Use of rejected alibi to show guilt

R v Avalak, 2015 NUCJ 04:

30. [33]  The Crown asks that I go further and find that the accused fabricated an alibi and that such a fabrication should be taken as consciousness of guilt. In my view, the law does not allow me to do so in this case. The law on alibi evidence is set out concisely in the following quotation from the Supreme Court of Canada in R v Hibbert, [2002] 2 SCR 445, 163 CCC (3rd) 129, at para 67 of the CanLII reported decision:

    Before turning to the application of the proviso in light of the above, it may be useful to summarize briefly the state of the law with respect to the rejection of a defence of alibi.

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In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value.

A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt.

In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission.

-- When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt.

-- In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn.

-- A fabricated alibi is not conclusive evidence of guilt.
(R v Hibbert, [2002] 2 SCR 445, 2002 SCC 39 (CanLII), online: <http://canlii.ca/t/51s0 >)

[See also: R v Maracle, [2006] OJ No 568, 206 CCC (3) 36; R v Carey, [1996] QJ No 3898 (QL), 113 CCC (3d) 74; R v Tessier, [1997] BCJ No 515, 113 CCC (3) 538 (BCCA)]