[77] You may want to consider giving this instruction during a discussion of defences rather than during a discussion of the rules of evidence. Any person charged with an offence may adduce evidence that tends to show that a third party committed the offence provided it has sufficient probative value to justify its admission: R. v. Grandinetti (2005), 191 C.C.C. (3d) 449 (S.C.C.). 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 third party 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 third party 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.

[78] This instruction should be added to Final 11.2 where the alleged third party perpetrator is a witness at trial.