Wednesday, January 28, 2015

Use of rejected alibi to show guilt

R v Avalak, 2015 NUCJ 04:
  1. [33]  The Crown asks that I go further and find that the accused fabricated an alibi and that such a fabrication should be taken as consciousness of guilt. In my view, the law does not allow me to do so in this case. The law on alibi evidence is set out concisely in the following quotation from the Supreme Court of Canada in R v Hibbert, [2002] 2 SCR 445, 163 CCC (3rd) 129, at para 67 of the CanLII reported decision:

    Before turning to the application of the proviso in light of the above, it may be useful to summarize briefly the state of the law with respect to the rejection of a defence of alibi.

-- --


In the absence of evidence of concoction (deliberate fabrication) an alibi that is disbelieved has no evidentiary value.

A disbelieved alibi is insufficient to support an inference of concoction or deliberate fabrication. There must be other evidence from 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. It is the attempt to deceive, and not the failed alibi, that supports an inference of consciousness of guilt.

In appropriate cases, for instance if there were multiple accused, the jury should be instructed that the fabricated alibi may be used to place the accused at the scene of the crime, but may fall short of directly implicating him in its commission.

-- When there is evidence that an alibi was fabricated, at the instigation or with the knowledge and approval of the accused, that evidence may be used by the jury to support an inference of consciousness of guilt.

-- In cases where such an inference is available, the jury should be instructed that it may, not must, be drawn.

-- A fabricated alibi is not conclusive evidence of guilt.
(R v Hibbert, [2002] 2 SCR 445, 2002 SCC 39 (CanLII), online: < >)

[See also: R v Maracle, [2006] OJ No 568, 206 CCC (3) 36; R v Carey, [1996] QJ No 3898 (QL), 113 CCC (3d) 74; R v Tessier, [1997] BCJ No 515, 113 CCC (3) 538 (BCCA)] 

Tuesday, January 27, 2015

Failure to consider immigration consequences of sentence an error in principle

R. v. N. F., 2015 ONCA 51:

[11]       The failure to consider the specific immigration consequences of a carceral sentence of six months or more was an error in principle disentitling the sentencing judge's decision to the deference usually accorded to such decisions in this court. Left to consider the fitness of the sentence, as is our mandate under s. 687 of the Criminal Code, we are satisfied, however, that in this case and despite those consequences, the sentence imposed reflects no error.

Monday, January 26, 2015

Pole dancing?

Of the Law Societies of Upper Canada and Nunavut

Crown appeal from acquittal

R. v. K.C., 2015 ONCA 39:

[59]       On a Crown appeal from acquittal, the Crown must demonstrate first, an error in law and second, that the error was sufficiently significant to allow the appellate court to conclude that the verdict would not necessarily have been the same had the error not been made. The onus on the Crown has been described as "a heavy one": R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 15.

Sunday, January 25, 2015

Snow day

Of the Law Societies of Upper Canada and Nunavut

Consecutive and concurrent sentences

Cumulative punishments are known as consecutive sentences. This only applies to jail sentences, all other sentences run concurrently.

All sentences are presumed to be served concurrently. The Code provides for cumulative punishments at section 718.3:



Cumulative punishments
(4) The court or youth justice court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed;
(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed;
(c) the accused is found guilty or convicted of more than one offence, and
(i) more than one fine is imposed,
(ii) terms of imprisonment for the respective offences are imposed, or
(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or
(d) subsection 743.5(1) or (2) applies.
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.


Generally, sentences for offences that occur at separate occasions will be served consecutively.[1] While where the offences arise out of the same transaction, the sentences will be typically concurrent.[2] If the court does not indicate whether sentences are concurrent or consecutive it is presumed concurrent.[3]

Nevertheless, the decision of consecutive sentences is one entitled to deference.[4]

Sentences may be imposed consecutively in relation to a single transaction where the punishments protect "different societal interests" or "different legal interests".[5] A judge should consider the time frame within which the offences occurred, the similarity of the offences, whether a new intent or impulse initiated each of the offences and whether the total sentence is fit and proper under the circumstances.[6]

When deciding whether a sentence should be consecutive or concurrent, the court should consider 1) the time frame of the offences, 2) the similarity of the offences, 3) whether a new intent broached each offence, and 4) whether the total sentence is fit and proper.[7]

Certain sentences must be ordered to be served consecutively:

  1. Commission of indictable offence to advantage a terrorist group (s. 83.2 and s. 83.26)
  2. Instructing activity for terrorist group (s. 83.21(1) and s. 83.26)
  3. Instructing terrorist activity (s. 83.22(1) and s. 83.26)
  4. Instructing commission of offence for criminal organization (s. 467.13(1) and s. 467.14)

The decision on whether a sentence should be concurrent or consecutive "should be treated with the same deference owed by appellate courts to sentencing judges concerning the length of sentences ordered."[8]

  1. R. v. Dube 2006 QCCA 699 [1]; R. v. Howett (1982) BCCA
  2. R. v. Mascarenhas, 2002 CanLII 41625 (ON CA) [2];
    R. v. Veysey, 2006 NBCA 55 [3]
    R. v. Desmarest (1986), 2 Q.A.C. 151
    R. v. Charchuk (1973), 6 N.S.R. (2d) 519
  3. R. v. McCarthy 2005 NLCA __
  4. R. v. M.(T.E.), [1997] 1 S.C.R. 948, at para. 46
  5. R. v. Gillis, 2009 ONCA 312 [4]; R. v. Clarke (1994), 94 CCC 249(NSCA)
  6. R. v. G.A.W., (1993), 125 N.S.R. (2d) 312 (NSCA)
    R. v. Naugle, 2011 NSCA 33
  7. R. v. G.A.W., (1993), 125 N.S.R. (2d) 312 (NSCA);
    R. v. Naugle, 2011 NSCA 33 (CanLII), 2011 NSCA 33
  8. R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948 at para. 17