CITATION: R. v. Matin, 2026 ONSC 714
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 Sina Shabestary for the Respondent
HEARD: October 24 to November 14, 2025
REASONS FOR JUDGMENT – ADMISSIBILITY OF HEARSAY EVIDENCE AND TESTIMONIAL AIDS
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 eight-year-old 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, at 6:20 p.m., Emergency Medical Services (EMS) received a call from the Applicant’s brother, Sohail Shahidnia. He feared the Applicant was attempting to commit suicide. York Regional Police officers and EMS were dispatched to 382 Taylor Mills Drive South.
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, and lying on the floor. She was on her back, wrapped in a blanket. Her feet were sticking out of the duvet.
6A police officer removed the duvet and saw that Ms. Nagolia 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 and there were what appeared to be blood stains on the mattress. There was underwear underneath her right thigh that appeared to have been cut off.
7Ms. Nagolia was pronounced dead at 6:47 p.m. by an EMS paramedic. Shortly after she was pronounced dead, at 6:51 p.m., Mr. Matin was arrested for murder by PC Kogan. He was in an ambulance at the time of his arrest.
8Mr. Matin was transported to Sunnybrook Hospital where he was treated for his injuries.
9On August 27, 2023, Dr. Carolyn Lemieux completed the post-mortem examination of Marina Nagolia at the Provincial Forensic Pathology Unit in Toronto. In the post-mortem report, she concluded that the cause of death was “incised wounds of the head and face and neck compression.”
10The Crown theory is that Ms. Nagolia was killed by Mr. Matin in her Richmond Hill home after they arrived home from Cuba sometime between the morning of August 24, 2023 and August 25, 2023 when first responders arrived. The Crown alleges that Mr. Matin caused Ms. Nagolia’s death by stabbing her about the face and neck while committing a sexual assault upon her.
11It is the Crown’s theory that A.N. witnessed some of the physical violence inflicted on her Mother by Mr. Matin that led to her Mother’s death.
12A.N. provided two video statements to the police. The first, on September 7, 2023, and the second, on November 9, 2023. She testified at the preliminary hearing on August 13 and 14, 2024.
13The Crown anticipates (subject to admissibility rulings) that A.N. will testify that after she, her Mother, and her Mother’s “ex” (Mr. Matin) arrived home from a trip (to Cuba), she slept in the bedroom with her Mother. She woke up on the morning of August 24, 2023 and saw her Mother on the floor wrapped in a blanket “like a burrito” moving her legs up and down and saying, “Let me go.” The Applicant responded “wait, wait, wait, wait.” A.N. said, “what are you doing, let her go.” Mr. Matin told A.N. to leave the bedroom. She watched YouTube on her iPad. Later that day, Mr. Matin helped her pack a bag and when her father (Benyamin Nagolia) arrived outside to pick her up, she went outside and left with him.
14It is the Crown’s theory that Mr. Matin used Marina Nagolia’s phone to message Mr. Nagolia to pick up A.N. and that Ms. Nagolia was already dead when A.N. was picked up by her father.
15A.N. was eight years old when she gave her two police statements and was 9 years old at the time of the preliminary hearing. She provided the information about the events of August 24, 2023 incrementally in her statements and preliminary hearing evidence.
16A.N. is now ten years old. She will be a witness at the trial. There is no dispute that she has relevant evidence to give.
17The Applicant Crown seeks a number of testimonial supports for A.N., including the following: an order pursuant to s. 486.2(1) of the Criminal Code, RSC 1985, c C-46, permitting A.N. to give evidence from outside of the courtroom; an order permitting a support person from the Victim Witness Assistance Program (VWAP) to be present and seated close to A.N. during her testimony pursuant to s. 486.1(1); an order permitting a support dog to be present during her evidence; and an order admitting her video statements from September 7 and November 9, 2023 under s. 715.1 of the Criminal Code.
18The Crown also seeks an order admitting the utterance of Marina Nagolia “let me go” and the responding utterance “wait, wait, wait, wait” from Daniil Matin, as overheard by A.N. on August 24, 2023. The Applicant seeks the admission of the “let me go” statement under the traditional hearsay exception of res gestae as a spontaneous utterance. The Applicant submits the evidence is also admissible under the principled exception to the hearsay rule. The Applicant seeks the admission of the “wait, wait, wait, wait” statement by Mr. Matin as a party admission.
19On January 28, 2026, I ruled that the hearsay statement of Marina Nagolia “let me go” was admissible as a res gestae spontaneous utterance, or in the alternative, under the principled exception to the hearsay rule. I also granted the orders for testimonial supports and held that the September 7 and November 9, 2023 statements were admissible under s. 715.1 of the Criminal Code, subject to adoption by A.N., and necessary editing. These are my reasons.
B. Summary of the Statements and Preliminary Hearing Evidence of A.N.
20In order to provide context to my findings, I will summarize the information provided in A.N.’s statements and her preliminary hearing evidence and other areas of evidence relied upon by the parties in support of their positions. For purposes of brevity, some of the evidence is referenced only during my analysis.
September 7, 2023 Statement
21A.N.’s first statement took place for 1.5 hours on September 7, 2023 with DC “Mark.”
22During the September 7, 2023 statement, A.N. did not describe seeing her Mother on the floor “wrapped up like a burrito,” moving her legs up and down, saying “let me go” or Mr. Matin saying “wait, wait, wait, wait.”
23Near the outset of the statement, A.N. asked DC Mark whether “this is for my Mom ….and ex?” DC Mark asked why she thought she was there and A.N. responded:
A.N.: Prob’ly because of her ex.
P.C.: Okay. Well…
A.N.: That made her die.
P.C.: Okay. Well, that -that might be some things that we talk about if you’re…
A.N.: Yeah. She got a heart attack because of him.
PC: Oh, no. I’m so sorry, dear. I’m sorry.
A.N. I never liked him.
24A.N. then spoke about her Mom’s ex-partner smelling something that made him crazy and act bad. She said he stopped but then “did it again.” A.N. then added:
AN: And then…and then we – they got in a huge argument.
PC: Hmmm.
AN: But I wasn’t there. I was with my Dad.
25During the statement, DC Mark spent time building rapport with A.N. and spoke to A.N. about her understanding of the difference between the truth and a lie. He told her if she did not know the answer to a question she could say so.
26A.N. gave background information about herself and her family. She talked about her birthday parties and things she enjoys. She spoke about her dog and her downstairs neighbours—a boy and a girl named “Oksana”—and described her and her Mother’s home.
27A.N. talked about the vacation (to Cuba) with her Mom, and her Mom’s “ex,” Dima, and some of the things she did during the vacation. She said she stayed in a room with her Mother and Dima stayed in a separate room.
28A.N. described returning home on an airplane and taking a taxi home, “us three and a driver.” She said when they landed in Canada, it was 4:00 p.m., but explained it was dark, and she agreed it was early in the morning. She said they went to her house, where she lived with her Mom and their dogs. A.N. said that she slept in her Mom’s room with her.
29Mid-way through the statement, DC Mark asked A.N. what happened when her Mother died. She replied that her Mom “got a heart accident (ph) because she was fighting with her boyfriend… I wasn’t there when – when she got it. I was with my Dad… and my Dad was crying.”
30DC Mark asked A.N. when she went her Dad’s house. She replied, “Uh, I don’t remember.” DC Mark asked A.N. what happened after she slept in her Mom’s bed:
PC: You sleep in your mom’s bed. And – and then what happened? You wake up?
AN: Uh, yah. I wake up.
PC: And then what happens?
AN: And then like, for some- for -um-um, I don’t remember.
PC: Okay.
AN: Like the only thing I remember is my dog pooping on the bed.
PC: Whose bed? Your bed?
AN: No. My mom’s bed.
PC: Your mom’s bed? Poops on mom’s bed.
AN: And then I don’t remember after.
PC: Okay. And then how did you get to your dad’s?
AN: Oh. My dad picked me up.
31A.N. said she only took her backpack to her Dad’s house. She said Dima was trying to help for her Mom to feel better and helped her pack her bag before her Dad picked her up. She said Dima was inside of the house getting ready for work when her Dad picked her up. Her Dad parked in front of the house, and she went out the front door to meet her Dad and they went to her Dad’s house. She said her Mom was sleeping when she left.
32PC Mark asked A.N. to explain about Dima sniffing something. She said he sniffed powder that made him aggressive, and he stopped but then started again. She said she did not see him, but her Mom found out. She described an argument between her Mother and Dima over car keys that resulted in the police being called and attending her Mother’s home.
33Near the end of the statement, PC Mark asked A.N. a second time where she woke up after the vacation. She said at her Mom’s place on her Mom’s bed. He asked, “And who else was in that bed?” A.N. said Dima slept on the couch in the living room. PC Mark asked A.N. when she came out of her mom’s room. A.N. replied when she woke up. PC Mark asked her where she went. She said she went to brush her teeth and “Then I need to go on the couch and lay with my iPad and my phone.” A.N. said she got dressed “when my Mom tells me or when my dad picks me up.” She said “…when I get a message that my dad’s coming I change into my clothes.” She said she got the message from her Mom’s phone. She said it was with her phone. She said she got the message her Dad was coming, and she got dressed, and then Dima helped her pack her bags and then she went with her Dad.
34PC Mark asked A.N. about whether she spoke to her Mother before she left to go to her Dad’s house:
PC: um, you said that your mom was sleeping.
AN: Sleeping. Yeah.
PC: You’re sleeping? Um, and then when did you talk to her when she woke up?
AN: Oh. I didn’t talk to her when she (inaudible) up.
PC: No? Okay.
AN: Because she was super tired.
PC: Okay. All right.
AN: And because she was sick too.
PC: And she was sick? Okay. All right. Okay um.
35A.N. repeated that she did not talk to her because she was super tired and sleepy. She added, “There’s still a stain on the bed.. from the poopy. But he did clean up the poop, but there was stain. …. “He did not let me sleep. He didn’t even give me any blankets.”
36PC Mark then asked A.N. about the heart attack and the following exchange took place:
PC: …when you said that you mom, um, had a heart attack…
AN: Yeah. It’s because they were fighting.
PC: Well, tell me about that. Who told you that?
AN: My dad.
PC: Okay. And – and
AN: And the pers – and I – I don’t know who told my dad.
PC: Okay.
AN: They were fighting too much about something. I didn’t know what because I was (not) there – I was with my dad.
37At the end of the statement, PC Mark asked A.N. whether everything she told him was the truth. She responded, “I don’t really know.” He asked what she meant. She replied, “I don’t know.” He asked, “Well, is there anything else you think I need to know?” A.N. replied, “It’s just some stuff that I don’t know you’re – I – I don’t – I –it’s just some stuff that are private….and I so I didn’t tell the truth about. There was only two things. But I don’t remember what now. But it’s actually something that – that– that’s ver – that I don’t wanna talk about.”
DC Mija’s September 8, 2023 Notes
38On September 8, 2023, DC Mija noted that Benyamin Nagolia called and reported that A.N. had a “therapy session.” The officer’s note indicates that A.N. disclosed that she saw Mr. Matin trying to hide her Mother under the bed and saw the second time her Mother was wrapped in a blanket. DC Mija notified the officer-in-charge, Detective John Parker, who “advised to continue therapy so she would be comfortable to talk about & we would interview.”
Counselling Record Dated November 3, 2023
39A.N.’s counsellor, Ekaterina Pastukhova, in a counselling note dated November 3, 2023, noted as follows:
Note: Client started to experience anger towards her mother’s ex boyfriend. She calls him Dima and believes that he killed her mom. When asked how she knows that, Sasha states that she simply knows and nobody told her that. Client recalls moments of her mother being rolled up in a blanket and staying under the bed in master bedroom. Hen she asked Dima what he is doing, he told her to go to her room and stated that they are playing. She wants justice.
November 9, 2023 Statement
40A.N. provided a second statement on November 9, 2023 to DC Olena Duffy. After D.C. Duffy introduced herself, she began the statement by telling A.N. that the one rule was that she must tell the truth. PC Duffy then said that at the end of the previous statement, A.N. said there were some things she did not want to talk about. PC Duffy asked A.N. if she was ready to talk to her about those things. Initially, A.N. responded “No.”
41DC Duffy asked A.N. questions about her day, and then asked about her trip. A.N. said she went with her Mom and another boy. Next, A.N. said:
A.N.: And because of that boy, my mom got – my mom got a heart attack because of that boy.
PC: Oh, okay.
A.N.: And then she died.
PC: Okay. Well, I’m sorry to hear that
AN: Becau (ph) – because she was in a fight with him.
PC: She was in a fight with him? Okay.
AN: She remembered that he – she found out that he was doing this thing that you smell and then you become aggressive.
PC: Okay.
AN: I think that’s called drugs.
PC: Drugs? Yeah? And how do you know about drugs?
AN: My mom told me.
PC: Your mom told you?
AN: Yeah
PC: Okay. Um, su (ph) – sometimes it’s hard to talk about things. I’m sorry your mom has passed away.
AN: No. In a fight.
PC: And they were in a fight. So, can you
AN: No cause she got a heart attack, because of him.
PC: Okay. So…
AN: I didn’t like him. Don’t like him. But because my mom was very happy I kept being quiet.
PC: Okay. Can you – can you tell – talk to me a little bit about what they were fighting about?
AN: I don’t know what they were fighting about. I was at my dad’s.
PC: Your…
AN: My dad found out.
42A.N. described her house, and spoke about her downstairs neighbours, and her dogs. She drew a picture of the outside and a picture of the inside of the house.
43A.N. described returning home from their trip on the airplane. She said they arrived at the airport in Toronto at 4:00 a.m. and drove home in a taxi. She drew a picture of the taxi. A.N. said after arriving home she brushed her teeth and went to bed. She slept with her Mom in her Mom’s bedroom. She drew a picture of herself and her Mother in the bed.
44DC Duffy asked A.N. a series of questions about what happened in the morning. A.N. said she woke up and she went to brush her teeth again. It looked like morning. She said then she went to get her phone, which had a timer, and she had an old iPad, and every time it would give her five minutes. She said when she woke up, her Mom was sleeping and she explained as follows:
AN: But my – when my dog got s – pooped on the bed. And after…
DC: the dog pooped on the bed. When did the dog poop on the bed?
AN: When we was, uh – when I was still sleeping. And then it was under the bed.
DC: The poop was under the bed or the dog?
AN: No, the dog was under the bed.
DC: Okay.
AN: And after – and this – and after, the boy made – covered mommy and then she was – he would make her go down to get the dog.
DC: Okay. So…
AN: And she was wrapped around the blanket and he – and he – I didn’t even have many blankets and it was kind o’ rude ‘cause I..
DC: Oh
AN: …didn’t have any blanket.
DC: Oh, boy. So, let’s talk about – a little bit about that. You – you said that the dog was hiding under the bed.
AN: yeah.
DC: And you drew a picture here (indicates) of poop on the…
AN: Yeah.
DC: …bed right beside mommy.
AN: Yeah.
DC: Did you see the poop on the bed?
AN: Yeah, when I woke up I saw some poopy.
DC: What did it look like?
AN: Brown. Li (ph) – he got diarrhea again.
DC: Like, diarrhea?
AN: And after my mom died, he also died after her.
DC: The dog did?
AN: Yeah.
DC: Lu – Luca? I’m sorry.
DC: …So, you said the boy was standing here (indicates) and he wrapped up mommy?
AN: Yeah. Because he wanted to get the dog out.
DC: He wanted to get the dog out?
AN: Yeah.
DC: Can you tell me what he wa…
AN: And aft – and after, mommy was sleeping…
DC: Yeah.
AN: …and then he wiped the poop off.
DC: he wi – wiped the poop off after?
AN: Yeah. He was (inaudible)
DC: Okay. What did he wrap mommy in?
AN: Blankets.
DC: What colour blankets?
AN: I don’t remember what colour blanket it actually was.
DC: Okay. So can you describe to me – pretend I - can you describe to me how he wrapped mommy up?
AN: Mmhm
DC: Well, how did
AN: It was like…
DC: Do you need another…
AN: …like, a burrito.
DC: Like, a burrito?
AN: Burrito.
DC: Okay.
AN: And she was saying, “Let me go.”
DC: She was saying, “Let me go”?
AN: Yeah.
DC: You could hear her saying, “Let me go”?
AN: And her legs were like this (indicates). It was going up.
DC: What do you mean they were going up?
AN: It was like, this (indicates up and down movement).
DC: Like, that (indicates)?
AN: Yeah.
45A.N. then drew a picture depicting what she had described. She said she did not actually see what her Mother looked like. She confirmed her feet were sticking out. A.N. said that she said, “What happened?” and he (the boy) said nothing happened. She said, “And technically, something did happened [sic]… because something did happen. I already said what happened.” DC Duffy asked the following additional questions:
DC: Yeah. Okay. So, you – but you heard – you said you heard mommy say, “Stop it”?
AN: (Non-verbal response)
DC: Okay. So, after you…
AN: “Let me go,” she said.
DC: “Let me go,”? Okay. So, after you see that…
AN: Yeah.
DC: …where do you go?
AN: After, I go – he – he said to go to my room, so I grabbed my iPad and I went to my room.
DC: Okay. So, you went to your room, which is next door.
AN: Yeah.
DC: That’s right (indicates). Okay?
AN: And I was sitting …
DC: Mmhm.
AN: ..on my bed.
DC: Okay.
AN: Much more like, leg (ph) sitting. I don’t know.
DC: yeah.
AN: I was just watching my iPad.
DC: Okay. And then what happened?
AN: And after, I wa (ph) – I – I wanted to check on mommy…
DC: yeah.
AN: ..but he said that we can – that. “You can... –that she’s sleeping, so I couldn’t.”
DC: Okay. And when yous (ph) – said you wanted to check on mommy, where did – where were you when you asked the boy if you could check on mommy?
AN: I – I didn’t ask him. I just wanted to check if she was okay.
DC: Okay.
AN: And he said that she was sleeping. He was right next to the door…
DC: Next to the…
AN: ...whe he loo – he loo – I was like, here and he’s – and he said that mom’s sleeping and I can’t.
46A.N. said she did not hear her Mom and the boy talking. She was in her room. She said sometimes when she’s in her room she does not hear stuff.
47A.N. then mentioned when her Mother calling the police “to get the druggie things” and when “he took the keys without mommy’s permission” and said she did not hear anything because she was on her iPad in her room.
48DC Duffy asked if A.N. could see in the room when she wanted to check on her Mom. She said that she only saw her “wrapped up...in burrito.” After that, A.N. said she brushed her teeth, and also stated the following: “when I was sittin watchin my iPad, and I ate. And then…I didn’t eat, but after, my dad picked me up because my parents are divorced.”
49A.N. said she tried to remember everything she knows, and said “last time, I didn’t remember everything…. So, I try to remember it.”
50A.N. said that the boy was not living with her Mom after she found out he was doing drugs. They were not dating anymore, and he lived with his parents and his brother and his wife. A.N. said she did not know where she got the information about the boy doing drugs and when asked if she saw him sniffing something, she said she never saw him do it, but her Mom found out.
51At the end of the statement, DC Duffy asked if there was anything else she could remember that she wanted to tell DC Duffy and A.N. said, “… I don’t think so. But all those things I tried to – tried to get it out of my mind.” When asked what she meant, she said “Yeah. Because I tried to think – I tried to use – I tried to remember what happened... Before – before, I only remember a little bit of…what happened with my mom. But now I remember more. When DC Duffy asked, “What do you think happened?”, she responded, “Actually, I don’t remember (ph)… I don’t know.”
Preliminary Hearing Testimony
52A.N. was nine years old when she testified at the preliminary hearing on August 13 and 14, 2024. After viewing the September 7, 2023 video, the Crown, Ms. Thomas, asked A.N. about the things she did not want to talk about in her first statement:
E.T.: “And you said that some of the stuff, I don’t know, some stuff is private, right?
A.N.: “In the next video there’s the stuff that I really didn’t want to tell, but, like it’s in there. ..Like, in the next one. I didn’t really feel comfortable talking with that policeman, so, yeah, so…
E.T. Okay. So, there was somethings in the next statement that you didn’t put in this one?
A.N.: Yeah
E.T: Okay. So I’ll wait then until we watch the next statement and ask you a little bit more about what those things were, okay?
A.N.: Okay.
E.T. Was there anything in this statement that was a lie?
A.N.: No.
53After watching the November 9, 2023 statement, the Crown asked further questions about what A.N. did not want to speak about in the first statement:
E.T.: Do you remember at the end of the video yesterday, you said that there was some stuff you didn’t want to talk about?
A.N.: Yeah. I said it in the other video.
E.T.: What was the stuff that was in this video that you didn’t want to talk about in the first one?
A.N. The wrapping up the burrito thing.
E.T.: Yeah?
A.N.: That’s the only thing.
E.T.: Okay.
A.N.: To be honest. I said stuff because I didn’t – because I don’t know why.
E.T.: What do you mean?
A.N. I don’t know. I just said stuff for no reason in that one.
E.T. What kind of stuff?
A.N. not like the burrito thing. I just talked about that burrito thing. That’s the only thing I didn’t say.
E.T.: Okay. And is that was – is that the thing you weren’t ready to talk about when you did the first statement?
A.N: Yes.
54A.N. identified the pictures she drew during the November 9, 2023 statement. She showed her Mother wrapped in a blanket on the ground beside the bed and her Mother’s “ex” beside the bed. She said the dog was under the bed. A.N. said that where she drew the dog poop (beside her Mother’s pillow) was not correct because it was towards the middle of the bed. During cross-examination, she said the dog poo was not near the pillow and there was none on the floor or the walls. She gave the following evidence in respect of the utterance “let me go” and provided the additional information that Mr. Matin said “wait, wait, wait, wait.”
E.T.: Okay. So I want to make sure I understand you. You said your mom was trying to get the dog?
A.N.: No. She was – she was asleep, and he just wrapped her up into a burrito, and he just tried pushing her down so he – so –so she can get him.
E.T.: So she…
A.N. The dog.
E.T. Him, the dog. Okay.
A.N. Yeah, I – I meant Luka.
E.T.: You said that when your mom’s ex wrapped her in the blanket, she was moving her legs.
A.N. Yes. And she was saying, “Let me go” because she wasn’t getting what happened. I don’t know how she end upon the ground. Maybe he just pushed, maybe he pushed her down, maybe he put her down. I don’t know.
E.T. Did you see him put her down or push her down?
A.N. I don’t know. I didn’t – I wasn’t awake at that time. I just woke up because my mom was like, “Let me go.”
E.T. So you woke up to your mom saying, “Let me go”?
A.N. Yes.
E.T. Did you have any blankets on you when you woke up?
A.N.: No. They stole my blanket. I was depressed.
E.T.: And your – did you hear your mom’s ex say anything to your mom?
A.N.: He was like, “Wait, wait, wait, wait.” Like, something like that.1
E.T.: Okay. And you heard your mom say, “Let me go”?
A.N.: Yeah.
E.T.: Did you say anything to your mom or to her ex?
A.N.: I – I was like, “what are you doing? Let her go.” And he was like, “Get out the room.”
E.T.: Okay. So, you said to him, “What are you doing? Let her go.” And he told you to get out of the room?
A.N. Yeah.
E.T. And where did you go when you left the room?
A.N. I went to go brush my teeth, and after go to the living room and just watch something.
E.T. Okay.
A.N. Because I didn’t have the capability to move him.
E.T. I understand. When you went to brush your teeth…
A.N. I did want to hit – I did want to hit him, but I – I don’t know what he would do, so I – I decided to not.
E.T. You went to brush your teeth in the bathroom. Right?
A.N. Yes. And after, I went to the living room to watch stuff..
E.T. When you..
A.N. …because I had nothing to do.
55A.N. said she closed the door when she left the room. She said she watched YouTube. She said she did not hear anything happening in her Mother’s room because the volume was loud. She said after about 20 minutes, she wanted to go in the room to check on her Mother, but her Mother’s ex-partner waved his finger and said no because she was sleeping. A.N. said that her Mother was “just trying to sleep, but there was, like, a poop stain… that was really disturbing, the poop stain.” Ms. Thomas asked A.N. if she ever went back in the room. A.N. said she did, and she saw her sleeping on the bed. She said she saw her head and it looked like a normal head. Ms. Thomas asked if she looked hurt. A.N. responded, “Not really because he, kinda, did catch me.” She said he said, “[g]et out,” so she went because she had no ability to move him. A.N. said she was in the room for “like five minutes or two minutes” and did not talk to her Mom.
56A.N. said after she left the bedroom, she went back to the living room to watch YouTube and then her dad picked her up. A.N. said that she got a notification from her Dad, and she dressed and got her backpack to go to him. She said there was a notification on her Mom’s phone that was on the table beside the bed. She got ready. She saw his truck and went outside. She went outside on her own because “my dad hates him. Him, my– my mom’s ex.” She said he (her Mom’s ex) was watching her down the window though and “it was really disturbing.” She said he was staring at her. A.N. said that was the last time she saw her Mom.
57At the preliminary hearing, when asked by Ms. Thomas whether she had talked to people about what happened to her Mom, A.N. said: “Not really.” When asked if she had talked to her dad about what happened to her Mom, she answered “No.” Ms. Thomas asked A.N. whether her dad talked to her about her Mom passing and she responded, “I actually don’t know. I forgot, I think.” Ms. Thomas asked A.N. whether she told her dad about what she saw or heard. A.N. responded, “No. Never. Because I – I just don’t know why. I always feel – I don’t know. I – I always just never tell – I just never told him for some reason. I just have no idea why.” Ms. Thomas asked, “Have you spoken to any of your friends about what you heard and saw at your mom’s house?” A.N. replied, “Never. Never in my life. Maybe they’re too young to know. And some of them are younger than me.” She added, “Also, they’re too young to know. Plus, it’s – it’s not really their business, to be honest.” Ms. Thomas asked if there was anything, having watched her two statements that she forgot to tell the police about. A.N. responded, “Yes” and then said, “ I honestly just forgot. But I just forgot. I was about to say something and now I forgot. A.N. subsequently advised that what she forgot was the fight her Mother had about the car keys with her ex when they were supposed to go to the pool party.
58During cross-examination, A.N. said that her Dad told her that her Mom had died. She said that he told her that her Mom had a heart attack and said, “He was asking about a huge argument and after she got a heart attack because she was really, really mad and stressed out at the same time.” When asked if anyone else told her things about what happened, A.N. replied, “Not really.” She said, “well, I’m – I kinda forgot, to be honest.” Mr. Hechter asked whether A.N. gave answers that she was not sure of because she wanted to answer the question. A.N. responded, “Yep…because that’s what I think what happened.” She said “it wasn’t with this conversation. It was different conversations” with the police.
C. Position of the Parties – Hearsay Application
59The Crown seeks a ruling admitting Marina Nagolia’s statement “let me go” and Mr. Matin’s utterance “wait, wait, wait, wait” through A.N., who testified that she heard the utterances after she woke up and saw her Mother on the floor wrapped in a blanket on August 24, 2023.
60The Crown submits the statement is admissible under the traditional res gestae exception to the hearsay rule as a spontaneous utterance. The Crown asserts that the utterance “let me go” was made while Ms. Nagolia was involved in a struggle for her life with Mr. Matin. The Crown submits that A.N. described her Mother being wrapped up “like a burrito” and her legs were moving as part of the struggle, and Ms. Nagolia was calling out for help or mercy instinctively during the struggle without opportunity to reflect upon or concoct her words. She did not know that A.N. was awake or overhearing her words.
61The Crown submits the evidence is also admissible under the principled exception to the hearsay rule. Necessity is met because Ms. Nagolia is deceased. The Crown submits that the statement is inherently reliable. The circumstances of spontaneity and contemporaneity under which the statement “let me go” was made establish threshold reliability and negate the possibility that the declarant was “untruthful or mistaken.”
62The Crown submits that concerns as to A.N.’s reliability are matters that relate to ultimate reliability and will be for the jury to determine. A.N. will be a witness at trial and issues regarding her reliability can be addressed during cross-examination.
63The Crown submits that the probative value of the evidence exceeds its prejudicial effect and excluding the evidence would be detrimental to the truth seeking process of the trial.
64The Crown submits that the Crown has established on a balance of probabilities that the statement “wait, wait, wait, wait” was attributed to Mr. Matin by A.N. and it is admissible as an admission. It is highly relevant in light of the circumstances in which it was made, during the demise of Ms. Nagolia, and is not subject to an exclusionary rule. No assessment of necessity and reliability is required.
65The Respondent submits that the Applicant has failed to establish that the utterance by Ms. Nagolia falls within the res gestae exception. He submits the Crown has not established that the utterance was made while Marina Nagolia’s mind was “so dominated by the event that the statement can be regarded as an instinctive reaction to the event, giving the declarant no real opportunity for reflection or concoction.”
66The Respondent submits that under the principled exception, the Applicant has failed to establish threshold reliability.
67The Respondent submits that if Ms. Nagolia’s utterance falls within the res gestae or principled exception, I should exercise my residual discretion to exclude the “technically admissible hearsay evidence” because the prejudicial effect of the evidence exceeds the probative value. Given the prejudicial nature of the evidence, the evidence lacks sufficient reliability to warrant admission.
68The Respondent submits that the evidence must be excluded under the Court’s residual discretion because of significant concerns raised with respect to the reliability of the child narrator, A.N. The Respondent submits that A.N.’s account:
Is contradicted by other evidence;
Is of considerable concern with respect to her reliability due to the lapse of time and progression of her evidence;
Exhibits a demonstrated bias against the Respondent, Mr. Matin;
Raises concerns with respect to her memory; and
There is direct and circumstantial evidence that suggest that her recollections were not direct but rather the result of hearsay she heard from others.
69In respect of Mr. Matin’s alleged utterance “wait, wait, wait, wait,” the Respondent submits that it is extremely prejudicial because it may confuse the trier of fact into reasoning prejudice. The Respondent also submits that the utterance is devoid of any probative value, as it is unclear how it relates to a live issue at trial and is ambiguous as to whom it is attributed.
D. Governing Legal Principles
Traditional Exceptions to the Hearsay Rule
70The onus is on the party tendering hearsay evidence to show that it meets the requirements of a traditional exception. If the evidence falls within a traditional exception, it is presumptively admissible because traditional exceptions embody circumstantial guarantees of trustworthiness. In rare cases, evidence falling within a traditional exception may be excluded because of “special features” that undermine reliability: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358.
71The res gestae exception encompasses several discrete exceptions within it: spontaneous statements or excited utterances; statements accompanying and explaining an act which can be properly evaluated as evidence only if considered in conjunction with the statement; and statements relating to a physical sensation or mental state, such as intention or emotion: R. v. Camara, 2021 ONCA 79, at para. 84.
72The Crown submits that the utterance “Let me go” is a spontaneous utterance. In Camara, the Ontario Court of Appeal explained the preconditions for the admission of spontaneous statements or excited utterances at para. 85:
The excited utterances aspect of res gestae posits a mind so dominated by the event that the statement can be regarded as an instinctive reaction to that event thus giving the declarant no real opportunity for reasoned reflection or concoction. Contemporaneity of the statement with the event is a matter of degree. For the statement to be spontaneous, it must be so closely associated with the event which has excited the statement that it can fairly be said that the declarant's mind remained under the domination of that event. In other words, the trigger mechanism for the statement - the event - was still operative. Spontaneity and contemporaneity are guarantors of reliability.
73In R. v. MacKinnon, 2022 ONCA 811, leave to appeal refused [2023] S.C.C.A. No. 37, the Ontario Court of Appeal admitted the deceased declarant’s description of the person who shot him given minutes after the shooting to a police officer before he died. The Court of Appeal was satisfied that the utterances fell within the traditional spontaneous exclamation exception: the statement was made in circumstances that were sufficiently contemporaneous with the events and spontaneous, made when the declarant’s mind was dominated by the shock of the shooting and by his fear of dying. It was not a rare case in which special features, such as gross intoxication, undermined the inherent reliability of the statement.
74Although Justice Thorburn found the evidence was also admissible under the principled exception to the hearsay rule, she made clear that trial judges may admit evidence that satisfies a traditional exception without being required to go on to consider compliance with the principled exception. She held that the statement would have been admissible under the principled exception because there were sufficient circumstantial indicia to establish substantive reliability. The Appellant’s concern about insufficient information about the declarant’s opportunity to observe went to weight and ultimate reliability of the evidence, not to threshold reliability. Justice Thorburn held that “[p]erfection is not demanded for admission,” and found “the jury was sufficiently equipped to deal with any residual accuracy concern in determining how much weight and reliance they would ultimately assign to Mr. Taylor’s ante mortem statement in the context of the entirety of the evidence.”
75In MacKinnon, at para. 62, the Court of Appeal provided examples of the rare case exception where hearsay evidence that meets the spontaneous utterance traditional exception may be excluded, such as where the declarant is grossly intoxicated, suffers from highly impaired vision, or there are exceptionally difficult viewing conditions which are sufficiently grave that the trial judge cannot exclude the possibility of error or inaccuracy on a balance of probabilities. Special features or “rare case” exceptions, related to the declarant, should not include factors that may give rise to concerns about the declarant’s honesty or sincerity and does not include weaknesses that go to the ultimate reliability of the evidence or reliability concerns that are inherent in the traditional exception. See MacKinnon, at paras. 48 and 62.
76In R. v. Badger, 2021 SKCA 118, 468 D.L.R. (4th) 610, aff’d 2022 SCC 20, the trial judge admitted utterances made by the complainant identifying the accused as the person who shot him in a 911 call and again as he was being moved into an ambulance. The defence submitted that the trial judge erred in failing to consider the dangers of eyewitness identification evidence when he analyzed the threshold reliability of the statements. The defence asserted that the difficult circumstances of the events could have distorted the witness’s view of reality and should be considered as a “special feature” that, in conjunction with the witness’s level of intoxication, should have prevented the admission of the utterances.
77The Saskatchewan Court of Appeal rejected that defence position, finding that “by definition, to be admissible, a spontaneous utterance must occur in reaction to an emotionally charged or pressure-filled situation. These are the same types of circumstances that fuel some of the problems with the reliability of eyewitness identification evidence. If a trial judge were to consider the inherent or fact-specific frailties of such evidence as a special circumstance that militated against admission when testing the threshold reliability of a spontaneous utterance, the scope of this exception to the hearsay rule would be significantly limited.
78The Court of Appeal held that the weight to be assigned to the utterance remained an open question for the trier of fact once the evidence was admitted. At that stage, the inherent and fact-specific frailties should be fully considered. The Court of Appeal found no fault in the trial judge’s conclusion that the intoxication of the complainant did not render the evidence unreliable and concluded that the trial judge did not err in finding that the utterances met the threshold reliability test for admission. The majority of the Supreme Court of Canada, with Justices Karakatsanis and Martin dissenting, dismissed the appeal substantially for the reasons of the majority of the Saskatchewan Court of Appeal.
Admissions
79A “party admission” includes any “acts or words of a party offered as evidence against that party.” Party admissions can include more than words and may include silence, actions, and demeanour. See R. v. Schneider, 2022 SCC 34, [2022] 2 S.C.R. 619, at paras. 52, 56, and 57.
80The Respondent submits that the utterance “wait, wait, wait, wait” allegedly made by Mr. Matin is not admissible because it is unclear who it is attributed to, and because the Crown has not demonstrated relevance. They submit it is not capable of meaning.
81In Schneider, the accused was charged with the murder of a young female student. The Supreme Court of Canada considered whether the trial judge erred in admitting “admissions” made by the accused during a phone call with his wife overheard by his brother, the witness narrator. In the admissibility voir dire, the brother testified that he overheard the accused admit to killing the deceased. He said the accused began the call by saying, “Did you see the news of the missing Japanese woman, student?” and several minutes later said, “I did it” and “I killed her.” The brother agreed he did not hear the conversation word-for-word and that he provided the “gist” of the conversation. He testified he was standing ten feet away during the conversation, heard only one side, and was not trying to listen.
82At issue before the Supreme Court of Canada was whether the statements were “capable of meaning” and whether the trial judge could consider all of the evidence in the case (the macro-context) or only evidence relating to the phone conversation (the micro-context) to assess if the evidence was “capable of meaning.”
83The majority of the British Columbia Court of Appeal concluded that only the phone conversation itself, the micro-context, should be considered in assessing whether the statements had sufficient meaning that was not speculative to be “relevant.” The majority of the Court of Appeal held that because the brother did not hear all the conversation, or the words immediately before or after the admissions, the utterances heard were not capable of meaning and must be excluded. Justice DeWitt-Van Oosten, in dissent, disagreed, finding that all of the evidence, the macro-context, informed the conversation, which in context was capable of meaning that was not speculative and therefore was relevant.
84Justice Rowe, writing for the majority of the Supreme Court of Canada, agreed with Justice DeWitt-Van Oosten’s dissent. He held that for an alleged admission to be admissible, it must be “capable of meaning” in order to be “relevant” to an issue at trial. He held that party admissions, like other evidence, are not rendered inadmissible because the witness is equivocal in their testimony. The fact that a witness cannot recall the exact words used does not mean that such evidence has no relevance. He observed that the reality is that few people could recount the exact words of a recently overheard conversation, but many could recall the gist of the conversation. Citing R. v. Evans, [1993] 3 S.C.R. 653 at pp. 664-666, the Supreme Court affirmed that whether a statement was made and whether it is true, are matters for a jury: Schneider, at para. 43.
85Where witnesses have imperfect recollection or express uncertainty in their testimony, to the extent that such matters relate to admissibility, they are properly considered by the trial judge when balancing probative value against prejudicial effect: Schneider, at paras. 44 and 71.
86Justice Rowe held that other evidence, not only the micro-context, can provide context and inform a trial judge’s assessment of whether an alleged admission is capable of meaning. The focus should remain on whether the jury can give meaning to the witness’s testimony in a manner that is non-speculative, not on the overall strength of the Crown’s case. Like all evidence, in assessing whether a party admission is relevant, the court must consider whether the evidence at issue makes a fact in issue more or less likely: Schneider, at paras. 45 and 51. The Supreme Court held that the brother’s testimony about the overheard conversation was relevant because there was sufficient context for the jury to give it meaning in a way that was not speculative.
87The Supreme Court held it was not fatal that the accused’s brother was uncertain of the exact words said. The equivocal nature of the brother’s testimony was to be considered not at the relevance stage but was a factor for consideration when weighing the probative value against the prejudicial effect. Ultimate reliability and believability were for the jury to determine: Schneider, at para. 63.
88Justice Rowe confirmed that party admissions are admissible, not on the basis of necessity and reliability, but as a recognized exception to the hearsay rule that remains presumptively operative. They are admitted on the basis that a party “cannot complain about the unreliability of his or her own statements.” Reliability and necessity are not relevant to the admissibility of a party admission, with the exception of the “rare case” where judges retain discretion to exclude any hearsay evidence on the basis it is unreliable or unnecessary. See Schneider, at paras. 52-55.
89Justice Rowe emphasized that the balancing of probative value against prejudicial effect can be critical in deciding the admissibility of a party admission. Although the potential for prejudicial use by the jury was high, especially given that juries are likely to place significant weight on confession-like evidence, the prejudicial effect was ameliorated by the strong caution given by the trial judge to the jury. Justice Rowe concluded that the trial judge did not err in admitting the brother’s testimony and the Court of Appeal’s order for a new trial was set aside and the conviction was restored: Schneider, at para. 79.
90A jury instruction is required where the meaning of an alleged party admission is uncertain. Jurors must be explicitly instructed that if they cannot determine the meaning of the statement, they cannot use it as an admission and they must disregard it: R. v. Merritt, 2023 ONCA 3.
Principled Exception to the Hearsay Rule
91Under the principled exception, hearsay evidence may be admitted if sufficient indicia of necessity and “threshold reliability” are established on a balance of probabilities. In contrast to a traditional exception, in the case of the principled exception, there is no presumption of admissibility. The starting presumption is that the hearsay statement is inadmissible, and the analysis of reliability and necessity must be conducted in full. See MacKinnon, at para. 38.
92In Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865, Karakatsanis J., writing for the majority of the Supreme Court of Canada, explained that “threshold reliability” is established when hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it” due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact. In assessing threshold reliability, “the trial judge must identify the specific hearsay dangers presented by the statement and consider any means of overcoming them. The dangers relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity and should be identified with precision to permit a realistic evaluation of whether they have been overcome.” See Bradshaw, at para. 26; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 49.
93Threshold reliability can be established on the basis of “procedural reliability” or “substantive reliability,” or a combination of both. The “threshold reliability” standard always “remains high.” “Threshold reliability” is not to be confused with “ultimate reliability,” which is a matter for the fact-finder to decide in light of all admissible evidence. See Bradshaw, at paras. 39 and 43; R. v. Rowe, 2021 ONCA 684, 159 O.R. (3d) 127, at para. 78.
94“Procedural reliability” is concerned with whether there is a satisfactory basis for the trier of fact to rationally evaluate the evidence considering the evidence was not given in court, under oath, and under the scrutiny of contemporaneous cross-examination before the trier of fact. It considers whether there are adequate substitutes to allow the trier of fact to evaluate or test the evidence. Relevant factors include whether the statement was video recorded (for accuracy), the presence of an oath and warning of the consequences (for veracity), and whether the declarant is available for or has been subject to cross-examination: Bradshaw, at para. 28; MacKinnon, at para. 62.
95Procedural reliability is not engaged in this case, and the determination turns on substantive reliability.
96“Substantive reliability,” relied upon by the Crown in this case, refers to indicia that the statement is “inherently trustworthy.” It can be established by the circumstances in which the statement was made, by corroboration, or by both: R. v. Mohamed, 2023 ONCA 104, at para. 59.
97Substantive reliability is established when the statement is made “under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken.”: Bradshaw, at para. 31.
98Substantive reliability is concerned with whether the circumstances in which the statement was made, and any corroborative evidence provide a rational basis to reject competing explanations for the statement, other than the declarant’s truthfulness and accuracy. While the standard for substantive reliability is high, it need not be established to an absolute certainty. However, the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: Bradshaw, at paras. 31 and 40; R. v. S.S., 2022 ONCA 305, 161 O.R. (3d) 641, at paras. 38-53, rev’d 2023 SCC 1, [2023] 1 S.C.R. 3; MacKinnon, at para. 62; R. v. McMorris, 2020 ONCA 844, at para. 31, leave to appeal refused, [2023] S.C.C.A. No. 40464.
99The Supreme Court in Bradshaw, at para. 57, established a four-step analysis to determine whether corroborative evidence may be relied upon to establish substantive reliability:
Identify the material aspects of the hearsay statement tendered for their truth;
Identify the specific hearsay dangers they raise in the circumstances of the case;
Based on the circumstances and those dangers, consider alternative, even speculative explanations for the statement; and
Determine whether the corroborative evidence rules out the alternative explanations such that the only remaining likely explanation for the statement is the declarant's truthfulness about, or the accuracy of, the material aspects of the statement.
100Based on the circumstances and any evidence led on the voir dire, the trial judge must be able to rule out any plausible alternative explanations than the truth of the statement on a balance of probabilities: Bradshaw, at para. 49.
Residual Discretion
101A trial judge has residual discretion to exclude any technically admissible hearsay evidence, including evidence admissible under the principled exception, on the basis that the prejudicial effect of the evidence exceeds the probative value: McMorris, at para. 41; R. v. Dion, 2025 ONCA 7, at para. 32.
102Recently, in Dion, the Court of Appeal emphasized that the residual exclusion discretion “is not likely to result in the exclusion of technically admissible hearsay evidence based on concerns about the reliability of the hearsay statement. The admissibility preconditions built into the hearsay exception are intended to ensure that the hearsay is reliable enough to admit. By finding that the hearsay statement satisfies those preconditions, the trial judge will have already determined that it has sufficient threshold reliability to warrant admission”: Dion, at para. 32.
103In Dion, the Court of Appeal explained that there are two paths to the exclusion of technically admissible hearsay evidence based on reliability concerns. The first path is that the hearsay exception itself can be challenged by showing that its admissibility preconditions do not adequately assure necessity and threshold reliability. If successful, this sort of challenge leads to the modification of the hearsay exception.
104In this case, the Respondent does not challenge the res gestae spontaneous utterance exception to the hearsay rule itself.
105The second path is that the party seeking to have the technically admissible hearsay evidence excluded due to unreliability may argue that even though the hearsay exception is not deficient, in the factual circumstances of the case, the evidence lacks sufficient threshold reliability to warrant admission. A case-based reliability challenge of this kind will rarely succeed because “in all but the most exceptional cases” if the exception requires threshold reliability, the reliability argument is “spent” by a finding that those preconditions have been met: Dion, at para. 33 citing R. v. Mapara, at para. 34; R. v. Kler, 2017 ONCA 64, at paras. 75-79. This second path would capture “special circumstances,” such as those identified in MacKinnon, for example the extreme intoxication of the declarant, and the Humaid exception, discussed below, where the reliability and credibility of the narrator is so deficient that it robs the out-of-court statement of any potential value.
106In Dion, the Court of Appeal stated, “it will only be in rare cases that concerns about the reliability of technically admissible hearsay evidence will support the application of the residual exclusionary discretion.”
Reliability of the Narrator – The Humaid Exception
107Generally, the credibility or reliability of the narrator of an out-of-court statement tendered for its truth is not relevant to establishing the threshold reliability of the statement except in rare cases where the trial judge must exercise his or her residual discretion to exclude evidence because the potential prejudicial effect of the evidence exceeds the probative value. The focus of the reliability assessment under the principled exception to the hearsay rule is on the reliability of the declarant not the narrator.
108In R. v. Humaid (2006), 81 O.R. (3d) 456 (C.A.), leave to appeal refused [2006] S.C.C.A. No. 232, the Ontario Court of Appeal outlined the applicable principles where the reliability or credibility of the narrator is the basis for the challenge to the admission of otherwise admissible hearsay evidence – that is evidence that is otherwise admissible under a traditional exception to the hearsay rule, or under the principled exception.
109In Humaid, the accused was charged with the first-degree murder of his wife. The accused and his wife lived in Iran. Their son was studying in Ottawa. The accused was suspicious of his wife’s relationship with a co-worker. The deceased travelled to the United States with her co-worker for business and then travelled to Ottawa with the co-worker to visit her son.
110The Crown alleged that, while in Iran, the accused planned to kill his wife and secretly booked travel to Ottawa. The Crown alleged that without informing anyone, he travelled to Ottawa. Once in Ottawa, he stayed at the same hotel as the deceased. The accused and the deceased spent time with their son in Ottawa. The Crown alleged that shortly before they were scheduled to return to Iran, the accused, in accordance with his plan, armed himself and drove the deceased to a remote location where he repeatedly stabbed her, causing her death.
111The accused’s position was that he decided to travel to Ottawa to visit his son when he learned he was smoking marijuana. He said he informed his wife prior to his departure, and that he did not plan to kill her in advance. He said he killed his wife after he suffered a dissociative reaction when the deceased made a provocative comment to him about her relationship with the co-worker.
112The accused sought to lead ante-mortem statements of the deceased through the front desk clerk of the hotel to establish that the deceased knew the accused was coming to Ottawa. The trial judge heard the hotel clerks’ evidence on a voir dire at the commencement of the trial. The trial judge held that the ante mortem statements were not admissible because the clerk was not credible. He indicated that the hotel clerk’s evidence was fraught with inconsistencies and contradictions and was utterly untrustworthy.
113Although the Court of Appeal found that the cross-examination of the witness supported the trial judge’s assessment of her credibility, the Court of Appeal held that the trial judge erred in law in holding that the credibility of the clerk (the narrator) was relevant to the determination of whether the deceased’s statements were sufficiently reliable to justify their admission under the principled approach to the admissibility of hearsay evidence.
114The Court of Appeal held that where the declarant of the out-of-court statement is not available for cross-examination at trial, the inquiry into the threshold reliability of the out-of-court statement looks for circumstantial guarantees of trustworthiness arising from the circumstances in which the out-of-court statement was made. The circumstantial guarantees of trustworthiness must be sufficiently supportive of the reliability of the out-of-court statement to permit its admission despite the absence of an opportunity to cross-examine the declarant. “If the threshold reliability hurdle is clear, the ultimate reliability of the out-of-court statement is for the trier of fact”: Humaid, at para. 50.
115The Court of Appeal explained that threshold reliability must be established in relation to the declarant’s statements, not the narrator. This is because the credibility of the narrator can be tested at trial through cross-examination. The Court stated at para. 51:
Ms. Stevenson’s credibility and the reliability of her narration of Aysar’s out-of- court statements were not circumstances surrounding the making of those statements. Nor was there any need to demand that Ms. Stevenson's reliability clear some threshold level as a precondition to the admissibility of her evidence as to Aysar’s statements. Threshold reliability stands as a substitute for cross examination of the declarant not the narrator of the out of court statement. Ms. Stevenson would have testified at trial. Her credibility and reliability as they related to Aysar's statements could have been fully tested on cross-examination before the jury. No doubt her credibility and reliability would have been important considerations in the jury's ultimate determination of whether Aysar made the statements testified to by Ms. Stevenson. Her credibility and reliability were not, however, part of the circumstances surrounding the making of the statements by Aysar such that her credibility or reliability could enhance or detract from the threshold reliability of Aysar’s statements. [citations omitted, emphasis added]
116The Court of Appeal concluded that the credibility or reliability of the narrator is not relevant to the assessment of threshold reliability, except in rare cases where the credibility or reliability of the narrator is so deficient that it robs the out of court statement of any potential probative value. The Court of Appeal stated as follows at para. 57:
There is one caveat to what I have said. A trial judge has a residual discretion to exclude evidence where its potential probative value is exceeded by the potential prejudicial effect of that evidence. This discretion extends to what would otherwise be admissible hearsay evidence, (citations omitted). There may be cases where the credibility or reliability of the narrator of the out of court statement is so deficient that it robs the out of court statement of any potential probative value. In such cases, and I think they would be relatively rare, a trial judge could conclude that the narrator’s evidence was so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of his or her residual discretion. Given the evidence was tendered by the defence, the discretion could be exercised only where the potential prejudice substantially outweighed the potential probative value to the defence of the out of court statement…(citations omitted).
117The reasoning of the Ontario Court of Appeal in Humaid was endorsed by Justice Charron in R. v. Blackman, 2008 SCC 37, [2008] 2 S.C.R. 298, at paras. 48-50. Justice Charron concluded that if the narrator is available for cross-examination, then the narrator’s credibility is for the trier of fact to determine. Charron J. noted, at para. 48, that because the narrator would have testified at trial, “her credibility and reliability as they related to the [deceased wife's] out-of-court statements could be fully tested on cross-examination at trial.” She added, at para. 50, that the cross-examination of the narrator would put the triers of fact in a position to “fully assess the truthfulness and accuracy” of the narrator's testimony. See also McMorris, at para. 31.
118In keeping with the reasoning in Humaid, alleged bias of a narrator witness is rarely relevant to the determination of the admissibility of hearsay evidence. Recently, in Dion, the Court of Appeal considered whether the trial Judge had erred in admitting ante mortem statements of the deceased for the purpose of showing her state of mind. The Crown relied on the statements as circumstantial evidence of tensions within the relationship that gave Mr. Dion motivation to kill the deceased.
119One of the issues raised by the Appellant in his factum, but not pursued in oral submissions, was whether the trial judge erred by failing to consider the narrator witnesses’ bias in his gatekeeping role. In respect of the alleged risk that the witnesses who testified about the declarant’s statements were biased and therefore not credible, the Court of Appeal emphasized, at para. 38, that:
…the bias concerns had nothing to do with whether either of the two hearsay exceptions apply. None of the admissibility preconditions to the state of mind exception require inquiry into the reliability of the reporting witness. The Court stated that “even where the principled hearsay exception is being relied upon as the avenue of admission, the threshold reliability inquiry is concerned with the reliability of the hearsay assertion itself, not the reliability of the testifying witnesses who are recounting the hearsay assertion.” [emphasis added]
120In McMorris, the trial judge excluded hearsay evidence due to concerns with the witness narrator’s credibility and reliability (there were also reliability concerns surrounding the declarant). The narrator reported a number of inconsistent out of court statements made by another accused, Bent. In one statement, Bent, the declarant, allegedly told the narrator that he was the was the principal shooter, not the Appellant. However, in a different statement, the declarant told the narrator that the Appellant was the principal shooter.
121The Court of Appeal summarized the law with respect to the application of the Humaid caveat as follows, at para. 40:
To summarize the law on the application of the Humaid caveat to the assessment of threshold reliability when the narrator is not the declarant: first, the caveat is an exception to the general rule that excluding evidence about a declarant's statement based on the reliability of the narrator would be an error if the narrator is available to testify; second, the circumstances giving rise to the caveat will be relatively rare; and, third, the decision to rely on the caveat falls under the trial judge's residual discretion: Berry, at paras. 50-53. [emphasis added]
122The Court in McMorris found the trial judge did not err in utilizing his residual discretion to exclude the narrator’s evidence because the narrator’s evidence was so incredible or unreliable that it was robbed of its probative value.
E. Conclusions - Hearsay Utterances
123The utterance, “let me go” by the declarant Marina Nagolia, reported by the narrator A.N. is admissible under the traditional hearsay exception of res gestae as a spontaneous utterance. Alternatively, it is admissible under the principled exception to the hearsay rule.
124I am not satisfied that I should exercise my residual discretion to exclude the admissible hearsay on the basis that the prejudicial effect of the evidence outweighs its probative value. I am not satisfied that “special circumstances” impacting the reliability of the declarant or concerns regarding the reliability of the narrator, A.N., require me to exercise my discretion to exclude the otherwise admissible hearsay because the prejudicial effect outweighs the probative value.
125The defence submits that the Crown has failed to establish that the evidence falls within the res gestae spontaneous statement or excited utterance exception on a balance of probabilities. They submit that A.N.’s evidence, the pathology evidence, and the state of the scene following Ms. Nagolia’s death undermine the assertion that what A.N. described was part of a struggle that led to her Mother’s death.
126Dr. Lemieux, forensic pathologist, conducted the post-mortem examination on Marina Nagolia on August 27, 2023 beginning at 9:10 a.m. She indicated in her report and testified at the preliminary hearing and voir dire that rigor mortis was passing but present. She agreed that rigor mortis usually passes within 12-24 hours of death, but indicated there can be confounding factors. She indicated that the environment where the body is located can impact the march of rigor. Specialized storage facilities where bodies are kept cool will slow the march of rigor.
127Dr. Lemieux concluded that the cause of death was “incised wounds of the head and face and neck compression.” In her diagrams, notes, and Post-Mortem Report, Dr. Lemieux documented “sharp force injuries,” including nine incised wounds to Ms. Nagolia’s 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.
128Dr. 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.
129A number of photographs were marked as exhibits during the voir dire. The photos show what appears to be a large round blood stain on the corner of the mattress near the headboard on the right hand side of the bed (if standing at the foot of the bed and looking towards the headboard). The photos also show what appears to be blood spatter on the mattress, on the bedside table, on the wall behind the bedside table (on the right side of the bed), and on the wall to the right of the bedside table. There is a blood soaked pillow and blanket on the floor on the right side of the bed.
130The scene photos show the location of Ms. Nagolia’s body when found by police. She is lying on her back on the floor on the right hand side of the bed in the narrow space between the bed and the wall. Her head is adjacent to the right side of the bed, near the bedside table and towards the headboard. Her feet are extended towards the foot of the bed. Her right arm is bent at the elbow, resting on her face and chin.
131The defence submits that what A.N. describes when she reportedly saw her Mother “wrapped up like a burrito” and heard her say “let me go,” and Mr. Matin reply “wait, wait, wait, wait” is not consistent with the interaction being a part of a struggle that led to her death. The Respondent submits that the presence of passing rigor mortis at time of autopsy supports the inference that Ms. Nagolia did not die on August 24, 2023, when A.N. was at the home. The presence of passing rigor suggests that her death must have occurred much closer to the time that EMS arrived at the home on August 25, 2023 at 6:20 p.m.
132The Respondent submits that A.N. did not describe seeing injuries on her Mother or the bloody scene depicted in the scene photos. Moreover, during her preliminary hearing evidence, A.N. described returning to the room and seeing her Mother sleeping on the bed and did not describe injuries like those documented by the post-mortem.
133Further, the Respondent submits that A.N. did not report the alleged struggle to her father, something that undermines the suggestion that she saw her Mother in a fight for her life.
134The Respondent submits that for the application to succeed, A.N. had to be watching the death of her Mother, and the evidence does not support that finding.
135The Crown submits that in respect of the evidence of passing rigor, Dr. Lemieux explained that pathologists are unable to say exactly when someone died based on the extent of rigor present. Further, Ms. Nagolia was clearly deceased by 6:20 p.m. on August 25, 2023 when EMS arrived, and if relying on the 12-24 hour time-line for rigor to pass, it should have passed by the morning of August 27, 2023 when the post-mortem took place, approximately 39 hours later. However, it had had not, undermining the accuracy of a strict time-line for rigor to pass, even recognizing that preservation steps began on or about 11:00 p.m. on August 26, 2023 when her body was removed from the scene.
136The Crown submits that A.N. was describing the events from the perspective of a child, and described the events in the way a child would understand the circumstances. The Crown submits that a jury could find that what A.N. described as being poop on the bed, was blood, and a jury could find that A.N. was observing a part of a struggle between Marina Nagolia and Mr. Matin that led to Ms. Nagolia’s death.
137The Crown seeks to admit the statement “let me go” to establish that Mr. Matin was involved in a physical struggle with Ms. Nagolia., That he was using physical force/violence against her without her consent. In that way, the Crown relies upon the utterance for the truth of the assertion that Mr. Matin was holding Ms. Nagolia and she objected to him doing so.
138The defence does not dispute that A.N. can give viva voce testimony about the events in the home on August 24, 2025. She can describe what she recalls when she woke up in her Mother’s bedroom on August 24, 2025. She can testify that when she woke up in the morning, her Mother was on the floor, wrapped in a blanket “like a burrito.” Her legs were moving up and down and Mr. Matin was near her.
139In determining whether the utterance “let me go” falls within the res gestae spontaneous utterance exception, I am not required to determine the ultimate reliability of A.N.’s evidence. I must assess whether the evidence tendered on the voir dire, establishes that the utterance falls within the res gestae spontaneous utterance traditional hearsay exception.
140For the statement to be spontaneous, it must be so closely associated with the event that has excited the statement that it can fairly be said that the declarant’s mind remained under the domination of that event. In other words, the trigger mechanism for the statement – the event – was still operative. Spontaneity and contemporaneity are guarantors of reliability.
141A.N.’s evidence November 9, 2023 statement and her August 14, 2023 preliminary hearing describes an ongoing struggle. The following is a summary of A.N.’s evidence about the struggle that A.N. described observing:
She said she woke up and saw “poop” on the bed.
She said the boy (Mr. Matin) covered her Mother and he was making her go down to get the dog.
He wrapped her in the blanket.
She said the boy (Mr. Matin) was standing there and wrapped her Mother in the blanket “because he wanted to get the dog out.”
She said her Mother was asleep, and he just wrapped her up into a “burrito,” and he just tried pushing her down so he – so –so she can get him. She said she did not see him pushing her.
He wrapped her Mother in blankets “like a burrito.”
She was saying, “let me go” and her legs were going up, indicating her legs moving up and down.
A.N. woke up because she heard her Mom say, “Let me go.”
Her Mom’s “ex” was saying, “wait, wait, wait, wait.”
She asked the boy (Mr. Matin) what happened, and he said nothing happened.
The boy (Mr. Matin) told her to go to her room.
A.N. said to him (Mr. Matin), “What are you doing? Let her go.” He told her to get out of the room.
She left the room because she “did not have the capability to move him.”
After, she wanted to check on her Mother, but he was next to the door and said she could not because she was sleeping.
She drew a picture showing the poop near the location on the bed where the blood stain was located.
She depicted her Mother covered in a blanket with her legs protruding.
She drew Mr. Matin standing near her.
142What A.N. describes taking place, situates Ms. Nagolia’s utterance “Let me go” squarely withing the res gestae spontaneous utterance exception to the hearsay rule. A.N. describes a struggle between Mr. Matin and her Mother, which was ongoing when the utterances were made. The “event” is the struggle that is continuing. The utterances take place contemporaneously and spontaneously as a struggle takes place.
143I am satisfied that the statement was made in circumstances where Ms. Nagolia, the declarant, was so emotionally overpowered by a contemporaneously startling event that the possibility that the statement was concocted or distorted can be disregarded: MacKinnon, at para. 22. Ms. Nagolia had no opportunity or reason to concoct her brief utterance “let me go.” It was an immediate reaction to her circumstances. The surrounding context furnishes circumstantial indicators of reliability: Mapara, at para. 24. Her faculties were so overcome by the event that there was no opportunity for reflection, speculation, or concoction. The emotional intensity under which the statement was made gives it the guarantee of reliability under which the spontaneous declaration rule has traditionally rested: MacKinnon, at para. 40.
144I find the Crown has established that the alleged utterances fall within the res gestae traditional exception to the hearsay rule, and it is admissible as such, subject to consideration of my residual discretion to exclude the evidence if the prejudicial effect exceeds the probative value.
145While it is not necessary to my conclusion, in my view, the utterances “let me go” and “wait, wait, wait, wait” are also admissible as statements accompanying and explaining an act that can be properly evaluated as evidence only if considered in conjunction with the statement. To admit A.N.’s description of her observations of her Mother wrapped “like a burrito” on the floor with her legs protruding from the blanket and moving up and down, in the presence of Mr. Matin, without including her evidence that her Mother was saying “Let me go” and Mr. Matin responded wait, wait, wait, wait” would deprive the jury of an important component of the transaction that speaks to the nature of the interaction between Mr. Matin and Ms. Nagolia, and whether there was a physical struggle taking place or something more innocuous being witnessed by A.N. In my view, exclusion of the evidence would impede accurate fact-finding.
146The Respondent has failed to establish that this case falls within the “rare case” exception because there are special features that significantly undermine the reliability of the presumptively admissible hearsay evidence. There is a high threshold to be met by a party seeking to exclude evidence on this basis: MacKinnon, at para. 51.
147The Respondent did not allege, and this is not a rare case, where there are special features particular to the declarant that render the statement, which falls within the traditional res gestae exception, unreliable and therefore inadmissible. There is nothing suggesting that Ms. Nagolia was extremely intoxicated or for some reason unable to perceive the events that were taking place around her when she made the utterances.
148I will address the concerns raised by the Respondent with respect to the reliability of the narrator, A.N., when addressing the residual discretion to exclude otherwise admissible hearsay evidence on the basis that the prejudicial effect of the evidence exceeds the probative value.
149The utterance of Ms. Nagolia “let me go” is also admissible under the principled exception to the hearsay rule. Necessity and threshold reliability are met on a balance of probabilities. Necessity is made out because Ms. Nagolia is deceased: MacKinnon, at para. 53. Ms. Nagolia is not available to testify.
150I am satisfied that threshold reliability is established on the basis of “substantive reliability.” The circumstances under which the statement was made on their own rule out concerns related to the declarant, Marina Nagolia’s sincerity, memory, narration, or perception having regard to the brief nature of the utterance made spontaneously and contemporaneously with a startling event. There is nothing to suggest a motive to fabricate the brief utterance, directed to Mr. Matin, and overheard by her young daughter. The utterance was reactive, not accusatory, and was unprompted – it was not elicited as a result of questioning. Contemporaneous cross-examination would add little if anything to the process.
151Because there are sufficient features of substantive reliability, there is no need to consider extrinsic evidence to assess the declarant’s reliability: MacKinnon, at para. 62. There are sufficient guarantees of trustworthiness to admit the statement and it is for the jury to assess what weight, if any, the utterance should be given.
The Utterance of Mr. Matin “wait, wait, wait, wait”
152The utterance of Mr. Matin “wait, wait, wait, wait” is admissible as a party admission. It is a statement that accompanied actions of Mr. Matin offered as evidence against Mr. Matin.
153I am satisfied that the statement was attributed to Mr. Matin by A.N. in her preliminary hearing evidence.
154The issue of whether the utterance was attributed to Mr. Matin arises because in the August 14, 2023 preliminary hearing transcript, the question and answers leading to the relevant response were transcribed as follows:
E.T. Okay. And you heard your mom say, “Let me go”?
A.N. Yeah.
E.T. And your – did you hear your mom’s ex say anything to your mom?
A.N: She was like, “wait, wait, wait, wait.” Like something like that.
155I have listened to the audio recording from the August 14, 2023 court proceedings that captures these questions and answers. I am satisfied that there is an error in the transcript and that A.N.’s answer in response to the question, “Did you hear your mom’s ex say anything to your mom?,” was, “He was like, “wait, wait, wait, wait.” Like something like that.” This is the response that can be heard, and it is responsive to the question asked.
156The defence submits that the Crown has failed to establish any relevance to the response “wait, wait, wait, wait.” I am satisfied that it is relevant and capable of meaning.
157A jury could find that Mr. Matin was responding to Ms. Nagolia’s plea “let me go” when he said “wait, wait, wait, wait.” From it, a jury could infer that Ms. Nagolia was speaking to Mr. Matin, that he heard her plea, but did not let her go. It is a part of the narrative leading to A.N. asking Mr. Matin “What are you doing? Let her go?” and Mr. Matin telling her to get out of the room. Mr. Matin’s statement, directing A.N. to get out of the room, is also relevant and admissible. The utterances considered in the context of the evidence as a whole are capable of supporting the inference that something untoward was taking place, that Mr. Matin was using physical violence against Ms. Nagolia, that he did not stop when she asked him to let her go, and that when A.N. asked him to stop, he directed her to leave the room. This took place in the time frame shortly before the discovery of Ms. Nagolia’s body, wrapped in a blanket beside the bed, in the same location that A.N. described the struggle taking place. There is sufficient context for a jury to give the statement meaning that is not speculative. Schneider, supra.
158As in Schneider, whether the statement was made and whether it is true, and the inferences to be drawn from the statement, are matters for the jury.
159I am satisfied that the alleged admission is capable of meaning. The jury can give meaning to the A.N.’s evidence that Mr. Matin replied “wait, wait, wait, wait” when Ms. Nagolia said “let me go” in a manner that is non-speculative.
160The probative value exceeds the prejudicial effect, and as outlined in more detail below, I am not satisfied I should exercise my residual discretion to exclude the utterance.
161Ultimate reliability and believability of the evidence is for the jury to consider.
162A jury instruction will be provided in respect of use of a party admission where meaning may be found by the jury to be uncertain. The jurors will be explicitly instructed that if they cannot determine the meaning of the statement, they cannot use it as an admission and they must disregard it.
Residual Discretion to Exclude - Reliability of the Narrator A.N.
163The emphasis in the Respondent’s submissions regarding the admissibility of the hearsay utterances was placed on concerns surrounding the reliability of the narrator, A.N., not the declarant, Marina Nagolia.
164The Respondent submits that A.N.’s account is so unreliable that I should exercise my residual discretion to exclude the utterances, even if they fall within the res gestae spontaneous utterances exception, the party admissions exception, and meet the requirements of the principled exception.
165The Respondent submits that:
A.N.’s account is contradicted by other evidence;
The lapse of time and progression of A.N.’s evidence is of considerable concern;
A.N. has demonstrated bias against the Respondent, Mr. Matin;
There are concerns with respect to A.N.’s memory; and
A.N.’s recollections may have been impacted by others.
166The credibility and reliability of the narrator A.N.’s evidence about the out-of-court statements is not so deficient that it robs the out-of-court statements of any potential value. The evidence of A.N. as to the utterances is not so incredible or unreliable as to necessitate the exclusion of the evidence based on the exercise of my residual discretion.
167In her first statement, A.N. did not disclose what she saw when she woke up on August 24, 2023. She did not describe seeing her Mother on the floor wrapped up “like a burrito,” or hearing her say “let me go” and the reply of Mr. Matin, “wait, wait, wait, wait.” She disclosed her observations in the bedroom during her second statement on November 9, 2023 and the utterance of Mr. Matin during her preliminary hearing testimony on August 14, 2024.
168A.N. provided her first statement on September 7, 2023, approximately two weeks after her Mother’s death. She said after returning home from the vacation, she slept in her Mom’s bed. When asked what happened after she woke up, she said she did not remember. She said the last thing she remembered was her dog pooping on the bed, and then she did not remember after that. She said after she brushed her teeth, she needed to go to the couch and lay with her iPad and her phone and then her dad picked her up. She said she did not talk to her Mother because she was sleeping. At the end of her statement, she told DC Mark that there was some stuff that was private, so she did not disclose everything to DC Mark. She said there was only two things that she did not want to talk about.
169In her November 9, 2023 statement, DC Duffy began the statement by asking A.N. if she was ready to talk about the things she said she did not want to talk about at the end of the previous statement. Initially, A.N. said no. However, during the statement, she described what she observed and heard when she woke up in her Mother’s bed after returning from her vacation, including seeing poop on the bed, the boy (Mr. Matin) wrapping her Mother in a blanket, her Mother rolled up like a burrito on the floor, with her legs sticking out of the blanket, and moving up and down, and hearing her Mother say “let me go” while Mr. Matin was near her. Near the end of the November 9, 2023 statement, A.N. said that the “last time, I didn’t remember everything… so I tried to remember it.” When asked if there was anything else she could remember, she said, “all those things she tried to get out of her mind.”
170At the preliminary hearing, A.N. said that what she had left out in the original statement was “the burrito thing.” She said that was the “thing” she was not ready to talk about.
171During the November 9, 2023 statement, A.N.’s description of the boy covering her Mother with a blanket and the utterance made by her Mother was not the product of leading or suggestive questioning. As she was describing what her Mother looked like wrapped in the blanket, “like a burrito,” she spontaneously added, “And she was saying “let me go.” She described the movement of her Mother’s legs, and used her fingers to demonstrate for the officer, showing they were moving up and down. A.N. drew a picture describing what she saw. When the officer suggested that she heard her Mother say “Stop it,” A.N. corrected the officer and said her Mother said “let me go.”
172While A.N. did not refer to the utterance “wait, wait, wait, wait” during her November 9, 2023 statement, she was not directly asked whether Mr. Matin said anything. During the November 9, 2023 statement, after her Mother said “let me go,” DC Duffy asked A.N. “where did you go?” Responding to the question, A.N. said “he” said to go to her room, so she grabbed her iPad and went to her room.
173At the preliminary hearing, while A.N. was describing her Mother wrapped in the blanket, saying “let me go,” the Crown asked directly asked if her Mom’s ex said anything to her Mom. A.N. responded, “he was like wait, wait, wait, wait.” She said she (A.N.) said “What are you doing? Let her go.” And he was like “Get out the room.”
174This is not a circumstance, like in McMorris, where A.N. has given multiple directly inconsistent accounts about her Mother’s utterance. Rather, the evidentiary foundation suggests a young child witnessed traumatic events and initially had difficulty speaking about them. When she did speak of the events, her account was provided with compelling description and was not the product of leading or suggestive questioning.
175While the evolution of A.N.’s evidence will be something the jury will have to consider in assessing the credibility and reliability of her evidence, the manner in which A.N.’s disclosure occurred does not undermine the reliability in a way so as to rob the out-of-court statement of any potential value. It is well recognized that there may be many reasons for delayed and incremental disclosure by child witnesses of traumatic events, and delay in the disclosure of a traumatic event standing alone should not result in an adverse inference: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 65; R. v. L.K., 2011 ONSC 2562.
176The Respondent also submitted that there are concerns of bias that impact A.N.’s evidence. During her statements, A.N. said she did not like Mr. Matin on more then one occasion. Near the beginning of the September 7, 2023 statement, A.N. said her Mother’s ex “made her die” and she said she “never liked him.” In a November 3, 2023 counselling note, A.N.’s counsellor, Ekaterina Pastukhova, noted that A.N. started to experience anger towards her Mother’s boyfriend Dima. A.N. told her she believed that he killed her Mother, she described her observations in the bedroom, and said she wanted justice. Near the outset of her November 9, 2023 statement, she said because of the boy (Mr. Matin) her Mother got a heart attack and she died and she repeated that she did not like him. During her preliminary hearing evidence, A.N. at one point, when asked if she could keep going with her evidence or if she needed to break, replied, “If it will get him in jail, yeah.”
177A.N.’s indication that she does not like Mr. Matin is not surprising given that she believes he caused the death of her Mother, and it does not follow that her evidence is inherently unreliable because she has stated that she dislikes Mr. Matin. A witness’s evidence is not excluded because of dislike for another party in a proceeding. Bias is not a matter that renders her evidence about what took place in the bedroom, including the utterances, so unreliable that I should exercise my residual discretion to exclude the otherwise admissible hearsay evidence. In Dion, the Court of Appeal concluded that “bias concerns have nothing to do with whether either of the two hearsay exceptions apply,” and emphasized that “even where the principled hearsay exception is being relied upon as the avenue of admission, the threshold reliability inquiry is concerned with the reliability of the hearsay assertion itself, not the reliability of the testifying witnesses who are recounting the hearsay assertion.”
178A.N. will be cross-examined on the existence of bias. It will be a matter for the jury to consider in assessing whether it has impacted her evidence about the events, including her evidence about the utterances, and in assessing whether they accept some, all, or none of her evidence.
179The same holds true with respect to the suggestion that A.N.’s recollection of events may have been impacted by information received from others, such as her father, or her counsellor. This will be a matter for the jury to consider and does not render the otherwise admissible hearsay inadmissible. A review of the content of the statement suggests that A.N. understands the distinction between information she saw and heard directly and information she received from others. She described her Dad telling her that her Mother had a heart attack because of a fight with Mr. Matin. She clearly indicated that she was not there. In contrast, nothing in her description of the utterances made by her Mother “let me go” or the reply from Mr. Matin, “wait, wait, wait, wait” suggests this was something she learned from another individual, or that it was the product of suggestion. That she disclosed her observations about the morning of August 24, 2023 to a therapist prior to her disclosure in her November 9, 2023 statement does not undermine the reliability of her evidence so as to require its exclusion.
180The Respondent submits that there is significant extrinsic evidence that contradicts A.N.’s account, including the post-mortem findings regarding the timing of passing of rigor mortis, the extent of blood in the room, and the injuries suffered by A.N.’s Mother.
181In my view, the evidence on the voir dire does not establish that the struggle that A.N. describes witnessing could not have been part of a violent attack that led to her Mother’s death. It is unclear what time of day the events took place that A.N. witnessed. Given they likely did not arrive home from the airport until sometime after 4:00 a.m. on August 24, 2023, the events she described witnessing may have occurred in the afternoon. The struggle observed may have been part of a longer violent incident. It is not clear whether the injuries occurred all at the same time. The evidence is not clear, at least at this point, regarding whether there may have been a survival period after Ms. Nagolia suffered the injuries documented by Dr. Lemieux that led to her death. Rigor mortis cannot provide a precise timeline with respect to time of death and there are confounding factors. As noted by the Crown, although Ms. Nagolia was clearly deceased by 6:42 p.m. on August 25, 2023, rigor was still passing approximately 39 hours later, when the autopsy commenced on August 27, 2023.
182In my view, there is an evidentiary path available to a jury to infer that what A.N. described was part of the struggle that led to her Mother’s death. A.N. described seeing poop on the bed. In her November 9, 2023 drawing, she placed the “poop” very close to the location where the large blood stain is on the mattress in the scene photos. A.N.’s description of her Mother, wrapped in a blanket on the floor “like a burrito” with her feet sticking out, is strikingly similar to the location where her Mother was found deceased on the floor wrapped in a blanket on August 25, 2026.
183However, the issue of when Ms. Nagolia died will be a matter for the consideration of the jury in the context of all of the evidence, some of which is not before me.
184It is important to remember that in a jury trial, at the admission stage, the trial judge’s role is limited to deciding whether to admit the statement, not whether the statement should ultimately be relied on and what its probative value is: Bradshaw, at para. 41; MacKinnon, at para. 28.
185As indicated by the Court in MacKinnon, at para. 29, in a criminal jury trial, it is “constitutionally imperative” that questions of ultimate reliability be left for the jury: Khelawon, at para. 50; Bradshaw, at para. 114. This is because, “[w]here the criteria of necessity are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis.”
186If the hearsay statement is admitted, the jury will consider whether the hearsay statement is to be believed and if so, what weight, if any, should be attributed to it in the context of the entire evidentiary record (ultimate reliability): Khelawon, at paras. 3 and 50.
187Issues surrounding whether the jury should ultimately accept A.N.’s evidence that such a struggle took place, and whether it was part of the physical acts that caused Ms. Nagolia’s death will, if the evidence is admitted, be for the jury to decide following full cross-examination of A.N. by capable counsel and in the context of all of the evidence.
188Notably, in MacKinnon, there were reliability concerns surrounding the deceased’s utterances to the EMS personnel prior to his death describing the man who shot him as a black male with skin colour like his own who was 5’7 and wore a red shirt and a thick gold chain. Although video surveillance showed the accused in the area wearing a long-sleeved red and black shirt and a long thick gold chain around his neck; the defence claimed the statement was not sufficiently reliable because:
There was no information regarding the circumstances under which Mr. Taylor made his observations;
There were concerns about his state of mind given that he was in pain and had consumed alcohol, taken drugs, and suffered an unexpected traumatic event;
There was no way of knowing whether he made assumptions in recounting his observations;
His description of the shooter was that of a man six inches shorter than the appellant; and
Other witnesses at the scene gave differing descriptions and none said the Appellant was the shooter.
189The Appellant argued that there was no evidence upon which the trial judge could rely to substantially negate the possibility that the deceased declarant was mistaken in his identification statement.
190In MacKinnon, the Court held that the evidence was admissible as a spontaneous utterance. There was no error in the trial judge’s conclusion that the statement was made in circumstances that were sufficiently spontaneous when the declarant’s mind was dominated by the shock of the shooting and by his fear that he was dying, and it was not a rare case in which special features such as gross intoxication, undermined the inherent reliability of the statement.
191The Court of Appeal also agreed that the statement was admissible under the principled exception to the hearsay rule and the trial judge correctly held there was sufficient circumstantial indicia (without consideration of extrinsic evidence) to establish substantive reliability and that the Appellant’s concerns about the circumstances under which the declarant made his observations, including whether he was assuming that the man he described shot him and his ability to see clearly, go to the weight and ultimate reliability of the evidence not threshold reliability for admissibility. See MacKinnon, at para. 82.
192The Court of Appeal held that the trial judge did not err in failing to consider extrinsic evidence because substantive reliability was established on the basis of the circumstances of the statement without the need to consider the extrinsic evidence. The Court held that extrinsic evidence that tends to corroborate or contradict the hearsay statement, goes to ultimate reliability, not threshold reliability.
193As in MacKinnon, it will be for the trier of fact to decide how much reliance should be placed on the hearsay statement in the context of the entire evidence that may include evidence that supports or undermines the proffered truth in the hearsay statement: MacKinnon, at para. 58.
194A.N.’s description of what she observed, the utterances of her Mother, and the accompanying statements of Mr. Matin are relevant and highly probative of the issues at trial. In submissions, the Crown emphasized that the defence is currently unknown.
195The evidence is relevant to identifying Mr. Matin as the attacker in the struggle that caused Marina Nagolia’s death. It is relevant not only to identification of the attacker, but also to a potential defence of self-defence or provocation. In addition, the Crown alleges that Ms. Nagolia was sexually assaulted, and the evidence may demonstrate a lack of consent.
196I am not satisfied that this is one of the rare cases where I should exercise my residual discretion to exclude otherwise admissible hearsay evidence. I am not satisfied that the prejudicial effect of the evidence outweighs the probative value.
197The utterance by the declarant Marina Nagolia “let me go” overheard by A.N. is admissible as a res gestae spontaneous statement and the utterance “wait, wait, wait, wait,” which I find was attributed to Mr. Matin by Alexandra Nagolia is admissible as a party admission.
F. Testimonial Aids: Admissibility of A.N. ‘s September 7 and November 9, 2023 Video Statements Under Section 715.1 of the Criminal Code
198The Crown has applied for an order under s. 715.1 of the Criminal Code permitting A.N.’s video recorded statements from September 7 and November 9, 2023 to be played in Court and to form part of her evidence.
199Section 715.1 of the Criminal Code provides as follows:
715.1.(1) in any proceedings against an accused in which a …witness was under the age of 18 years at the time the offence is alleged to have been committed, a video recording made within a reasonable time after the alleged offence, in which the …witness describes the acts complained of, is admissible in evidence if the …witness, while testifying, adopts the contents of the video recording, unless the presiding judge …is of the opinion that admission of the video recording in evidence would interfere with the proper administration of justice.
200Under s. 715.1(1) the four mandatory requirements for admission of a witness’s video statement are:
i.) The witness must have been under 18 at the time of the alleged offence.
ii.) The video recording must have been made “within a reasonable time” after the alleged offence.
iii.) The witness must describe the “acts complained of”.
iv.) The witness while testifying must adopt the contents of the video recording.
201A video statement will be admissible if these criteria are met unless the Judge “is of the opinion that admission of the video recording would interfere with the proper administration of justice.” Section 715.1(1) requires exclusion where the “admission of the video recording in evidence would interfere with the proper administration of justice.” R. v. P.S., 2019 ONCA 637, at para. 13.
202The primary purpose of s. 715.1(1) is to preserve an early account of a child’s complaint in order to assist in the discovery of the truth and to provide a procedure for the introduction of the child’s evidence at trial. The provision also serves to diminish the stress and trauma suffered by children as a by-product of their role in the criminal justice system. R. v Mulder; L.(D.O.), [1993] 4 S.C.R. 419, 85 C.C.C. (3d) 289, at paras. 34 and 35; R. v. F.(C.C.), [1997] 3 SCR 1183, at paras. 21 and 29.
203The Respondent concedes that the September 7, 2023 statement should be admitted because the statutory prerequisites for admission have been met, subject to adoption and editing, and admission of the first statement would not interfere with the proper administration of justice.
204The Respondent opposes the admission of the November 9, 2023 statement and argues that the statutory criteria have not been met. The Respondent submits the November 9, 2023 statement was not made i.) within a reasonable time after the alleged offence and, subject to editing, is not of the acts complained of.
205The Respondent further submits admission of the statement would interfere with the proper administration of justice because A.N.’s evidence is inherently unreliable, for reasons outlined above, in the context of the hearsay application, including that her November 9, 2023 statement was impacted by information received from others including her father and counsellor.
Made Within a Reasonable Period of Time
206In submissions, the Respondent placed limited emphasis on the submission that the statement was not made within a reasonable period of time but submitted that the second statement should have been taken sooner after the police learned that further disclosure was made to A.N.’s counsellor, Ms. Pastukhova, on September 8, 2023. The Respondent submits that the passage of time increased the potential for her evidence to be influenced by third parties.
207What is a reasonable period of time is not determined based solely on the calculation of the time between the offence and the video recording. Parliament left it to the courts to determine reasonableness in the specific circumstances of each case. In this case the second video made November 9, 2023, was made 2.5 months after the alleged offence.
208In considering whether a videotape has been made within a reasonable time, the court must balance several factors, the most important being the reasons for the delay and the impact on the child’s ability to accurately recall the events in issue. L.(D.O.), supra.
209In P.S., at para. 21, Justice Fairburn, writing for the Ontario Court of Appeal in the context of a sexual assault case, where there was a delay of approximately three years between the offence and the making of the statement, emphasized that s. 715.1(1) “directs its energy at the testimony of children” and that “the practical and recognized reality is that children will often delay disclosing abuse they have suffered, particularly when the abuse is sexual in nature and involves perpetrators who stand in positions of trust relative to those children”.
210Justice Fairburn indicated that whether the complainant is a child or not, it is a “simple and irrefutable proposition” that the reasons for delayed disclosure in sexual crimes, are many, including “embarrassment, fear, guilt, or a lack of understanding and knowledge”. She stated as follows, at para. 22:
Accordingly, it would make little sense to take a known feature of many child complainants’ journeys toward the justice system – delayed disclosure – and make it a dispositive factor in the inadmissibility inquiry. This is precisely why each case must be approached on its own facts, having regard to all of the circumstances of the case, to determine whether the passage of time between the alleged events and the giving of the video statement is “reasonable”.
211The above comments pertaining to delayed disclosure in the context of sexual offences against children, in my view, are applicable to other traumatic events involving child witnesses. Moreover, there is a clear factual foundation in this case to establish that at the time of her first statement on September 7, 2023 A.N. was uncomfortable in speaking about the details of what she observed when she woke up on August 24, 2023 and that it was upsetting to her:
When first asked by DC Mark what happened when she woke up, she responded “and then like, for some- for -um -um, I don’t remember. Like the only thing I remember is my dog pooping on the bed, and then I don’t remember after that.. and then my dad picked me up.”
At the end of the September 7, 2023 statement A.N. told DC Mark that she did not tell him about some stuff that was private.. and so I didn’t tell the truth about. There was only two things. “But I don’t remember what now. But it’s actually something that- that – that’s ver – that I don’t wanna talk about.”
At the beginning of the November 9, 2023 statement, when PC Duffy asked A.N. if she was ready to talk about the things she did not want to talk about in the previous statement she said “no”.
In the November 9, 2023 statement A.N. ultimately spoke about the things that she observed when she woke up in her mother’s bedroom.
She said last time I didn’t remember everything… So, I try to remember it”
At the end of her November 9, 2023 statement when asked if there was anything else she could remember that she wanted to tell DC Duffy she said: “I don’t think so. But all those things I tried to – tried to get out of my mind.”
At the preliminary hearing, after watching the September 7, 2023 video, when the Crown asked A.N. about her telling DC Mark that some stuff was “private”, A.N. replied that in the next video there’s stuff that I really didn’t want to tell, but, like it’s in there.. like, in the next one. She said she did not really feel comfortable talking with the policeman. (in the first statement). After watching the second video, A.N. told the Crown that the part she left out in her first statement was about her mother being wrapped up like a burrito. She said she was not ready to talk about it in her first statement.
During the preliminary hearing she spoke about trying to check on her mother and the accused telling her she could not do so because her mother was sleeping. A.N. said that her mother was “just trying to sleep, but there was , like, a poop stain… that was really disturbing, the poop stain.”
212On September 8, 2023, DC Mija received information from A.N.’s father, Benyamin Nagolia, who reported that A.N. disclosed that she saw Mr. Matin trying to hide her mother under the bed and saw her mother wrapped in a blanket. Detective John Parker advised that A.N. should continue therapy so she would be comfortable to talk, and the police would interview her.
213Eight-year-old A.N. first spoke to the police approximately two weeks after her mother’s death. She spoke about very traumatic events involving the last day she saw her mother alive. She told the police that there were some things that were private, that she did not want to talk about. Having regard to the purpose of s. 715.1(1) and the reality that incremental or delayed disclosure is often a feature of a child’s disclosure about traumatic events, and having regard to clear evidence that A.N. was having difficulty speaking about the events that transpired in her mothers room, the police decision to wait until November 9, 2023, while she continued in therapy, before conducting a second interview, was entirely reasonable.
214The statement was given within a relatively short time, approximately 2.5 months, of the events in question. A review of the November 9, 2023 statement reveals an intelligent articulate young child who understood the distinction between things she personally observed and things she was told by others. When she discussed her belief that her mother died because she had a heart attack because of a fight with Mr. Matin, she clearly articulated that this was something her dad told her and said that she was not there.
215The November 9, 2023 statement is compelling because when A.N. discusses the events that transpired in her mother’s bedroom on August 24, 2023, her, description, choice of language, and gestures are in keeping with a firsthand account of an eight-year-old child, not second hand information. For example, her description of seeing poop on the bed, her reference to her mother being wrapped in a blanket “like a burrito”, her gestures to indicate how her mother’s legs were protruding from the blanket and moving, and her narration as she prepared her drawings depicting the events, reveal a child who was able to provide a coherent narrative in age-appropriate language about what she saw and experienced. While ultimate reliability will be for the jury to decide, the November 9, 2023 statement does not raise concerns about A.N.’s ability to accurately recall the events that requires exclusion of the statement or suggests her evidence has been undermined by interference or contact with third parties.
216A case specific assessment makes clear that the passage of time between the alleged events and the giving of the second video statement was reasonable. A.N.’s November 9, 2023 statement was made within a reasonable period of time and it would be inconsistent with the purpose and principles underlying s. 715.1(1) of the Criminal Code in these circumstances to find otherwise.
Acts Complained Of
217The Respondent submits that there is content in both videos that must be edited because it does not fall within the meaning of “the acts complained of.” The Respondent submits that bad character evidence relating to alleged drug use by Mr. Matin, the argument about keys between Ms. Nagolia and Mr. Matin that led to police contact, and inadmissible hearsay including the “let me go” and “wait, wait, wait, wait” utterances, and A.N. statements that her mother died from a heart attack caused by a fight with Mr. Matin must be edited.
218The contents of a videotaped statement tendered under s. 715.1 must be limited to “the acts complained of”. This may include more than the “bare physical acts” of the offence because it must allow the witness to give their version of the events underlying the charge before the court. R. v. Scott (1993), 87 C.C.C. (3d) 327 (Ont. C.A.); R. v. T. (J.A.), 2012 ONCA 177 at paras 147 and 159.
219Judges are responsible to edit s. 715.1 statements to ensure that they do not contain evidence that would be inadmissible if offered by the complainant during his or her in court evidence. Inadmissible hearsay, or inadmissible bad character evidence does not become admissible because it is in a s. 715.1 videotaped statement. R. v. Singh, 2025 ONSC 4493.
220In the video statements A.N. discusses the events leading up to and on August 24, 2023 that form part of the “acts complained of”. The two statements set out A.N.’s evidence about the events underlying the charge before the court. Subject to the necessary editing to remove inadmissible hearsay and bad character evidence, as outlined below, the remaining content of the videos would be admissible if the evidence were given viva voce in court.
221I am satisfied that after required editing to remove bad character evidence and inadmissible hearsay the remaining content of the video statements fall within the meaning of “the acts complained of” pursuant to s. 715.1(1) of the Criminal Code. I am satisfied that the editing can be accomplished without improperly impacting the remaining content that sets out A.N.’s version of the events. The videos can be effectively and fairly edited without impacting the integrity of the interviews.
222Having regard to my finding that the utterances “let me go” and “wait, wait, wait, wait” are admissible they are not required to be edited from the statement.
Required Editing of the September 7, 2023 and November 9, 2023 Video Statements
223The parties have worked cooperatively to identify content that may require editing. The Respondent helpfully provided a color coded copy of the transcripts which identifies in red the areas the parties agree must be edited and highlights in orange the disputed areas.
224The parties agree that the references to alleged drug use by Mr. Matin, and reference to an argument that took place that led to police contact with Mr. Matin and Ms. Nagolia involving a dispute over car keys must be edited from the statement. I agree.
225At issue, is whether the references in both statements to Ms. Nagolia having a heart attack caused by Mr. Matin, should be edited from the statement.
226A.N. said her Dad told her that her mother had a heart attack during a fight with Mr. Matin. She said she was not there when the fight happened. She was with her Dad and he told her that her mother had a heart attack. The Respondent submits that this content is presumptively inadmissible hearsay. I agree with the defence submission that this content, if relied upon for the truth of its contents, is presumptively inadmissible hearsay.
227The Crown submits the content should be admitted not for its truth but because it will assist the jury to assess and understand A.N.’s evidence, including her description of the events of August 24, 2023 in her mother’s bedroom, in light of her belief that her mother died of a heart attack associated to a fight with Mr. Matin.
228While there is some merit to this submission, I have concluded that the prejudicial effect of the evidence outweighs the probative value. It has the potential to invite improper speculation and in my view is not part of the “acts complained of”. I agree it should be edited from the statement.
229Accordingly the content that was highlighted in the transcripts marked during the voir dire is to be edited from the September 7 and November 9, 2023 statements and will not be played for the jury.
230Specifically, this includes the following content to be edited from the September 7, 2023 statement:
p. 6 l. 12 to 24; and line 30; p. 7 to the top of p. 8 to line 3. Including the words at line 3 “well, we can talk about that later.” which were not highlighted and should also be redacted.
p. 95 l. 20 to p. 96 line 1 – including line 1.
p.119 line 15 to p. 127 including line 10.
p. 161at l. 11 to the end of the page.
231The content to be edited from the November 9, 2023 statement includes:
All of p.20 and p. 21 l. 1 to 15, and l. 20 to 25.
p. 82 l. 15 to 25; and p. 83 l. 1 to l. 27.
p. 92 l. 1 to 5. and l. 26; all of p. 93, and p. 94 to the end of line 7.
232Although I have excluded the content related to alleged drug use by Mr. Matin and A.N.’s belief that her mother died of a heart attack related to a fight with Mr. Matin, her indication in the statements that she did not like Mr. Matin was tied to information she received about his drug use, and her belief that her mother died from a heart attack caused by Mr. Matin. Cross-examination of A.N. regarding her dislike for Mr. Matin, and the reason for her dislike may open the door to admission of the evidence to allow A.N. to truthfully respond to why she did not like Mr. Matin and/or why she said in her statement she did not like him.
S. 715.1(1) - Residual Discretion to Exclude – Admission Would Not Interfere with the Proper Administration of Justice
233In L.(D.O.), at para. 67. the Supreme Court of Canada upheld the constitutional validity of a prior version of s. 715.1(1) of the Criminal Code. In doing so the Supreme Court recognized a residual judicial discretion at common law to exclude video statements on the basis that the probative value was outweighed by the prejudicial effect. That residual discretion was later incorporated into s. 715.1(1) by legislative amendment. Section 715.1(1) now requires exclusion of a proposed s. 715.1(1) statement, even where the four statutory prerequisites have been met, if the “admission of the video recording in evidence would interfere with the proper administration of justice.”
234While the Criminal Code does not contain factors relevant to the consideration of whether a court should exercise its discretion to exclude a video recording, in L.(D.O.) the Supreme Court identified factors relevant to the consideration of whether a court should exercise its residual discretion to exclude a s. 715.1(1) proposed statement that otherwise meets the statutory criteria including:
a) The form of questions used by any other person appearing in the videotaped statement;
b) Any interest of anyone participating in the making of the statement;
c) The quality of the video and audio reproduction;
d) The presence or absence of inadmissible evidence in the statement;
e) The ability to eliminate inappropriate material by editing the tape;
f) Whether out of court statements by the complainant have been entered;
g) Whether any visual information in the statement might tend to prejudice the accused (for example, unrelated injuries visible on the victim);
h) Whether the prosecution has been allowed to use any other method to facilitate the giving of evidence by the complainant;
i) Whether the trial is one by judge alone or by a jury; and
j) The amount of time which has passed since the making of the tape and the present ability of the witness to effectively relate to the events described.
235The above factors are not exhaustive and the circumstances in their entirety must be considered in determining whether a video statement would interfere with the proper administration of justice.
236In R. v. Toten, (1993), 83 C.C.C. (3d) 5 (Ont. C.A.) Justice Doherty, identified as an additional factor consideration of whether the evidence might provoke such an emotional response that it imperils the trier of fact’s ability to reach a verdict on an objective and dispassionate review of the evidence and where there may be a danger that the trier of fact could, despite directions to the contrary, use the evidence to infer guilt through some legally forbidden line of reasoning.
237The discretion to exclude a videotape statement where the statutory criteria have been met is limited to those cases where admission would operate unfairly to the accused and those cases will be relatively rare. F.(C.C.), at para. 51.
238The first interview commenced with DC Mark identifying himself as a police officer. He discussed the difference between truth and lies with A.N. and told her that it was okay if she did not remember something. He spoke to her about whether she had told the truth at the end of the interview. At the beginning of the interview of November 9, 2023, PC Duffy told A.N. that she had “just one rule” and “that’s just to tell the truth”.
239Both interviews took place in a comfortable location in the presence of only A.N. and the interviewing police officer.
240Both DC Mark and DC Duffy took care not to ask leading questions.
241The quality of the video and audio in both cases is very good.
242There is inadmissible bad character and hearsay evidence in both statements. However, as outlined above the statements can be edited without impacting the integrity of the statement.
243In respect of whether other out-of-court statements have been admitted, the Respondent concedes the admissibility of the September 7, 2023 statement. To admit only A.N.’s first statement would provide an incomplete record of A.N.’s recollection proximate to the events. As set out above, in the first statement A.N. advised there were things she did not want to talk about. A.N. spoke about those things in her second statement, which were the observations she made when she woke up on August 24, 2023.
244It is now 2.5 years since the events took place. The video recorded statements capture A.N.’s recollection close in time to the alleged offence. The admission of both statements will advance the truth seeking process. It will assist the jury. Although it is likely A.N. could give evidence at trial independent of the s. 715.1(1) statements, it would undermine the truth seeking process to exclude the November 9, 2023 statement by depriving the jury of a recording of A.N.’s recollection close in time to the events. As emphasized in F.(C.C.), at paras. 19 and 41, children are prone to forget details of an event with the passage of time. It is self-evident that children have a better memory of the events shortly after they occur, and this is particularly so with young children. Furthermore, the November 9, 2023 video statement in conjunction with the September 7, 2023 video statement, provides an opportunity for the jury to observe the maturity level and understanding of A.N. close in time to the events, something her viva voce at trial cannot do.
245Admitting both statements will reduce the traumatic impact on A.N.., a 10-year-old child who must discuss the events surrounding the death of her mother. In F.(C.C.), at para. 20, the Supreme Court of Canada accepted that anything that can be done to ease the traumatic effect on a child should be encouraged.
246Admission of the November 9, 2023 video will facilitate the effective presentation of the evidence. At the preliminary hearing A.N. testified and adopted both statements. The process worked effectively and promoted the efficient presentation of A.N.’s evidence and facilitated cross-examination. Were I to exclude the November 9, 2023 statement it may become necessary to play portions of the statement to refresh A.N.’s memory or to facilitate cross-examination about content of the statement.
247I am satisfied that there is not visual information in the statements that would tend to prejudice Mr. Matin.
248Other testimonial aids will facilitate A.N.’s evidence including testimony by closed circuit television, and presence of a support person and support dog. However, those supports do not provide the trier of fact with A.N.’s early accounts, important to the truth seeking process, or diminish the stress occasioned on A.N. by repeated questioning about the details of painful events. F.(C.C.), at para. 22.
249I am not satisfied that anything occurred during the delay between the two statements that casts doubt on the reliability of the statement such that admission would interfere with the proper administration of justice. As noted above, the account of A.N. in the November 9, 2023 statement is compelling. A.N. appears to provide a first person account in the words and understanding of an eight-year-old child. The content does not appear to be rehearsed, scripted, or the product of suggestion. A.N. identified when she did not personally observe something and when she received information from others, such as when she spoke of her mother dying of a heart attack, something she said she learned from her father and about Mr. Matin’s drug use, something she said she was told by her mother but did not see herself.
250In respect of the submission that A.N.’s evidence in the November 9, 2023 statement may have been impacted or tainted by her contact with third parties, such as her father or counsellor, in F.(C.C.), the Respondent accused argued that a pre-video interview conducted by the police may have tainted the video taped evidence of the complainant. At para. 53, the Supreme Court of Canada found that the fact that a pre-interview was conducted and any effect it may have had on the subsequent video statement was a matter that should go to the weight to be accorded to the evidence, not the admissibility of the statement. Similarly, in this case I find that any potential impact of contact with third parties on A.N.’s November 9, 2023 statement is a matter for the jury to consider.
251In respect of A.N.’s expressed dislike of Mr. Matin, it does not follow that A.N. falsely implicated Mr. Matin. The potential impact of bias on her evidence will also be a matter for the jury to consider.
252In respect the existence of inconsistencies in A.N.’s statements and preliminary hearing evidence and the existence of extrinsic evidence, as outlined above, that might tend to contradict or undermine A.N.’s evidence, a courts exclusionary discretion should not be used to determine issues of weight. In my view, it will be for the jury to decide in the context of a full evidentiary record whether they accept some all or none of A.N.’s evidence, and if they accept her evidence to determine whether what she described observing on August 24, 2023 was part of a violent attack on her mother that led to her death.
253In F.(C.C.), at para. 52, the Supreme Court of Canada emphasized that the discretionary power to exclude a video taped statement should not be used to determine issues of weight. Where there is conflicting evidence about how useful the video statement will be in providing an honest and complete account of the complainant’s story, the statement should be admitted unless the trial judge is satisfied that it would interfere with the proper administration of justice. Upon a consideration of all the circumstances, I am satisfied that admission of the September 7 and November 9, 2023 statements would not interfere with the proper administration of justice.
254I have considered that this is a jury trial, and that the evidence may provoke an emotional response with the jury. A.N. will be a witness whether or not the November 9, 2023 video is admitted and I am satisfied that with an appropriate and clear caution the admission of the September 7 and November 9, 2023 videos will not imperil the trier of fact’s ability to reach a verdict on an objective and dispassionate review of the evidence.
255I am satisfied that, subject to adoption, both the September 7, 2023 and the November 9, 2023 statements meet the requirements for admission:
i.) A.N. was under 18 at the time of the alleged offence.
ii.) Both video recorded statements were made “within a reasonable time” after the alleged offence.
iii.) A.N. described the “acts complained of” in both statements.
256In considering the totality of the circumstances, including the primary purpose of s. 715.1 to facilitate the discovery of truth, I am satisfied that admission of the edited September 7 and November 9, 2023 statements will not interfere with the proper administration of justice.
257A.N.’s evidence is highly probative. She was alone with Mr. Matin and her mother in the time between their return from Cuba and her mother’s death, and she describes witnessing what a jury may conclude was physical violence inflicted upon her mother by Mr. Matin that formed part of the acts that led to Marina Nagolia’s death.
258In respect of both videos, I am satisfied that the probative value of the statement exceeds the prejudicial effect.
259The admission of the September 7 and November 9, 2023 statements will not operate unfairly for Mr. Matin.
260Pursuant to s. 715.1 of the Criminal Code, A.N.’s video recorded statements from September 7 and November 9, 2023, may be to be played in Court for the jury, and, subject to adoption, are admitted and form part of her evidence, subject to editing.
Procedure for Adoption of 715.1 Statements
261In respect of the appropriate procedure for A.N. to “adopt” the statement or statements, The Crown proposes that they ask a few initial questions to identify the statement and then propose to ask A.N. if she adopts the statement (having previously viewed the statements) before playing the content for the jury .
262The Respondent submits that questions relating to adoption should take place after A.N. views her video or videos in the presence of the jury so that they see her interaction with the statement as it is being played.
263In respect of the procedure for adoption. I agree with the procedure proposed by the Crown. In the presence of the jury, near the outset of the introduction of each video, the Crown will ask a few initial questions to identify the statement and will ask A.N. if she adopts the statement before the content is played for the jury. A.N. will be asked to carefully view the video. Should an issue arise as a result of her response, this can be addressed before the jury has seen the content of the video. Upon completion of viewing each video A.N. is to be asked again if she adopts the content of the statement.
G. Section 486.2(1) Order for Testimony Outside of the Courtroom
264The Crown seeks an order permitting A.N. to testify from outside of the courtroom through CCTV or alternatively via Zoom from a private office in the Victim Witness Assistance Program pursuant to s. 486.2(1) of the Criminal Code. If granted, the Crown seeks an order that counsel, Crown and Defence, examine A.N. from the courtroom.
265Pursuant to s. 486.2(1), for witnesses under 18 years of age, on application of the prosecutor, the proposed order, is mandatory unless the judge is of the opinion that the order would interfere with the proper administration of justice. I am satisfied that such an order would not interfere with the proper administration of justice.
266The Respondent, consents to the order being made but submits that counsel should be permitted to be in the close circuit room with A.N. or should examine her in the courtroom.
267There will be an order, with consent of the Respondent, permitting A.N. to testify from outside of the courtroom through CCTV or alternatively via Zoom from a private office at VWAP pursuant to s. 486.2(1) of the Criminal Code.
268As to the location of counsel, both Crown and Defence will examine A.N. from the courtroom.
269The location of counsel when a child witness testifies is a matter of discretion for the trial judge. The overarching objective is to create conditions that will assist A.N. to effectively communicate her testimony in circumstances that will advance the truth seeking function of the trial, while also ensuring the fairness of the trial including the right of Mr. Matin to make full answer and defence.
270Having observed A.N.’s video statements, and reviewed her preliminary hearing transcripts, despite her young age, A.N. has demonstrated good ability to understand and respond to questions. However, A.N. is still a very young child. When she gave both her police statements she was in a small interview room with a single police officer. She testified from the closed circuit room during the preliminary hearing in the presence of a support dog, handler, and victim witness support person. In that environment she was able to effectively communicate her evidence during examination-in-chief and cross examination. Counsel was able to communicate with her effectively via closed circuit television. Adding one or more robed lawyers to the small closed circuit room environment has the potential to change what has proven to be an effective setting for A.N. to communicate, understand, and respond to questions. Both Crown and defence will examine A.N. from the Courtroom.
271With instructions, I am confident a jury can readily understand the rationale for having a young child testify from the less formal and more comfortable setting of the close circuit room and there is no unfairness to Mr. Matin and no danger that the jury will draw an improper adverse inference.
H. Section 486.1(1) Order
272The Crown applies for an order permitting a support person, Ms. Mirabelli, from the VWAP office to be present and seated close to A.N. during her testimony pursuant to section 486.1(1) of the Criminal Code.
273The Crown also requests an order permitting a support dog and its handler to be present during A.N.’s testimony.
274The Respondent consents to these orders provided:
It is requested by A.N.;
The VWAP support person is not visible to the prospective jurors; and
An order is made limiting communication between the VWAP support person and A.N. during her in court testimony to what is necessary.
That the dog does not disrupt the proceedings.
275Pursuant to s. 486.1(1), an order for a support person of the witness’ choice to be present and close to the witness while the witness testifies is mandatory unless the judge is of the opinion that the order would interfere with the proper administration of justice. I am satisfied that such an order would not interfere with the proper administration of justice.
276There will be an order, with the consent of the Respondent, permitting a support person from the Victim Witness Assistance Program (VWAP), Ms. Mirabelli, to be present and seated close to A.N. during her testimony at trial pursuant to section 486.1(1) of the Criminal Code.
277There will also be an order, with the consent of the Respondent, permitting a support dog and its handler to be present during A.N.’s testimony. Should the support dog become disruptive, this order may be revisited.
278Ms. Mirabelli may assist A.N. during her testimony including to come and go from the closed circuit room, to receive any exhibits, and with the equipment as required.
279Ms. Mirabelli will be directed not to communicate with A.N. about the substance of her evidence during A.N.’s testimony. She will be requested to bring any matters in the closed circuit room that may impact A.N.’s evidence to the attention of the court, for example if it becomes difficult to hear the participants from the courtroom and anything said to her by A.N. during the proceedings if not captured by the audio.
280During A.N.’s evidence the VWAP support person, Ms. Mirabelli will be seated so as not to be visible to the prospective jurors to the extent possible.
281It is likely that at some point Ms. Mirabelli will be captured by the video from the CCTV room . As a result, the jurors will be informed that Ms. Mirabelli is present and will assist A.N. during her testimony to come and go from the room, to receive any exhibits, and with the equipment as required.
282I will closely monitor A.N.’s attentiveness and take breaks as required. I will also instruct Ms. Mirabelli to bring it to my attention if A.N. becomes distracted during the questioning by the dog or for any other reason.
283The support dog handler will be informed not to discuss the substance of A.N.’s evidence with her.
284I will inform the jury of the presence of the dog and handler in the closed circuit room.
Justice Marcella Henschel
Released: February 5, 2026
CITATION: R. v. Matin, 2026 ONSC 714
COURT FILE NO.: CR-23-91107307
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
DANIIL MATIN
REASONS FOR JUDGMENT: Hearsay AND TESTIMONIAL AIDS
Justice M. Henschel
Released: February 5, 2026