Supreme Court



Despite trial judge’s errors, trier of fact would inevitably have entered conviction

Accused was charged with first degree murder and attempted murder. Trial judge refused to admit in evidence out-of-court statements made by one victim and gave instruction with respect to fabrication of alibi. Accused was eventually convicted on both counts. Accused appealed against his convictions. Majority of Court of Appeal held that trial judge erred in not admitting in evidence out-of-court statements and in giving jury instruction with respect to fabrication of alibi. However, majority found that deference was owed to trial judge’s decision to give instruction in that regard. Concluding that case against accused was overwhelming, they applied curative proviso of s. 686(1)(b)(iii) of Criminal Code and confirmed convictions. Accused appealed as of right to Supreme Court of Canada. Appeal dismissed. Instruction trial judge gave with respect to fabrication of alibi was erroneous. Trial judge should specify in such instruction that fabrication of alibi would support inference of consciousness of guilt, but no more than that. Instruction in this case did not satisfy this requirement. Moreover, there should be other evidence independent of finding that alibi was false on basis of which reasonable jury could conclude that alibi was deliberately fabricated and that accused was involved in that attempt to mislead jury. However, despite trial judge’s errors, evidence in case at bar was so overwhelming that trier of fact would inevitably have entered conviction against accused. Therefore, convictions were upheld.

R. c. Laliberté (Apr. 29, 2016, S.C.C., McLachlin C.J.C., Cromwell J., Wagner J., Gascon J., and Brown J., 36712) Decision at 126 W.C.B. (2d) 478 was affirmed. 129 W.C.B. (2d) 153.

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