Accounting for Law

Witness’s memory loss claim throws wrinkle into criminal case

A witness’s claim to a complete memory loss has raised unusual issues in a home invasion case, says Toronto criminal defence lawyer Tyler Smith, who defended one of the accused in the matter.

In a jury trial before Ontario Superior Court Justice Ken Campbell, the Crown applied, under s.  9 (2) of the Canada Evidence Act, for the right to cross-examine her own witness on the grounds that the woman, who claimed to have a complete memory loss, had given previous contradictory testimony.  

The witness is the sister of a man shot and injured in a November 2015 home invasion by two masked intruders, one brandishing a pellet gun, the other was alleged to be Smith’s client.

Smith’s client was charged with break and enter, using an imitation firearm, mischief, assault and aggravated assault. His co-accused pled guilty at a preliminary hearing.

At the preliminary hearing, the woman testified for two days in great detail about the attack, which occurred while she, her brother, and two friends were partying in a Toronto apartment.

“She said that once the shooting started it was a mad panic until they realized it wasn’t a real firearm. When the occupants realized it wasn’t a real firearm they kind of jumped the shooter and a brawl ensued,” says Smith, a partner with Hicks Adams LLP.

Fast forward to the trial this past June.

“She took the stand, answered a few questions from the Crown and then professed to have absolutely no recollection of anything that had happened that night,” Smith tells

She didn’t advance any plausible explanation for her memory loss, nor were there any injuries, medical concerns, or obvious psychiatric issues that could account for it, he says.

The first step before the Crown can bring a s. 9(2) application is to try to refresh the witness’s memory by putting to her portions of her prior evidence. The Crown did that, says Smith, but then the witness said, “No that does not help, I don’t remember.”

The prosecutors then asked for the jury to be excused and made the s. 9(2) application to cross-examine the witness on prior inconsistencies.

It is rare for a Crown to make such an application when their witness professes a total lack of memory, says Smith. But in some cases, judges have found an absence of recollection to be inconsistent with a prior statement, he says.

Smith argued against the Crown’s application. “We said, ‘Look there are no inconsistencies here. The witness is just saying that she doesn’t remember, and a lack of recollection is not an inconsistency,’” Smith says.

For the Crown’s application to succeed, she had to establish that the memory loss was feigned, he says.

Smith and his co-counsel pushed hard for the right to cross-examine the witness before the judge ruled on whether it was.

“We thought that fairness would dictate before he makes a decision about whether the memory loss is genuine or not that the accused have the opportunity to question the witness,” Smith says. 

“We would suggest other lawyers who find themselves in this kind of unique circumstance apply vigorously to the judge for the opportunity to cross-examine the witness before the judge makes a determination about the lack of memory.”

The judge ruled against the defence, however.

Smith notes if he had cross-examined the witness, he could have tried to bolster her claim of a memory loss in the hopes of persuading the judge it was genuine or at least he could not determine whether it was one way or the other, he says.

But Campbell did rule that the witness was faking it. He allowed the Crown to cross-examine her on five areas of inconsistency, mostly to do with her having recognized Smith’s client as being in the apartment and assaulting her.

Although the judge found that the witness was feigning her memory loss, he also found she never adopted the prior testimony she professed to be unable to recall, Smith says.

“Although the witness said, ‘I testified at the preliminary hearing. I testified truthfully. I would have answered every question truthfully,’ the law as it pertains to adoption is that if the witness’s evidence was that they have no memory of the prior statement they cannot be said to have adopted that statement,” Smith says.

Based on this finding, Smith applied to have a directed verdict of acquittal on the charge that his client assaulted the witness.

“Because no other witness testified that she was assaulted, the judge granted our directed verdict application and acquitted our client of that charge,” he says.

The jury, however, found the defendant guilty of the remaining charges.

 “It didn’t turn out the way we wanted but it was a tough case. We knew that from the get-go,” he says.

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