Alibi

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 95207)

General Principles

Generally, an "alibi" (latin for "elsewhere") refers to evidence that supports the claim that a person (usually the accused) was not present when the offence took place, rending his involvement impossible.[1]

Form of Evidence

Alibi evidence must be evidence that is "determinative of the final issue of guilt or innocence of the accused." It must be dispositive of guilt or innocence.[2]

An admission of being a party to some events making up the crime but not others is not an alibi. It must completely absolve the accused.[3]

An alibi must be subject to the Air of Reality Test before it can be put to the trier-of-fact.[4]

Where the Crown is on notice that alibi evidence will be called, the Crown is expected to call its evidence rebutting the alibi during its' case-in-chief and not during rebuttal.[5]

An alibi does not need to be proven, but rather it must simply raise a doubt.[6]

There is no requirement that an alibi be corroborated.[7]

Evidence that the accused had left the location of an assault before it took place is not alibi evidence.[8]

The application of the principles of alibi on a defence that is not actually an alibi may result in a reversable error where the pre-trial silence is used to reject the accused's evidence.[9]

Alibi Principles Not Otherwise Applicable

Where the accused's defence is not one of alibi, the trier of fact may not apply any principles to the case relating to the law of alibi.[10]This includes the accused's failure to come forward earlier with an explanation to the events at issue.[11]

Crown Rebuttal Evidence

The Court should generally not prohibit the Crown from calling rebuttal evidence in response to alibi evidence. The Crown is not required to anticipate alibi evidence by calling the rebuttal evidence during its case.[12]

  1. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 49 ("is a claim that a person, usually a person charged with a crime, was elsewhere when the allegedly criminal conduct took place and thus it was impossible for him or her to have committed it.")
    R v Hill, 1995 CanLII 271 (ON CA), 102 CCC (3d) 469, per Laskin JA at 478-79 ("it was impossible for the accused to have committed the crime charged because, at the time of its commission, the accused was elsewhere")
    R v Wright, 2009 ONCA 623 (CanLII), 98 OR (3d) 665, per Doherty JA, at para 19
    R v MR, 2005 CanLII 5845 (ON CA), 195 CCC (3d) 26, per Cronk JA, at para 31
    R v C(TW), 2006 CanLII 12286 (2006), 209 OAC 119, per curiam
  2. ↑ Tomlinson, supra, at para 50
    Hill, supra, at pp. 478 to 479
    R v Sgambelluri and Sgambelluri Ltd., 1978 CanLII 2514 (ON CA), 43 CCC (2d) 496, per MacKinnon ACJ, at p. 500
    MR, supra, at para 31
  3. ↑ Wright, supra
  4. ↑ Tomlinson, supra, at para 51
  5. ↑ R v Biddle, 1995 CanLII 134 (SCC), [1995] 1 SCR 761, per Sopinka J
  6. ↑ Lizotte v The King, 1950 CanLII 48 (SCC), [1951] SCR 115, per Cartwright J
    R v JBJ, 2011 NSCA 16 (CanLII), 947 APR 195, per Farrar JA, at paras 40 to 45
  7. ↑ JBJ, ibid.
  8. ↑ R v Melnychuk, 2009 BCSC 1695 (CanLII), per Powers J
  9. ↑ R v Rohde, 2009 ONCA 463 (CanLII), 246 CCC (3d) 18, per Laskin JA
  10. ↑ R v Rohde, 2009 ONCA 463 (CanLII), 246 CCC (3d) 18, per Laskin JA, at para 18
  11. ↑ Rohde, ibid.
  12. ↑ R v RD, 2014 ONCA 302 (CanLII), 120 OR (3d) 260, per Tulloch JA, at para 19

Jury Instructions

See also: Jury Instructions

In a jury instruction, there is no need for the judge to make specific reference to "alibi" provided that the "instructions apprise the jury of the legal effect of the supportive evidence."[1]

The instructions on alibi should establish that:[2]

  1. that there is no onus on the accused to prove an alibi;
  2. that if the jury believes the alibi evidence, they must find the accused not guilty;
  3. that even if the jury does not believe the alibi evidence, if they are left in a reasonable doubt by it, they must find the accused not guilty; and
  4. that even if the alibi evidence does not raise a reasonable doubt about an accused’s guilt, the jury must determine, on the basis of all the evidence, whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt.
  1. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, per Watt JA, at para 52
  2. ↑ Tomlinson, ibid., at para 53
    R v O’Connor, 2002 CanLII 3540 (ON CA), 170 CCC (3d) 365, per O'Connor ACJ, at para 34

Notice and Disclosure

All alibi evidence must be disclosed to the crown in a timely manner.[1] This is an exception to the rule of the right to remain silent. This is due to "the ease with which alibi evidence may be fabricated; and the diversion of the alibi inquiry from the central inquiry at trial."[2]

Disclosure must be adequate and timely. If the disclosure does not satisfy these requirements, the trier of fact may draw an adverse inference when weighing the alibi evidence at trial.[3]

The failure of the accused to testify on alibi may be used to draw an adverse inference about the credibility of the accused. The reason for this is that alibi evidence is "not directly related to the guilt of the accused" so the determination of the credibility of the alibi does not go to the ultimate issue of guilt.[4]

Sufficiency

The disclosure of the particulars of the alibi must be enough to "enable the authorities to meaningfully investigate."[5]

Timeliness

The disclosure must be early enough to permit the investigators times to conduct a meaningful investigation into the particulars provided.[6]

Failure to Provide Timely and Sufficient Disclosure

An accused who fails to provide sufficient and timely disclosure does not render the evidence inadmissible. Instead, the trier-of-fact is able to make an adverse inference on the credibility of the witness giving the evidence as police did not have the chance to properly investigate the claims.[7]

A judge should instruct a jury "that failure to make timely and sufficient disclosure of the alibi is a factor the jury may consider in assessing the weight to be assigned to the alibi."[8]

An adverse inference is not permitted to evidence separate from the alibi evidence. The instructions should not suggest that any such inference can be made.[9]

A recanting Crown witness who only notifies the Crown on the day of trial of the recantation does not constitute late disclosure of alibi.[10] No adverse inference may be drawn from such a scenario.[11]

Late notice, raising alibi during testimony, gives the Crown the option to call rebuttal evidence.[12]

  1. ↑ R v Cleghorn, 1995 CanLII 63 (SCC), 100 CCC (3d) 393, per Iacobucci J
  2. ↑ R v Noble, 1997 CanLII 388 (SCC), 114 CCC (3d) 385, per Sopinka J
  3. ↑ Noble, ibid., at para 111
  4. ↑ Noble, ibid., at para 112
  5. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII), 307 CCC (3d) 36, at para 121
    Cleghorn, supra, at para 3
    R v Letourneau, 1994 CanLII 445 , per Cumming JA, at p. 532
    R v Nelson, 2001 CanLII 5235 (ON CA), OAC 358, per curiam, at para 8
  6. ↑ Tomlinson, supra, at para 121
    Cleghorn, supra, at para 3
    Letourneau, supra, at p. 532
    Nelson, supra, at para 8
  7. ↑ R v Picot, 2013 NBCA 26 (CanLII), NBJ No 114, per Richard JA
    Tomlinson, supra, at para 122
  8. ↑ Tomlinson, ibid., at para 122
    Cleghorn, supra, at para 4
    Russell v The King, 1936 CanLII 323 (SCC), 67 CCC 28 (SCC), per Kerwin J, at p. 32
    Nelson, supra, at para 8
  9. ↑ Tomlinson, supra, at para 123
    R v Gottschall, 1983 CanLII 3596 (NS CA), (1983), NSR (2d) 86 (CA), per MacDonald JA, at p. 91
  10. ↑ R v Kelly, 2014 ONCA 380 (CanLII), per curiam
  11. ↑ Kelly, ibid., at paras 12 to 14
  12. ↑ R v RB, 2011 ONCA 328 (CanLII), 280 OAC 329, per curiam, at para 4

False Alibi as Consciousness of Guilt

Where an alibi is "proved false" the trier of fact may use that evidence as consciousness of guilt.[1]

There must be "evidence linking the accused to the fabrication" and cannot arise from "mere rejection of the alibi tendered."[2]

There is also suggestion that there must be "independent" or "extrinsic" evidence of fabrication.[3] The evidence must be independent of the evidence establishing guilt.[4]

Fabrication can be inferred from a statement or its contents in which it was given, which include consideration such as (1) timing of the statement (2) the scope of statement and (3) the degree of detail provided by accused.[5]

  1. ↑ R v Hibbert, 2002 SCC 39 (CanLII), [2002] 2 SCR 445, per Arbour J, at para 59
    R v Mirsayah, 2007 BCSC 1596 (CanLII), per Groberman J
    R v Polimac, 2010 ONCA 346 (CanLII), 254 CCC (3d) 359, per Doherty JA, at paras 90 to 92
    R v Tessier, 1997 CanLII 3475 (BC CA), 113 CCC (3d) 538, per Rowles JA, (“a disbelieved alibi is not ‘evidence’ and disbelief in the alibi evidence cannot provide, through circular reasoning, the foundation for an inference of guilt.”)
    R v Davison, DeRosie and MacArthur, 1974 CanLII 787 (ON CA), 20 CCC (2d) 424, per Martin JA
  2. ↑ Hibbert, supra, at para 59
  3. ↑ Mirsayah, supra, at paras 66 to 68
    Hibbert, supra, at para 59
    Tessier, supra, at para 68 (only permitted if there is “other evidence” that the alibi was deliberately fabricated and that the accused was attempting to mislead the finder of fact, that an inference of consciousness of guilt may be drawn – not from the failed alibi per se but from the attempt to deceive.")
    R v Blazeiko, 2000 CanLII 14726 (ON CA), 145 CCC (3d) 557, per curiam, at para 7
    R v Edwards, 2004 CanLII 32312 (ON CA), 187 CCC (3d) 129, per curiam, at para 33
    cf. R v Clifford, 2016 BCCA 336 (CanLII), 339 CCC (3d) 276, per Newbury JA
  4. ↑ Mirsayah, supra, at paras 66 to 68
    R v Tessier, 1997 CanLII 3475 (BC CA), 113 CCC (3d) 538, per Rowles JA
    cf. R v Pritchard, 2007 BCCA 82 (CanLII), 217 CCC (3d) 1, per Hall JA, at para 59 - suggests independent of the evidence that allowed for rejection of alibi
  5. ↑ R v MacIsaac, 2017 ONCA 172 (CanLII), 347 CCC (3d) 37, per Trotter JA, at para 48

See Also

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