“Absent an exception, hearsay is inadmissible. Hearsay is an out-of-court statement offered for the truth of its contents. Concerns over hearsay evidence arise from the inability to test its reliability. In general, hearsay is not taken under oath, the declarant’s demeanor when making the statement is not observed, and hearsay is not tested in cross-examination: R. v. Bradshaw, 2017 SCC 35 at para 20. Hearsay may be inaccurately recorded, and the perception, memory, narration or sincerity of the declarant is not easily investigated: R. v. Khelawon, 2006 SCC 57 at para 2.
Nevertheless, some hearsay presents minimal danger such that its exclusion would impede accurate fact finding: Bradshaw at para 22; Khelawon at para 2. The presumptive inadmissibility of hearsay may be overcome in cases where its proposed admission meets the requirements of necessity and threshold reliability and satisfies the principled approach to hearsay: Bradshaw at paras 22-23; Khelawon at paras 42 and 47; R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 SCR 531 at paras 29-30; Ward v. Swan, 2009 CanLII 22551 (ONSC) at paras 2-3; Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 at paras 9-17.
In family cases involving child hearsay, the necessity requirement takes into account what is reasonably necessary and considers the harm to a child of having to testify in court: Y. v. F.T., 2017 ONSC 4395 at para 134; C.A.S. v. C.L., 2018 ONSC 1241 at paras 27-28; Ward at paras 12-13; C.(S.E.) v. P.(G.), 2003 CanLII 2028 (ONSC) at para 32; Maharaj v. Wilfred-Jacob, 2016 ONSC 7925 at para 58.
The requirement for threshold reliability asks whether the child’s hearsay statement is sufficiently reliable to be admitted into evidence: Bradshaw at para 24; Khelawon at para 49; G.S. at para 12. Threshold reliability requires a consideration of all relevant factors surrounding the statement, such as the timing of the hearsay statement, the demeanour of the witness that is testifying, the child’s personality, intelligence and understanding, and the absence of any reason to expect fabrication, which are non-exhaustive factors: Y. at para 134; Khelawon at para 51; Khan at para 30. The court must be satisfied that the statement was accurately and objectively reported, and that the child was not manipulated, coerced or pressured into making the statement: Ward at para 15; Children’s Aid Society of Metropolitan Toronto v. M.(R.), [1992] OJ No 1097 (CJ) at paras 15-16. The court should also consider whether the witness that is giving evidence to provide the out-of-court statement has a vested interest in the outcome of the case; Ward at para 17.
A hearsay statement is admissible if substantive reliability is established, namely that the statement is inherently trustworthy given the conditions when it was made and any corroborating evidence: Bradshaw at para 30; Khelawon at paras 4, 62 and 94-100; G.S. at para 16.”