Evidence that a Non-Accused Third Party Committed the Offence

Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.

7.6 Evidence that a Non-Accused Third Party Committed the Offence

Note[33]

(Last revised March 2011)

[1] You have heard evidence suggesting that (NO3P) may have committed the offence charged.

[2] At the end of the case, it will be up to you to determine whether this evidence alone, or together with other evidence, raises a reasonable doubt about whether (NOA) committed the offence charged.

[33] Any person charged with an offence may adduce evidence that tends to show that a co-accused committed the offence provided it has sufficient probative value to justify its admission: R. v. Grandinetti, [2005] 1 S.C.R. 27. The evidence may be direct or circumstantial. It may include, but cannot consist only of, evidence of the third party’s motive or disposition to commit the offence. Without some other connection of the co-accused to the offence charged, however, evidence of motive or disposition is not admitted because it lacks probative value.

This instruction should only be given in cases where the trial judge is satisfied:

(i) that there is evidence, other than evidence of disposition, which sufficiently connects the co-accused to the offence charged to warrant admission of the disposition evidence; and

(ii) that the proposed evidence, whether of expert opinion, discrete acts of extrinsic misconduct, or both, alone or together with other evidence, is relevant and of sufficient probative value on the issue of disposition to justify its admission.

See R. v. McMillan (1975), 23 C.C.C. (2d) 160, 167-8 (Ont. C.A.), per Martin J.A.