Have you ever heard the word “alibi” and wondered what it means? The Ontario Court of Appeal has your back as it released yesterday the case of R . v. Bushiri , 2019 ONCA 797, which is specifically on the alibi defence.

“Alibi” is Latin for “elsewhere”. In criminal law, an accused person charged with a criminal offence, may advance a defence of alibi, meaning that s/he was elsewhere at the time of the crime and therefore could not have committed the crime of which s/he is accused. 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” (par. 32).

Rules

However, there are rules regarding the use of the defence of alibi. Although the general rule in criminal law is that the Crown has an obligation under the case of Stinchcombe to provide disclosure to the defence of all materials related to the case that are in the possession of the Crown or under the control of the Crown, the defence has no obligation to disclose its defence to the Crown. An accused person is entitled (and actually should ) keep the defence secret and only reveal it at trial, as the trial unfolds. This rule about the defence secrecy, however, does not apply to an alibi defence.

Alibis At Trial

When the defence intends to advance an alibi at trial, the Crown must be notified in advance of the alibi defence in order to allow the Crown an opportunity to investigate the alibi. The reason behind this requirement is to prevent against the risk of fabrication at trial without allowing the Crown an opportunity to effectively challenge the alibi defence. Failure to comply with the requirement of timely disclosure of an alibi may put the defence at risk of having the trial judge make an adverse inference when weighing alibi evidence that is permitted (par. 34). This is exactly what happened in the case of Bushiri. In that case, the defence only notified the Crown of the alibi on the second day of trial. Though the trial judge permitted the alibi, the judge made an adverse inference based on the late disclosure of the alibi.