“Alibi” is the Latin term for “elsewhere”.
In criminal law, when an individual claims that it is impossible for her to have committed the crime because she was somewhere else when the crime took place, she has an alibi. For example, in a case of armed robbery, the accused can argue that the Crown witnesses are mistaken in identifying him as the perpetrator because at the time robbery took place, he was at the movie theatre. If the alibi is believed, the jury must find the accused not guilty. An alibi will be more believable if there are reliable witnesses that can support the alibi. On the other hand, if the alibi is unproven or incomplete, the jury can use that against the accused.
The disclosure of an alibi involves two essential components – adequateness and timeliness. An adequate alibi is one that contains sufficient detail to allow the police to verify its validity. A timely alibi is one that is revealed to authorities well before trial. Timely disclosure of an alibi does not need to be made on arrest or at the first possible opportunity, it need only be revealed at a point that allows the police to meaningfully conduct a proper investigation about the alibi. The purpose of this rule is to prevent the fabrication of alibis during the accused’s testimony at trial.
There are several instances where the judge or jury are able to draw negative inferences from the alibi. In these cases, the accused is still permitted to present her alibi in court, however the credibility of the alibi is diminished, and the evidence is given less weight. First, if the accused fails to testify and expose herself to cross examination about her alibi defense, the alibi can be deemed not credible. The Crown is entitled to examine the accused’s alibi and test the evidence as a way to challenge the accused’s credibility. Alibi cases are unique, as they are a rare example where the accused does not enjoy a right to silence protected under the Canadian Charter of Rights and Freedoms. Second, if the disclosure of the alibi is inadequate or untimely, a negative inference can be drawn. Third, an adverse inference can be made from the fabrication of an alibi.
There is an important distinction between a false and fabricated alibi. A false alibi is one that is deemed untrue. It can be based on an honest but mistaken belief by the accused about their whereabouts at the time the offence took place. On the other hand, a fabricated alibi is not only untrue, it was also purposely created by the accused in order to mislead and deceive authorities. In other words, the accused deliberately lied about the alibi in order to divert suspicion away from himself. This difference is important, as it is only allowable for the judge or jury to make an inference of guilt where the accused fabricated an alibi. Therefore, mere disbelief of an alibi is not proof of guilt. If there is independent evidence that shows that the alibi was concocted, it can form an important piece of the Crown’s case against the accused. A disbelieved alibi, without other evidence of fabrication, has no impact on the Crown’s case.
The alibi does not need to be revealed by the accused himself. In other words, third party disclosure, for example from alibi witnesses or defence counsel, is permitted. In addition, there are some instances where disclosure of an alibi is not necessary. In situations where the police are aware of the people the accused was allegedly with when the crime took place, the accused is under no obligation to reveal their alibi to the authorities.
The best alibi is one that is supported by independent evidence or an impartial witness. While the mere fact that an alibi witness is a family member or friend of the accused cannot be sole reason why an alibi is rejected, a trial judge is nonetheless able to advise the jury to take this characteristic into consideration, as family and friends naturally have an interest in the favourable outcome for the accused at trial.
The lesson here is that while an alibi can be a powerful tool to defend against a criminal accusation, one should be careful about advancing an alibi, unless it is a solid one.