R. v. Cleghorn (L.), (1995) 186 N.R. 49 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 24, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 186 N.R. 49 (SCC);[1995] SCJ No 73 (QL);186 NR 49;[1995] 3 SCR 175;41 CR (4th) 282;JE 95-1789;85 OAC 129;28 WCB (2d) 226;[1995] CarswellOnt 126;[1995] ACS no 73;32 CRR (2d) 41;100 CCC (3d) 393;1995 CanLII 63 (SCC)

R. v. Cleghorn (L.) (1995), 186 N.R. 49 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Lucien Cleghorn (appellant) v. Her Majesty The Queen (respondent)

(No. 24248)

Indexed As: R. v. Cleghorn (L.)

Supreme Court of Canada

Lamer, C.J.C., Sopinka, Gonthier,

Iacobucci and Major, JJ.

September 21, 1995.

Summary:

The accused was convicted of trafficking in cocaine. He appealed the conviction.

The Ontario Court of Appeal, Abella, J.A., dissenting, dismissed the appeal. (See para­graph 19 below). The accused appealed, arguing that the trial judge erred in law by characterizing the disclosure of the accused's alibi defence as untimely or insufficient.

The Supreme Court of Canada, Major and Sopinka, JJ., dissenting, dismissed the appeal.

Criminal Law - Topic 207

Common law defences - Alibi - The Supreme Court of Canada reviewed the principles applicable to raising an alibi defence - The court stated, inter alia, that the proper disclosure of an alibi has two components, namely adequacy and timeli­ness - 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 - Improper disclosure can only weaken alibi evidence; it cannot exclude the alibi - The rule governing disclosure of an alibi is a rule of expediency intended to guard against surprise alibis - Third party disclosure is sufficient to meet the criteria of adequacy - The court noted that the alibi rule has been adapted to conform to Charter norms - See paragraphs 4 and 20 to 28.

Criminal Law - Topic 207

Common law defences - Alibi - The accused was arrested after an undercover police officer allegedly purchased crack cocaine from him at 2:25 p.m. - There­after, his mother went to the police station, asked to speak to the officer in charge and told the officer, before speak­ing to her son, that the accused was with her watching television at 2:30 p.m. - The accused was charged with cocaine traf­ficking, but raised the defence of alibi - The judge ruled that the Crown was not appropriately advised of the alibi, noting that the mother's state­ment at the police station was too dis­jointed to constitute adequate disclosure of an alibi and thus drew an adverse infer­ence from the inad­equate disclosure (i.e., that the alibi was considerably weakened by the inadequate disclosure) - The accused was convicted - The Supreme Court of Canada affirmed the conviction.

Cases Noticed:

R. v. Letourneau (D.) and Tremblay (J.L.) (1994), 53 B.C.A.C. 81; 87 W.A.C. 81; 87 C.C.C.(3d) 481 (C.A.), refd to. [para. 3].

Russell v. The King (1936), 67 C.C.C. 28 (S.C.C.), refd to. [paras. 4, 21].

R. v. Hogan (1982), 2 C.C.C.(3d) 557 (Ont. C.A.), refd to. [para. 5].

R. v. Mahoney (1979), 50 C.C.C.(2d) 380 (Ont. C.A.), affd., [1982] 1 S.C.R. 834; 41 N.R. 582, refd to. [para. 20].

R. v. Dunbar and Logan (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 20].

R. v. Parrington (1985), 9 O.A.C. 76; 20 C.C.C.(3d) 184 (C.A.), refd to. [para. 20].

R. v. Ford (R.L.) (1993), 23 B.C.A.C. 50; 39 W.A.C. 50; 78 C.C.C.(3d) 481 (C.A.), refd to. [para. 20].

R. v. Taillefer (R.), [1989] R.J.Q. 2023; 26 Q.A.C. 246 (C.A.), refd to. [para. 20].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 23].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161; 36 C.R.(4th) 1, refd to. [para. 23].

R. v. Chambers (No. 2), [1990] 2 S.C.R. 1293; 119 N.R. 321, refd to. [para. 23].

R. v. Laverty (1977), 35 C.C.C.(2d) 151 (Ont. C.A.), refd to. [para. 32].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26; 87 C.C.C.(3d) 289, refd to. [para. 39].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 23].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 19].

Authors and Works Noticed:

Galligan, Patrick T., Advising an Arrested Client, Special Lectures of the Law Society of Upper Canada 1963, Part IV, Representing an Arrested Client and Police Interrogation, pp. 35, 42 [para. 17].

Gooderson, R.N., Alibi (1977), pp. 29, 30 [para. 22].

Martin, G. Arthur, Preliminary Hearings, Special Lectures of the Law Society of Upper Canada 1955, Evidence, p. 18 [para. 17].

Counsel:

Matthew Webber and Lisa Loader, for the appellant;

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

Solicitors of Record:

Matthew Webber, Toronto, Ontario, for the appellant;

Federal Department of Justice, Toronto, Ontario, for the respondent.

This appeal was heard on April 24, 1995, before Lamer, C.J.C., Sopinka, Gonthier, Iacobucci and Major, JJ., of the Supreme Court of Canada. The decision of the court was delivered in both official languages, on September 21, 1995, in­cluding the following opinions:

Iacobucci, J. (Lamer, C.J.C., and Gon­thier, J., concurring) - see paragraphs 1 to 9;

Major, J., dissenting (Sopinka, J., con­curring) - see paragraphs 10 to 42.