Alibi Defence

I have an interesting topic for you today. And that’s the alibi defense. And so what is the alibi defense? We often hear that term. Well, I’ve got an alibi. First of all, the word alibi is a Latin term, which means elsewhere in the criminal law context, specifically, Canadian criminal law context, it means I have evidence that I was elsewhere at the time of the crime. So in other words, I could not have committed the crime because I was not there to where it was committed. So there’s a lot of rules about how we present an alibi defense in Canada.

So first of all, the first thing to know is that if you’re an accused, and you do have an alibi, and you have some solid evidence and alibi, you need to disclose it to your lawyer right away. What are the rules around that? Well, what I do and I’ve had the opportunity to present the alibi defense several times in my career successfully I might add, and what I do is this. I usually hire a private investigator to investigate the alibi very carefully. That’s so important. So for example, the person says, there’s a window of opportunity to commit a break and enter for example, or murder, whatever it is, serious crime. And the witness the client presents to me “ look, I was at a bar in such and such of time. I have this witness this witness and x witness, I have, I was using my cell phone at the other end of the city.” So you want to hire a private investigator. To get bar surveillance interview those witnesses, you know, get the GPS coordinates from cell phone, and they put that all together.

So as a lawyer, what I’ll do that is after I’m completely satisfied, you’ve got to be satisfied, because it can backfire. If its not a solid alibi it can completely backfire. I’ll explain why. So once you know that the alibi is true and accurate. There’s an obligation on you as a defense lawyer to present that alibi to the Crown sufficiently in advance of the trial, so that the police have an opportunity to fully investigate it. If you don’t do that, and this is a mistake that some rookie lawyers have made they just bring up an alibi at the trial. The judge. It comes to the judge’s attention that you didn’t disclose to the police sufficiently advanced of the trial to allow them to investigate. The judge can basically put a very low credence on the alibi can almost just basically ignore if they want, it’s kind of discretionary. But an alibi where you don’t give the chance of the police a chance to investigate is going to be discounted completely by a judge if not fully 100%. So that’s what we do.

I will, rather than giving a statement from the client that I don’t want to give a statement I outline in great detail. The exact nature of the alibi, I have this surveillance and this video here’s the video. Here’s the surveillance tower research the GPS coordinates who’s using the phone, the obviously the breaking and enter occurred between one and three, he was elsewhere at the time. If it’s a solid alibi, sometimes the crown will just withdraw the charge. Maybe they’ll come up with another theory about their timeline, of course on the breaking an enter or murder and that does happen, of course. So let’s assume that we then go to trial with this, Well, as a defense counsel, you’re going to want to then cross examine the Crown’s case, bit by bit, disclose the alibi with whatever surveillance you have and try and show that the client was elsewhere at the time of the crime and pin down the timeline and he couldn’t have done it. He wasn’t there.

So in a breaking and enter the case that I had a few years back, you know, the Crown had this theory about the timeline and was the only timeline for the breaking and enter because the homeowners were there before, my client couldn’t done it. They had a circumstantial case against my client. I didn’t think it was that strong. And I was surprised the crown frankly, didn’t withdraw the charge, but ultimately, we won the case. Now the burden of proof on the crown if there’s an alibi, the Crown has to prove beyond a reasonable doubt the absence of an alibi. In other words, that the alibi doesn’t apply. There’s no reasonable doubt that the clients lying essentially not through mathematical certainty, but they have prove beyond a reasonable doubt that the alibi does not apply. And then they’ll look at their circumstantial case, or their direct case after that, to see if they could prove the case beyond reasonable doubt. Now, the problem if a lawyer presents an alibi that’s got serious weaknesses and it’s totally exposed or even minorly exposed at trial has been a lie and made up which can happen easily if you don’t investigate it. Maybe your clients lying to you. The problem with that is the judge can use that as consciousness of guilt that you lied to try and get yourself out of the situation and use it as evidence of guilt against you, coupled with the other evidence in the trial. So in other words, defense counsel have to be very careful. You have to understand exactly when to disclose it. You don’t want to disclose it too early.

For various reasons. I don’t disclose it until I’m sure, to have investigated and then sufficiently in advance of the trial, which may be months before the trial to allow them to fully investigate and if you don’t know that law as a lawyer, you need to learn it. And you need to disclose this to your lawyer at the earliest possible opportunity. So they can preserve evidence because there might be text messages that need preserving GPS coordinates or whatever there’s their surveillance like the bar video might be overwritten in 30 days, the lawyers got to get on it right away. So there’s a little bit of a simplified primer on alibi evidence I was elsewhere at the time of the crime and I should be found not guilty and the way the lawyer has to present that booth to the crown, and then present it in court to try and create a reasonable doubt that you did not commit the crime.