



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Bushiri, 2019 ONCA 797
DATE: 20191007

DOCKET: C64156

Watt, Huscroft and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Glodi Bushiri

Appellant

Howard L. Krongold, for the appellant

Elena C. Middelkamp, for the respondent

Heard: August 21, 2019

On appeal from the conviction entered on
    September 28, 2016 by Justice Peter D. Griffiths of the Ontario Court of
    Justice.

Jamal J.A.:

Overview

[1]

At common law, an accused who advances an alibi
    defence at trial must disclose the substance of that defence to the prosecution
    in sufficient time and with sufficient particularity to allow the authorities
    to investigate it before trial. When the accused does not do so, the trier of
    fact may draw an adverse inference when weighing the alibi evidence. The courts
    have recognized this qualification of an accuseds constitutional right to
    silence in order to guard against surprise alibis [being] fabricated in the
    witness box which the prosecution is almost powerless to challenge
: R. v.
    Cleghorn
, [1995] 3 S.C.R. 175, at para. 4; see also
R. v. Noble
, [1997]
    1 S.C.R. 874, at paras. 111-13;
R. v. Wright
, 2009 ONCA 623, 98 O.R.
    (3d) 665, at paras. 18-20; and
R. v. Hill
(1995), 25 O.R. (3d) 97
    (C.A.), at pp. 477-78.

[2]

At issue in this appeal is whether the trial
    judge erred by drawing an adverse inference when weighing the appellants alibi
    evidence because it was not disclosed on a timely basis and in disbelieving the
    explanation as to why it was not disclosed earlier.

[3]

The appellant was convicted of several offences,
    the most serious of which was shooting a handgun at Mr. Jean Isralon on a
    residential street in Ottawa just after midday on November 18, 2015. The shot
    narrowly missed Mr. Isralon.

[4]

Mr. Isralon had known the appellant for several
    years and identified him as the shooter from a photo line-up later that day.
    That evening the police contacted the appellants first lawyer, who was not
    trial or appeal counsel, to advise that they had grounds to arrest the
    appellant. The appellant immediately turned himself in to the police and remained
    in custody until trial, almost a year later. At no point in this interval did
    the appellant or his lawyer mention to the authorities that he might have an
    alibi.

[5]

Then, on the first day of trial, the appellant
    advised the Crown that he might be relying on an alibi defence. On the second
    day of trial, the appellant provided the Crown with notice of his alibi, his
    brother, who later testified that the appellant had been with him all day and
    therefore could not have been the shooter. The brother explained that he had not
    disclosed this to the authorities sooner because the appellants first lawyer had
    repeatedly told him not to do so.

[6]

The trial judge admitted the alibi evidence but
    gave it no weight, partly because of its late disclosure and partly because he
    found the brothers explanation for the late disclosure to be simply not
    believable. Based on Mr. Isralons evidence, the trial judge convicted the appellant.

[7]

The appellant now appeals his conviction on the basis
    that the trial judge erred on both grounds for giving the alibi evidence no
    weight.

[8]

As I will explain, I see no error in the trial
    judges ruling and would dismiss the appeal. First, the appellants alibi defence
    placed him elsewhere than the scene of the crime, and there was nothing in the
    facts of this case that would have put the Crown on notice of this. The trial
    judge was therefore entitled to draw an adverse inference when weighing the
    alibi evidence because of its late disclosure. Second, the trial judge was
    entitled to rely on his common sense and experience to disbelieve the
    explanation proffered by the appellants brother for not disclosing this alibi evidence
    earlier.

Background Facts

(a)

The prosecutions case

[9]

At trial, Mr. Isralon testified in detail about how
    the appellant shot at him.

[10]

On November 18, 2015, Mr. Isralon arrived at 955
    Debra Avenue, unit 61 in Ottawa at about 11:00 a.m. This was the home of his
    former girlfriend and the mother of his two children.

[11]

When the appellant  whom Mr. Isralon had known
    for several years arrived about 90 minutes later, the two of them argued because
    Mr. Isralon believed that his former girlfriend was working for the appellant
    as a prostitute. The argument escalated into pushing and punching. At one point,
    Mr. Isralon picked up a knife, but he put it down when his former girlfriend told
    him to do so. The appellant then pulled out a handgun holstered in a sock and
    threatened to shoot Mr. Isralon and Mr. Isralons former girlfriend.

[12]

After briefly trying to hide behind his former
    girlfriend, Mr. Isralon ran outside, jumped into his car, and sped away. When
    he saw that the appellant was not chasing him, he turned around to drive home,
    even though this would take him past the house again. Mr. Isralon saw the
    appellant cross the road with another man. When the appellant saw Mr. Isralon, he
    shot at him, hitting his car, penetrating the windshield, and only narrowly
    missing him. Mr. Isralon stopped the car at a restaurant and called the police just
    after 12:30 p.m. The police arrived and interviewed Mr. Isralon.

[13]

Mr. Isralons 911 call was played in court. The
    trial judge found that Mr. Isralons demeanour on the call supports his
    assertion that something serious had just happened. On the call, Mr. Isralon
    gave the police a detailed description of the appellant as the shooter, the
    appellants address, his street name, Shadow (he did not know his real name),
    and the colour of his clothing, all of which turned out to be accurate.

[14]

Later the same day, Mr. Isralon identified the
    appellant as the shooter from a photo line-up. The trial judge noted that
    [t]his is not an instance of a mistaken identity. Isralon well knew the
    accused and had just been in an argument with him at the house. This was not so
    much an identification as a recognition.

[15]

Mr. Isralon was subsequently threatened several
    times by others for reporting the appellant to the police. He complained to the
    police, but the threats continued.

[16]

Fearing for his safety, by February 2016 Mr.
    Isralon provided sworn statements recanting his identification of the appellant
    as the shooter.

[17]

In June 2016, Mr. Isralon attended the
    appellants bail hearing, where the appellants first lawyer gave the police
    Mr. Isralons sworn statement that the appellant was not the shooter. The
    hearing was adjourned to allow the police to investigate, and at that time Mr.
    Isralon explained to the police that he had recanted because of the threats.

[18]

At trial, in September 2016, Mr. Isralon
    returned to his initial story that the appellant was the shooter and explained his
    reason for recanting. As a result, the appellant was also charged with obstructing
    justice by attempting to intimidate Mr. Isralon into recanting his accusation.

(b)

The alibi evidence

[19]

The appellants brother, Mr. William Bushiri,
    testified for the defence. He, along with their mother, was one of the
    appellants two sureties for unrelated charges. The appellant was subject to a
    house-arrest bail, the conditions of which required him to reside with his
    surety at Williams address on Laurier Avenue West, Ottawa, and to remain in
    his residence, except for medical emergencies, to attend in court, meet with
    his lawyer, comply with a court order, or if otherwise with his surety.

[20]

Williams testimony was that, on November 18,
    2015, their mother dropped off the appellant at Williams apartment at about 9:00
    a.m. and they largely remained there together until 8:00 p.m., when the
    appellants lawyer picked him up for him to surrender to the police. Between 11:00
    a.m. and 12:00 p.m. or 12:30 p.m., William and the appellant were watching the
    first half of a soccer game between the Democratic Republic of Congo (the DRC),
    where they were from, and Rwanda at Williams apartment. At 12:00 pm or 12:30
    p.m.  around the time of the shooting, which was at about 12:30 p.m.  William
    and the appellant walked a few blocks to the apartment of another brother, Sylvain
    Bushiri, where they watched the second half of the game, before returning to Williams
    apartment somewhere between 2:30 pm and 3:00 p.m.

[21]

Thus, Williams testimony was that, at the time
    of the shooting, the appellant was with him either walking to or at his brother
    Sylvains apartment, and therefore he could not have been the shooter.

(c)

The trial judges ruling

[22]

The trial judge addressed three points.

[23]

First, the trial judge found that the alibi
    evidence did not raise a reasonable doubt that the appellant shot at Mr.
    Isralon, for the following reasons:

·

The soccer match  a key memory trigger for
    William  was not between the DRC and Rwanda but rather between the DRC and
    Burundi. Williams memory was therefore suspect.

·

Since the day of the shooting, William had made
    no notes of what happened that day, even though he had taken a two-year police
    foundation course where he had learned the importance of keeping notes.

·

While the alibi evidence was admissible, it was
    not entitled to any weight, partly because of its late disclosure and partly
    because Williams explanation for the late disclosure was not credible. The
    alibi defence was not disclosed properly until William testified in court, on
    September 8, 2016  day three of a four-day trial. The written alibi notice,
    given to the Crown on the second day of trial, provided inadequate specifics
    for the police to investigate. The written alibi notice stated: Please be
    advised that Glodi Bushiri has an alibi for the offence alleged to have been
    committed on November 18, 2015. Mr. Bushiri was with his surety William Bushiri
    on the date in question and did not attend at 955 Debra Ave. The trial judge
    noted that, between the arrest on November 18 and the beginning of trial in
    September, there was no hint of an alibi, even though the accused was denied
    bail and in custody throughout that time.

·

Williams explanation for why the alibi evidence
    was not disclosed earlier was simply not believable. William said he repeatedly
    told the appellants first lawyer  including on the night of the arrest and
    leading up to the bail hearing  that he could provide an alibi for the appellant,
    but the lawyer told him not to tell the police because it was not necessary, it
    would not help his brother, and the police would not do anything about it. The
    trial judge found that a defence lawyer knows the importance of timely
    disclosure of alibi evidence and he could not imagine a lawyer giving that
    advice, especially since the appellants first lawyer was very experienced.

[24]

Second, the trial judge found that Mr. Isralons
    evidence proved beyond a reasonable doubt that the appellant was the shooter. Mr.
    Isralon was both believable and compelling and testified in vivid detail. The
    trial judge therefore convicted the appellant of the shooting offences and breach
    of his bail conditions.

[25]

Finally, the trial judge was not satisfied beyond
    a reasonable doubt that the appellant was personally behind the threats to
    dissuade Mr. Isralon from testifying, and therefore acquitted him of obstructing
    justice.

Issues

[26]

The appellant claims that the trial judge erred by
    (1) drawing an adverse inference when weighing the appellants alibi evidence
    because of its late disclosure; and (2) disbelieving his brothers explanation
    for why the alibi evidence was not disclosed earlier.

Analysis

(a)     Did
    the trial judge err in drawing an adverse inference when weighing the
    appellants alibi evidence because of its late disclosure?

[27]

The appellants first ground of appeal is that the
    trial judge erred in law by drawing an adverse inference when weighing the
    appellants alibi evidence due to its late disclosure because, contrary to his
    trial counsels position, no alibi notice was required on the facts of this
    case.

[28]

The appellant says that the alibi notice rule
    must be applied purposively, and that where the rules purpose is not engaged,
    no alibi notice is required. The purpose of an alibi notice is to guard against
    a surprise alibi being fabricated in the witness box, which the prosecution is then
    effectively left powerless to investigate or dispute; but where the Crown could
    not have been surprised by the alibi defence, and thus was already in a
    position to investigate it, no alibi notice is required, and hence no adverse
    inference is permissible when weighing the alibi evidence, even if the alibi is
    not disclosed promptly.

[29]

Applying these principles to this case, the appellant
    says that the Crown could not have been surprised by the appellants alibi
    defence: in addition to the weapons offences, the appellant pleaded not guilty
    to breaching his house-arrest bail conditions, and thus impliedly claimed to
    have been with his surety at the time of the shooting, which was what his alibi
    witness, William, later testified at trial. Thus, no alibi notice was required.
    And because it was always reasonably open to the Crown to investigate the
    alibi, the trial judge erred by drawing an adverse inference when weighing the
    alibi evidence.

[30]

I do not accept the appellants argument.

[31]

The relevant legal principles are not in
    dispute.

[32]

Alibi is Latin for elsewhere. It is settled
    that [w]here an accused advances an alibi defence, he claims that as he was
    elsewhere he could not have committed the crime alleged. The alibi defence
    moves the factual focus from the facts alleged by the Crown to an entirely
    different factual scenario. But for the alibi defence, the factual scenario
    introduced by the alibi has no relevance to the Crowns allegation:
Wright
,
    at para. 19.

[33]

Put another way, [a]libi evidence, by its very
    nature, takes the focus right away from the area of the main facts, and gives the

defence a fresh and untrammelled start.
    It is easy to prepare perjured evidence to support it in advance:
Cleghorn
,
    at para. 22, citing R.N. Gooderson,
Alibi
(London: Heinemann
    Educational Books, 1977), at p. 30;
Wright
, at para. 19.

[34]

Where there is not timely disclosure of an alibi
    defence, the adverse inference when weighing alibi evidence that is permitted, but
    not required, is said to be a rule of expediency, given the risk of
    fabrication and the Crowns inability to effectively challenge alibi defences
    revealed long after the relevant events occurred:
Wright
, at paras.
    19-20. But the adverse inference can be justified only where the rationale for
    that qualification [of the right to silence] actually operates. Thus, if the
    alibi defence is disclosed in time to permit meaningful investigation of the
    defence, there are can be no justification for the [adverse inference]:
Wright,
at para. 20, citing
R. v. Hogan
(1982), 2 C.C.C. (3d) 557 (Ont. C.A.),
    at p. 566, leave to appeal to S.C.C. refused, 51 N.R. 154 (note), and
Cleghorn
,
    at paras. 3-5.

[35]

In this case, it is not disputed that the
    appellant did not make timely disclosure of his alibi defence: he disclosed it only
    on the second day of trial, almost a year after the shooting. At that time, the
    appellants trial counsel advised the court that he had been retained only a
    month before trial and conceded that under normal circumstances of course such
    [an alibi] notice would be filed well in advance.

[36]

The operative question is thus: did the Crown
    require disclosure of the appellants alibi defence sooner, in order to
    effectively investigate and respond to the defence actually advanced? In my view,
    it did.

[37]

The focus of the facts alleged by the Crown was
    that the appellant shot at Mr. Isralon outside 955 Debra Avenue in Ottawa. The
    Crown relied on the appellants presence at the scene of the shooting to
    support both the various weapons charges and the charge of breach of the bail
    conditions.

[38]

By contrast, the appellants alibi defence was
    that he was elsewhere  either walking to or at his brother Sylvains apartment
     and therefore could not have been the shooter. This defence moved the factual
    focus from the facts alleged by the Crown (presence outside 955 Debra Avenue) to
    an entirely different factual scenario (en route to or at Sylvains apartment).
    But for the alibi defence, the factual scenario introduced by the appellants brother
    had no relevance to the Crowns allegation that the appellant was the shooter. In
    sum, the appellants defence was entirely divorced from the main factual
    issues surrounding the
corpus delicti
:
Cleghorn
, at para.
    22;
Wright
, at para. 22.

[39]

Here, nothing in the facts or circumstances of
    the offences alleged, or in the police investigation, would have suggested that
    the appellant might have been with one brother in transit to or at another
    brothers apartment at the time of the shooting. The common-law alibi notice
    rule therefore required the appellant to provide timely disclosure of his alibi
    defence to permit the authorities to investigate it. Because the appellant did
    not do so, the trial judge was entitled to give his alibi evidence less weight.

[40]

The appellant nevertheless asserts in his factum
    that the the
corpus delicti
of this prosecution included not only the
    Appellants
presence
at the scene of the shooting, but also his
absence
from his brothers apartment (emphasis in original). As such, the appellant
    asserts that the Crown could not have been surprised by a defence that sought
    to rebut one of the elements that the Crown set out to prove as part of its
    case.

[41]

I disagree. The Crown was not required to prove
    a negative  the appellants absence from his brothers apartment. It was
    required to prove beyond a reasonable doubt that the appellant was the shooter,
    proof of which would inevitably establish the breach of several of the bail conditions
    beyond a reasonable doubt. This is exactly what the Crown set out to do.

[42]

Moreover, the appellants not-guilty plea to
    breach of his bail conditions did not sufficiently put the Crown on notice of
    his alibi defence, that he was with his brother William either walking to or at
    his brother Sylvains apartment. The appellants bail conditions permitted him
    to be in any number of places, with or without William: at Williams apartment with
    or without William, to be with his other surety (his mother), or to be at any
    number of other locations for medical emergencies, to attend in court, meet
    with his lawyer, or comply with a court order. On the facts of this case, it
    cannot be said that the appellants not-guilty plea put the Crown sufficiently
    on notice of his undisclosed alibi defence.

[43]

Lastly, the cases cited by the appellant, which are
    examples where no alibi notice was required on the facts of those cases, are
    distinguishable.

[44]

In
R. v. Mahoney
(1979), 50 C.C.C. (2d)
    380 (Ont. C.A.), at paras. 18-21, the court found that the police were aware of
    a witness who was crucial for the accuseds alibi defence and had called that
    witness as part of its case at trial. In those circumstances, the court held
    that where the Crowns witness was available to it at such an early moment, the
    Crown had notice of the accuseds alibi defence in sufficient time to allow the
    police to test it. As such, no alibi notice was required. In this case, by
    contrast, the prosecution had no reason to believe that the appellants brothers
    evidence was relevant to the factual scenario advanced by the Crown.

[45]

Similarly, in
Wright
, the accuseds
    defence came from an individual who, on the Crowns own evidence, was directly
    involved in the events leading up to the crime. On those facts, this court held
    that [t]he prosecution did not need advance notice from the defence to
    appreciate that [the individuals] version of events was relevant to its case
    against the [accused]: at para. 23. In any event, the court held that the
    defence was not properly characterized as an alibi defence as it did not
    involve placing the accused elsewhere than the crime, but rather was an
    admission of some involvement in the relevant events coupled with a denial of
    any involvement in the crimes: at para. 22. In this case, by contrast, the
    appellant did rely on a true alibi defence, and the Crown had no prior reason
    to believe the facts relied on for that defence were relevant to the facts advanced
    by the Crown.

[46]

For these reasons, I conclude that it was open
    to the trial judge to draw an adverse inference when weighing the appellants
    alibi evidence.

(b)     Did
    the trial judge err in rejecting the explanation for why the alibi defence was
    not disclosed earlier?

[47]

The appellants second ground of appeal is that
    the trial judge erred in rejecting the explanation proffered by the appellants
    brother, William, for not disclosing the alibi earlier.

[48]

The appellant argues that Williams uncontradicted
    evidence was that the appellants first lawyer repeatedly told William not to
    disclose the alibi evidence to the police. The appellant says that the trial
    judge erred in finding that, in the circumstances of this case, it was simply
    unbelievable that very experienced counsel such as the appellants first
    lawyer would advise William not to tell the police about the alibi and that he
    could not imagine the lawyer giving that advice. The appellant further argues
    that his first lawyer may have been wrong in his advice, as even competent
    counsel can err, and there may have been several legitimate strategic reasons why
    counsel discouraged William from disclosing the alibi evidence to the police.

[49]

I do not accept the appellants argument.

[50]

An appeal court must defer to the credibility
    findings of a trial judge, absent palpable and overriding error. Such deference
    recognizes the special position of the trier of fact on matters of credibility,
    including the advantage enjoyed by the trial judge of seeing and hearing the
    evidence of witnesses. An appeal court cannot intervene simply because it has a
    difference of opinion with the trial judge:
R. v. Gagnon
, 2006 SCC 17,
    [2006] 1 S.C.R. 621, at para. 10;
R. v. W.(R.)
, [1992] 2 S.C.R. 122,
    at p. 131; and
R. v. Canavan
, 2019 ONCA 567, at para. 36.

[51]

Here, it was open to the appellant to try to
    explain why his alibi evidence was not disclosed earlier, but equally it was
    open to the trial judge to reject that explanation. The trial judge was
    entitled
to
disbelieve Williams assertion that the
    appellants first lawyer repeatedly told him not to disclose the alibi evidence
    to the police, and to thereby let his innocent brother languish in custody for
    295 days.

[52]

Nor, in the circumstances of this case, was it
    erroneous for the trial judge to find that it was simply unbelievable that
    very experienced counsel would advise William not to tell the police about
    his alibi and that he could not imagine the lawyer giving that advice. While
    trial judges must be wary of stereotypical reasoning (
R. v. A.B.A.
,
    2019 ONCA 124, 145 O.R. (3d) 634, at paras. 5-7) and of second-guessing
    tactical decisions made by trial counsel (
R. v. Borde
, 2011 ONCA 534, 283
    O.A.C. 181, at para. 21), they are nevertheless entitled to rely on their
    common sense and experience in making credibility findings (
R. v. R.D.S.
,
    [1997] 3 S.C.R. 484, at para. 129).

[53]

Here, the trial judges finding did not involve
    a stereotype. Nor did it involve second-guessing counsels tactical decisions,
    as nothing else in the record suggests that the appellants first lawyer made a
    tactical decision to refrain from disclosing the alibi evidence. To the
    contrary, the record shows that trial counsel thought that an alibi notice was
    required and would have disclosed it to the Crown sooner had he been retained
    earlier. In short, the trial judge relied on his common sense and experience to
    reject what was, on the facts of this case, an inherently implausible explanation
    for the late disclosure of the alibi evidence.

[54]

In these circumstances, the trial judge was
    entitled to disbelieve Williams evidence. I see no basis for this court to
    intervene.

Disposition

[55]

I would dismiss the appeal.

Released: DW OCT 07, 2019

M. Jamal J.A.

I agree. David Watt J.A.

I agree. Grant Huscroft J.A.


