Alibi

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

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• < Defences

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.

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.

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.

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

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.

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

There is no requirement that an alibi be corroborated.

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

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.

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.This includes the accused's failure to come forward earlier with an explanation to the events at issue.

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.

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."

The instructions on alibi should establish that:

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.

Notice and Disclosure

All alibi evidence must be disclosed to the crown in a timely manner. 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."

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.

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.

Sufficiency

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

Timeliness

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

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.

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."

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.

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

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

False Alibi as Consciousness of Guilt

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

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

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

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.

See Also

• Alternative Suspect Evidence