A recent decision from the Alberta Court of appeal demonstrates how important it is to hire a criminal defence lawyer who will pursue all legal and ethical steps necessary to secure an acquittal at trial. The decision also demonstrates how difficult it is to set aside a conviction on appeal.
R v Garford, 2021 ABCA 338 is a case where the accused was tried for the offences of sexual interference and sexual assault. The incidents involved a young female child who was between 4 and 10 years of age while the accused was in a relationship with her mother. Mr. Garford was represented by a criminal defence lawyer at his trial. The complainant testified and was cross-examined as to inconsistencies between her trial testimony in 2019 and her video taped statement that was taken in 2014. The complainant testified that she did not disclose aspects of her trial testimony in her previous statement because she recovered certain memories as a result of therapy. The accused did not challenge the integrity of the therapy received nor the veracity of the memories that the complainant purportedly recovered. Instead, he then testified that he did not do it and his lawyer argued that there were concerns with the complainant’s testimony because of these recovered memories. In the result the trial judge convicted the accused.
On appeal, the Court agreed with the findings of the trial judge, suggesting that he conducted: “a meaningful and detailed review of the complainant’s evidence, including the specific areas of concern raised by Mr Garford. The trial judge’s assessment of the complainant’s evidence satisfied him that he could not only reject Mr Garford’s evidence, but that it did not raise a reasonable doubt.”
Mr. Garford’s appeal was dismissed.
A person convicted of a sex crime can appeal the verdict or the sentence and have a higher court consider whether any errors occurred at trial or in sentencing. The difficulty that many convicted accused face in sexual assault trials is that Courts of Appeal are respectful and give significant weight to a trial judge’s assessment of witness credibility – the ability to tell the truth, and reliability – the ability to accurately recall events.
Thousands of people have found themselves facing criminal or civil litigation as a result of questionable memories. Sometimes these involve faulty memory of eyewitnesses to crimes, other times, these involve witnesses with recovered and even false memories. Studies have shown that memories can be distorted. Researchers have also successfully planted memories into the minds of otherwise healthy people. For example, in one case study, 70% of the participants were made to believe that they had committed a crime such as theft, assault, or assault with a weapon, simply by using memory-retrieval techniques in interviews.
Although hindsight is 20:20, one can only guess as to the evidence that was heard and disclosure available to the accused. The outcome in Mr. Garford’s case may have been different if he had challenged the integrity of the therapy and the veracity of the memories that the complainant purportedly recovered. This would have been a complex and costly process that would likely have resulted in a longer trial and delay. In addition, it would potentially involve an application to obtain the therapeutic records themselves and retaining an expert on recovered memories to assess the complainant and the transcripts of the proceedings.