R. v. Laliberté

Wagner J. — This appeal as of right is based on the dissent of Hilton J.A. in the Quebec Court of Appeal. In Hilton J.A.’s view, the trial judge erred in not admitting in evidence out-of-court statements made by one of the victims and in giving the jury an instruction, the content of which was also erroneous, with respect to the fabrication of an alibi even though sufficient evidence had not been adduced to link the appellant to the fabrication of an alibi. The dissenting judge found that the trial judge’s instruction was so inappropriate and so seriously in error that the curative proviso of s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46 , was inapplicable.

The majority agreed with Hilton J.A.’s conclusion regarding the out-of-court statements of one of the victims and also agreed that the content of the instruction with respect to the fabrication of an alibi was erroneous. However, they found that deference was owed to the trial judge’s decision to give an instruction in that regard. Concluding that the case against the accused was overwhelming, they applied the curative proviso of s. 686(1)(b)(iii) of the Criminal Code .

We agree with the majority and with the dissenting judge that the instruction the trial judge gave with respect to the fabrication of an alibi was erroneous. A trial judge must specify in such an instruction that the fabrication of an alibi supports an inference of consciousness of guilt, but no more than that. The instruction in this case did not satisfy this requirement.

Moreover, there must be other evidence independent of the finding that the alibi is false on the basis of which a reasonable jury could conclude that the alibi was deliberately fabricated and that the accused was involved in that attempt to mislead the jury: R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.); R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445; R. v. Tessier (1997), 113 C.C.C. (3d) 538 (B.C.C.A.) (per Ryan J.A.).

However, we are of the opinion that, despite the trial judge’s errors, the evidence in the case at bar is so overwhelming that the trier of fact would inevitably have entered a conviction against the accused: R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.

For these reasons, the appeal is dismissed.