Alibi Defence

Yesterday’s decision in R. v. Wright, 2009 ONCA 62 deals well with the disclosure of an alibi defence.  An accused has a constitutional right to remain silent throughout the criminal process prior to conviction.  There are, however, some qualifications on that right.  One arises where an accused chooses to advance an alibi defence.  An accused who advances an alibi defence must make timely disclosure of the substance of that defence to the prosecution or run the risk of an adverse inference being drawn by the trier of fact from the failure to make timely disclosure.  The Court writes:

 

[17]         The criminal process is both accusatorial and adversarial.  Respect for individual autonomy and privacy dictates that when the prosecution levels a criminal accusation, it must investigate and prove its case without any compelled assistance from the target of that accusation.  The constitutional right to silence, the constitutional protection against self-incrimination and the constitutionally protected presumption of innocence all reflect the fundamental importance of the principle protecting an accused from conscription to the cause of the prosecution.  An accused is constitutionally entitled to say “prove it” and nothing more in answer to a criminal charge.  For convenience, I will refer to this constellation of constitutional rights as the right to silence:  see R. v. Noble (1997), 114 C.C.C. (3d) 385 (S.C.C.); R. v. Cleghorn (1995), 100 C.C.C. (3d) 393 (S.C.C.), per Iacobucci J. at para. 4, per Major J. (dissenting on another point) at paras. 20-23; R. v. Chambers (1990), 59 C.C.C. (3d) 321 (S.C.C.), at p. 341.

[18]         There are qualifications on the accused’s right to silence.  One such qualification arises where an accused advances an alibi defence.  If the accused fails to make timely disclosure to the prosecution of the substance of the alibi (or fails to testify in support of the alibi), the trier of fact may, not must, draw an adverse inference against the defence from that failure:  R. v. Noble, at para. 111; R. v. Cleghorn; R. v. Crawford (1995), 96 C.C.C. (3d) 481 (S.C.C.), at pp. 494-95; R. v. Chambers, at p. 343; R. v. P. (M.B.) (1994), 89 C.C.C. (3d) 289 (S.C.C.), at pp. 304-05; R. v. Hill (1995), 102 C.C.C. (3d) 469 (Ont. C.A.), at pp. 476-77. 

[19]         The qualification on the right to silence that arises where alibi is raised is said to be a rule of “expediency” borne out of the nature of the alibi defence.  The word “alibi” means “elsewhere”.  Where an accused advances an alibi defence, he claims that as he was elsewhere he could not have committed the crime alleged.  The alibi defence moves the factual focus from the facts alleged by the Crown to an entirely different factual scenario.  But for the alibi defence, the factual scenario introduced by the alibi has no relevance to the Crown’s allegation.  In the normal course, the Crown would have no way of knowing that the facts introduced by the alibi claim had relevance to the charge.  As R.N. Gooderson put it in his text, Alibi (London: Heinemann Educational Books, 1977), at p. 30, cited with approval by Major J. in Cleghorn, at para. 22:

Alibi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives a defence a fresh and untrammelled start.  It is easy to prepare perjured evidence to support it in advance.

[20]         The common law has responded to the risk of fabrication and the Crown’s inability to effectively challenge alibi defences revealed long after the relevant events occurred by permitting the trier of fact to draw an adverse inference against the veracity of those defences.  The constitutionality of this qualification on the right to silence has been accepted in this court and is not challenged on this appeal:  see R. v. Hill, at p. 477.^[1]  One cannot, however, lose sight of the fact that the adverse inference instruction is a qualification on constitutionally enshrined principles.  The qualification can be justified only where the rationale for that qualification actually operates.  Thus, if the alibi defence is disclosed in time to permit meaningful investigation of the defence, there can be no justification for the instruction:  see R. v. Hogan (1982), 2 C.C.C. (3d) 557 (Ont. C.A.), at p. 566; Cleghorn, at paras. 3-5.