Criminal Law Notebook

Alibi

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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]

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 alibi must be subject to the Air of Reality Test before it can be put to the trier-of-fact.[3]

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.[4]

An alibi does not need to be proven, but rather it must simply raise a doubt.[5]

There is no requirement that an alibi be corroborated.[6]

Evidence that the accused had left the location of an assault before it took place is not alibi evidence.[7]

The application of the princples 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.[8]

  1. ↑ R v Tomlinson, 2014 ONCA 158 (CanLII) 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), (1995), 102 CCC (3d) 469 (Ont. C.A.) 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 O.R. (3d) 665, at para 19
    R v M. R., 2005 CanLII 5845 (ON CA) at para 31
    R v C.(T.W.) 2006 CanLII 12286, (2006), 209 O.A.C. 119
  2. ↑ Tomlinson at para 50
    Hill, at pp. 478 to 479
    R v Sgambelluri and Sgambelluri Ltd. (1978), 43 CCC (2d) 496 (Ont. C.A.) (*no CanLII links) at p. 500
    R v R.(M.), 2005 CanLII 5845 (ON CA), (2005), 195 CCC (3d) 26 (Ont. C.A.), at para 31
  3. ↑ Tomlinson, supra at para 51
  4. ↑ R v Biddle, [1995] 1 SCR 761, 1995 CanLII 134 (SCC)
  5. ↑ Lizotte v The King, 1950 CanLII 48 (S.C.C.), [1951] SCR 115
    R. V .J.B.J., 2011 NSCA 16 (CanLII) at paras 40 to 45
  6. ↑ J.B.J., ibid.
  7. ↑ R v Melnychuk, 2009 BCSC 1695 (CanLII)
  8. ↑ R v Rohde, 2009 ONCA 463 (CanLII)

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) at para 52
  2. ↑ Tomlinson, ibid. at para 53
    R v O’Connor, 2002 CanLII 3540 (ON CA), (2002), 170 CCC (3d) 365 (Ont. C.A.), 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 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]

  1. ↑ R v Cleghorn, 1995 CanLII 63 (SCC), [1995] 3 SCR 175
  2. ↑ R v Noble 1997 CanLII 388 (SCC), [1997] 1 SCR 874
  3. ↑ Noble, ibid. at para 111
  4. ↑ R v Noble at para 112
  5. ↑ Tomlinson, supra at para 121
    Cleghorn, supra at para 3
    R v Letourneau 1994 CanLII 445 (BC CA), (1994), 87 CCC (3d) 481 (BCCA), at p. 532
    R v Nelson, 2001 CanLII 5235 (ON CA), (2001), 147 O.A.C. 358, 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. ↑ Picot v R., 2013 NBCA 26 (CanLII)
    R v Tomlinson, 2014 ONCA 158 (CanLII), at para 122
  8. ↑ Tomlinson, ibid. at para 122
    Cleghorn, supra at para 4
    Russell v The King (1936), 67 CCC 28 (SCC)(*no CanLII links) at p. 32
    Nelson, supra at para 8
  9. ↑ Tomlinson, supra at para 123
    R v Gottschall (1983), N.S.R. (2d) 86 (C.A.) (*no CanLII links) at p. 91
  10. ↑ R v Kelly, 2014 ONCA 380 (CanLII)
  11. ↑ Kelly, ibid. at paras 12 to 14

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) at para 59
    R v Mirsayah, 2007 BCSC 1596 (CanLII)
    R v Polimac, 2010 ONCA 346 (CanLII), per Doherty JA, at para 90 to 92
    R v Tessier (1997) 1997 CanLII 3475 (BC CA), 113 C.C.C. (3d) 538 (B.C.C.A.), (“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) 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont. C.A.), per Martin JA
  2. ↑ Hibbert, supra at para 59
  3. ↑ Mirsayah, supra at para 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), 2000 CanLII 14726 (ON CA), 145 C.C.C. (3d) 557 (Ont. C.A.), at para 7
    R. v. Edwards (2004), 2004 CanLII 32312 (ON CA), 187 C.C.C. (3d) 129 (Ont. C.A.), at para 33
    c.f. R v Clifford, 2016 BCCA 336 (CanLII)
  4. ↑ Mirsayah, supra at para 66 to 68
    R v Tessier 1997 CanLII 3475 (BC CA)
    c.f. R v Pritchard, 2007 BCCA 82 (CanLII) at para 59 - suggests independent of the evidence that allowed for rejection of alibi
  5. ↑ R v MacIsaac, 2017 ONCA 172 (CanLII) at para 48

See Also

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