Canadian Criminal Law/Defences/Alibi

General Principles


Evidence constitutes an "alibi" where "the evidence at issue [is] determinative of the final issue of guilt or innocence of the accused." The evidence suggests that "it was impossible for the accused to have committed the crime charged because, at the time of its commission, the accused was elsewhere"[1]

An alibi does not need to be proven, but rather it must simply raise a doubt.[2]

All alibi evidence must be disclosed to the crown.[3] 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". [4] Where the defence does not give enough notice and not sufficiently particularized for the police to investigate prior to trial, an adverse inference may be drawn from this.[5]

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 credibility of the defence. The reason for this is that aibi 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.[6]

  1. 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
    R. v. Hill 1995 CanLII 271 (ON CA), (1995), 102 C.C.C. (3d) 469 (Ont. C.A.) at 478-79
  2. Lizotte v. The King, 1950 CanLII 48 (S.C.C.), [1951] S.C.R. 115
    R. V .J.B.J., 2011 NSCA 16 at para 40 to 45
  3. R. v. Cleghorn, [1995] 3 S.C.R. 175
  4. R v Noble [1997] 1 S.C.R. 874
  5. R v Noble at 111
  6. R v Noble at para 112