EXCERPTS FROM THE:
Judgments of the Supreme Court of Canada
Citation: R. v. Cleghorn,  3 S.C.R. 175
Date: September 21, 1995
R. v. Cleghorn,  3 S.C.R. 175
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.
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.
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