“As part of its case, the Society seeks to tender out-of-court statements made by the child to three child protection workers and to her counsellor. Other statements made by the child will also be tendered as evidence of her state of mind under the recognized exception to the hearsay rule. The introduction of the statements into evidence is not opposed by the mother or the OCL. Admissibility is challenged by the father, at this point on whether the threshold necessity test has been met.
In R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, Charron J. notes that the requirements of necessity and reliability are related. She states at para 49:
“The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criteria of necessity is founded on society’s interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.”
Accordingly, while somewhat unusual to consider the threshold issues individually, all parties agreed that threshold reliability should be addressed subsequently.
The Supreme Court of Canada articulated what is known as the principled exception to the rule against hearsay in the well-known case of Khan v. R., 1990 CanLII 77 (SCC), 1990 CarswellOnt 108. The first question to be determined is whether the reception of the hearsay statement is reasonably necessary. At paragraph 31 in Khan, the Supreme Court said that,
“The inadmissibility of the child’s evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which would establish requirement of necessity.”
In the Law of Evidence in Canada, third edition, Bryant, Lederman, Fuerst, the authors’ state at paragraph 6.96:
“Necessity relates to relevance and availability of evidence. There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant’s attendance in court.”
Children’s Aid Society of Ottawa v. C.L., 2018 ONSC 1241 (CanLII) at 3-6