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Repressed Memory or Concocted Memory? Justice Dawe Provides Roadmap for Repressed Memory Cases Without Expert Witnesses

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Joseph A. Neuberger, Neuberger & Partners LLP

Memory is a driving force in every criminal trial, particularly historical sexual assault cases. Witnesses testify from memory, refresh their memory within the bounds of the law, and have their recollection challenged by cross-examining counsel. Our courts also recognize that human memory is fallible. Just how much can a trier of fact wade into the murky subject of the reliability of memory—and more specifically, a recovered memory—without the benefit of expert evidence?

In R v BB, 2023 ONSC 396, Justice Dawe was called upon to consider just such a question in a sex assault trial. The complainant in this matter, at the age of 34, was struck by a vivid memory of an event that she believed had happened as a child where her father supposedly reached under her shirt and touched her nipples. The complainant was convinced that this was a real event, but one for which the memory was repressed for most of her life. The accused father completely denied the allegation.

Neither the Crown nor the accused called any expert witnesses. Thus, the Court was left to scrutinize the reliability of the complainant’s memory on a common sense basis. Justice Dawe frankly acknowledged that a judge or a juror who themselves had never experienced a recovered memory, or a sudden flashback, may have difficulty in assessing whether a witness who honestly believes in the truth of a recovered memory may be wrong.

Justice Dawe stated that there was need for heightened caution with respect to recovered memories. Repressed or recovered memories are, at the very least, atypical with respect to the general human experience of memory.

Justice Dawe accepted that it was possible that some recovered memories are real. But he also noted that it was entirely possible that the complainant’s present memory, however vivid and really it may seem to her, could be a false memory, also known as a confabulation. He noted that as a practical matter—without it being a legal requirement—that corroborating evidence would be necessary in order for the Crown to meet the high burden required to prove an event beyond a reasonable doubt.

It was held that the subjective belief of the complainant that her memory was a true one was only marginally probative of whether it was in fact true. The court analogized this to the well-known idea that confidence in the accuracy of eyewitness identification is often disconnected from the veracity of the identification. The Court was also concerned about the potential contaminating effect of the therapy she received since the initial vivid flashback on her memory. This was not with respect to the central recollection of the alleged assault, but more so with respect to the details that she purported to remember in court.

After rejecting a Crown argument that some statements made by the accused to his daughter were insufficiently exculpatory—and thus inculpatory—Justice Dawe proceeded to the WD analysis. Flowing from the well known 1991 Supreme Court case of R v WD, the rule proceeds in 3 stages: if the court believes the evidence of the accused, it must acquit. Even if the court does not fully accept that evidence, if it is left with a reasonable doubt, it must acquit. Finally, even if the court completely rejects the evidence of the accused, it must ask whether, based on the Crown evidence that it does accept, the Crown has proven the alleged conduct beyond a reasonable doubt. Noting that the WD analysis does not need to proceed in any particular order, Justice Dawe first looked to the evidence of the complainant, and concluded that even before he considered the exculpatory evidence of the accused, the Crown had not met their burden. There was no objectively reliable evidence to allow the court to determine whether the recovered memory was true or reliable. Justice Dawe also noted that he was unable to completely reject the exculpatory evidence of the accused. At the same time, he would not have been able to completely accept his evidence under the first branch of the WD analysis, as both the accused and the complainant came across as credible witnesses.

R v BB provides a helpful roadmap for counsel who are faced with a recovered memory, but do not have the resources to retain an expert witness. Justice Dawe’s insights into the law surrounding recovered memories will also be helpful going forward when similar issues arise in a matter that is heard by both judge and jury.

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