The Ontario Court of Appeal recently recapped the main principles concerning an alibi defence in R. v. Tominlson, 2014 ONCA 158:
First, the Latin word “alibi” means “elsewhere”. When used in the context of criminal prosecution, an alibi 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.
Second, to constitute an alibi the supportive evidence must be dispositive of the final issue of guilt or innocence of the accused.
Third, alibi, as with any defence, justification or excuse advanced at trial, is subject to the air of reality test or standard described in R. v. Cinous, [2002] 2 S.C.R. 3: there must be some evidence upon which a properly instructed jury, acting reasonably, could acquit, if the jury believe the evidence to be true.
Fourth, a trial judge is under no obligation to use the term “alibi” in jury instructions on the defence, provided that, when read as a whole, the instructions apprise the jury of the legal effect of the supportive evidence.
Finally, instructions on alibi must relate reasonable doubt to the evidence adduced in support of the alibi. The instructions on alibi should make it clear:
i. that there is no onus on the accused to prove an alibi;
ii. that if the jury believes the alibi evidence, they must find the accused not guilty;
iii. 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
iv. 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.
Two other points concerning alibis are important. First, if an alibi defence is advanced, the defence must notify the prosecution far enough in advance to allow for the proper investigation of the alibi. If the defence does not notify the prosecution in advance, then the judge or jury may draw an adverse inference. This is one of the rare instances where the defence must disclose material in advance to the Crown.
Second, if an alibi is disbelieved there is a good chance that a judge or jury will draw inference that the accused is guilty. Strictly speaking, however, not every alibi which is disbelieved can support an inference of consciousness of guilt. There is a difference between an alibi which is simply not believed versus an alibi which is found to be concocted. Only an alibi which is concocted can properly support an inference of consciousness of guilt. Before the consciousness of guilt inference is available there must be evidence from which a reasonable jury could infer that the alibi was deliberately fabricated and that the accused was a party to that fabrication.
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