R. v. Bushiri, 2019 ONCA 797

ALIBI EVIDENCE 

Background 

The Appellant shot at, but narrowly missed, Mr. Isralon. The two had been acquaintances for many years prior. Mr. Isralon identified the Appellant from a photo line-up the day of the shooting. The police phoned the Appellant’s first lawyer to advise they had grounds to arrest the Appellant. The Appellant turned himself in and remained in custody for about a year. The Appellant’s first lawyer never mentioned to authorities that the Appellant may have an alibi. On the second day of trial, the Appellant advised the Crown of his alibi (his brother). The brother testified that he did not come forward with the alibi sooner has the first lawyer (not the trial lawyer) had told him not to. The trial judge admitted the alibi evidence but gave it no weight due to the late disclosure and the brother’s lack of credibility in explaining the late disclosure. The Appellant was convicted at trial.

Issues on Appeal

The Appellant submits that the trial judge erred by (1) drawing an adverse inference against the Appellant’s alibi due to late disclosure, and (2) finding the Appellant’s brother’s explanation for late disclosure not credible.

Reasoning

An alibi notice is required to guard against the fabrication of last-minute, surprise alibis leaving the Crown unable to investigate or dispute the alibi. In circumstances where the Crown was already in a position to investigate a potential alibi, no notice is required and no adverse inference is permissible (even if the alibi is not disclosed promptly). An alibi defence, by its very nature, shifts the factual scenario alleged by the Crown to an entirely different factual scenario. When an alibi defence is not disclosed in a timely fashion, an adverse inference is justified on the basis of expediency, i.e. the Crown is unable to effectively challenge alibi defences revealed long after the incident in question.

 WHETHER AN ADVERSE INFERENCE CAN BE DRAWN AGAINST THE ACCUSED DUE TO LATE DISCLOSURE IS CONTINGENT ON WHETHER DISCLOSURE WAS REQUIRED FOR THE CROWN TO EFFECTIVELY INVESTIGATE AND RESPOND TO THE ALLEGED ALIBI.

In this case, timely disclosure was required. The Appellant’s alibi that he was with his brother (his surety on another charge) placed him in a completely distinct factual scenario that would require the Crown to investigate his whereabouts at the time of the incident. It was, therefore, open to the trial judge to draw an adverse inference when weighing the Appellant’s alibi evidence.

Absent a palpable and overriding error, an appeal court must defer to the credibility findings of a trial judge given the trial judge’s unique position to assess credibility of witness. It was open to the trial judge to make a credibility finding against the Appellant’s brother. The trial judge was in a position to disbelieve the brother’s testimony that the first lawyer repeatedly told him not to disclose the alibi evidence to authorities. Although the court warns of stereotypical reasoning, it was open to trial judge to rely on his common sense and experience to hold that an experienced lawyer would not tell an alibi witness such a thing.

What you Need to Know - the “Ratio”

An accused who advances an alibi defence must disclose the substance of that defence to the Crown (1) in sufficient time, and (2) with sufficient particulars to allow police to investigate it before trial. If the accused fails to do so, the trial judge is permitted to draw an adverse inference against the accused when weighing the alibi evidence.

Jamal JA, writing for the court, dismissed the appeal.