What is an Alibi?

Most people have probably heard of the term “alibi”. It means “elsewhere” (in Latin) and it’s used in criminal law to defend an accused person against allegations that he/she committed a crime by claiming that he/she was elsewhere at the time of the commission of the offence.

What is an Alibi?

If this can be proven, it’s a conclusive defence because nobody can be in two places at once i.e., there is no possibility the accused could have committed the offence due to his or her absence.

But what of an alibi does not hold up to scrutiny?

What if the prosecution can show that the alibi is false?

How is an alibi used in criminal defence?

During a criminal prosecution, when a defendant is accused of committing a crime, an alibi claims that this person was elsewhere when the alleged criminal conduct took place, making it impossible for him/her to be guilty.

For instance, if a man is accused of breaking and entering but can prove that at the time of the incident he was attending his son’s football game (witnesses saw him there and CCTV supports the claim), he cannot have committed the alleged crime and the jury must find him not guilty.

So, a strong alibi that can be proven will usually be enough to acquit a person of a crime. But, many times, “false alibis” are advanced to defend alleged criminal activity. This can be an extremely dangerous strategy for the defence.

In the majority of cases, the accused or the defence counsel of the accused must give notice to the Crown of his or her intention to advance the defence of alibi. The claim will then be investigated by the police.

If problems are discovered with the alibi or it is incomplete, little or no weight may be given to it. If the alibi is proven false or is not believed, an adverse inference can be drawn against the accused and a judge or jury may use the findings against him/her.

An adequate and timely alibi

The disclosure of an alibi is a rare example of a defence that requires both adequateness and timeliness to be valid:

  • An adequate alibi contains sufficient detail to allow the police to verify its validity
  • A timely alibi is revealed to authorities well before trial, allowing the police sufficient time to investigate.

So, the defence cannot introduce an alibi as a defence strategy at trial. It must be disclosed well beforehand.

Incomplete, false and fabricated alibis

An incomplete alibi can still be presented as a defence in court but less weight may be given to it by the judge or jurors and it can damage the defendant’s credibility.

Also, the credibility of the alibi may be questioned if the accused fails to testify and undergo cross-examination about the defence. There is no right to silence protected under the Canadian Charter of Rights in such cases and the accused is expected to testify so that the evidence can be tested.

If the alibi is proven to be false or fabricated, an adverse inference can be made and it is highly likely to negatively impact the outcome for the accused.

False and fabricated alibis are not the same:

  • A false alibi is deemed untrue and can be based on an honest but mistaken belief about the accused person’s whereabouts at the time of the offence.
  • A fabricated alibi is untrue AND purposely created to mislead and deceive authorities (i.e., a deliberate lie).

A judge or jury can make an inference of guilt where the alibi was fabricated but, technically, should not do so for a false or weak alibi. The disbelief of an alibi is not sufficient for a guilty verdict and more evidence will be required to convict the defendant.

Instructions to jurors on an alibi defence

If an alibi is disbelieved or weak (rather than proven to be fabricated) it may influence a judge or jury, who may infer that the accused is guilty — but it is not necessarily the case.

In fact, the Ontario Court of Appeal recently addressed the matter, outlining that the instructions on alibi to jurors should make it clear that:

  • There is no onus on the accused to prove an alibi.
  • If the jury believes the alibi evidence, they must find the accused not guilty.
  • Even if the jury does not believe the alibi evidence, if they are left in reasonable doubt by it, they must find the accused not guilty.
  • Even if the alibi evidence does not raise a reasonable doubt about an accused’s guilt, the jury must determine, based on all the evidence, whether Crown counsel has proven the guilt of the accused beyond a reasonable doubt.

Alibi and “air of reality”

An alibi is subject to the “air of reality” test, which is the weakest standard for advancing a defence at trial.

Under this standard, there must be some evidence upon which a properly instructed jury, acting reasonably, could acquit if the evidence is believed to be true. That does not mean that the evidence supporting the alibi needs to be strong — only that an evidentiary foundation exists.

So, an alibi with a weak “air of reality” may still be advanced by the defence at trial (though its chances of success may be limited). A defence without any air of reality may be deemed, essentially, false or fabricated and the judge may instruct that it is not to be considered and an adverse inference drawn from the claim of alibi.

If an alibi is proven to be false, he/she may even face a charge of perjury, which is another serious criminal offence.

Ultimately, the strongest alibi defences are supported by independent evidence or impartial witnesses. The defence of alibi should be handled only by a skilled and experienced criminal defence lawyer as a weak alibi has the potential to undermine a defence case and increase the likelihood of conviction.

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