Under section 50 of the Charter, under what circumstances will the Historical Society records be admitted to a sexual assault trial?

[40] In light of the foregoing discussion, I considered whether the historical society records should be admitted under section 50. The society called evidence on the issue of threshold reliability of the records, but did not call evidence on the necessity branch of the test enunciated in The Queen v. Khan for the principled admission of hearsay evidence. In these circumstances, must I refuse to admit the evidence? Or is it open to me to exercise my discretion to admit the evidence if I am satisfied that its admission would not, in these circumstances, be contrary to the principles of fundamental justice as guaranteed in section 7 of the Charter? In considering this question, I identified the following factors in determining whether the test in The Queen v. Khan is the only test or whether an alternate “reliability test” may be used in certain circumstances. (1) What is the nature of the evidence? Given the circumstances in which the evidence was created, are there any guarantees or significant indicia of reliability? (2) What is the purpose for which the evidence is being tendered? To prove current state of affairs or historical backdrop? (3) What is the importance of the evidence to the issue to be decided? That is, does it go to the very issue to be decided as is the case when a child’s sexual abuse statements are being tendered through third party witnesses? In that case, the test in The Queen v. Khan would be used. (4) What limits could be placed on the evidence that would have the effect of buttressing reliability? For example, limiting the admission to first-hand hearsay and discounting second and third-hand hearsay and disregarding opinions. (5) How extensively were the records used in cross-examination and to what effect? (6) What effect would the refusal to admit the evidence have on the trial proceedings? Here multiple witnesses would be required to cover the period from 1991 to 1997. Although relevant, would this be a good use of scarce trial time?