Loss of Memory is Direct Evidence of Nothing, but may be Circumstantial Evidence of Much

The significance of lack of memory was discussed in R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.J.):
...Absent expert evidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, “a complete loss of memory for a portion of time during a drinking episode.” In a sexual assault case this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), ‘[t] he parties testimony is usually the most important evidence in sexual assault cases.” Esau is particularly relevant to the case at bar because it is a sexual assault case involving a complainant with no memory of the relevant time. In Esau at 297, Justice Major said of the complainant's memory loss, “[a]ny number of things may have happened during the period in which she had no memory.” Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so [emphasis mine] (para. 18).

However, the absence of evidence of consent or lack thereof due to the impact of alcohol on a complainant’s memory is not necessarily fatal to the prosecution –
“It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time.”
R. v. J.R., at para. 20.
See also R. v. C.P., 2017 ONCJ 277 (CanLII), at para. 103 &104, where the fact that the complainant fell asleep or passed out was circumstantial evidence that allowed the court to draw certain inferences about her level of intoxication and her capacity/incapacity to consent to the sexual activity that had occurred.

Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca).

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