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 per...