R. v. Cleghorn, [1995] 3 S.C.R. 175

Lucien Cleghorn Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Cleghorn

File No.: 24248.

1995: April 24; 1995: September 21.

Present: Lamer C.J. and Sopinka, Gonthier, Iacobucci and Major JJ.

on appeal from the court of appeal for ontario

Criminal law ‑‑ Defences ‑‑ Alibi ‑‑ Disclosure requirements ‑‑ Defence weakened if disclosure requirements not met ‑‑ Third party conversation with police following arrest -- Whether alibi witness' conversation clearly indicating alibi ‑‑ If so, whether curative provisions of Criminal Code applicable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

The appellant was convicted of trafficking in cocaine. An undercover officer arrived at the scene of the transaction at 2:18 p.m. The half-minute transaction took place sometime thereafter and was completed not later than 2:25 p.m. The undercover officer identified the individual involved as the appellant, who was then arrested, at about 3:40 p.m. The appellant presented alibi evidence at trial that he was at home with his mother at the time of the alleged transaction. The trial judge considered this evidence to be significantly weakened because of want of formal disclosure of the alibi and noted that this finding may have had a significant effect on the outcome of the trial. A conversation which took place between the accused's mother and the police when she was arranging bail was considered to be inadequate disclosure of the alibi. The mother claimed during this conversation, which focused on determining the time of the arrest, that the accused was with her at 2:30, 3:00 and 3:15 p.m. An appeal to the Court of Appeal was dismissed. The issues here were whether or not the disclosure of the alibi evidence was properly characterized as untimely or insufficient, and if so, whether or not the conviction could nevertheless be upheld pursuant to the provisions of s. 686(1)(b)(iii) of the Criminal Code.

Held (Sopinka and Major JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and Gonthier and Iacobucci JJ.: Proper disclosure of an alibi has two components: adequacy and timeliness. 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, which is one of expediency, is intended to guard against surprise alibis fabricated during testimony at trial. It has been adapted to conform to the Canadian Charter of Rights and Freedoms norms in that disclosure is proper when it allows the prosecution and police to investigate the alibi evidence before trial. The criteria of timeliness and adequacy are thus evaluated on the basis of whether a meaningful investigation could have been undertaken as a result of disclosure. Neither disclosure at the earliest possible moment, nor disclosure by the accused is necessary. Third party disclosure is sufficient.

The timeliness of the disclosure was not at issue. The statement to the police by the accused's mother was unclear and confused and did not disclose sufficient detail and coherence to enable the police to undertake a meaningful investigation of the evidence supporting the alibi. The key factor to be considered was the time of the commission of the offence in question. The mother's statements to the police focused on the accused's whereabouts at the time of his arrest. The claim that he was with her at 2:30, at 3:00 and at 3:15 (the times the officer recited to her), did not strictly relate to the time of the commission of the offence, which was between 2:18 and 2:24. This fact undermined further the suggestion that this conversation was sufficient to put the police on notice as to the alibi. The assertion that the accused was not present at the location of the crime, when it was committed, is missing from the alibi. The trial judge was entitled to draw a negative inference based on the evidence before him.

Per Sopinka and Major JJ. (dissenting): The requirement that disclosure of an alibi defence be made is one of expediency, not of law. If the police are not given adequate notice to allow for an investigation of the alibi, the trial judge may draw a negative inference given the potential for fabricating alibi evidence. The disclosure requirements have been modified by Charter considerations, especially with respect to an accused's right to silence. Disclosure need only be made in sufficient time for the police to be able to investigate. It need not be made at the earliest possible time or in a formal manner. Disclosure may be made by a third party who is a witness to the alibi.

Disclosure of an alibi defence must include: a statement that the accused was not present at location of the crime when it was committed, the whereabouts of the accused at that time and the names of any witnesses to the alibi. Although formal disclosure of an alibi defence, either at a bail hearing, the preliminary hearing or by a letter from defence counsel to the Crown, is preferable where practicable, less formal disclosure may suffice, given the accused's right to silence. In this case, the charge was not sufficiently serious to warrant a preliminary hearing and the appellant was not represented by counsel at the bail hearing.

An overly strict approach to disclosure should not be applied. The mother's conversation with police constituted sufficient disclosure of the alibi defence. It was not so disjointed as to be unintelligible. The officer clearly understood that she was asserting that an arrest at 2:30 p.m. would have been impossible. A reasonable police officer would have assumed that this alibi was worth investigating. The officer, but not the mother, knew at the time of the conversation the exact time of the drug transaction. The evidence at trial indicated that the alibi covered the entire period. Here, the finding that the disclosure of the alibi defence was untimely and insufficient and the drawing of a negative inference such that the alibi defence was "considerably weakened" constituted errors of law.

The conviction cannot be upheld under the curative provision of s. 686(1)(b)(iii) of the Code. The outcome of the trial would not necessarily have been the same if the negative inference had not been drawn against the alibi evidence as was explicitly recognized by the trial judge. The alibi defence was the only defence relied upon and was clearly relevant to the issue of identification.

Cases Cited

By Iacobucci J.

Referred to: R. v. Letourneau (1994), 1994 445 (BC CA), 87 C.C.C. (3d) 481; Russell v. The King (1936), 1936 323 (SCC), 67 C.C.C. 28; R. v. Hogan (1982), 1982 3820 (ON CA), 2 C.C.C. (3d) 557.

By Major J. (dissenting)

R. v. Mahoney (1979), 1979 82 (ON CA), 50 C.C.C. (2d) 380, aff'd 1982 21 (SCC), [1982] 1 S.C.R. 834; R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13; R. v. Parrington (1985), 1985 3610 (ON CA), 20 C.C.C. (3d) 184; R. v. Ford (1993), 1993 843 (BC CA), 78 C.C.C. (3d) 481; Taillefer v. R., 1989 863 (QC CA), [1989] R.J.Q. 2023; Russell v. The King (1936), 1936 323 (SCC), 67 C.C.C. 28; R. v. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555; R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451; R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293; R. v. Laverty (1977), 1977 2067 (ON CA), 35 C.C.C. (2d) 151; R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129.

Statutes and Regulations Cited

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(b)(iii).

Authors Cited

Galligan, Patrick T. "Advising an Arrested Client", in Special Lectures of the Law Society of Upper Canada 1963, Part IV, Representing an Arrested Client and Police Interrogation. Toronto: Richard De Boo, 1963, 35.

Gooderson, R. N. Alibi. London: Heinemann Educational Books Ltd., 1977.

Martin, G. Arthur. "Preliminary Hearings", in Special Lectures of the Law Society of Upper Canada 1955, Evidence. Toronto: Richard De Boo, 1955, 1.

APPEAL from a judgment of the Ontario Court of Appeal, December 13, 1993, dismissing an appeal from a judgment of Harris Prov. Div. J., November 6, 1990. Appeal dismissed, Sopinka and Major JJ. dissenting.

Matthew Webber and Lisa Loader, for the appellant.

Michael R. Dambrot, Q.C., and Croft Michaelson, for the respondent.

//Iacobucci J.//

The judgment of Lamer C.J. and Gonthier and Iacobucci JJ. was delivered by

[1] Iacobucci J. -- I have read the reasons of my colleague Justice Major and, with respect, I do not arrive at the same conclusion he does. In my view, the trial judge did not err in concluding that there was inadequate disclosure of an alibi. The trial judge reviewed the applicable principles governing disclosure of an alibi and applied them correctly to the facts. His conclusions are supported by the evidence, and as such this Court should not intervene.

[2] Although I agree with the review of the facts stated by my colleague, I must underline one fact, namely, the importance of the time of the commission of the offence. As was noted by the trial judge, the main issue at trial was the whereabouts of the accused between 2:18 and 2:24 p.m. on July 26, 1990. The Crown alleged that at that time the accused was selling $40 worth of crack cocaine to an undercover officer. The accused countered that he was at home with his mother watching television.

[3] At issue in this appeal is whether the alibi defence raised by the accused at trial was properly disclosed to the Crown. As outlined by my colleague, proper disclosure of an alibi has two components: adequacy and timeliness. This principle was recently reiterated in R. v. Letourneau (1994), 1994 445 (BC CA), 87 C.C.C. (3d) 481 (B.C.C.A.), where Cumming J.A. wrote for a unanimous court at p. 532:

It is settled law that disclosure of a defence of alibi should meet two requirements:

(a)it should be given in sufficient time to permit the authorities to investigate: see R. v. Mahoney, supra, at p. 387, and R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13 at pp. 62-3 ... (Ont. C.A.);

(b)it should be given with sufficient particularity to enable the authorities to meaningfully investigate: see R. v. Ford (1993), 1993 843 (BC CA), 78 C.C.C. (3d) 481 at pp. 504-5 ... (B.C.C.A.).

Failure to give notice of alibi does not vitiate the defence, although it may result in a lessening of the weight that the trier of fact will accord it ....

[4] As stated above, the consequence of a failure to disclose properly an alibi is that the trier of fact may draw an adverse inference when weighing the alibi evidence heard at trial (Russell v. The King (1936), 1936 323 (SCC), 67 C.C.C. 28 (S.C.C.), at p. 32). However, improper disclosure can only weaken alibi evidence; it cannot exclude the alibi. My colleague correctly notes that the rule governing diclosure of an alibi is a rule of expediency intended to guard against surprise alibis fabricated in the witness box which the prosecution is almost powerless to challenge. Again as noted by my colleague, the development of the rule since its formulation in Russell shows that the rule has been adapted to conform to Charter norms. As such, disclosure is proper when it allows the prosecution and police to investigate the alibi evidence before trial. The criteria of timeliness and adequacy are thus evaluated on the basis of whether a meaningful investigation could have been undertaken as a result of disclosure. The flexibility of the standard is demonstrated by the fact that neither disclosure at the earliest possible moment, nor disclosure by the accused him- or herself is required in order for the criteria to be met. Third party disclosure is sufficient. Thus, the fact that Mrs. Foster allegedly made disclosure of the alibi instead of the accused is immaterial. What matters is whether she properly disclosed the alibi to police through her statements to them on July 26, 1990. To the extent that my colleague suggests that the trial judge discredited Mrs. Foster's attempts at disclosure because she was only a witness to the alibi, I must respectfully disagree. I cannot find any holding in the reasons of the trial judge that suggests that the accused's mother was, by being a witness to the alibi, incapable of meeting the criteria for disclosure of an alibi.

[5] Turning to the disclosure itself, I must immediately note that the timeliness of the disclosure is not at issue. Statements concerning potential alibis, made shortly after the arrest, are timely (R. v. Hogan (1982), 1982 3820 (ON CA), 2 C.C.C. (3d) 557 (Ont. C.A.)). The main difficulty with Mrs. Foster's statement to the police is that it is unclear and confused. Was there sufficient detail and coherence in Mrs. Foster's statement to enable the police to undertake a meaningful investigation of the evidence supporting the alibi? With great respect for my colleague, I am of the view that the trial judge did not err in finding that the statement was so disjointed that he could not imagine how her statement could be considered as a disclosure of an alibi, let alone adequate disclosure of an alibi. He characterized her words as a protest and an expression of disbelief at the arrest of her son. The trial judge heard Mrs. Foster repeat her words in the witness box; it was open to him to conclude that the statement was too unintelligible to alert police as to a possible defence of alibi. I cannot conclude that the findings of the trial judge in this regard are unreasonable or unsupported by the record.

[6] As I mentioned earlier, the key factor to consider is the time of the commission of the offence in question. Mrs. Foster's statements about her son's whereabouts concern the time of his arrest. This is understandable, as she probably assumed that the offence for which her son was arrested occurred just before his arrest. She claimed he was with her at 2:30, at 3:00 and at 3:15 (the times the officer recites to her), but this does not strictly relate to the time of the commission of the offence, which was between 2:18 and 2:24. This fact undermines further the suggestion that Mrs. Foster's words to police were sufficient to put them on notice of the fact that the accused was with his mother at the time relevant to the offence. In fact, it was open to the police to believe that Mrs. Foster was telling the truth about her son's whereabouts at 2:30, 3:00 and 3:15, without this causing them to think that at 2:18 the accused was not the person selling crack cocaine to an undercover officer. This is especially so since there is evidence in the record of a close proximity between the location of the offence and the residence of the accused. Thus, on the basis of my colleague's assessment of the three pieces of information required in order to disclose an alibi sufficiently, one very important one is missing -- an assertion that the accused was not present at the location of the crime, when it was committed. Given this fact, I cannot agree with my colleague that the trial judge erred in drawing a negative inference, as a result of the inadequate disclosure. Moreover, I do not find that the fact that the trial judge believed the evidence of Mrs. Foster concerning her conversation at the police station prevents him from drawing such an inference. The content of her conversation is not at issue; it is whether the words she uttered constituted disclosure. The trial judge concluded they did not, and thus was entitled to draw a negative inference.

[7] With this review as to the adequacy of the disclosure of alibi, I turn to the merits of the alibi. It is important to note that once the trial judge concluded that the alibi had not been adequately disclosed, he went on to review the evidence before him concerning the merits of the alibi. He concluded that he did not believe the accused and his mother with respect to the alibi; he noted there were inconsistencies in both the accused's and his mother's testimony. By contrast, he did believe the testimony of the police officers. He found that a reasonable doubt had not been raised with respect to the alibi and that as a result, the defence of alibi failed.

[8] Given the trial judge's findings on the merits on the alibi defence, I am not prepared to attribute any weight to his speculative remarks concerning the possible significance the alibi might have had in the event proper disclosure was made. The fact remains that the trial judge was barely convinced that Mrs. Foster's statement was a disclosure at all, let alone a sufficient one. To my mind, it is difficult to suggest that the trial judge erred in drawing a negative inference because disclosure was inadequate where he had doubts as to whether disclosure had been made at all. It is clear that the trial judge did not think much of the alibi defence to begin with. In summary, upon reading his reasons, I find that he was entitled to draw a negative inference concerning the alibi defence based on the evidence before him. His conclusions are supported by the evidence and should not be interfered with by this Court.

[9] I would dismiss the appeal.

//Major J.//

The reasons of Sopinka and Major JJ. were delivered by

Major J. (dissenting) --

I. Facts

[10] The appellant was convicted in the Ontario Court (Provincial Division) on a charge of trafficking in cocaine and sentenced to four months' imprisonment. An appeal to the Ontario Court of Appeal was dismissed, Abella J.A. dissenting.

[11] The appellant appeals as of right on the points of law raised in Abella J.A.'s dissent, i.e., whether the trial judge erred in law by characterizing the disclosure of the appellant's alibi defence as untimely or insufficient and if so, whether the error could be cured by the provisions of s. 686 of the Criminal Code, R.S.C., 1985, c. C-46.

[12] Evidence was lead that on July 26, 1990, at 2:25 p.m., a man sold $40 worth of crack cocaine to an undercover officer, Constable Norman, in the area of Jane and Woolner Streets in Toronto. That person was wearing a yellow shirt and black pants with an unusual haircut featuring the design of an arrow shaved into the side of his head. Upon the completion of the transaction, he walked north through a hydro field towards an apartment complex.

[13] At 3:40 p.m. Constable Norman saw the appellant, dressed in a brown muscle shirt and blue jeans, coming south through the hydro field from the apartment complex. At a distance of 50 feet, Constable Norman identified the appellant as the man who had sold him cocaine earlier in the day and gave a signal to other undercover officers who arrested the appellant.

[14] The appellant presented alibi evidence that he was at home with his mother, Marvelyn Foster, at the time of the alleged sale. Both the appellant and his mother testified that the appellant did not own a yellow shirt or black pants, that the appellant had worn a brown muscle shirt and blue jeans throughout the day in question, and that the appellant had been in the house watching television and writing letters throughout the entire episode of the soap opera "One Life to Live" which ran from 2:00 p.m. to 3:00 p.m. that day.

[15] The appellant's mother also testified that when she attended at the police station shortly after the appellant's arrest, she told the officers she was with the appellant at 2:30 p.m. Her trial testimony about this conversation was:

Q. Now did you talk to the police about where Devon [the appellant] was that day?

A. When I went there, there was police officer -- a woman officer and another officer. I don't know if she was a police, but she is in plain clothes. And I said:^__

"Good evening."

Nobody answer. So, the woman in the plain clothes, she was sitting aside and she was eating something. She come over and she say:^__

"Can I help you?"

I say:^__

"Yes. I hard [sic] that they had my son here. I would like to speak to the officer."

She showed me to a room and I was sitting in the room and he [sic] is going to get the officer. The officer come about 10 minutes before he came to talk to me. When he come, he stand over in the corner, like this, and I'm over there. So, he said:^__

"Can I help you?"

So, I explained to him and he was telling me that they are arresting him. I say -- we were there, talking. I say:^__

"What time did you hold him?"

He said:^__

"2:30"

I said:^__

"No. You couldn't hold him at 2:30. At 2:30, he was there."

He said:^__

"15 minutes after 3:00."

I said:^__

"You can't hold him at 3:00 o'clock. The guy was there watching Santa Barbara with me and he left to mail the letter and then he say he is going to work."

Q. And when you used the words "you couldn't hold him", you mean -- could you put that in other words? When you say to the police "you couldn't hold him then", do you mean that you couldn't have --

A. Arrest him at 2:30.

Q. Okay.

A. He had a paper in his hand. Then he put that paper down and I saw him pick up another paper and say:^__

"No, it's after 3:00."

II. Judicial History

A. Ontario Court (Provincial Division)

[16] The trial judge accepted the evidence of the appellant's mother with respect to the conversation which occurred between her and the officers at the police station, but he did not agree that this conversation was sufficient to constitute disclosure of an alibi defence:

It is with great respect that I find that the conversation with the mother and whoever she spoke to, whether it be one, or more than one police officer, or whether it was someone other than a police officer and whether it be male or female, was so disjointed and so unintelligible and so lacking in follow through and coherence, that I can't, for the life of me, make a finding and refuse to make a finding that this was disclosure of an alibi. I find that the comment, or the conversation, was nothing more than idle, perhaps, conversation, or some type of protest. I questioned what information the mother had with her at that particular time to be able to come up with the finding that she did come up with. In any event, I find that if, in fact, it was meant to be a disclosure of an alibi, it was inappropriate disclosure.

[17] The trial judge relied upon comments on the alibi defence contained in a lecture, "Advising an Arrested Client" by Patrick T. Galligan, in Special Lectures of the Law Society of Upper Canada 1963, Part IV, Representing an Arrested Client and Police Interrogation, 35. The author suggests (at p. 42) three methods for the disclosure of the defence of alibi: calling the witnesses of the alibi at the preliminary hearing, a statement by defence counsel at the end of the preliminary hearing giving the names, addresses and synopsis of the evidence of the witnesses, or a letter from defence counsel to the Crown Attorney setting out these details. The trial judge also quoted from a lecture, "Preliminary Hearings" by G. Arthur Martin, Q.C., in Special Lectures of the Law Society of Upper Canada 1955, Evidence, 1, at p. 18:

. . . the Supreme Court of Canada has held in R. v. Russell, 1936 323 (SCC), 67 C.C.C. 28, that where an alibi is not set up at an early stage in the proceedings, the trial judge is entitled to comment on the fact and the alibi is thereby considerably weakened.

[18] On the basis of these authorities, the trial judge held that the Crown was not appropriately advised of the defence of alibi, presumably because the alibi was not disclosed in the manner that was suggested by the authorities he relied on. As a result he held that the alibi was considerably weakened. The trial judge noted that the failure to disclose the alibi the way he thought proper may have had a significant effect on the outcome of the trial:

I find as a fact that the Crown was never appropriately advised that the defence of alibi would be put forward in this trial and I find -- unless someone can persuade me otherwise -- that the first that the Crown realized -- by "the Crown", I'm referring to the office of the Crown -- that an alibi would be put forward was today during the course of the trial. Accordingly, I must take the position that the alibi is considerably weak. It might have been significant if the Crown was appropriately advised of the alibi: of what would be said at the trial; of what witnesses might be of some assistance; the names and addresses of witness, or witnesses who might be able to support the alibi so that the Crown -- and upon instructions from the Crown, the police could investigate the alibi. That may very well have been of significant assistance to the accused, I don't know.

Following these cases that I have referred to and these various authorities that I have referred to, be they cases or articles or lectures that were given, the alibi is, of course, considerably weakened. In relation to the alibi, I accept the evidence of the Crown witnesses and reject the evidence of the accused and the defence witnesses.

B. Ontario Court of Appeal

[19] The endorsement reads:

In light of the strength of the identification evidence and the fact that the trial judge did weigh the alibi defence, we don't think that the adverse inference that he drew from the non-disclosure could have effected [sic] the outcome of the case. We would therefore dismiss the appeal. (Arbour J.A. and Austin J.A.)

Abella J.A. would have set aside the conviction on the ground that the trial judge erred in his characterization of the alibi evidence as untimely or insufficient and that this error could not be cured by the proviso.

III. Issues

1.Did the trial judge err in his characterization of the disclosure of the alibi evidence as untimely or insufficient?

2.If the trial judge erred in his characterization of the disclosure of the alibi evidence, can the conviction nevertheless be upheld pursuant to the provisions of s. 686(1)(b)(iii) of the Code.

IV. Analysis

[20] The governing principle on alibi evidence is that a failure to disclose an alibi at a sufficiently early time to permit it to be investigated by the police is a factor which may be considered in determining the weight to be given to it: see R. v. Mahoney (1979), 1979 82 (ON CA), 50 C.C.C. (2d) 380 (Ont. C.A.), aff'd 1982 21 (SCC), [1982] 1 S.C.R. 834, R. v. Dunbar and Logan (1982), 1982 3324 (ON CA), 68 C.C.C. (2d) 13 (Ont. C.A.), R. v. Parrington (1985), 1985 3610 (ON CA), 20 C.C.C. (3d) 184 (Ont. C.A.), R. v. Ford (1993), 1993 843 (BC CA), 78 C.C.C. (3d) 481 (B.C.C.A.), Taillefer v. R., 1989 863 (QC CA), [1989] R.J.Q. 2023 (Que. C.A.).

[21] The principle that an alibi defence ought to be disclosed to the Crown prior to trial has a long history in the common law. Hudson J., writing for this Court in Russell v. The King (1936), 1936 323 (SCC), 67 C.C.C. 28, at p. 32, held that it was a rule of expediency and not of law that an alibi should be set up at "the earliest possible moment" and that failure to do so could affect the weight to be given to the alibi evidence:

Apparently the Judge was quoting from Crankshaw, at p. 1103, where it is stated:^__"The defence of an alibi ought to be set up at the earliest possible moment and ought to include a statement of where the defendant was at the time of the taking place of the alleged offence."

This is not a statement of any rule of law but rather a statement of a rule of expediency in advancing the defence of an alibi and a test that may well be applied by a jury in weighing the evidence.

[22] The principal reason for drawing an adverse inference against alibi evidence in the absence of adequate notice to the Crown is because such evidence can readily be fabricated. This potential problem with alibi evidence is discussed by R. N. Gooderson in his text Alibi (1977), at pp. 29-30:

It must be conceded that there is good reason to look at alibi evidence with care. It is a defence entirely divorced from the main factual issue surrounding the corpus delicti, as it rests upon extraneous facts, not arising from the res gestae. The essential facts of the alleged crime may well be to a large extent incontrovertible, leaving but limited room for manoeuvre whether the defendant be innocent or guilty. Alibi evidence, by its very nature, takes the focus right away from the area of the main facts, and gives the defence a fresh and untrammelled start. It is easy to prepare perjured evidence to support it in advance.

[23] The potential for the fabrication of alibi evidence requires that a negative inference may be drawn against such evidence where the alibi defence is not disclosed in sufficient time to permit investigation. Nevertheless, it must be remembered that the requirement that an alibi defence be disclosed to the Crown prior to trial is an exception to the accused's right of silence: see R. v. P. (M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555, at p. 578, per Lamer C.J., R. v. S. (R.J.), 1995 121 (SCC), [1995] 1 S.C.R. 451, at p. 516, per Iacobucci J. Cory J. held in R. v. Chambers, 1990 47 (SCC), [1990] 2 S.C.R. 1293, at p. 1316, the right of an accused to pre-trial silence is basic tenet of our legal system which falls within the ambit of s. 7 of the Charter:

The importance of the principle was emphasized by Martin J.A. in R. v. Symonds (1983), 1983 3518 (ON CA), 9 C.C.C. (3d) 225 (Ont. C.A.), at p. 227:

It is fundamental that a person charged with a criminal offence has the right to remain silent and a jury is not entitled to draw any inference against an accused because he chooses to exercise that right.

Further the right to silence has now been recognized as a basic tenet of our legal system and as such is a right protected by the Canadian Charter of Rights and Freedoms. As a basic tenet of our law it falls within the ambit of s. 7 of the Charter. See R. v. Woolley (1988), 1988 196 (ON CA), 40 C.C.C. (3d) 531 (Ont. C.A.), and particularly R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151. It follows that an accused person has the right to remain silent at the investigation stage as well as at the trial.

[24] Respect for the accused's right to silence in the investigation stage has mandated some changes to the rule on the disclosure of an alibi from its original formulation by this Court in Russell, supra. As noted at the outset of this analysis, the appropriate requirement now is that the disclosure of the alibi is made sufficiently early to permit investigation by the police and not that it is made at the earliest possible moment nor that it is made in a particular way.

[25] It is no longer permissible to draw a negative inference against alibi evidence on the grounds that the accused did not disclose that alibi immediately upon arrest, nor to draw an inference that an innocent person would have made such immediate disclosure. In Parrington, supra, at pp. 187-88, Cory J.A. (as he then was) held that cross-examination of the accused by the Crown on the failure to disclose alibi evidence immediately upon arrest in order to establish his innocence was quite improper. LeBel J.A., writing for the Quebec Court of Appeal, chose the same approach in Taillefer, supra, at p. 2039:

[TRANSLATION] More recently, in R. v. Parrington cited earlier, Cory J.A. stated the following concerning this problem:

The governing principle is that a failure to disclose an alibi at a sufficiently early time to permit it to be investigated by the police is a factor to be considered in determining the weight to be given to the alibi evidence... Where, as in this case, there is adequate time for investigation then the time of disclosure is no longer a factor for consideration and no reference should be made to it in the charge to the jury. Those two grounds are sufficient in themselves to require a new trial.

As stated by Cory J.A., where an alibi is raised sufficiently early to permit it to be investigated, questions on this point should not be authorized or tolerated by the judge, any more than comments by the Crown in oral argument. They might violate the accused's rights to silence.

[26] The respondent argued that an alibi must be disclosed by the accused and that disclosure by third party is insufficient, even if that third party is the witness to the alibi. I disagree. It is another principle which arises from the right to silence at the investigative stage that disclosure of the alibi need not be made by the accused but may also be made by a third party who is a witness to the alibi.

[27] This latter principle is also a matter of common sense. For instance, if an accused were in an unconscious state at the time that the crime was committed, or for some other reason had no recollection of where he was at that time, there is no reason that his alibi should be given less weight merely because it is disclosed and supported by the evidence of third parties rather than by the accused himself.

[28] In Mahoney, supra, the accused was charged with murder. At trial he led evidence in support of an alibi defence that he had been at another house with a man called Weedmark at the time that the murder was committed. The accused did not notify the police of Weedmark at the time of the arrest nor did he bring him to the attention of the police. However, Weedmark notified police that the accused had been with him on the night prior to the murder and the Crown called Weedmark as a witness in order to establish when the accused had left Weedmark's residence. The trial judge instructed the jury that the failure of the accused to notify the police of the fact that he had been with Weedmark on the night before the murder might be taken into account in determining the weight to be given to the accused's alibi. The Ontario Court of Appeal disapproved of this instruction to the jury and Brooke J.A., writing for the court, commented at p. 387:

In such circumstances, where the witness called by the Crown was available to it at such an early moment, the appellant's alibi has been disclosed in time to afford the police a very adequate opportunity to test it.

The jury could only take from the charge that the failure to disclose the fact that he had been with Weedmark might be taken into consideration in determining the weight to be given to the appellant's alibi. That alibi depended upon Weedmark's testimony. The fact that the accused said nothing of Weedmark at the time of his arrest was of no significance in judging Weedmark's evidence ... .

Mahoney stands as authority for the proposition that no negative inference may be drawn against alibi evidence simply because the police became aware of that evidence from the witness to the alibi rather than from the accused person.

[29] Applying these principles to the case at bar, I find that sufficient disclosure of an alibi defence was made by the appellant's mother, Marvelyn Foster, when she appeared at the police station in order to bail out her son.

[30] The full description of that conversation from the testimony of Mrs. Foster is set out in the facts above. Although the trial judge accepted the truth of Mrs. Foster's testimony about this conversation, he held that it was too disjointed and unintelligible to constitute disclosure of an alibi. After consideration of the formal methods for disclosure of an alibi recommended to defence counsel in the 1963 lecture by Patrick Galligan (as he then was), the trial judge held that the disclosure of an alibi in an informal manner by the principal witness to the alibi was insufficient. In my opinion, the trial judge erred on both of these points.

[31] I respectfully disagree that the conversation recalled by Mrs. Foster at the trial was so disjointed as to be unintelligible. Although it is clear that she may have had some difficulty expressing herself lucidly in English in court, three important points are made in her testimony. First, Mrs. Foster specifically requested to speak to the officer in charge of her son's case and subsequently spoke to the officer produced to her. Second, when the officer produced to her suggested that the arrest had occurred at 2:30 p.m., she stated that this was not possible. She stated that the appellant had been with her at that time: "No. You couldn't hold him at 2:30. At 2:30, he was there." Third, the officer clearly understood that the appellant's mother was asserting that an arrest at 2:30 p.m. would have been impossible because he proceeded to suggest later times, until she was finally satisfied by his answer that the arrest took place after 3:00 p.m.

[32] The disclosure of an alibi should be given with sufficient particularity to enable the authorities to meaningfully investigate: see Ford, supra, at p. 505. In my opinion, three pieces of information are necessary for sufficient disclosure of an alibi defence: a statement that the accused was not present at location of the crime when it was committed, the whereabouts of the accused at that time and the names of any witnesses to the alibi: see Mahoney, supra, and also R. v. Laverty (1977), 1977 2067 (ON CA), 35 C.C.C. (2d) 151 (Ont. C.A.). The appellant's mother gave the police all of this critical information: the appellant could not have been present at 2:30 p.m., the appellant was at home watching television with his mother at that time, and she was the witness. Therefore, in my opinion, the discussion which the appellant's mother had with the police officer constituted sufficient disclosure of an alibi defence under the circumstances.

[33] My colleague, Justice Iacobucci, accepts the argument of the respondent that the disclosure of the alibi by the appellant's mother was insufficient because the alleged offence took place minutes earlier than the time covered by her disclosure. With respect I cannot agree with this overly strict approach to the contents of disclosure. The record indicates that although the officer arrived at the scene at 2:18, the drug transaction did not occur until 2:25 and lasted for only half a minute:

Q. Okay. And your transaction, you said, took place in almost half a minute?

A. That's correct.

Q. And it was at what time? What time did it happen?

A. I arrived in the area at 2:18 p.m. I was walking north-bound on Jane Street. It would have been approximately 2:25, 2:25 -- in between there sometime.

[34] In the conversation which the officer in charge had with the appellant's mother subsequent to the appellant's arrest, that officer suggested a number of times to the appellant's mother, one of which was 2:30. The mother clearly indicated that she was with the appellant at that time. When the alibi was disclosed, the officer, but not the mother, knew the precise time of the alleged offence. Given that the mother did not know what time the alleged offence had been committed, it is not surprising that the mother did not pinpoint the time of the alibi to the nearest minute. In my opinion, a reasonable police officer would have assumed that an alibi at the appellant's mother's house at 2:30 was worth investigating for a crime alleged to have been committed in a field at 2:25. At the time of the disclosure, the police did not have any information as to the distance between the appellant's house and the location of the drug transaction. The police could have ascertained whether the alibi disclosed for 2:30 also applied at 2:25. It should be noted that the evidence of the appellant and the mother at trial indicated that the alibi covered the entire period from 2:00 until after 3:00.

[35] The more formal disclosure of an alibi defence either at the preliminary hearing or by a letter from defence counsel to the Crown as suggested in the lecture referred to by the trial judge is preferable where practicable. Nevertheless, each case must be evaluated on its own facts and in some cases a less formal manner of disclosure may suffice, particularly when appropriate consideration is given to the accused's right to silence. In this case, the charge was not sufficiently serious to warrant a preliminary hearing and the appellant was not represented by counsel at the bail hearing, which would have been another appropriate time for formal disclosure of the alibi defence.

[36] Finally, it should be remembered that the drawing of a negative inference against alibi evidence is not a rule of law but a rule of expediency (Russell, supra) designed to protect against perjured testimony. Alibi evidence is not automatically "considerably weakened" by the failure to formally disclose the defence. As stated by Martin J.A. in Dunbar and Logan, supra, at p. 62:

The governing principle is that a failure to disclose an alibi at a sufficiently early time to permit it to be investigated by the police is a factor to be considered in determining the weight to be given to the alibi

evidence.... [Emphasis added.]

Thus, a judge must determine whether, in all the circumstances of the case, the untimeliness or insufficiency of the disclosure suggests that a negative inference should be drawn against the testimony.

[37] In this case, the main witness to the alibi disclosed the alibi to the police within a few hours of the arrest and before she had an opportunity to discuss the matter with the appellant. Moreover, the content of the alibi, (that the appellant had been at home watching television with his mother at the relevant time), was substantially the same as the evidence which she and the appellant gave in furtherance of the alibi defence at trial. In these circumstances, given that the trial judge accepted the testimony of the appellant's mother as to the conversation which occurred in the police station, there was no reason to draw an adverse inference against the alibi evidence.

[38] In this case, the trial judge found that the disclosure of the alibi defence by the appellant's mother was insufficient and therefore that alibi was not disclosed in a timely fashion. As a result, the trial judge drew a negative inference such that the alibi defence was "considerably weakened". In the circumstances of the case, the finding that the disclosure of the alibi was insufficient and the drawing of the negative inference constituted errors of law.

[39] The conviction in this case cannot be upheld under the curative provision of s. 686(1)(b)(iii) of the Code: see R. v. Arcangioli, 1994 107 (SCC), [1994] 1 S.C.R. 129, at p. 146:

The principles and tests to be applied under s. 686(1)(b)(iii) of the Criminal Code, the "curative provision", are a matter of settled jurisprudence. That section places a burden on the Crown to justify the denial of a new trial despite the presence of an error in the lower court. While the satisfaction of that onus is a condition precedent to the application of the curative provision, the curative provision need not be applied even if the onus is met. In Colpitts v. The Queen, 1965 2 (SCC), [1965] S.C.R. 739, at p. 744, the applicable test was stated to be whether "the verdict would necessarily have been the same if such error had not occurred". See also Wildman v. The Queen, 1984 82 (SCC), [1984] 2 S.C.R. 311, at pp. 328-29; R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, at p. 919; R. v. Broyles, 1991 15 (SCC), [1991] 3 S.C.R. 595, at p. 620; R. v. B. (F.F.), 1993 167 (SCC), [1993] 1 S.C.R. 697, at pp. 736-37; and R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599, at p. 617.

In this case the verdict would not necessarily have been the same if the trial judge had not erred by finding that the alibi defence was considerably weakened by the late disclosure.

[40] The alibi defence was the only defence relied upon by the appellant in this trial and it was also clearly relevant to the issue of identification which was the most contentious issue in the trial. The credibility of the appellant's witnesses and the Crown witnesses respectively was critical to the outcome of this trial. It cannot be said that the outcome of the trial would have been the same if a negative inference had not been drawn against the evidence given by the appellant's witnesses. The comments of Brooke J.A. in Laverty, supra, at p. 153, are equally appropriate in this case:

Crown counsel has urged us that if this was indeed in error, it was of no account, because the trial Judge had elected to believe the evidence of the Crown witness. We do not agree. The importance of this evidence was obvious. If the appellant's witness' evidence was misjudged because improper principles were applied in determining the weight to be given to it, the criteria for balancing the scales of justice may have been something other than the test of reasonable doubt. On this ground alone, the appeal must succeed.

[41] Furthermore, the trial judge stated that if he had not drawn a negative inference against the alibi evidence: "[t]hat may very well have been of significant assistance to the accused, I don't know." When a trial judge recognizes that the outcome may have been significantly affected by his decision on a point, it is clear that the conviction cannot be upheld under s. 686(1)(b)(iii) if the appellate court finds that the trial judge erred on that point.

V. Disposition

[42] In the result I would allow the appeal, quash the conviction of the appellant and direct a new trial.

Appeal dismissed, Sopinka and Major JJ. dissenting.

Solicitor for the appellant: Matthew Webber, Toronto.

Solicitor for the respondent: Federal Department of Justice, Toronto.