which a pathologist’s opinions should be based, in whole or in part on non-pathology information or “circumstantial evidence” is a difficult issue.
117Recommendation 93 of the Goudge Report provides as follows:
a) Forensic pathologists should never use circumstantial evidence or non-pathology information to bear the entire burden of support for an opinion.
b) Caution in using such evidence or information at all should be particularly pronounced where the circumstantial evidence is potentially unreliable or contentious or comes close to the ultimate issue that the court must decide.
c) Forensic pathologists’ opinions must ultimately fall within their particular area of expertise. They should not rely on circumstantial evidence to a point where the opinion no longer meets that requirement.
d) There is some scope for forensic pathologists quite properly to use non-pathology or circumstantial evidence in forming their opinions. They need not operate in complete isolation. However, their use or consideration of circumstantial evidence should always be transparent; they should always disclose both the extent to which they have used or relied on such evidence and the impact such evidence has had on their reasoning and opinions.
e) Forensic pathologists can consider hypothetical questions that involve circumstantial evidence in determining whether, or to what extent, a reported history can be excluded or supported by the pathology findings.
118Having regard to these recommendations, it is understandable that Dr. Lemieux was uncertain about the appropriateness of seeking out information that was non-pathology circumstantial evidence.
119I do not mean to suggest that where there is a medical history of the deceased that may tend to undermine a pathology finding that such evidence should not be considered by the pathologist. However, the recommendations are relevant to the defence assertion that because of the questions put to her at the preliminary hearing, Dr. Lemieux was obligated to probe the investigative file for non-pathology information that might have circumstantial relevance to the pathology findings.
120The Goudge Report emphasizes the importance of ensuring that relevant information is shared. It speaks of evidence being presented to forensic pathologists by the police, crown, and defence to allow the pathologist to consider their opinion in light of the new information. The report also recommends that when additional information is provided to a forensic pathologist in preparation for trial, the expert must be given time to consider any new facts or hypothetical questions presented to them. Goudge Report. Recommendations 104, and 118.
121With respect to the sharing of defence forensic opinions, Recommendation 125 of the Goudge Report states as follows:
The defence is often well served (as is the forensic testimony presented to the criminal justice system ) by early, voluntary disclosure of its anticipated forensic evidence. The defence should be encouraged, in its own interest, to provide such early disclosure. It should not be compelled to do so.
122The reasoning underlying this recommendation is applicable not only to expert forensic pathology opinion evidence in the hands of the defence, but evidence more broadly that may be relevant to the conclusions of the forensic expert. The goal of the Goudge recommendations were to enhance the truth seeking process and the reliability of expert opinion evidence. This is something that can be best achieved through collaboration and sharing of information by all participants in the proceedings.
123I am satisfied that Dr. Lemieux was willing to consider additional information. None was shared with her. I do not accept the Respondent’s submission that Dr. Lemieux is biased, because she did not seek out information to try and find out what counsel for the Respondent was referring to when he put to her that Marina Nagolia “had been coughing for days” and was “reported to have COVID” in circumstances where she had completed scientific testing that established that Ms. Nagolia did not have an infection.
The Respondent Has Not Established Bias Related to Timing of Bruising
124In respect of the timing of the bruising it is the Respondent’s position that Dr. Lemieux failed to carry out testing for the presence of leukocytes in the neck contusions. The Respondent submits such testing may have established that the injury that caused the bruises took place well prior to the events that led to Ms. Nagolia’s death.
125Dr. Lemieux testified that dating of abrasions and contusions is a controversial matter. She testified it is a dangerous practice because there are marked confounders. Physiological differences affect the development of an injury. Dr. Lemieux indicated that dating of bruises is not traditionally performed by a pathologist in accordance with best practices.
126Unlike in France, the Respondent has not established that Dr. Lemieux’s evidence is unreliable and incorrect. There is no basis upon which to conclude that Dr. Lemieux is being intransigent or that her evidence on this issue is impacted by bias. I had no evidence to establish that Dr. Lemieux failed to conduct tests that ought to have been done in keeping with best forensic practices.
127That being said, Dr. Lemieux should be prepared to respond to questions on the article she was provided during the voir dire, and Dr. Pickup’s textbook chapter at trial.
128As I indicated to Mr. Hechter during submissions, in the event there are further articles to be put to Dr. Lemieux, to avoid delays during the trial, it would be highly preferable for those articles to be provided to Dr. Lemieux in advance of her testimony unless there is a compelling reason not to do so.
Dr. Lemieux’s Reasoning Process was Transparent. Her Evidence is Not Speculative. It is Grounded in An Evidentiary Foundation
129Dr. Lemieux clearly expressed her opinion, her reasoning process, and was candid about the limitations of her opinion. A jury will be well positioned to assess whether they accept some, all or none of her evidence and opinion. Dr. Lemieux demonstrated her awareness of the need to ensure she did not give evidence outside of her field of expertise.
130For example, Dr. Lemieux explained that petechiae can be caused by other means than neck compression, including by coughing. She indicated that it is a non-specific finding. She also advised that the internal examination of the deep neck structures did not reveal injury or fracture. She explained that although injury of the internal neck structures can be seen with neck compression, it is not a required finding to conclude there was neck compression.
131When addressing pseudoephedrine in terms of its properties and where it may be found, Dr. Lemieux cautioned that such evidence falls within the purview of a toxicologist.
132Dr. Lemieux’s findings are evidence-based. As Dr. Lemieux stressed, she reached her conclusions in the context of the complete post-mortem examination results and findings.
133In respect of evidence of neck compression, the Respondent submitted: “Again: the only evidence she had, relevant [to] such a finding, were two superficial abrasion/contusions and some petechiae”.
134In my view, this assertion does not fairly describe the evidence or place it in the full context of the other findings of the postmortem examination. Exhibit 4A and 4B show a prominent obvious ovoid (round) red/purple bruise on the left side of the neck and a prominent obvious ovoid (round) red/purple bruise on the right side of the neck. The injuries are pre-mortem injuries. The photos clearly show the obvious bruises and the similarity and symmetry of the two bruises.
135There were observable petechiae in the right upper and in the left upper and lower palpebral conjunctivae. There were epiglottic petechiae that were documented at the time of the autopsy and photographed. The petechiae in the left conjunctivae were “florid”.
136As noted, in keeping with her duty as an impartial and expert witness Dr. Lemieux readily acknowledged that there are other possibilities besides neck compression for how petechiae can be caused, they are not specific to neck compression. I accept that she considered other potential causes of petechiae in reaching her conclusions.
137Dr. Lemieux explained the relationship between petechiae and neck compression and how they can be caused by neck compression. She emphasized that the petechiae cannot be considered in isolation. The petechiae must be considered having regard to the neck contusions and the pathological findings that showed Ms. Nagolia had no infection and was not unwell. Dr. Lemieux concluded it was unlikely that the petechiae were due to a cough in a woman with no other pathological indication that she had an acute or chronic illness. Based on the evidence she gathered during the postmortem examination Dr. Lemieux concluded that the neck compression was a component of the cause of death.
138As with circumstantial evidence, the evidence considered by Dr. Lemieux in reaching her conclusion about cause of death should not be considered in isolation. A factor that contributed to her conclusion, like presence of petechiae, should not be isolated and discarded if there is a potential alternative explanation for any one factor standing alone. The evidence must be considered in totality.
139Dr. Lemieux’s findings were subject to scrutiny. A peer reviewer determined her conclusions were reasonable. Notably, if a peer reviewer disagrees with the conclusion as to cause of death of the examining pathologist they are required to voice their concerns. If there are concerns identified at the time of peer review that cannot be resolved, the report is reviewed by another pathologist or possibly a committee and in some instances will be sent for review out of province. No concern was raised during the peer review process with respect to the reasonableness of Dr. Lemieux’s conclusions.
140In determining this application, I have been provided with no expert opinion that contradicts or undermines Dr. Lemieux’s opinion that neck compression was a component of the cause of death or that supports the Respondent’s assertion that her conclusions are unfounded and biased.
A Matter for the Jury
141The bruises on both sides of the neck and petechiae were located on a 43-year-old woman who was found deceased with visible injuries on her head, face, upper back, and right hand lying on a bedroom floor. There was marked hemorrhage in the vicinity of where she was found. Her underwear had been removed. Two metal fragments were located in Ms. Nagolia’s head hair.
142Having regard to all of the other injuries to the head and face including nine incised wounds, blunt force injuries to the head and face, and a focal fracture of the surface of the right temporal aspect of the calvarium of the skull, it would be open to a jury to infer that the two obvious bruises of the neck, in close proximity to other injuries of the head and face, were related to violence inflicted upon Ms. Nagolia and occurred at the same time.
143It will be for the jury to decide whether they accept some, all, or none of Dr. Lemieux’s evidence with respect to the factual underpinnings that lead her to conclude there was neck compression - the presence of the neck contusions, and petechiae, in the context of the other postmortem findings including absence of infection. It will be for the jury to decide whether they accept Dr. Lemieux’s opinion regarding the inferences that flow from those facts (if accepted) including that neck compression was a component of the cause of death.
144Undoubtedly, the Respondent will challenge Dr. Lemieux’s conclusion that there was neck compression and that it was a component of the cause of death. She will be subject to a thorough cross-examination by well prepared and capable counsel.
145Aside from a skillful cross-examination, the defence may also call factual and expert opinion evidence to back their assertion that Dr. Lemieux’s conclusions are medically unsound.
146The defence will have the opportunity to call evidence to establish that Ms. Nagolia was coughing in the period leading up to her death in support of the submission that the jury should not find as a fact that the petechiae were caused by neck compression. Dr. Lemieux readily acknowledged that petechiae can be caused by coughing or several other factors, and a jury will be able to consider the potential of other causes for the petechiae and relate that to whether they accept Dr. Lemieux’s opinion that there was neck compression.
147Similarly, it will be for a jury to make findings of fact regarding the bruises to Ms. Nagolia’s neck. They can consider the presence of the black “massage” object on the night table and consider whether they find as a fact that there was manual neck compression or whether, the bruising to the neck may have been caused by some other form of blunt force impact, or if they are uncertain and unable to reach a conclusion.
148A jury will also be cautioned about how to approach expert evidence. The jury will be told that the opinions of experts like Dr. Lemieux are just like the testimony of any other witness. They will be informed that just because Dr. Lemieux has given an opinion does not require them to accept it and they may give the opinion as much or as little weight as they think it deserves. They will be reminded to consider
the education and experience of the expert
the reasons given for the opinion
the suitability of the methods used
other evidence in the case.
149The jury will be told that it is up to them to decide how much or little to rely on an expert’s opinion and to the extent the jury makes finding of facts that are different from facts relied upon by the expert in reaching their conclusion, they may consider the expert’s opinion less reliable in helping them to decide the case. The jury will be told that how much or little they believe of or rely upon any expert’s opinion is entirely up to them: Watt’s Jury Instructions, Final Instructions Expert Evidence. 19-A.
150Counsel through cross-examination, by calling evidence, and in closing submissions can bring alleged frailties to the jury’s attention. The defence and crown positions will be summarized for the jury and where appropriate, any deficiencies or factors that may undermine Dr. Lemieux’s opinion will be brought to the jury’s attention.
151I am satisfied that a jury will be well equipped to decide whether they accept, reject, or are uncertain with respect to Dr. Lemieux’s evidence that neck compression was a component of the cause of death, and will make their findings of fact appropriately based on the evidence or lack of evidence in the case.
152In considering whether the two stage test is met, it must be remembered that this is a threshold/gatekeeping inquiry. I am not assessing whether Dr. Lemieux’s conclusions are ultimately true and correct. The crown does not have to establish that all aspects of Dr. Lemieux’s opinion are beyond challenge. Provided the two-stage criteria for admissibility are met, that the defence can identify a basis to challenge the evidence, does not render the evidence inadmissible Provided the admissibility requirements are met as set out in White Burgess, it will be for the jury to determine whether they accept, some, all or none, of Dr. Lemieux’s evidence. That there are potential competing explanations for the presence of petechiae, such as coughing, or litigable issues related to the nature of force that caused the neck contusions, and whether the inference of mechanical neck compression, from the totality of the circumstances, should be drawn, does not render the evidence inadmissible.
153In R. v. Natsis, 2018 ONCA 425, the Ontario Court of Appeal emphasized that expert evidence will rarely be excluded for bias; anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not result in exclusion. Rather, bias must be taken into account in the overall weighing of the costs and benefits of receiving the evidence. Context is important. Both the extent of the expert’s alleged bias and the nature of the proposed evidence are relevant.
154I am satisfied the Dr. Lemieux’s evidence meets the threshold criteria for admissibility. Her evidence is relevant, necessary, is not rendered inadmissible by any other exclusionary rule, and she is a properly qualified expert.
155In her report Dr. Lemieux declared as follows:
I understand that my overriding duty is to the court, both in preparing reports and in giving oral evidence. I have complied with and will comply with that duty. I have done my best in preparing this report to be accurate and complete. I have mentioned all matters that I regard as relevant to the opinions I have expressed.
156I am satisfied that Dr. Lemieux understands her duty to the court to provide fair, objective and non-partisan assistance, and will seek to do so. She confirmed her understanding of this duty in her written report and during her evidence and reiterated many times her intention to provide impartial objective evidence.
157The Respondent has not established a “realistic concern” on a balance of probabilities that Dr. Lemieux is biased or that she consciously or unconsciously is unwilling or unable to comply with her duty.
158At Stage 2, the gatekeeping stage, I am satisfied that the benefits of admitting Dr. Lemieux’s evidence outweigh the potential risks and dangers, taking into account probative value, prejudice, necessity, reliability and absence of bias.
159To exclude Dr. Lemieux’s evidence entirely would deprive the jury of an important and highly probative body of evidence. Dr. Lemieux conducted the post-mortem examination. Dr. Lemieux’s evidence about the injuries observed, the cause and mechanism of death including neck compression, and the findings related to the sexual assault kit are highly probative.
Limitation
160My findings are subject to one limitation. During her evidence, Dr. Lemieux agreed that coughing is more common than neck compression. However, she said petechiae is not a common finding with coughing. She said that not all persons who cough present with florid petechiae. She explained that florid petechiae refers to when there are many petechial hemorrhages versus a single or occasional hemorrhage. In this case Ms. Nagolia had many petechial hemorrhages in the left conjunctivae. The epiglottic petechiae were not florid.
161Dr. Lemieux was not aware of literature that discussed the frequency of petechiae from coughing versus neck compression. She agreed it is hard to know how frequent petechiae from coughing occurs because it may be undetected.
162I am not satisfied that a proper foundation was established for the assertion that petechiae is not a common finding with coughing or that it is less common with coughing than neck compression. As a result, I would exclude this specific aspect of the evidence at trial. This does not prohibit the defence from cross-examining on the absence of any literature that discusses the frequency of petechiae from coughing versus neck compression.
163To be clear, in the absence of further evidence that establishes an evidentiary foundation, such as scientific literature, Dr. Lemieux should not opine that petechiae occur more frequently with neck compression than with coughing.
Conclusion
164Dr. Lemieux is a properly qualified expert, and I am satisfied that the Crown has established her evidence is necessary, relevant, and not subject to any other exclusionary rule.
165Having conducted a cost-benefit analysis at Stage 2 of the admissibility inquiry I am satisfied that her evidence is properly admissible. To exclude the highly probative evidence would undermine the truth seeking function of the trial. I am satisfied that the potential helpfulness/probative value of the evidence outweighs the alleged risk of danger associated with the expert evidence.
166Dr. Lemieux’s opinion evidence including her evidence regarding neck compression is admissible.
167Dr. Lemieux can provide expert opinion evidence in the field of forensic pathology in relation to:
a. Cause of death;
b. Mechanism of death;
c. The nature and signs of injuries and observations made during the postmortem examination;
d. The Sexual assault evidence kit collection, absence of genitalia injuries in relation to sexual assault and presence of bodily fluids and variables that may affect such existence and duration.
Use of Language – Consistent With
168The Respondent has submitted that I should prohibit use of the terms “consistent with”, “in keeping with”, and “defensive wounds” because of the potential misleading and prejudicial impact of such terms.
169The Crown agrees that the injuries to the back of the hands can be described without use of the term “defensive wounds”. This is a reasonable concession. Dr. Lemieux is to describe the injuries to Ms. Nagolia’s right hand without using the term defensive wound. It will be for the jury to decide whether the wounds are “defensive”. Dr. Lemieux should be instructed accordingly by the Crown.
170In the Goudge Report, Chapter 16, Justice Goudge addressed how experts can effectively communicate with the criminal justice system. He recommended that experts should use plain, common language that is not potentially misleading, and that enhances understanding. He cautioned against the use of terms such as “consistent with” that can be demonstrably misleading because “consistent with” means no more than may or may not be the case.
171In giving her evidence Dr. Lemieux, when asked, explained in detail what she meant when she used the term “in keeping with”. For example, during the voir dire Dr. Lemieux was asked to explain her evidence at the preliminary hearing that “with regards to the literature, the findings of petechiae, particularly in the deeper neck structures, are concerning findings in keeping with neck compression”. She explained that what she was saying is that petechiae is a recognized finding that can be seen in neck compression either due to manual means or ligature means. She also said that petechiae is not specific, but it is a supportive finding in these types of cases. She said that it is recognized as a component that can seen where there is neck compression but also explained that petechiae can be caused by many other things, including coughing.
172In the Goudge report, Justice Goudge emphasized the role of counsel in ensuring that misleading language is not used. I am not prohibiting the use of the phrases “in keeping with” or “consistent with”. However, if those phrases are used, it is incumbent on counsel to ask Dr. Lemieux to explain in detail what is meant by use of the phrase. If I have a concern with respect to misleading use of language, I will bring that concern to the attention of counsel and/or make the necessary inquiries of the witness.
Justice Marcella Henschel
Released: January 19, 2026
CITATION: R. v. Matin, 2026 ONSC 392
NEWMARKET COURT FILE NO.: CR-23-91107307-0000
DATE: 20260119
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DANIIL MATIN
REASONS FOR JUDGMENT
Justice Marcella Henschel
Released: January 19, 2026
1 The Honourable Stephen T. Goudge, Inquiry into Pediatric Forensic Pathology in Ontario, Report (Toronto: Ontario Ministry of the Attorney General, 2008); David Paciocco (Goudge Report), “Taking a ‘Goudge’ out of Bluster and Blarney: an ‘Evidence-Based Approach’ to Expert Testimony” (June 2009) 13 Can. Crim. L.R. 135.