1991:  June 19; 1991:  November 28.

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....

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.