Accused charged with impaired driving causing death, causing death while driving “over 80”, criminal negligence causing death, and dangerous driving causing death. Breath technician said she made “conscious decision” not to tell accused about death out of safety concerns, having been attacked by drunk person in past resulting in injuries requiring surgery. Breath technician acknowledged that, while in breath room, she was armed, as were two other officers. Officer asked others involved if accused had been advised that he was facing charge involving fatality. When officer heard accused had not been so advised, he went into interview room to speak to accused, and told him that his passenger had died and that he was facing much more serious charge of impaired driving causing death. Officer asked accused if he wished to speak to lawyer and accused declined but officer persisted and told him that charge was much more serious and that he would probably go to jail after which accused opted to speak with duty counsel. First breath sample excluded. Court agreed accused’s rights had been breached. It was completely unreasonable for police officer to think that person, who was completely covered by tarp, and unattended by any EMS personnel, might still be alive. If officer had any doubt, he could have asked one of paramedics. Officer had no excuse for not advising accused passenger was deceased. If police had wished to wait for official confirmation, they should have refrained from attempting to elicit evidence from accused in meantime. Accused’s conduct at scene and at police station belied actual awareness of passenger’s death. While court believed breath technician’s reasons she gave for not informing accused of fatality, it was not acceptable reason for failing to inform accused of true state of affairs. After accused was properly apprised of his jeopardy and persuaded of potential penal consequences of the situation, he did call lawyer. This turn of events spoke to obvious inadequacy of previous information provided to accused. Short of finding bad faith, conduct of four officers involved was wilful or seriously reckless. Actions of officer who informed accused of passenger’s death were Charter-compliant and severed link between earlier breach and collection of second sample.
R. v. Karafa (May. 21, 2014, Ont. S.C.J., Trotter J., File No. null) 114 W.C.B. (2d) 68.