Friday, February 28, 2014


R. v. Tomlinson, 2014 ONCA 158:

[48]    The principles that govern the defence of alibi are uncontroversial.  A brief reference to some of their features is sufficient for our purposes.

[49]    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 623, 98 O.R. (3d) 665, at para. 19.

[50]    Second, to constitute an alibi the supportive evidence must be dispositiveof 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.

[51]    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.

[52]    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.

[53]    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.

See, R. v. Parrington (1985), 20 C.C.C. (3d) 184 (Ont. C.A.), at p. 187; and R. v. O'Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), at para. 34.

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