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what is alibi?

The defence of alibi is a claim by the accused that he or she was elsewhere at the time of the commission of the offence and thus could not have committed the crime. Alibi requires that notice be given to the Crown.

The key to a successful alibi defence is that there is no possibility the accused could have committed the offence due to his or her absence (see R. v. Cleghorn, [1995] 3 S.C.R. No. 175. 

In R. v. Tomlinson, [2014] O.J. No. 930 the Ontario Court of Appeal effectively summarized alibi as follows:

 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: R. v. Hill (1995), 102 C.C.C. (3d) 469 (Ont. C.A.), at p. 478; and R. v. Wright, 2009 ONCA 62398 O.R. (3d) 665, at para. 19.

Second, to constitute an alibi the supportive evidence must be dispositive of the final issue of guilt or innocence of the accused: Hill, at pp. 478-479; R. v. Sgambelluri and Sgambelluri Ltd. (1978), 43 C.C.C. (2d) 496 (Ont. C.A.), at p. 500; and R. v. R.(M.) (2005), 195 C.C.C. (3d) 26 (Ont. C.A.), at para. 31.

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.(R. v. Tomlinson, [2014] O.J. No. 930 (Ont. C.A.).

Before advancing an alibi, it is important fully evaluate the defence.  The danger of advancing a false alibi is significant; for the accused must give notice to the Crown of his or her intention to advance the defence, the police may investigate the alibi; if the alibi is untimely, the trier of fact may be entitled to give the alibi little or no weight and if it is proven false, the trier of fact can draw an adverse inference against the accused. 

alibis for sale

As comical as this video "Prepaid Alibis" may be, advancing a false alibi is no joke.


SCC established rules to stop false alibis

The Supreme Court has established in Cleghorn supra, that to advance the defence of alibi the party making the claim (usually the accused) must give notice of his or her intention to argue the defence. 

Proper disclosure of an alibi has two components: adequacy and timeliness. The consequence of a failure to disclose an alibi properly is that the trier of fact may draw an adverse inference when weighing the alibi evidence heard at trial. Improper disclosure can only weaken alibi evidence; it cannot exclude it. The rule, which is one of expediency, is intended to guard against surprise alibis fabricated during testimony at trial. It has been adapted to conform to the Canadian Charter of Rights and Freedoms norms in that disclosure is proper when it allows the prosecution and police to investigate the alibi evidence before trial. The criteria of timeliness and adequacy are thus evaluated on the basis of whether a meaningful investigation could have been undertaken as a result of disclosure. Neither disclosure at the earliest possible moment, nor disclosure by the accused is necessary.

the alibi must have an air of reality

Advancing a weak alibi is far less serious than advancing a false alibi.  Defences range on a scale from false to completely honest; the in-between concerns air of reality.  "Air of reality" is the minimum standard for advancing a defence.  For a defence to have an air of reality it must be based on some evidentiary foundation.  As an aside, I have noticed that many Prosecutors and some judges are inclined to stop the accused from advancing a defence based upon a misunderstanding of what "air of reality" means.  To have an "air of reality" does not mean that the evidentiary foundation must be strong; rather, it only needs to exist. This means that even a defence having only a thin air of reality should be permitted to proceed.  

A defence having no air of reality sits closer to the false side, whereas a defence having a strong air of reality, may sit closer to the completely honest side. If after presenting the alibi evidence, the trial judge finds that there is no air of reality, the defence is not to be considered and it may be possible for the trier of fact to draw an adverse inference from the claim of alibi on the basis of fabrication.  Of course, every adverse inference instruction must be evaluated on a case-by-case basis.  It may also be that the trier of fact should not draw an adverse inference, but should merely give the defence little or no weight.  If, however, the alibi is proven false and the accused testifies to a falsehood, the accused may be susceptible to being charged with perjury -- a very serious criminal offence.  

The takeaway is that the defence of alibi often requires a skilled and strategic assessment by an experienced criminal defence lawyer. This is so because advancing a weak alibi could undermine the integrity of an accused's better defences.  Advancing a false Alibi could actually bolster the likelihood of conviction while at the same time, reinforcing the integrity of the conviction.

Alibi is a serious defence requiring a serious defence lawyer

There are many Alberta defence lawyers experienced in properly advancing a defence of alibi; but like in any profession there are some who are not and some who are not as qualified as others. If you are navigating Google to find Calgary criminal lawyers to help with your case, it is very important that you do your due diligence. Be careful. 

Unless you have good reason to do so, do not hastily hire the first criminal defence lawyer you consult. Remember, finding the right criminal lawyer for any case is a search -- a process -- that requires careful evaluation of the lawyer, his or her experience, communication skills, knowledge of the law and of course, cost.  

Call David Chow for a free telephone consultation. David has been a Calgary criminal defence lawyer for nearly two-decades.  He defended his first client in 1999 and won his first trial while he was still a student in first-year law school. Since then David has defended thousands of clients and won hundreds of trials.  

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