An alibi defence is a claim by the accused that she could not have committed the crime alleged because she was somewhere else when the crime took place. If, for example, the accused is charged with robbing a bank, but is able to prove that she was in a different city at the time that the bank was robbed she is entitled to be acquitted if that alibi evidence is accepted by the trier of fact as accurate and truthful.
The Judge or jury deciding the case must be careful not to consider an alibi that the Judge or jury happens to disbelieve as having evidentiary value. A fundamental distinction is made in our law between an alibi that is disbelieved and an alibi that is found to be fabricated. An alibi that is disbelieved is of no evidentiary value. It cannot be considered along with the rest of the evidence to contribute to a finding of guilt. An alibi that is found to be fabricated may support a finding of guilt. It may be considered as affirmative evidence of guilt. The rejection of alibi evidence as untruthful or unreliable does not constitute affirmative evidence of guilt.
An accused raising the defence of alibi is expected to make timely disclosure of the alibi evidence well before the trial. Timely disclosure of an alibi defence need not be made at the time of arrest but should be made at the first reasonable opportunity to allow the police or other authorities to conduct a meaningful and proper investigation of the alibi.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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