Ashwin C.

Panicker

1475

V Semester

LAW OF EVIDENCE ASSIGNMENT II

ALIBI EVIDENCE: RESPONSIBILITY FOR DISCLOSURE AND INVESTIGATION

(John Burchill)

The article primarily deals with the intricacies involved in the admission of alibi evidence in Canada and also
draws a small comparison with the codified laws of Australia and USA of Alibi disclosure. So the Common
Law rule essentially states that the submission of alibi evidence always shifts the burden of proof to the accused
unlike the normal circumstances where the accused is protected with the presumption of innocence. The success
of Alibi disclosure depends on two important elements: Adequacy and Timeliness.1 As far as Adequacy is
concerned, the troubles for the accused do not stop at the shift of burden of proof alone, failure to provide
ironclad alibi can actually be interpreted with adverse inference that it has been fabricated. And such
fabrication if proved, may lead to an assumption of some evidence of admission of guilt, which is a huge
backfire for the defence. The only respite for the Defence in such circumstances would be the fact that rejection
of alibi would not in itself convict the accused. 2 The Crown would need to prove the guilt beyond reasonable
doubt, the failure of which will acquit the accused.3 Such alibi which is merely misbelieved cannot be held as an
inference of guilt as there is no proof that the accused fabricated it on his/her own. 4 So the importance of an
ironclad alibi is sort of a prerequisite for raising alibi evidence leaving the accused with no reasonable
opportunity to be present at the scene of the crime at the time of commission of the crime.5

With regards to Timeliness, adverse inference is not only drawn at the failure of producing an ironclad alibi but
also at delaying the disclosure of such alibi. Since such delay can easily cloud the memory of all the parties
involved in such claim, the credibility of such alibi takes a hit. 6 Also, because the possibilities of fabrication
1
R v Letourneau (1994), 87 CCC (3d) 481 (BCCA)
2
R v Lalibertt, 2016 SCC 17 at para 4, [2016] 1 SCR 270 and Oland v R, 2016 NBCA 58 at para 8, [2016] NBJ No 288 (QL) (new
trial ordered), aff'd 2017 SCC 17, [2017]1 SCR 250 (but the issue of alibi was not argued before the Court) [Oland].
3
R v Allen, 2017 MBCA 88 at para 8, 142 WCB (2d) 71 [Allen MBCA].
4
R v Hibbert, [2002] 2 SCR 445 at 62-63, 211 DLR (4th) 223.
5
R v MR (2005), 195 CCC (3d) 26; [20051 OJ No 883 (QL) at para 29 (CA) and R v TWC, [2006] OJ No 1513 (QL); 209 OAC 119
at para 2 (CA).
6
R v Clifford, 2017 SCC 9, [20171 1 SCR 164, affg 2016 BCCA 336 at paras 30-32, affg 2015 BCSC 435 [Clifford].
increases much more in such scenarios. Nevertheless, the admissibility of such evidence is not in question as it
cannot be stopped from being called. But it does weaken the case for the accused and lead to an adverse
inference of guilt. So, the question of what time could be considered as delay of disclosure of alibi came in front
of the Court. It was ruled that any time which denies the prosecution and the police reasonable time to
investigate the alibi evidence before trial would be considered as delay of disclosure. 7

The interesting thing to note is the conflict of Charter Right of remaining silent and alibi disclosure. 8 The
accused will not be protected under the umbrella of this right in the case of alibi disclosure. Though the accused
may always choose to present witnesses for his/her alibi instead of being a witness himself/herself. But if that’s
not the case, the accused will be forced to waive his right of remaining silent. But the accused can be forced to
waive such right only on the application of “Case-to-meet” principle. Section 11(c) (right of the accused not to
be compelled to testify), Section 13 (right of witness not to have his or her testimony from one proceeding used
to incriminate him or her in a subsequent proceeding) combined with Section 11(d) (presumption of
innocence), can form a “case-to-meet” principle and only in such circumstances, there can be an expectation of
waiving of right of silence of the accused. 9 But in any case, the accused is well within his rights to maintain
pre-trial silence. This again can quickly backfire in case the alibi is proved to be false or fabricated which will
lead to a strong adverse inference. So the conflict of Right of Silence and Alibi disclosure can easily become a
double edged sword. Another important observation was that the accused is under is under no obligation to
disclose a potential alibi without the full knowledge of the prosecution’s case and the “case-to-meet” evidence.10

Then a different problem presented itself in R v Nelson in the form of cross examination disclosure of alibi.
This essentially means that the accused has not produced a defence of alibi in front of the court making it
undisclosed alibi but reveals to such extent in cross-examination. 11 The court ruled that the failure of the
defence counsel to provide an opportunity for prosecution to investigate such alibi will invite adverse
interference especially in cases where such alibi is not corroborated by the witnesses.

Another interesting issue before the court was whether the alibi notice made by the Defence Counsel can be
regarded a statement as an agent of the accused in R v Witter.12 The Court held that such notice is on par with

7
R v Cleghorn, [1995] 3 SCR 175, 186 NR 49 [Cleghorn].
8
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter]. S. 11(c) (right of the accused not to be compelled to testify) and S. 13 (right of witness not to have his or her
testimony from one proceeding used to incriminate him or her in a subsequent proceeding)
9
R v P (MB), [1994] 1 SCR 555 at 580, 113 DLR (4th) 461 [P (MB)].
10
R v Letourneau (1994), 87 CCC (3d) 481, 22 WCB (2d) 451 (BCCA)
11
R v Nelson (2001), 147 OAC 358, [20011 OJ No 2585 (QL) (CA).
12
R v Witter (1996), 105 CCC (3d) 44, 1996 CarswellOnt 325 (five-judge panel of the CA) [Witter].
any other statement by the accused himself/herself and has to be treated at the same footing. So alibi notice can
be called upon as evidence and prosecution has the right to refute such evidence. Interestingly, in USA, alibi
notice is not considered as evidence to be tested by the prosecution in case it is withdrawn before the trial. But
the same can be done to draw comparisons if the accused has presented a completely different alibi after such
withdrawal.13

However, in Australia, no such obligation has been placed on the defence counsel to give a notice to the
prosecution in the first place, let alone admitting as statement of accused.14 The reasoning they apply is that the
Common Law essentially deals with Adversarial legal system which always puts the onus of proof in the
prosecution. So according to them, no assistance should be provided to the prosecution in order to discharge
them of such onus. Australia has formed a uniform set of rules for alibi disclosure in Victoria Criminal
procedure Act, 2009. Section 190 in particular deals in detail with the procedural requirements of alibi
disclosure. The section has 8 sub-sections dealing with various facets like content requirement for alibi notice,
notice to DPP [Director of Public Prosecutions] within 14 days etc. It also talks about adjournment proceedings
in case notice has been served and adjournment has been requested by DPP.

United States of America has also framed legislations for alibi disclosure in most of the States. The rules are not
much different than Australia as notice requirement is 10-14 days after committal in writing. But the failure to
give a notice may result in adverse inference in USA unlike Australia. It was held in Williams v Florida that a
trial is not a poker game where one gets to conceal all his cards. Pleading the fifth would not help the cause of
the accused in Alibi disclosure.15 But a question was left unanswered in this case which was reciprocal
discovery by the prosecution as to what they did with the alibi evidence. The same was answered in Wardius v
Oregon which ruled that reciprocal discovery was pertinent to have a fair trial.16

Then the article talks about Winnipeg, a city in Manitoba, Canada, where no specific rules were framed but the
Winnipeg police published a report Inquiry Regarding Thomas Sophonow in which a lot of observations were
made. For instance, the interviewing of alibi witnesses done by officers other than the investigating officer and
how they should be treated with respect and courtesy. All these guidelines were essentially to provide sufficient
safeguards to such witnesses. These guidelines became a benchmark which the latter cases referred to.

13
People v Von Everett, 402 NW2d 773 (1986); People v Malone, 447 NW2d 157 (1989); People v Lorenzo McCray, Mich CA LC
#98-001064 (2001). See also People v Franklin Rodriguez, 2004 NY Int 147
14
Petty and Maiden v The Queen, [1991] HCA 34 at para 6, 173 CLR 95
15
Williams v Florida, 399 US 78 (1970).
16
Wardius v Oregon, 412 US 470 (1973)
To conclude, the article gives a lot of insights into nuances of Alibi disclosure under Common Law drawing
subtle comparisons of Canada with Australia and USA. The motive behind a risk of adverse inference I
presume, is that it will always prompts the accused to give an honest account of events and produce it timely for
maximum benefit. An ironclad alibi brings the proceedings to a standstill and such a privilege should be given
with a pinch of salt and hence the justifications made above seem very desirable.