March 25, 1998
The Hon. Anne McLellan
Minister of Justice and Attorney General for Canada
239 Wellington Street
Ottawa, Ontario K1A 0H8
Under the direction of your predecessor in office, a special inquiry was conducted into a particular category of past criminal convictions, namely that of women found guilty of murdering their husbands; you were involved in acting on that inquiry’s conclusions. The ground for reopening all those cases was not the usual one applied in appeals of individual convictions (such as errors at the trial level or new evidence); rather, it was a new psychological concept (the “battered wife syndrome”), one not explicitly existing in law at the time of the original trial, but later deemed applicable to an entire group of cases.
Without considering the merits of the earlier inquiry, it has become increasingly plain that an urgent and powerful need exists for that type of governmental action in another category of cases. In recent years, a certain concept has been allowed uncritically into jurisprudence in Canada and elsewhere: that of “repressed” and later “recovered” memory. There was never any legitimate reason for regarding such alleged memories as trustworthy; but by this point in time it is perfectly clear that they are not.
In the past two years, professional associations of psychiatrists, psychologists and other mental-health workers in various countries (including Canada) have officially warned that such “memories” are so unreliable in general that their evidential value in any individual case is zero. In fact, great numbers of practitioners in those fields maintain that memory “repression” (an unconscious act, not mere forgetting) does not exist at all, certainly not in the case of serious trauma. But that debate is immaterial to the concerns of the Justice system; real or not, such alleged memories are too readily confused with the results of suggestion and confabulation to have any degree of reliability.
As realization of the total unreliability of “recovered memory” has taken hold in the justice community, courts in many places have responded appropriately. In the US, Appellate and Supreme Courts in New Hampshire, Michigan, Iowa, Minnesota, Tennessee, Texas, Rhode Island, Alabama, Pennsylvania, Illinois, Arizona, California, Wisconsin, North Carolina, Utah and Maryland have issued judgments recognizing the injustice of an accused being convicted on grounds of “recovered memory”.
And yet that now-discredited concept has by this point in time been applied in scores of court cases in our country. More recently, such “evidence” has not been allowed to hold sway in Canada either. But those men convicted under the older naive views continue to suffer – and some of them are still in prison because of it. Worse yet, courts in certain individual “repressed memory” cases in Canada have turned down appeals based on today’s greater awareness of how memory works – apparently on the narrow grounds that all was done properly under the jurisprudence of the time.
Because of these circumstances, the undersigned believe, there is only one just and proper thing for the Justice Minister to do: conduct an inquiry into this entire category of convictions, with a view to releasing forthwith all those prisoners who would not have been convicted but for the testimony of “recovered memories”.
Given the systemic nature of the original injustice, and given the failure of Canadian courts to act on the problem even in individual cases, and given the ongoing suffering of those convicted without any adequate grounds, it is absolutely imperative that you act on this matter without delay.
Yours very truly,
ALAN D. GOLD