Sexual Offences

False Memories and Witness Credibility at Trial

Written on behalf of Barrison Law
Black and white photo of doctor's examination tools on the wall, representing false memories in sexual assault cases

False Memory Syndrome is a complex psychological phenomenon that has had substantial impacts in criminal law trials, particularly in cases involving allegations of sexual assault. It is a controversial topic that refers to the production of an individual’s distorted or untrue memories. Given the emotional ties to and vividness of false memories, it can be challenging for one to distinguish between true and false memories. This can be particularly problematic when false memories are introduced as evidence in criminal cases, as they may create unreliable witness testimonies and influence a wrongful conviction and miscarriage of justice.

As previously discussed, witness credibility is critical in a criminal law trial. Therefore, when assessing witness credibility, complainants are evaluated based on their purported truthfulness and whether the evidence provided by the complainant is reliable.

False Memory Syndrome in Ontario

False Memory Syndrome can occur when a person’s relationships and self-identity are impacted by what are believed to be false memories of psychological trauma. While one’s recollections may be strongly believed and be as vivid as true memories, false memories can be factually contested. The concept of False Memory Syndrome remains controversial, and the proposed condition is not currently recognized by the International Classification of Diseases or the Diagnostic and Statistical Manual of Mental Disorders.

In Ontario, courts routinely decide on issues of reliability and credibility of witnesses. Therefore, as the Supreme Court of Canada noted in R. v. J.F., a court’s understanding of the psychology of memory and distinguishing between true and false memories is outside of its expertise. As a result, expert witness opinions may be necessary to help the court determine whether a statement made by a witness was a product of false memories.

Complainant had vague memories of appointments with new doctor

In the matter of R. v. Tan before the Ontario Superior Court of Justice, the complainant was a physician in the Philippines who came to Canada in 2012 with her family. Upon arrival, she worked as a caregiver and subsequently became a registered practical nurse while studying to obtain her Bachelor of Science in Nursing. A friend referred her to the defendant, Dr. Tan, and the family attended their first “meet and greet” appointment on March 20, 2013. The complainant was able to recall the layout of the reception and offices.

The complainant continued to attend appointments with the defendant. She had vague memories of these appointments but clearly remembered her seventh appointment, at which she alleged the defendant sexually assaulted her.

Alleged sexual abuse by defendant doctor at seventh appointment

The complainant recalled attending her seventh appointment with her daughter on May 5, 2014, for a general physical examination. She testified that the defendant performed a head-to-toe physical examination, which included a breast exam similar to the one conducted at her initial appointment. She further stated that the defendant conducted a speculum and an internal exam, during which the only third party in the room was the complainant’s daughter. The complainant alleged that the defendant performed the internal exam in a sexual, not medical, manner. She stated that she did not say anything or complain about the pain, however, it took longer than an internal exam should have taken. The complainant also alleged that the defendant made inappropriate statements towards her and asked improper questions regarding her sexual experiences.

The complainant told the Court she felt “betrayed, numb, and violated” and no longer believed the defendant was the same trustworthy doctor she had known. She claimed she kept quiet to avoid disturbing other patients, embarrassing the defendant in front of his wife at the office, or hurting his ego.

Memory of incident allegedly suppressed for three years

The complainant stated that after the appointment, she waited until her husband had a day off of work to tell him about the alleged sexual assault. Although her husband encouraged her to report the incident to the police, she said she did not want the “mess” as newcomers to Canada. The complainant and her family did not return to the defendant’s medical practice.

The complainant claimed that she lost all memory of the alleged assault for over three years until she read a newspaper article regarding a doctor who lost his medical license after he sexually abused a patient. She stated that reading this article resulted in the return of her suppressed memories of sexual abuse for the first time since the alleged assault.

After reading the article, the complainant spent five days preparing an outline of her suppressed memories of the alleged sexual assault by the defendant. She subsequently contacted the College of Doctors and Physicians and was encouraged to make a formal complaint. Following investigations by the College and statements made to the police, the defendant was charged with sexual assault and arrested on April 24, 2019.

Defence identifies “implausibilities and improbabilities” in complainant’s testimony

At trial, the Court reiterated the elements of the offence, as set out by the Supreme Court of Canada in R. v. Ewanchuk:

“The actus reus . . . is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person being touched.”

The defence submitted that there were a “number of implausibilities and improbabilities” in the complainant’s recollection of events from May 5, 2014. The defendant argued that he would not have engaged in a sexualized internal examination of the complainant in the circumstances, particularly as her daughter was present in the room and the examination room was close to the waiting room and reception. As a result, the defence submitted, someone would have heard her call for help. The defence also argued that given the defendant’s experience as a physician, she knew the proper procedures for conducting such an examination. Therefore, if the defendant failed to adhere to such guidelines (for example, by failing to leave the room while she got undressed), then she could have questioned him on the spot.

Defence cross-examines witness on prior inconsistent statements

While the Court acknowledged the witness’s credibility “must be judged in the overall context of the plausibility of the conduct they allege,” it was noted that the defendant had much to lose, and he would likely not have taken such a risk. However, the Court found that the complainant’s allegations were not implausible, despite her medical experience, as she was a patient and the defendant was her doctor.

The defence cross-examined the complainant regarding several prior inconsistent statements and changes in her evidence and memories over time concerning the events at the appointment and the disclosure of the incident to her husband.

The Court acknowledged several inconsistencies in the complainant’s evidence, but stated that “memory lapses are a normal product of the passage of time” and noted that her primary evidence regarding the alleged sexual assault remained the same. However, some issues warranted further consideration regarding the complainant’s credibility, including her inconsistent evidence of whether the defendant examined her daughter during the appointment in question.

Defendant acquitted due to inconsistencies in complainant’s evidence

In acquitting the defendant, the Court stated:

“I cannot be confident that [the complainant]’s present memory of the May 5, 2014 incident, forgotten for three and a half years, and then ‘remembered,’ was reliable in light of her demonstrated fallible and suggestible memory.”

While the Court found the complainant to be a “sincere and credible witness,” it was not satisfied beyond a reasonable doubt that her memory of the alleged sexual abuse was reliable. The Court identified several reasons to support this finding, including:

  • The complainant’s “generally poor, fallible and suggestible memory”;
  • The fact that the alleged sexual abuse ran parallel to the plot of the 2011 movie Hysteria, which the complainant had previously watched;
  • The complainant had no memory of the incident for over three years; and
  • That there was no “independent objectively reliable evidence” supporting the complainant’s allegations.

False memories can significantly impact the outcome of a criminal law trial, and it is not uncommon for a complainant to genuinely believe that an incident of abuse occurred despite the memory being untrue. While courts thoroughly assess a witness’s credibility, false memories can still result in serious miscarriages of justice.

Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Representation Against Sexual Assault Charges

The trusted criminal defence lawyers at Barrison Law understand the serious legal and personal consequences and social stigma associated with sexual assault allegations. We regularly advise and defend clients against charges of sexual offences, including child pornography and sexual assault. Our team is ready to assist you at any stage of the criminal justice process, from bail hearings to trial.

Our office is conveniently located just steps from the Durham Consolidated Courthouse. Please contact us online or call us at 905-404-1947 to schedule a confidential consultation with a member of our skilled team.