An expert witness has challenged the nature of memory in the trial of Brent Hawkes, a longtime leader of Toronto’s gay community who is facing one charge of indecent assault and one charge of gross indecency for allegedly having oral sex with a 16-year-old more than 40 years ago.

The Incident

Hawkes has been accused of performing sex acts on a teenage boy when he was a teacher in Nova Scotia’s Annapolis Valley. The alleged incident took place over 40 years ago, when Hawkes was still in his mid-20s.

Hawkes has denied the allegations. Hawkes was charged with indecent assault and gross indecency. He pleaded not guilty to both offenses.

The case against Hawkes is based almost entirely on the eyewitness testimonies of three witnesses. One man testified that when he was about 16 years old, Hawkes led him down a hallway during a drunken get-together at his trailer and forced oral sex on him in a bedroom. Two other witnesses corroborated his testimony.

The Expert’s Testimony

Hawkes’ attorney, Clayton Ruby, called Timothy Moore to testify for the defense.

Timothy Moore is a cognitive psychologist and the chair of the psychology department at York University’s Glendon College. Moore has testified as an expert in approximately 50 trials in both the United States and Canada.

Moore testified in Hawkes’ defense on November 21, 2016. Moore testified that it is not uncommon for people who have gaps in their memories to unconsciously insert memories into those gaps and adopt them as real. Moore stated that, “Memories can undergo a substantial amount of modification over time and the longer the time, the more opportunity for these kinds of misinformation effects to occur… The more often a memory is revisited, or recollected or rehearsed, the more confident the rememberer will be with its authenticity.”

Moore cautioned that, “I think we need to be concerned about the reliability of a 40-year-old memory anyway, simply because of the passage of time and the opportunity of misinformation effects.”

Moore also explained the phenomenon of “imagination inflation” where an imagined event over time becomes indistinguishable from an actual memory. Moore stated that imagination inflation is not uncommon and can be self-generated. Moore also stated that it was a “red flag” that the alleged victim’s testimony of his memories of the event continued to evolve.

Speaking about the alleged victim’s improving memories, Moore explained that, “If they’re still improving now…it appears to me that imagination inflation may be at work… ([T]he complainant) is ruminating on events that’s happened 40 years ago. That’s rich fodder for imagination inflation.”

Cross-Examination

Crown lawyer Bob Morrison cross-examined Moore. Morrison pointed to Moore’s testimony that people tend to remember events that are unique, significant, or personal. Morrison also pointed to testimony that indicated that incoherent or incomplete memories are not necessarily false.

Morrison asked, “Would an example of that kind of memory be a group of high school students going to a party and one of them observing a teacher performing oral sex on another participant of the party?” Moore responded, “Yes.”