R. v. Broyles, (1991) 120 A.R. 189 (SCC)

• Judge: Gonthier, Cory, McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 28, 1991
• Jurisdiction: Canada (Federal)
• Citations: (1991), 120 A.R. 189 (SCC)

R. v. Broyles (1991), 120 A.R. 189 (SCC);

  8 W.A.C. 189

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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Emerson Raymond Broyles (appellant) v. Her Majesty The Queen (respondent)

(21316)

Indexed As: R. v. Broyles

Supreme Court of Canada

La Forest, L'Heureux-Dubé, Sopinka,

Gonthier, Cory, McLachlin and

Iacobucci, JJ.

November 28, 1991.

Summary:

The accused was convicted of second degree murder. The accused appealed, sub­mitting that his right to counsel under s. 10(b) of the Charter of Rights and Freedoms was denied. The accused also claimed his right to silence was infringed (Charter, s. 7), where a friend visiting the accused at the request of police wore a body pack recording device and obtained a statement.

The Alberta Court of Appeal, in a judg­ment reported 82 A.R. 238, dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The evidence obtained from recording the conversation between the accused and his friend violated the accused's right to silence and was not a reasonable limit prescribed by law. The evidence was to be excluded under s. 24(2) of the Charter and s. 686(1)(b)(iii) of the Criminal Code was not to be invoked.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that a detained accused's statement to an informer violated the accused's right to silence (Charter, s. 7) only where the informer was a state agent and elicited the statement - The test for whether an informer was a state agent was "would the exchange between the accused and the informer have taken place, in the form and manner in which it did take place, but for the intervention of the state or its agents?" - Elicitation involved issues of whether the state agent actively sought information in a manner akin to an inter­rogation and the relationship between the state agent and the accused (e.g., exploita­tion of special relationship with the accused, relationship of trust, manipulation of accused, etc.) - See paragraphs 20 to 33.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that s. 7 of the Charter of Rights and Freedoms included the right to silence, which included the right to choose whether to make a state­ment to authorities - The purpose of the right to silence was to limit the use of coercive state power to force an accused to incriminate himself, not to prevent indi­viduals from incriminating themselves per se - The court stated that "if the person to whom the impugned remarks [are] made is not an agent of the state, there will be no violation of the right to silence" - See paragraphs 16 to 21.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - The Supreme Court of Canada stated that "[i]n general, there will be no violation of the suspect's right to silence if the suspect volunteers the information, knowing he or she is talking to an agent of the state" - See paragraph 26.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal proceedings - Right to remain silent - A detained accused was suspected of murder - Police convinced the accused's friend to wear a body pack recording device and arranged a private conversation with the accused - The friend was not instructed to elicit a statement, but "interrogated" the accused - The friend exploited his special relation­ship with the accused - The Supreme Court of Canada stated that the friend was a state agent who elicited the statement from the accused, violating the accused's right to silence (Charter, s. 7) - The fact that the police did not instruct an informer to elicit a statement did not allow them to benefit from it - The police actions were not saved under s. 1 of the Charter - See paragraphs 34 to 40.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See fourth Civil Rights - Topic 3160 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police obtained a self-in­criminating statement from the accused through a denial of the accused's right to silence - The Supreme Court of Canada stated that the evidence was to be excluded under s. 24(2) of the Charter to avoid bringing the administration of justice into disrepute - Admission of the evidence would render the trial unfair and the viol­ation of the accused's right to silence was serious - See paragraphs 41 to 50.

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Life, liberty and security of the person - [See first and second Civil Rights - Topic 3160 ].

Criminal Law - Topic 5044

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscar­riage of justice - Where error is violation of Charter right - An accused was con­victed of murder by a jury on the basis of circumstantial evidence, including a state­ment taken in violation of the accused's right to silence (Charter, s. 7) - The Crown claimed s. 686(1)(b)(iii) of the Criminal Code should be invoked to dis­miss the accused's conviction appeal, because the verdict would necessarily have been the same - The Supreme Court of Canada refused to invoke s. 686(1)(b)(iii), because the excluded statement was im­portant evidence and it was possible that the jury would have a reasonable doubt as to the accused's guilt if the evidence were excluded from their consideration - See paragraphs 51 to 53.

Criminal Law - Topic 5338

Evidence - Witnesses - Confessions and voluntary statements - [See fourth Civil Rights - Topic 3160 ].

Cases Noticed:

Ibrahim v. The King, [1914] A.C. 599 (P.C.), refd to. [para. 9].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 9].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1, appld. [para. 16].

Maine v. Moulton (1985), 474 U.S. 159, refd to. [para. 29].

Illinois v. Perkins (1990), 110 S. Ct. 2394, refd to. [para. 29].

United States v. Henry (1980), 447 U.S. 264, refd to. [para. 33].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 37].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1, refd to. [para. 41].

R. v. Strachan, [1988] 2 S.C.R. 980; 90 N.R. 273, refd to. [para. 41].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 41].

R. v. Genest, [1989] 1 S.C.R. 59; 91 N.R. 161; 19 Q.A.C. 163; 45 C.C.C.(3d) 385, refd to. [para. 41].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 41].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1; 52 C.C.C.(3d) 193; 73 C.R.(3d) 129, refd to. [para. 41].

R. v. Sanelli, Duarte and Fasciano, [1990] 1 S.C.R. 30; 103 N.R. 86; 37 O.A.C. 322, refd to. [para. 41].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 41].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, refd to. [para. 41].

R. v. Greffe, [1990] 2 S.C.R. 755; 107 N.R. 1; 107 A.R. 1; 55 C.C.C.(3d) 161; 75 C.R.(3d) 257, refd to. [para. 41].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1; 77 C.R.(3d) 110; 56 C.C.C.(3d) 20, refd to. [para. 41].

R. v. Thompson et al., [1990] 2 S.C.R. 1111; 114 N.R. 1, refd to. [para. 41].

R. v. Kokesch, [1990] 3 S.C.R. 3; 121 N.R. 161, refd to. [para. 41].

R. v. Wong et al., [1990] 3 S.C.R. 36; 120 N.R. 34; 45 O.A.C. 250, refd to. [para. 41].

R. v. Smith (N.M.), [1991] 1 S.C.R. 714; 122 N.R. 203; 104 N.S.R.(2d) 233; 283 A.P.R. 233, refd to. [para. 41].

R. v. Evans, [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 41].

R. v. Elshaw (1991), 128 N.R. 241 (S.C.C.), refd to. [para. 41].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 51].

Colpitts v. The Queen, [1965] S.C.R. 739, refd to. [para. 51].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 40]; sect. 7, sect. 10(b) [para. 8]; sect. 11(c) [para. 49]; sect. 24(2) [para. 8].

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(a)(ii), sect. 686(1)(b)(iii) [para. 8].

Counsel:

Richard A. Stroppel, for the appellant;

Paul C. Bourque, for the respondent.

Solicitors of Record:

Brimacombe, Sanderman & Stroppel, Edmonton, Alberta, for the appellant;

Department of the Attorney General, Ed­monton, Alberta, for the respondent.

This appeal was heard on June 19, 1991, before La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada.

On November 28, 1991, the judgment of the Supreme Court of Canada was delivered in both official languages by Iacobucci, J.