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In the recent decision of R. v. A.B., 2025 ONSC 6359, Justice Rees concluded that the complainant’s memories, recovered about a year after the alleged incident, were not reliable.
Events at the time of the sexual assault included the complainant awaking in a condition that indicated a sexual assault. The complainant was very confused, lacked memory and was told that he was probably “roofied.” His cousin assisted in preserving the clothing that had been worn at the time and in getting an SAEK done at the hospital.
It was not until DNA testing returned showing the accused’s DNA on the complainant’s underwear that the complainant then claimed to recover some memories of being sexually assaulted by A.B. The memories began to return during therapy and the complainant asked his therapist how to discern between memories and dreams.
The trial judge took concern with tainting of the complainant’s memories since the recovered memories only fully returned after being informed that A.B had been arrested.
In addition to the complainant’s memories only being “recovered” after being told who was charged, the trial judge was concerned with both inaccurate memories that were exposed during trial from other witnesses, and what was described as “mutable” memory in connection to proximate events.
The trial judge also had concerns about the complainant’s fragmentary, and often incorrect, memories related to events before and after the alleged sexual assault in comparison to extensive details being given in relation to the recovered memories of the actual alleged assault. Some of these memories included testifying that the SANE nurse told him he probably “fucked himself with a stick”. The trial judge accepted the nurses testimony that she never said that or any other disparaging remarks. Her examination notes corroborated the nurse’s description of how the SANE exam was conducted.
In another case, R. v. P.T., 2025 ONSC 6630, the trial judge was concerned with what the complainant described as “suppressed” memories in light of her subsequent vagueness, new details emerging at trial, and inconsistencies with the testimony of more reliable witnesses.
The judge was cautious about evidence related to the complainant’s mental health issues but noted that concerns arose due to the complainant’s testimony at the preliminary hearing “that the medication she was on helped her differentiate fantasy from reality. She denied this at trial but in my view, the disorder itself and the medication further implicate serious reliability concerns.”
More specifically, at para 36 the trial judge stated:
In addition, even on a more basic plane, the effects of dissociation and derealization as described by T.T. substantially affected her perceptions. In the context of the other challenges intrinsic to T.T.’s evidence, there is a reasonable possibility that the dissociation impacted her memories and may have allowed for false impressions to infiltrate her recollections.
The judge further clarified at para 38 that “the evidence of dissociation and derealization is a particularly poor foundation out of which reliable allegations are likely to emerge. Mostly likely, T.T. believes she was sexually abused by her father. I am far from sure of that. The risk here of unconscious confabulation is substantial.”
P.T. was ultimately acquitted due to a combination of concerns with the complainant’s evidence. The trial judge also rejected the application of J.J.R.D as he did not feel the complainant’s testimony rose to the level of certainty required to ignore the exculpatory evidence.
The judge articulated caution and problems with applying J.J.R.D in cases that do not have external corroborating evidence such as the diary in J.J.R.D. saying at para 43:
[43] But this then leads to a conundrum of a different kind. Under the proposed reasoning in J.J.R.D., guilt can be found if the accused’s evidence, despite having no obvious flaws, is rejected after a “considered and reasoned acceptance” of the contrary evidence given by the complainant. The necessary implication is that the complainant’s evidence must be very powerful, virtually overwhelming. However, in a pure “she said, he said” credibility case in which the complainant and the accused both testify and start off as equals (R. v. J.C., 2021 ONCA 131, 401 C.C.C. (3d) 433, at paras. 88-89), the scenario theorized in J.J.R.D. is problematic and in the practical realities of a trial, is difficult to achieve. As trial judges know well and as has been recognized by the Supreme Court, it is difficult and rare to find guilt in a pure credibility contest: C. (R.) v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 81. This is particularly true when there are no outward problems apparent in the accused’s evidence.
These cases are good reminders that, though a delay in reporting does not undermine a complainant’s credibility, the quality of historic memories must be carefully considered. This is especially true in cases where the memories were said to have been either repressed or suppressed then resurfaced in flashes, through engagement with therapists or other circumstances that may have influenced their recall of the events.
