When is a Denial an Alibi?

The concept of an alibi is fairly simple. In the context of a prosecution, an alibi is a claim that a person – usually a person charged with an offence – was elsewhere when the allegedly criminal conduct took place, and thus it was impossible for him/her to have committed it.

If you are charged with an offence it can be quite helpful to have a solid alibi. If a person charged has an alibi it is not enough to simply wait for trial and call the witness who provides the alibi. Instead, an alibi is one of the rare situations where a person accused of an offence has some disclosure obligations.

Proper disclosure of an alibi requires that notice be provided sufficiently early in the proceedings for the Crown or police to investigate the veracity of the claim. The notice must also contain sufficient detail to allow that investigation to occur.

The consequence of a failure to disclose an alibi properly is that the trier of fact may draw an adverse inference when weighing the alibi evidence heard at trial

Improper disclosure can only weaken alibi evidence; it cannot exclude it. The rule is intended to guard against surprise alibis fabricated during testimony at trial.

In R. v. Heltman the question arose as to whether the accused was offering an alibi. He was charged with various dangerous driving, driving while prohibited and other driving offences. He testified that he was not the person behind the wheel of the vehicle that had been driven recklessly. He told the court in direct examination that he could not recall that date specifically but explained he was with friends and family the whole time he was in Prince George and did not drive a vehicle. In cross-examination he offered more specifics including the names of people he was with on the date of the alleged offences. Crown Counsel argued, and the trial judge agreed, that this amounted to alibi evidence and no notice had been provided. The trial was adjourned and Crown Counsel was given time to investigate and ultimately call rebuttal evidence. The trial judge rejected Mr. Heltman’s evidence in part due to the adverse inference he drew based on the lack of proper notice.

The message from this case is that if an accused is going to be calling evidence that they weren’t at the location of the alleged offence because they were with others, even if they do not recall many specifics, notice ought to be given

Of course, counsel will want to investigate whether anyone can corroborate the accused’s alibi before providing notice.