R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 SCR 595

R. v. Broyles, [1991] 3 S.C.R. 595

Emerson Raymond Broyles Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Broyles

File No.: 21316.

1991: June 19; 1991: November 28.

Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from the court of appeal for alberta

Constitutional law ‑‑ Charter of Rights ‑‑ Right to silence ‑‑ Accused visited by friend while in custody ‑‑ Visit arranged by police ‑‑ Conversation taped by friend with police body pack ‑‑ Whether evidence infringement of s. 7 right to silence ‑‑ Whether admission of evidence would bring administration of justice into disrepute ‑‑ Whether curative provisions of Criminal Code should be applied ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 7, 24(2) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(ii), (b)(iii).

Criminal law ‑‑ Right to silence ‑‑ Accused visited by friend while in custody ‑‑ Visit arranged by police ‑‑ Conversation taped by friend with police body pack ‑‑ Whether evidence infringement of s. 7 right to silence ‑‑ Whether admission of evidence would bring administration of justice into disrepute ‑‑ Whether curative provisions of Criminal Code should be applied ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 7, 24(2) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(ii), (b)(iii).

Evidence ‑‑ Tape recording of conversation between accused in custody and a friend ‑‑ Recording done by the friend wearing police body pack ‑‑ Visit arranged by police ‑‑ Whether evidence infringement of s. 7 right to silence ‑‑ Whether admission of evidence would bring administration of justice into disrepute ‑‑ Whether curative provisions of Criminal Code should be applied ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 7, 24(2) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(ii), (b)(iii).

Appellant was convicted of second‑degree murder and his appeal to the Court of Appeal was dismissed. All the evidence against the appellant was of a circumstantial nature. The police had arranged for a friend to visit the appellant, while the appellant was in custody, and provided the friend with a body pack recording device. A tape recording of the conversation, which established that the appellant knew of the time of the victim's death, was admitted into evidence. During the conversation, the friend encouraged the appellant to ignore his lawyer's advice that he remain silent and elicited information. At issue was whether the authorities obtained evidence of the appellant's conversation with the informer in a manner that violated the appellant's right to silence, including his right to choose whether or not to speak to the authorities.

Held: The appeal should be allowed.

The right to silence is triggered when the accused is subjected to the coercive powers of the state through his or her detention. This right protects against the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis must focus on both the relationship between the informer and the state and the relationship between the informer and the accused. The right to silence will only be infringed where the informer was acting as an agent of the state at the time the accused made the statement and where it was the informer who caused the accused to make the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? The right to silence in s. 7 will be violated only if both questions are answered in the affirmative.

In answering the threshold question of whether the evidence was obtained by an agent of the state, one should remember that the purpose of the right to silence is to limit the coercive power of the state. 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. The test for determining whether an informer is a state agent for the purposes of the right to silence is a simple one: 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?

Only if the answer to this question is in the negative will it be necessary to go on to consider whether the evidence in question was elicited by the informer. There will be no violation of the right to silence if the suspect freely decides to provide the information; for there to be a violation, the information must be actively elicited by the state agent. In deciding whether the information was elicited, two sets of factors should be considered to determine whether, considering all the circumstances, there is a causal link between the conduct of the state agent and the making of the statement by the accused.

The first set of factors concerns the nature of the exchange between the accused and the state agent. Looking at the conversation as a whole, did the informer conduct his or her part of the conversation as the accused would ordinarily have expected, or was the conversation the functional equivalent of an interrogation? The second set of factors concerns the nature of the relationship between the state agent and the accused: did the state agent exploit any special characteristics of the relationship to extract a statement?

The authorities may not take the benefit of the actions of their agent who exceeds his or her instructions. To hold otherwise would be to ignore the fact that the primary emphasis of the right to silence in s. 7 is on the use of the coercive power of the state against the suspect. The authorities ought not to be able to shield themselves behind the subtleties of their relationship with the informer.

Applying the above principles to the facts of this case, it is clear that the informer was an agent of the state for the purposes of the right to silence in s. 7. The conversation here would not have occurred or would have been materially different but for the authorities' intervention. Furthermore, the impugned statement was elicited. Parts of the conversation were functionally the equivalent of an interrogation, and the appellant's trust in the informer as a friend was used to undermine the appellant's confidence in his lawyer's advice to remain silent and to create a mental state in which the appellant was more likely to talk. That the police did not instruct the informer to elicit a statement from Broyles was irrelevant.

The actions of the police were not expressly or impliedly provided for by statute or the result of a common law rule and therefore cannot be justified under s. 1 since they were not "prescribed by law". The admission of the evidence would bring the administration of justice into disrepute. Considering the three sets of factors from Collins in turn, evidence obtained by conscripting the accused against himself or herself will generally render the trial unfair and the existence of other admissible evidence also tending to incriminate the accused will not make the trial fair. Self‑incriminatory evidence strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination, and the unfairness of the trial will be only increased if the conviction depends on the self-incriminatory evidence.

The violation of the appellant's right to silence was sufficiently serious to operate in favour of excluding the evidence. The informer systematically undermined the appellant's confidence in his counsel. Moreover, where the fairness of the trial has been affected by the admission of tainted evidence, good faith on the part of the police cannot justify admitting the evidence.

The fact that an offence is serious can provide no justification for the admission of the evidence where the fairness of the trial has been affected. This is all the more so where the impugned evidence is not the only evidence incriminating the accused.

This was not an appropriate case to exercise the power granted by s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal where no substantial wrong or miscarriage of justice has occurred. This section cannot be invoked if there is any possibility that a trial judge would have a reasonable doubt on the admissible evidence. Given the importance of the evidence that resulted from the informer's conversation with the appellant, it is possible that a trier of fact would have a reasonable doubt as to the appellant's guilt if the evidence in question were removed from consideration.

Cases Cited

By Iacobucci J.

Considered: R. v. Hebert, [1990] 2 S.C.R. 151; referred to: Ibrahim v. The King, [1914] A.C. 599; Rothman v. The Queen, [1981] 1 S.C.R. 640; Maine v. Moulton, 474 U.S. 159 (1985); Illinois v. Perkins, 110 S.Ct. 2394 (1990); United States v. Henry, 447 U.S. 264 (1980); Miranda v. Arizona, 384 U.S. 436 (1966); R. v. Collins, [1987] 1 S.C.R. 265; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Ross, [1989] 1 S.C.R. 3; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Black, [1989] 2 S.C.R. 138; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Brydges, [1990] 1 S.C.R. 190; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Smith, [1991] 1 S.C.R. 714; R. v. Evans, [1991] 1 S.C.R. 869; R. v. Elshaw, [1991] 3 S.C.R. 24; R. v. S. (P.L.), [1991] 1 S.C.R. 909; Colpitts v. The Queen, [1965] S.C.R. 739.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 10(b), 11(c), 24(2).

Criminal Code, R.S.C., 1985, c. C‑46, s. 686(1)(a)(ii), (b)(iii) (formerly R.S.C. 1970, c. C-34, s. 613(1)(a)(ii), (b)(iii)).

APPEAL from a judgment of the Alberta Court of Appeal (1987), 1987 ABCA 222, 82 A.R. 238, dismissing an appeal from conviction by Foster J. sitting with jury. Appeal allowed.

Richard A. Stroppel, for the appellant.

Paul C. Bourque, for the respondent.

//Iacobucci J.//

The judgment of the Court was delivered by

Iacobucci J. -- This appeal raises important questions as to the admissibility of evidence of a taped conversation between an accused in custody and a friend who visited him at the behest of the police, who made arrangements for the visit including providing the friend with a body pack recording device.

I. Facts

The appellant, Emerson Raymond Broyles was sixteen years old at the time of the alleged murder of his grandmother. He had been living with his mother until she threw him out of the house in January or February of 1984. Broyles then lived with a number of people, including his grandmother, Lorraine Briggs. Briggs had a one bedroom basement suite in a house owned by an elderly man. Briggs slept in a camperized van which she parked in the back of the house, and which she drove to work. When Broyles stayed with her, he slept in an upstairs bedroom. Briggs worked as a cook at the Edmonton Journal Cafeteria. She started work at six in the morning, and was never late.

On June 26, 1984, Briggs did not show up for work. Repeated phone calls to her home by her supervisor went unanswered. On July 3, Briggs' body was found under the stairwell in her home, wrapped in green plastic garbage bags. The body had begun to decompose. The cause of death was asphyxia resulting from strangulation; two coils of thick rope were still wrapped tightly around her neck when she was found. The body was dressed in a long sleeved sweater, a camisole and a nightie with a bra loosely arranged on the body but not in place. The nightie had been pulled up and the thighs and genital area exposed but it was impossible to say if Briggs had been sexually molested. A palm print was found on one of the garbage bags which was positively identified as being that of the accused Broyles. In the expert opinion of an R.C.M.P. laser expert, the print was "most likely placed on the bag at a time when there was an item in the bag". On July 4, Broyles was charged with two counts of forgery. On July 6, he was charged with murder.

The only evidence implicating Broyles in the murder was circumstantial. Broyles was seen driving his grandmother's van at seven or seven thirty on the morning of her disappearance. He drove the van until his arrest on July 3. Broyles made numerous inconsistent statements about the events surrounding his grandmother's disappearance. Of particular importance on this appeal are statements made by Broyles to Todd Ritter. Ritter was Broyles' friend. He was asked by the police to visit Broyles wearing a body pack recording device. Although Broyles did not admit to killing his grandmother to Ritter, he did admit that he knew she was dead the day she went missing. Broyles added, "[b]ut the cops don't know that I knew she was downstairs. Only my [lawyer] knows that. And now you do". Broyles was convicted at trial before a judge and jury of second degree murder. He was given the minimum sentence of life in prison without eligibility for parole for ten years.

Broyles was advised of his right to counsel when he was first arrested for fraud on July 3. At the station, Broyles asked to call a lawyer. He was given a telephone and a telephone book, and left alone to make a telephone call. Broyles was seen to punch numbers into the phone, but he did not appear to be talking. Broyles was then questioned by Detective Anderson. He was told that he was not obliged to say anything unless he wished to do so, but that anything he said might be given in evidence. The interview lasted from 8:30 p.m. to 9 p.m. on July 3. Detective Anderson identified himself as being from the Homicide Branch of the Edmonton City Police. He did not tell Broyles that he was a suspect in the disappearance of the deceased Briggs. The interview was brought to an abrupt end when Anderson was called out of the room to be informed that Briggs' body had been discovered.

Anderson began a second interview of Broyles at 11 p.m. on the same day. Anderson testified that, at the beginning of the second interview, Broyles was not a suspect in a homicide. Anderson added that at that time the police were not even sure that what they had was a homicide. Anderson brought the interview to an end at 11:30 p.m. because he thought he would get nothing new from Broyles. Anderson then processed the paper work for the forgery charges. However, Broyles was not released because the "investigation of the `suspicious death' was not concluded so they kept him in the holding area in case they wanted to talk to him again ...."

Detective Stewart saw the body of the deceased that same night at 10:25 p.m. He testified that he suspected that it was an unnatural death because of the way in which the body was found wrapped in plastic bags and entwined in ropes. He returned to headquarters, where it was decided that he would interview Broyles. Broyles was questioned by Stewart beginning at two in the morning on the same night. He was again given the caution about not being required to say anything. The interview was tape‑recorded. There was some question whether Broyles had asked for a lawyer during this interview, but the trial judge ruled that the relevant part of the tape was inaudible. Stewart testified that neither before nor after the interview was he prepared to charge Broyles with murder.

Broyles was questioned again shortly before three in the morning of the same night by a Detective Peters. He was given the caution once again. Peters had viewed the body between 10:30 p.m. and 1:10 a.m. of the same night. He suspected foul play. He suspected Broyles but did not have the basis to charge him. The interview ended at 3:39 a.m. on July 4. On July 6, Broyles was charged with murder.

II. Statutory and Charter Provisions

Criminal Code, R.S.C., 1985, c. C‑46, s. 686 (formerly R.S.C. 1970, c. C-34, s. 613)

686. (1) On the hearing of an appeal against a conviction ... the court of appeal

(a) may allow the appeal where it is of the opinion that

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or

(b) may dismiss the appeal where

(iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred;

Canadian Charter of Rights and Freedoms

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right; ...

24. ...

(2) Where ... a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

III. The Courts Below

A. Alberta Court of Queen's Bench

Foster J. held a voir dire on the voluntariness of the statements made by Broyles to Detectives Anderson, Stewart and Peters, and to Todd Ritter. The trial judge found that the statements to the detectives were made to persons in authority and were voluntary according to the tests in Ibrahim v. The King, [1914] A.C. 599 (P.C.), and Rothman v. The Queen, [1981] 1 S.C.R. 640. The trial judge also rejected the argument of defence counsel that the Charter cautions given to the accused were only in respect of the first charges for fraud, while the later interviews related to a suspicion of murder:

The accused also argues that while he may have been cautioned, the cautions were with regard to a charge of fraud and that the interviews instead related to a suspicion of murder. This is not a case where an accused was arrested on one charge and then questioned on an unrelated matter. Nor was there any lack of bona fides in the fraud or forgery charges being laid. Nor indeed were these charges insignificant. It was at all times clear in the accused's mind what incidents he was being questioned about, namely the disappearance of his grandmother, his possession of her van, and her cheques. As soon as the investigation reached the stage where it was possible, the murder charge was added to the forgery charges. These matters were all interrelated and I do not see any misleading or prejudice to the accused in connection with the caution.

There was some question whether Broyles had asked for a lawyer during the interview with Detective Stewart. The trial judge ruled that portion of the tape inaudible, and accepted Detective Stewart's testimony that Broyles had not asked to call his lawyer. The trial judge also ruled that even if there were infringements of Broyles' Charter rights, the admission of the statements would not bring the administration of justice into disrepute, and that consequently the statements would have been admissible in any case.

The trial judge rejected the contention of defence counsel that the Remand Centre had a duty not to allow Ritter to see the accused where Ritter's purpose was to allow the police to monitor a conversation between himself and the accused. The trial judge held that no s. 7 rights were involved:

[Defence counsel argues] [t]hat the duty [of the Remand Centre] included a duty not to allow Ritter in to see the accused where Ritter's purpose was to allow the police to surreptitiously monitor a conversation between Ritter and the accused. I do not accept this argument. I find no such duty on the Remand Centre and I do not see how these circumstances can in any way be construed to be a breach of Section 7 of the Charter. There is no violation of the accused's right to security of the person. The Ritter statement is accordingly admissible in evidence.

B. Alberta Court of Appeal (1987), 1987 ABCA 222, 82 A.R. 238

The Alberta Court of Appeal dismissed Broyle's appeal. Writing for the Court, Stevenson J.A. (as he then was) rejected the s. 7 argument summarily. He found that s. 7 did not prohibit the conduct complained of at p. 240:

The second ground [of appeal] was an assertion that the officers of the Remand Centre were under a duty imposed by s. 7 of the Charter not to permit access to the accused by anyone whose object was to obtain any admission against his interest. We were not pointed to anything in the section that would justify that conclusion.

Stevenson J.A. dealt at greater length with the issue of the rights of the accused under s. 10(b) of the Charter. He considered, but ultimately rejected, the argument of defence counsel that a fresh duty to give s. 10(b) advice arose when the focus of the police investigation changed from fraud to murder. Stevenson J.A. noted that the accused was fully aware of his Charter rights from the caution given to him on his initial arrest, and that he had been given an opportunity to contact his counsel. He rejected the notion that an accused should again be informed of a right which he already understands: "There is no reality to any suggestion that the accused should be again informed of a right which he understood, in relation to circumstances which he also understood". In addition, the Court of Appeal declined to interfere with the ruling of Foster J. that Broyles had not asked to call his lawyer during the interview with Detective Stewart.

IV. Issues

The parties raise the following issues:

1.Was the evidence of the conversation between the appellant and Ritter obtained in a manner which infringed s. 7 of the Canadian Charter of Rights and Freedoms?

2.If the answer to the first question is yes, should the evidence be excluded under s. 24(2) of the Charter?

3.Is it appropriate to invoke the curative proviso in s. 686(1)(b)(iii) of the Criminal Code?

The issue of a possible violation of s. 10(b) of the Charter was abandoned on appeal by the appellant.

V. Analysis

A. Section 7 of the Charter

In R. v. Hebert, [1990] 2 S.C.R. 151, this Court found that s. 7 of the Charter includes a right to silence which includes the right to choose whether or not to make a statement to the authorities. In Hebert, Justice McLachlin described the right as follows, at p. 186:

The essence of the right to silence is that the suspect be given a choice; the right is quite simply the freedom to choose ‑‑ the freedom to speak to the authorities on the one hand, and the freedom to refuse to make a statement to them on the other.

The question before us here is therefore: did the authorities obtain evidence of the appellant's conversation with Ritter in a manner that violated the appellant's right to silence, including his right to choose whether or not to speak to the authorities?

1 R. v. Hebert

At issue in Hebert, supra, was the admissibility of evidence obtained by an undercover police officer posing as a fellow cell mate of the appellant Hebert. McLachlin J. held that, where an undercover police officer does more than passively observe the suspect, but goes so far as to elicit information from him or her, s. 7 of the Charter will be infringed. On the facts of Hebert, it was evident that the authorities had used a trick to undercut Hebert's clearly asserted choice to remain silent.

It is clear from Hebert that the right to silence is triggered when the accused is subjected to the coercive powers of the state through his or her detention. The question of what right to silence, if any, remains after a detainee is released is a question not raised by the facts of this case.

This case requires this Court to answer two questions which were not raised in Hebert. In Hebert it was indisputable that the undercover officer was an agent of the state. In this case, Ritter was not a police officer. He was a friend of the appellant who was asked to visit the accused by the authorities, and whose visit was facilitated by them. We must therefore decide if Ritter was an agent of the state for the purposes of s. 7. Moreover, it is not self‑evident, in light of Hebert, whether the manner in which Ritter conducted his conversation with the appellant did or did not infringe the appellant's s. 7 rights. On the facts of Hebert, it was unnecessary to define "elicitation" precisely, whereas such a definition is required to reach a conclusion in this case.

2 The Two‑Part Test for the Right to Silence in s. 7

It is clear from Hebert, supra, that the purpose of the right to silence is to prevent the use of state power to subvert the right of an accused to choose whether or not to speak to the authorities. Where the informer who allegedly acted to subvert the right to silence of the accused is not obviously a state agent, the analysis will necessarily focus not only on the relationship between the informer and the accused, but also on the relationship between the informer and the state. The right to silence will only be infringed where it was the informer who caused the accused to make the statement, and where the informer was acting as an agent of the state at the time the accused made the statement. Accordingly, two distinct inquiries are required. First, as a threshold question, was the evidence obtained by an agent of the state? Second, was the evidence elicited? Only if the answer to both questions is in the affirmative will there be a violation of the right to silence in s. 7.

(a) The Threshold Question

In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence.

In some cases, it will be clear that the person to whom the statements were made was an agent of the state. For example, if the statements were made to a police officer or to a prison official, whether in uniform or in plainclothes, there could be no question that the statements were made to an agent of the state. In other cases, it will be less clear. Where the statements are made to an informer, as in the case at bar, it may be arguable whether or not the coercive power of the state was brought to bear on the suspect in obtaining the statement from him or her.

In determining whether or not the informer is a state agent, it is appropriate to focus on the effect of the relationship between the informer and the authorities on the particular exchange or contact with the accused. A relationship between the informer and the state is relevant for the purposes of s. 7 only if it affects the circumstances surrounding the making of the impugned statement. A relationship between the informer and the authorities which develops after the statement is made, or which in no way affects the exchange between the informer and the accused, will not make the informer a state agent for the purposes of the exchange in question. Only if the relationship between the informer and the state is such that the exchange between the informer and the accused is materially different from what it would have been had there been no such relationship should the informer be considered a state agent for the purposes of the exchange. I would accordingly adopt the following simple test: 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?

If this test is applied to a conversation between a police officer and a suspect in custody, it is clear that the conversation would not have taken place but for the intervention of the officer. If it is applied to a conversation with a cell mate who has no contact with the authorities until after the conversation is concluded, it is equally clear that the actions of the authorities had no effect on the conversation, and that there would be no violation of the s. 7 right to silence. If, however, the cell mate spoke with the authorities before the conversation took place, then the question will be whether the conversation would have occurred or would have taken the same course had the cell mate had no contact with the authorities.

I would add that there may be circumstances in which the authorities encourage informers to elicit statements without there being a pre-existing relationship between the authorities and individual informers. For example, the authorities may provide an incentive for the elicitation of incriminating statements by making it known that they will pay for such information or that they will charge the informer with a less serious offence. The question in such cases will be the same: would the exchange between the informer and the accused have taken place but for the inducements of the authorities?

(b) Elicitation

Even if the evidence in question was acquired by an agent of the state, it will only have been acquired in violation of s. 7 if the manner in which it was acquired infringed the suspect's right to choose to remain silent. In 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. In the words of McLachlin J. in Hebert, supra, at p. 184:

If the police are not posing as undercover officers and the accused chooses to volunteer information, there will be no violation of the Charter. Police persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence.

In Hebert, supra, my colleague McLachlin J., left open the possibility that there will be cases amounting to more than permissible police persuasion but less than deprivation of an operating mind which will infringe the suspect's right to choose to remain silent. I would agree that there may well be such cases, but it is unnecessary to decide that question in this case.

If, on the other hand, the suspect is ignorant of the fact that he is talking to an agent of the state, whether a suborned informer or an undercover police officer, somewhat different considerations will apply. It is clear from the majority reasons in Hebert, supra, that statements volunteered by the suspect to the agent of the state will not infringe the suspect's right to silence. There will be a violation of the s. 7 right to silence only if the statement is elicited by the agent of the state. As McLachlin J. expressed it in Hebert, supra, at p. 184, the state agent must "actively elicit" the information or statement. The focus will be on what constitutes "elicitation" in the context of the right to silence.

In developing a definition of elicitation, I have found it unnecessary to refer at length to the U.S. jurisprudence dealing with the Fifth and Sixth Amendments of the U.S. Constitution. In broad terms, the concern with Sixth Amendment right to counsel is, to quote the judgment of Brennan J. in Maine v. Moulton, 474 U.S. 159 (1985), at p. 176, to protect the right of an accused "to rely on counsel as a `medium' between him and the State," and not specifically to protect the right of an accused to choose whether or not to make a statement. Although the Fifth Amendment privilege against self-incrimination is similar in form to the right to silence in s. 7 of the Charter, the Supreme Court of the United States has recently held, in Illinois v. Perkins, 110 S.Ct. 2394 (1990), that Fifth Amendment rights do not prohibit surreptitious jail house conversations of the kind which this Court found to violate s. 7 in Hebert. This is not to say that the U.S. jurisprudence will not be useful in resolving particular problems that may arise in developing the contours of the right to silence as McLachlin J. did in Hebert. In general, however, Canadian courts should not be hesitant to develop a uniquely Canadian approach to the right to silence, in keeping with the overall goals of the Charter.

In my view, it is difficult to give a short and precise meaning of elicitation but rather one should look to a series of factors to decide the issue. These factors test the relationship between the state agent and the accused so as to answer this question: considering all the circumstances of the exchange between the accused and the state agent, is there a causal link between the conduct of the state agent and the making of the statement by the accused? For convenience, I arrange these factors into two groups. This list of factors is not exhaustive, nor will the answer to any one question necessarily be dispositive.

The first set of factors concerns the nature of the exchange between the accused and the state agent. Did the state agent actively seek out information such that the exchange could be characterized as akin to an interrogation, or did he or she conduct his or her part of the conversation as someone in the role the accused believed the informer to be playing would ordinarily have done? The focus should not be on the form of the conversation, but rather on whether the relevant parts of the conversation were the functional equivalent of an interrogation.

The second set of factors concerns the nature of the relationship between the state agent and the accused. Did the state agent exploit any special characteristics of the relationship to extract the statement? Was there a relationship of trust between the state agent and the accused? Was the accused obligated or vulnerable to the state agent? Did the state agent manipulate the accused to bring about a mental state in which the accused was more likely to talk?

In considering whether the statement in question was elicited, evidence of the instructions given to the state agent for the conduct of the conversation may be important. As McLachlin J. noted in Hebert, supra, evidence that the agent was instructed not to initiate the conversation nor to ask leading questions will tend to refute the allegation that the resulting statement was obtained in violation of s. 7. I would add, however, that in my opinion evidence that the state agent was instructed not to elicit information will not end the inquiry. The authorities may not take the benefit of the actions of their agent which exceed his or her instructions. To hold otherwise would be to ignore the fact that the primary emphasis of the right to silence in s. 7 is on the use of the coercive power of the state against the suspect. The authorities ought not to be able to shield themselves behind the subtleties of their relationship with the informer. It is the authorities who are in a position to control the actions of their informer; if they fail to do so, they ought not to benefit from that failure at the expense of the accused. See United States v. Henry, 447 U.S. 264 (1980), at pp. 271‑72.

(c) Application to the Facts of This Case

There is no question that Ritter was an agent of the state during his conversation with the appellant. It is clear on the evidence that the meeting was set up and facilitated by the police. Ritter was able to have an "open visit" with the appellant, which made possible a free‑ranging conversation, only because of the intervention of the police. In fact, Ritter went so far as to admit that he was not frightened during his visit with the appellant "because it had been set up by the police". Moreover, in their discussions with Ritter, the authorities effectively instructed him to elicit information about the death of Briggs, as the following excerpt from Ritter's cross‑examination illustrates:

Q.So Detective Anderson phoned you, and he said what?

A.Well, he said ‑‑‑ I asked him how the investigation was going. He said they were having a bit of problems [sic]. James wasn't saying anything. He asked me if I would be interested in wearing a body pack and talking to James. If he would set up the meeting, would I talk to James.

Q.It became clear to you that Detective Anderson required your assistance because James was not talking to the police about this?

A.Yeah, I suppose.

Q.... Why did you agree to do it?

A.Because I thought it was the right thing to do.

Q.Why did you think it was the right thing to do?

A.Well, the police were having trouble, and I thought if I could help out, why shouldn't I.

Q.What were you going to talk to James about?

A.They wanted to know if I could find out whether he killed her or not.

Q.And this was all on the phone with Detective Anderson the first time?

A.Yes.

If the authorities had not intervened, the conversation between Ritter and the appellant would either not have occurred at all, or else would have taken a materially different course. I would therefore conclude that for the purposes of the right to silence in s. 7 of the Charter, Ritter was an agent of the state. This issue was also effectively conceded by the respondent.

But did Ritter elicit the statements in question from the appellant? Turning to the first set of factors relating to the nature of the conversation, did Ritter allow the conversation to flow naturally, or did he direct the conversation to those areas where he knew the police needed information? Looking to the transcript of the conversation between Ritter and the appellant, I find there is no question that parts of the conversation were functionally the equivalent of an interrogation, as the following excerpt illustrates:

JAMESLike I, I already said stuff and whatnot. There's really no more that I can say.

TODDYou could admit to them that you killed her.

JAMESBut I didn't.

TODDAre you sure?

JAMESYeah.

TODDYou weren't out on drugs or nothing.

JAMESNo.

TODDThat you don't remember. That you would have lost control.

JAMESNo.

In cross-examination, Ritter admitted that his intention had been to elicit information about the killing from the appellant:

Q.You didn't think that he [i.e., the appellant] killed her, but you went in there to elicit a statement to the effect that he had killed her?

A.Yes.

With respect to the second group of factors concerning the nature of the relationship between Ritter and the appellant, Ritter did exploit the special characteristics of his relationship with the appellant to extract the statement. Ritter sought to exploit the appellant's trust in him as a friend to undermine the appellant's confidence in his lawyer's advice to remain silent and to create a mental state in which the appellant was more likely to talk:

JAMESWell like I talked to my lawyer and what not and he told me not to say anything to anybody else.

TODDWhy? What good is it gonna do you man?

JAMESHey I don't know what he has planned to do and whatnot.

TODDWell you better talk to him. Cause sounds like he's trying to screw you around. That's what he's doing. Well what good is it gonna do you to spend twenty five years [sic] in jail for something you didn't do cause your lawyer tells you not to say anything.

JAMESNo like he, he has all the information and whatnot. But he doesn't want me to talking [sic] to the crown about it yet. Not until we get up there in, like the court room and whatnot. And on the record.

TODDWell I don't see why he's [i.e., the appellant's lawyer] not doing anything then. But he's the one getting paid the bucks.

JAMESYeah. Plenty I think too.

TODDThat's why he's not doing nothing.

JAMESLike when my social worker ever comes down here and what not I'm gonna tell her that bla, bla, bla, to get Pringle .. Instead of Hannington [sic].

TODDThat's who you got now, Hannington [sic]... I think Pringle's a much better lawyer.

Ritter's ploy was not only an obvious attempt to elicit a confession from the appellant, but it also undermined the appellant's right to counsel. In Hebert, supra, McLachlin J. recognized the close connection between the right to counsel and the right to silence, at p. 176:

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, ss. 7 and 10(b) confirm the right to silence in s. 7 and shed light on its nature.

The right to counsel would indeed be meaningless if the authorities were entitled to undermine the confidence of the accused in his counsel in order to extract a confession. I note that the relationship between the right to silence and against self‑incrimination and the right to counsel was also recognized in Miranda v. Arizona, 384 U.S. 436 (1966).

That the police did not instruct Ritter to elicit a statement from Broyles is irrelevant. They should not have the benefit of an informer who will elicit a statement without being instructed to do so.

Considering all these factors, I think it is clear that Ritter did elicit the statements from the appellant. Accordingly, I would conclude that the statements of the appellant made during his conversation with Ritter were obtained in violation of his right under s. 7 of the Charter to choose to remain silent.

B. Justification Under s. 1

As in Hebert, supra, the actions of the police were not expressly or impliedly provided for by statute or the result of a common law rule. Since they were not "prescribed by law", the actions of the police cannot be justified under s. 1.

C. Section 24(2) of the Charter

Since the judgment of Lamer J. (as he then was) in R. v. Collins, [1987] 1 S.C.R. 265, the question of whether the admission of the evidence would bring the administration of justice into disrepute has been analyzed in terms of three groups of factors. These three groups of factors were conveniently summarized in R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1006:

The first group concerns the fairness of the trial. The nature of the evidence, whether it is real evidence or self-incriminating evidence produced by the accused, will be relevant to this determination. The second group relates to the seriousness of the Charter violation. Consideration will focus on the relative seriousness of the violation, whether the violation was committed in good faith or was of a merely technical nature or whether it was wilful, deliberate and flagrant, whether the violation was motivated by circumstances of urgency or necessity, and whether other investigatory techniques that would not have infringed the Charter were available. The final set of factors relates to the disrepute that would arise from exclusion of the evidence.

This Court has often had occasion to consider s. 24(2) of the Charter. More recent cases include R. v. Ross, [1989] 1 S.C.R. 3; R. v. Genest, [1989] 1 S.C.R. 59; R. v. Black, [1989] 2 S.C.R. 138; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Brydges, [1990] 1 S.C.R. 190; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Greffe, [1990] 1 S.C.R. 755; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Hebert, supra; R. v. Thompson, [1990] 2 S.C.R. 1111; R. v. Kokesch, [1990] 3 S.C.R. 3; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Smith, [1991] 1 S.C.R. 714; R. v. Evans, [1991] 1 S.C.R 869; R. v. Elshaw, [1991] 3 S.C.R. 24.

I will consider the three sets of factors in turn.

1 Fairness of the Trial

In general, the admission of self‑incriminating obtained as a result of a breach of the Charter, unlike the admission of real evidence which would have existed regardless of the breach, will make the trial unfair: R. v. Collins, supra, per Lamer J. (as he then was). In Hebert, supra, McLachlin J. held that self‑incriminating statements obtained in violation of the suspect's right to remain silent should be excluded because their admission would render the trial unfair. McLachlin J.'s reasoning turned on both the unfair trick practised by the police, and on the absence of other evidence against the accused (at pp. 188-89):

I am of the view that the evidence sought to be adduced in this case would render the trial unfair. I should not be taken as suggesting that violation of an accused's right to silence under s. 7 automatically means that the evidence must be excluded under s. 24(2). I would not wish to rule out the possibility that there may be circumstances in which a statement might be received where the suspect has not been accorded a full choice in the sense of having decided, after full observance of all rights, to make a statement voluntarily. But where, as here, an accused is conscripted to give evidence against himself after clearly electing not to do so by use of an unfair trick practised by the authorities, and where the resultant statement is the only evidence against him, one must surely conclude that reception of the evidence would render the trial unfair. The accused would be deprived of his presumption of innocence and would be placed in the position of having to take the stand if he wished to counter the damaging effect of the confession. The accused's conviction if obtained would rest almost entirely on his own evidence against himself, obtained by a trick in violation of the Charter.

In the present case, the conversation between Ritter and the appellant is not the only piece of evidence against the appellant. The appellant was convicted at trial on the basis of a circumstantial case, and there are a number of other pieces of evidence which were introduced by the Crown to establish consciousness of guilt by the appellant. In my opinion, however, the fact that evidence is obtained by conscripting the accused against himself or herself will generally be sufficient to render the trial unfair. The existence of other admissible evidence also tending to incriminate the accused will not make the trial fair. Self‑incriminatory evidence renders a trial unfair because it "strikes at one of the fundamental tenets of a fair trial, the right against self‑incrimination" (Collins, supra, per Lamer J., at p. 284), not because of the effect of its admission on the outcome of the trial. However, if the impugned evidence is the only evidence tending to incriminate the accused, the fact that the conviction of the accused depends on self‑incriminatory evidence will increase the unfairness of the trial, as McLachlin J. indicated in Hebert, supra.

I would therefore conclude that the admission of the evidence would render the trial unfair.

2 Seriousness of the Violation

In the present case, the violation of the appellant's right to silence was a serious one. Ritter systematically undermined the appellant's confidence in his counsel so as to get him to talk in spite of the instructions of his lawyer to remain silent. The attack on his counsel together with what amounted to an interrogation about the death of his grandmother were successful, and the appellant made one very damaging admission. In my opinion, the seriousness of the violation operates in this case as a factor favouring exclusion of the evidence.

The respondent argued before us that the good faith of the police in sending Ritter in to talk with the appellant was a factor tending to reduce the seriousness of the violation. With respect, I must disagree. As I indicated in Elshaw, supra, I agree with the reasons of Sopinka J. in Hebert, supra, that, at least where the fairness of the trial has been affected by the admission of tainted evidence, good faith on the part of the police cannot reduce the seriousness of the violation.

3 Effect of Excluding the Evidence

The appellant was charged with a very serious offence. However, where the fairness of the trial would be affected by the admission of the evidence, the mere fact that the offence is a serious one provides no justification for admitting the evidence. To adopt the words of Lamer J. (as he then was), in R. v. Brydges, supra, at p. 211: "... this Court has repeatedly held that ... a serious offence provides no justification for admitting the evidence where there has been a serious Charter violation and the admission of the evidence would affect the fundamental fairness of the trial." I would also note that the fact that the impugned evidence is not the only evidence incriminating the accused further reduces the effect on the reputation of the administration of justice of excluding the evidence. Accordingly, I would conclude that exclusion of the evidence would not significantly affect the repute of the administration of justice.

The respondent argued before us that because the accused declined to testify at trial, the exclusion of the evidence would bring the administration of justice into disrepute. This argument is without merit. The right of an accused not to testify is a fundamental value of our criminal justice system, enshrined in s. 11(c) of the Charter:

11. Any person charged with an offence has the right

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

The right against self‑incrimination was identified by Lamer J. in Collins, supra, as one of the "fundamental tenets of a fair trial" (at p. 284). The failure of the accused to testify cannot be a factor against the exclusion of the evidence.

4 Conclusion on s. 24(2)

In my opinion, the evidence should be excluded. Because the evidence was obtained by conscripting the accused against himself, its admission would render the trial unfair. The violation was a serious one and I am satisfied that the exclusion of the evidence will not bring the administration of justice into disrepute. Having considered the factors enumerated in Collins, supra, I am satisfied that the admission of the evidence would bring the administration of justice into disrepute and thus the evidence must be excluded.

D. The Curative Proviso

In my opinion, this is not an appropriate case to exercise the power granted to this Court by s. 686(1)(b)(iii) of the Criminal Code to dismiss the appeal where no substantial wrong or miscarriage of justice has occurred. The appropriate standard for the application of s. 686(1)(b)(iii) is an onerous one. I adopt the approach of Sopinka J. in R v. P.L.S., [1991] 1 S.C.R. 909, at p. 919: s. 686(1)(b)(iii) cannot be invoked if there is "any possibility that a trial judge would have a reasonable doubt on the admissible evidence". A similar approach to s. 686(1)(b)(iii) was adopted by Spence J. in Colpitts v. The Queen, [1965] S.C.R. 739, at p. 756, with respect to a predecessor provision of the Code.

I am of the opinion that this Court cannot place itself in the position of a jury and weigh these various pieces of evidence. If there is any possibility that twelve reasonable men, properly charged, would have a reasonable doubt as to the guilt of the accused, then this Court should not apply the provisions of s. 592(1)(b)(iii) to affirm a conviction.

Accordingly, the question here is whether there is any possibility that the trier of fact would have had a reasonable doubt as to the guilt of the accused had the impugned evidence been removed from their consideration. In argument, the respondent maintained that there was overwhelming evidence of guilt in addition to the impugned evidence, and that the fact that the appellant knew that his grandmother was dead at the bottom of the stairs was inferrable from other facts properly before the jury. With respect, I am unable to agree. The evidence in question was an important element in the Crown's case at trial, and was emphasized in the Crown prosecutor's charge to the jury. The trial judge went so far as to state in her charge to the jury that the appellant's admission that he knew the victim was dead before the body was discovered was a "rather important statement". The fact that the jury asked to listen to the tape of the conversation between Ritter and the appellant again can only mean that they too considered the evidence to be important.

Given the importance of the evidence that resulted from Ritter's conversation with the appellant, I must conclude that it is possible that a trier of fact would have a reasonable doubt as to the appellant's guilt if the evidence in question were removed from her or his consideration. Accordingly, I would not apply s. 686(1)(b)(iii) to dismiss the appeal.

VI. Disposition

For the foregoing reasons, I would allow the appeal and order a new trial.

Appeal allowed.

Solicitors for the appellant: Brimacombe, Sanderman & Stroppel, Edmonton.

Solicitor for the respondent: The Department of the Attorney General, Edmonton.