Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jong-Won Jung
Before: Justice J. W. Bovard
Heard on: April 5, 6, 2017
Reasons for Judgment released on: July 19, 2017
Counsel
Mr. G. Pfeiffer — counsel for the Crown
Ms. H. Spence — counsel for the defendant Jong-Won Jung
Reasons for Judgment
Introduction
1These are the court's reasons for judgment after the trial of Jong-Won Jung on a charge of 'over 80'.
Issues
2The issues are whether the police breached Mr. Jung's rights under ss. 7 and 12 of the Charter, and if they did, should the evidence of the Intoxilyzer readings be excluded under s. 24(2) of the Charter.
Background
3Officer Sinclair stopped Mr. Jung and his girlfriend at a R.I.D.E. spot check. Mr. Jung failed an Approved Roadside Screening Device breath test and Officer Sinclair arrested him for 'over 80'. Then he took him to the police station for breath tests.
4Mr. Jung took the first breath test and then waited, handcuffed to a bench outside of the breath room until the Intoxilyzer technician was ready to administer the second breath test. Officer Gill was with him. While he was waiting, his girlfriend was in the police station reception area. She was quite upset and was very vocal about it.
5An officer from the reception area called Officer Gill and asked him to ask Mr. Jung to speak to his girlfriend on the telephone but Mr. Jung did not want to. The defence position is that Officer Gill got so aggressive with Mr. Jung about speaking to his girlfriend that as he was holding the phone up to his ear trying to get him to speak to her, he grabbed him by the collar and pushed him back and forth in a jabbing motion. In the course of doing this he hit Mr. Jung with the phone on the side of the head, caused him to bang his head against the wall repeatedly, and bruised his collarbone.
6Officer Gill says that he held up the phone to Mr. Jung's ear and that when Mr. Jung pushed his hand aside his hand accidentally snapped back and hit him on the side of the head. He denied the rest of Mr. Jung's allegations.
7After this, Mr. Jung took the second breath test. He registered over the legal limit on both tests so the police charged him with 'over 80'.
The Evidence
8Since the only issues are whether the police breached Mr. Jung's rights under ss. 7 and 12 of the Charter, I will primarily review the evidence that pertains to those issues.
Officer Sinclair's Evidence
9Officer Sinclair was working at a R.I.D.E. spot check on the day in question. He had been an officer for approximately 10 months. His partner was Officer Gill, an officer with approximately 15 years' experience. At approximately 12:25 a.m., Officer Sinclair pulled over Mr. Jung who was accompanied by his girlfriend. After speaking to Mr. Jung Officer Sinclair formed a reasonable suspicion that he had alcohol in his body so he made a demand that he provide a breath sample into an Approved Roadside Screening Device.
10Mr. Jung failed the breath test so Officer Sinclair arrested him for 'over 80'. He put Mr. Jung in his cruiser and gave him his rights to counsel. Next, Officer Sinclair made a demand that Mr. Jung provide samples of his breath into an Intoxilyzer.
11Next, Officer Sinclair took Mr. Jung to 41 Division. Mr. Jung's girlfriend went to the station as well. The police and Mr. Jung arrived at 12:49 a.m. They had to wait in line to get into the booking area because there were other accused persons in front of them.
12Mr. Jung said that he had to go to the washroom. Officer Sinclair did not recall if Mr. Jung was crying, but he was desperate to use the washroom. Officer Sinclair agreed that it would be inappropriate in this situation for an officer to tell him to just urinate in the back of the cruiser or to raise his or her voice to someone in this predicament. He said that this did not occur in this case.
13The in-car video shows Officer Sinclair telling Mr. Jung that he is the same age as he is and that he can hold it. He tells Mr. Jung that they have to parade him before they can do anything else.
14Officer Gill is heard to raise his voice. He suggests that Mr. Jung should urinate in the back seat if he has to go so bad. Officer Sinclair agrees that this is inappropriate, but he did not mention it to any other officer.
15Defence counsel suggested to Officer Gill that he told Mr. Jung to urinate in the police cruiser. Officer Gill replied that "If I did that it was probably a mental – mental lapse". He agreed that it would be "incredibly inappropriate" to say this "if it happened".
16Defence counsel played the in-car video for Officer Gill. It clearly captures him telling Mr. Jung to urinate in the police cruiser. Officer Gill said that his voice was raised because there is a glass partition, not out of frustration.
17It was only after hearing on the in-car video that it did indeed "happened", that Officer Gill agreed that he acted completely inappropriately.
18Officer Sinclair said that he called the booking officer and arranged to take Mr. Jung inside to use the washroom. He took him in at 12:56 a.m. Officer Gill testified that he was the one that called to arrange for Mr. Jung to use the washroom.
19They began the booking-in process at 1:01 a.m. Officer Sinclair said that it is possible that after the booking-in was finished and they were leaving the area, Mr. Jung could have said something to the effect of "thanks for being good with me, but what that other officer did was wrong". He agreed that this should have been a cue to him to follow up on what happened.
20Mr. Jung spoke to duty counsel between 1:04 a.m. and 1:18 a.m.
21After this, Mr. Jung took the first breath test. His result was 146 milligrams of alcohol in 100 millilitres of blood (truncated to 140 on the certificate of a qualified technician).
22During the 17 minute waiting period between the tests, Officer Sinclair handcuffed Mr. Jung to a bench in a waiting room. Officer Sinclair stayed in the same room at a desk doing required paper work for the case.
23Officer Sinclair said that he recalled that Mr. Jung was confrontational with him and Officer Gill, who was seated at a different desk. Mr. Jung was arguing with them. But Officer Sinclair could not remember what he was arguing about. Nor could Officer Sinclair remember if he said anything to Mr. Jung.
24Officer Sinclair said that he remembered that a confrontation took place, but he could not remember what it was about. Nor could he remember if it occurred during the 17 minute wait between breath tests or after the second test. He did not make any notes with regard to Mr. Jung's behaviour. He just recalled that Mr. Jung was "ignorant" towards him and Officer Gill. Mr. Jung said that he knew persons in high places and threatened their jobs.
25Officer Sinclair did not do anything in response. He could not remember if Officer Gill did.
26I find that Officer Sinclair's evidence is so vague and lacking in specificity that I do not believe it.
27Officer Sinclair said that during this time Mr. Jung's girlfriend was at the front desk of the police station "being destructive". The officers at the front desk asked if Officers Sinclair and Gill could get Mr. Jung to try to calm her down.
28Officer Gill testified that she was being "disrupted" at the police station. He thought that she was under the influence of alcohol. She wanted to know what was happening with Mr. Jung. He tried to explain it to her, but she did not understand. At this point, he returned to Mr. Jung and explained the situation to him. Officer Gill told Mr. Jung that his girlfriend needed his help and that he [Officer Gill] needed his help in calming her down. Officer Gill said that "there was talk about her getting arrested for causing a disturbance at the front desk of the police station".
29Officer Gill wanted Mr. Jung to speak to his girlfriend. He asked Mr. Jung for her telephone number but he said that he did not have it. Officer Sinclair went to the front desk and got her number and gave it to Officer Gill. Officer Gill dialled the number but although Mr. Jung had already spoken to duty counsel, he wanted to speak to a lawyer before talking to his girlfriend.
30Officer Gill said that he "communicated with him to express that I really needed him to speak to his girlfriend because I didn't want his girlfriend to get arrested, and I needed him to speak to his girlfriend". Officer Gill thought that Mr. Jung did not care what happened to her. Mr. Jung told him to "do what [he] needed to do".
31Officer Gill took this to mean that he should call Mr. Jung's girlfriend. Mr. Jung was seated on the bench with one hand cuffed to the armrest. Officer Gill took a telephone that was in the room with Mr. Jung and called her. This was a regular phone, not a cell phone.
32Next, the following occurred:
A. Well, I dial his girlfriend's telephone number and I put the receiver up to the gentleman's head.
Q. And what, if anything, does he do?
A. He leans away from the phone. He said he wanted to speak to his lawyer. And I really wanted him to speak to his girlfriend in an attempt to calm her down. So, when he leaned away I had brought the receiver closer to his head. And then he pushed my hand away saying he wanted to speak to his lawyer. And as I was holding the receiver towards his head, when he pushed my hand away, my hand went back to the original position and I guess it overcompensated and the receiver struck the gentleman's, I believe, left temple. And then I spoke to his girlfriend and she said she heard the whole thing and she didn't need to speak to him.
33Officer Gill said that his hand was "almost locked in the air" as he held the receiver to Mr. Jung's head. When Mr. Jung pushed his hand away quickly and then his hand slipped off of Officer Gill's hand, Officer Gill's hand over compensated and it snapped back to its original position and went further than where it originally was and hit Mr. Jung on the side of the head. Officer Gill said that he hit Mr. Jung accidentally.
34Officer Gill denied holding on to Mr. Jung's collar as he held the receiver to his ear. He also denied that as Mr. Jung shrunk away from him he [Officer Gill] hit him six or seven times with the receiver in the neck, head and shoulder area while pushing his right hand into him. The officer testified that he was not angry with Mr. Jung.
35Officer Gill said that he tried to explain what happened when Mr. Jung spoke to him about this, but he did not make any notes about their conversation. Mr. Jung did not understand his explanation. He thought that he hit him intentionally.
36Officer Gill said that he looked for injuries on Mr. Jung but there were none. However, he said that he thought that Mr. Jung mentioned injuries. Officer Gill testified that "I think he mentioned it – I think he mentioned it when he got hit. I think that was the – the complaint, or it was during the releasing procedure, which is on video". But the officer could not remember what Mr. Jung said.
37Defence counsel showed Officer Gill two pictures of Mr. Jung. They show a markedly reddened rectangular spot on his left collarbone. The bottom right corner of the spot is the reddest. Officer Gill said that he did not look for injuries in the collarbone area; just in the "phone area".
38Officer Gill testified that, generally speaking, Mr. Jung was cooperative throughout the whole night. But between the breath tests, he was cooperative until he "needed him" to speak to his girlfriend. Officer Gill described him at this point as "someone who is upset and just didn't want to speak to anyone anymore". However, Mr. Jung did not raise his voice, nor did he act in a threatening manner. He was not verbally abusive.
39Defence counsel questioned Officer Gill about why it took about six months after the arrest to get his notes. The officer said that he scanned his notes and the case number into their new computer system and somehow they did not "link up to the case".
40The defence also questioned him regarding why the breath room and parading videos went missing up until about one month before trial. Officer Gill said that he does not handle that part of the case. However, he was aware on the night in question that Mr. Jung made an allegation that he had acted improperly. He thinks that he made the allegation when the police were releasing him from the station. He thought that it was captured on the video of the release. Officer Gill thought that it might have been Officer Sinclair who told him. But, curiously, Officer Gill did not make a notation of this.
41Officer Sinclair could not remember if it was before or after the first breath test that he went to the front desk to see if he could calm down Mr. Jung's girlfriend. While he did this, Officer Gill stayed with Mr. Jung. Mr. Jung's girlfriend would not calm down so the officers thought that speaking to Mr. Jung might help. But Mr. Jung did not want to speak to her. He wanted to speak to a lawyer. Officer Sinclair said that after Mr. Jung spoke to counsel he was "compliant and cooperative with us and spoke to his girlfriend".
42Although Officer Sinclair made one page of notes about his interaction with Mr. Jung's girlfriend, the sequence of these events was confused in the evidence. It is very difficult, if not impossible, to determine the exact chronology.
43After the 17 minute waiting period ended Officer Sinclair took Mr. Jung to the breath room for the second breath test. Mr. Jung registered a reading of 140 milligrams of alcohol in 100 millilitres of blood. The certificate of a qualified technician is exhibit 4.
44On the breath room video, Mr. Jung tells the breath technician, Officer Simakov, that he and Officer Sinclair were fine with him, but the other officer, presumably, Officer Gill, was a problem. He said something about being punched by an officer. Mr. Jung seemed a little shaken.
45Officer Simakov made a note of this. He told Mr. Jung that a videotape was being made of what he was saying. He did not make any further notes on the matter. He did not know what the specific allegation was. But he conceded that Mr. Jung used the phrase "police brutality" three times.
46Officer Simakov agreed that such an allegation should be followed up and that he should have done something about it but, he did not do anything. He acknowledged that he could have inquired with Officer Sinclair to try and find out which officer Mr. Jung was talking about. He also could have advised the Officer-in-Charge of the station, but he did not. He thought that Mr. Jung bore some responsibility to make a report to "a supervisor".
47Officer Simakov had other accused persons waiting for breath tests so Mr. Jung's allegations "got lost in the mix". He admitted that he could have placed a quick call to the Officer-in-Charge from the reporting room, which was close by. He also said that he could have suggested a course of action to Mr. Jung to deal with his allegations that night, but he did not. He told him that he could speak to a lawyer the next day or afterwards. His notes indicate that Mr. Jung did not report any injuries to him.
48The Crown asked Officer Sinclair if he witnessed a confrontation between Officer Gill and Mr. Jung. Officer Sinclair said that there was a confrontation between Officer Gill and Mr. Jung but there was no physical contact.
49In the following exchange, the defence pressed him on the issue of physical contact:
Q. There's no physical contact between Officer Gill and my client.
A. No.
Q. There was no reason for anybody to think excessive force was used.
A. No.
Q. Okay. There was no physical contact with an item, any item that's not Officer Gill physically and my client.
A. No, not that I recall.
50It appears that Officer Sinclair is backtracking a bit from saying that there was no physical contact between Mr. Jung and Officer Gill to saying "not that I recall". This answer leaves open the possibility that there was physical contact.
51This is borne out by the following questions and answers in cross-examination:
Q. Okay. So, I'm going to suggest to you that between the tests you weren't in the room, in the report room.
A. It's quite possible.
Q. Okay. And I'm going to suggest to you during this time, that a confrontation happened.
A. It's possible, yes.
Q. And that you came in at the tail end of that confrontation.
A. Possible, yes.
Q. And, as you came in at the tail end of that confrontation, Officer Gill was striking my client with a phone or a receiver of a phone.
A. I don't recall that part, no.
Q. Okay. But, you walk into the room when you come back to get him.
A. Yes.
Q. Okay. I'm going to suggest to you that Officer Gill, at that point in time, was striking my client with the phone.
A. Sorry, while I'm in the room.
Q. As you're returning to the room.
A. It's possible. I was not there.
52Officer Sinclair said that he did not know that the defence was alleging that Officer Gill used excessive force on Mr. Jung. He denied that he is covering up for Officer Gill. Mr. Jung did not mention any physical injuries to him during the time that they were together.
53However, Officer Sinclair was aware that "allegations were being made" and that "The phrase, police brutality was used". He conceded that he should have taken "some steps to determine if something improper happened in [his] absence". But he did nothing to follow up on these complaints. He said that he was focused on completing his investigation.
54He agreed that as a junior officer to Officer Gill that it would be very uncomfortable to take action against a senior officer on such an issue. He would not want to do it if he did not have to.
55After the last breath test was completed, Officer Sinclair served Mr. Jung with the requisite documents and released him from the station.
Mr. Jung's Evidence
56Mr. Jung testified only on the Charter application. He is 31 years old. He works at the TD bank. After the first breath test, Officer Sinclair turned him over to Officer Gill who took him to the waiting room and handcuffed him to a bench.
57Officer Gill told him that his girlfriend was outside waiting and that she was very upset. He told Mr. Jung that he needed to calm her down. Officer Gill wanted him to speak with her. Mr. Jung told him that he did not know who he was going to be talking to and that he wanted to speak to a lawyer before speaking to anyone.
58Then a telephone call came into the waiting room: "And then, it was his left hand, he had the receiver, and he placed it against to my head, and his right hand was against my collar. And that's – that's when the whole thing started". This was on his left collarbone.
59Officer Gill was standing on Mr. Jung's left side. He was upset. He kept saying that Mr. Jung's girlfriend wanted to talk to him – "fucking girlfriend wants to talk to you".
60He said that Officer Gill forced him against the corner of the wall. Then the following happened:
A. So, it was pretty much the – his left hand had the receiver, the right hand was against my collar. So, initially it was – it was just, you know, talk to your girlfriend. But, it was – it was to the point where my head just kind of budged to the side. And then, it was – it was a good – it was a good ten to 15 seconds the shove just became stronger and stronger, more aggravated, to the point where my whole body was just shifted against the wall. You know, your girlfriend wants to talk to you; talk to your girlfriend, your girlfriend wants to talk to you.
Q. Okay. And I see when you're saying those words, that you're taking both your left and your right hand and moving them forward in a motion.
A. Yes.
Q. And so, is – is that what is occurring? He's sort of pushing or making contact into you in – in that sort of back and forth motion?
A. That's correct.
61Mr. Jung described the motion as similar to a cross-check in hockey: pushing and punching. The whole motion looks like a punching motion.
62The force that Officer Gill used was very strong. It caused his head to hit the wall five or six times, but he did not have any visible injury to this head. He said that:
it's the right hand that was punching, pulling – pushing, pulling, semi-punching on my neck and his left hand it had the receiver, right, so that one also – it was the receiver that was just kind of punching the side of my head, but it wasn't actually his – I wouldn't say his physical hand, it's the receiver.
63During this, Mr. Jung kept saying that he did not want any trouble but that he wanted to speak to a lawyer. They were talking over each other as Officer Gill kept telling him to speak to his girlfriend. Officer Gill struck him six or seven times. The physical contact lasted 10 to 15 seconds.
64Mr. Jung further described the assault:
A. So, the receiver was against my head. So, it was – it wasn't just my head, because it was kind of slipping up and down. So, it's my head from the top to the neck and it was his right hand that was against my neck over here, where he just grabs on my shirt. So, it was more like a hockey push, but a very strong one; all the way to the corner.
Q. Okay. So, you describe a hockey push, where you'd be sort of holding onto, I guess, somebody's clothing and then pushing them ...
A. That's correct.
Q. ... with both hands. Okay. And as you described in your affidavit you – the striking was like a short jab push, is that accurate?
A. That's correct.
65He said that"it wasn't actually a detached physical punch into the face, it was actually one hand on the collar of my shirt, with the other hand with the receiver and I was just being pulled back and forth, back and forth". Officer Gill was hitting him on the top and bottom of the left ear to the cheek and the side of the neck.
66Then Officer Sinclair showed up to take him to the breath room for the second test and saw what Officer Gill was doing. Officer Gill saw him and ended the assault. Mr. Jung described his feelings about what happened thusly:
Like I was in a state of shock. I mean, it's not like I said anything to – to cause this. I wasn't being repulsive, I wasn't being violent. I tried to stay as compliant as I can. I mean, I'm handcuffed to a bench, in a police station, there's nothing I can do. And the fact that this whole thing happened, it just – like I just didn't know why.
67Mr. Jung did not say anything to Officers Gill or Sinclair. But when he got into the breath room he told Officer Simakov what happened. Mr. Jung's reasoning for this was:
I guess I just – you know, I was in a state of shock and just wanted to tell somebody other than Officer Gill and Officer Sinclair, because clearly they did see and Officer Gill did conduct – he did do the physical abuse. So, if there was another party who was not in the room, maybe if I say something maybe something can be done, right.
68The Crown pointed out that on the breath room video he told Officer Simakov that he was "almost punched". Mr. Jung explained that:
… it's very hard to be very descriptive in that environment. You know, you're – you just got assaulted and brutalized and then you just got transferred into the breathalyzing room; it's very hard for me to, you know, keep a calm mind and say, you know, be as descriptive as possible what just happened. You know, I was – I was in a state of shock.
69Although Mr. Jung hoped that his report to Officer Simakov would result in some action being taken to investigate his allegations, nothing was done.
70After the second breath test, Officer Gill took custody of him and handcuffed him to the bench again. Officer Gill goaded Mr. Jung verbally, asking him what his parents would think of him being in a police station. Mr. Jung told him that his mother is a widow. Then, Officer Gill asked him what his dead father would think of him "behaving and acting like this". Mr. Jung did not respond.
71Mr. Jung did not ask to speak to a supervisor or anyone else because after Officer Simakov told him to just go speak to his lawyer, he felt that there was no point in complaining to anyone else at the station. He was pretty sure that he would get the same response.
72Mr. Jung did not want to sign any of his release papers without speaking to a lawyer. Officer Gill did not get upset with him about this; he called duty counsel for him. Mr. Jung spoke to duty counsel and then proceeded with the release procedure and signed the documents.
73Regarding why he did not say anything about the assault during the release procedure, which was being videotaped he said "When I was doing the paperwork, I mean, it's – it's kind of draining, I just wanted to get out of the police station. I mean, who do I know who the Sergeant is? Who do I know which officer is what role? You know, I just – just wanted to leave the station".
74As Officer Sinclair escorted him out of the station Mr. Jung told him that he [Officer Sinclair] saw what happened and that "police brutality is wrong". But Officer Sinclair did not respond.
75Mr. Jung did not realize that he had the marks on his left collarbone until he got home and was changing clothes between 5:30 a.m. and 6:00 a.m. When he first saw the mark it had not grown to its ultimate size. At first he thought that it could have been caused by anything.
76Although he felt pain during the assault, afterwards while he was in the station he did not feel pain because he was in shock. He said that once he was at home and the bruising developed he started to feel pain. He identified the pictures of his injury that were mentioned above as having been taken at 7:00 p.m. or 8:00 p.m. the day of his release.
77That was all of the evidence.
Legal Analysis
Did the Police Breach Mr. Jung's Rights Under Section 7 of the Charter?
78Section 7 of the Charter states "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".
79In the case at bar, the defence asserts that Officer Gill breached Mr. Jung's rights under s. 7 by assaulting him while trying to persuade him to speak to his girlfriend.
80Further, the defence maintains that Officers Sinclair and Simakov compounded the breach by ignoring it.
81The defence has the onus of proving the breach on a balance of probabilities.
Did Officer Gill Assault Mr. Jung?
82First, I will determine whether the defence proved that Officer Gill assaulted Mr. Jung. The resolution of this issue depends primarily on the credibility and reliability of Officer Gill and Mr. Jung, but also involves to a lesser extent the credibility and reliability of Officers Sinclair and Simakov.
83While Mr. Jung and Officers Sinclair and Gill were in the police cruiser waiting to enter the booking-in area of the police station, Mr. Jung told them that he had an urgent need to use the washroom. Officer Sinclair said that Mr. Jung was desperate. He tried to convince Mr. Jung that he could hold it and told him that they would have to parade him before the Officer-in-Charge before he could go to the washroom. I would not characterize this as a sympathetic response to Mr. Jung's need to use the washroom.
84Moreover, Officer Gill went further and demonstrated a belligerent and demeaning attitude toward Mr. Jung. He told him to urinate in the police cruiser. When defense counsel questioned him about this he was evasive and would not admit that he said that. He testified that "If I did that it was probably a mental – mental lapse". He agreed that it would be "incredibly inappropriate" to say this "if it happened".
85At this point in his cross-examination Officer Gill was still not conceding that he told Mr. Jung to urinate in the police cruiser. And if he did say it, he said that it was "probably" a mental lapse. He did not seem sure.
86However, Officer Gill's evasiveness and, frankly, lack of honesty with the court, were exposed when the defence played the in-car video, which clearly demonstrated that he did say that. Upon hearing the audio from the video in court, Officer Gill was forced to admit that he told Mr. Jung to urinate in the police cruiser and that it was inappropriate to have done so.
87I find it hard to believe that Officer Gill would have forgotten that he said this to Mr. Jung. It is an astonishing thing to tell someone. Consequently, I find that his testimony on this point was evasive and lacked the candour that one rightfully expects of a witness testifying under oath or affirmation.
88Officer Sinclair was not forthcoming about this incident, either. He testified that no one told Mr. Jung to urinate in the police cruiser. But this was not true. He, too, was forced to admit that Officer Gill said exactly that after the defence played the in-car video for him. I find that both officers were not being truthful with the court about this.
89On top of that, although it is not as serious as prevaricating about whether Officer Gill told Mr. Jung to urinate in the police cruiser, both officers contradicted each other with regard to which one of them called the booking officer to arrange for Mr. Jung to use the washroom.
90After this, Mr. Jung's case proceeded in the normal course until between the first and second breath test. While Mr. Jung was waiting for the second breath test he was handcuffed to a bench in the waiting room where there is no video recording.
91Officer Sinclair said that Mr. Jung was "confrontational" with them at this time. He said that Mr. Jung was arguing with him and Officer Gill, but he could not remember what either he [Officer Sinclair] or Mr. Jung said, other than that Mr. Jung said that he knew persons in high places and that he would have their jobs. As indicated above, I find that Officer Sinclair's evidence is so vague and lacking in specificity that I do not believe it.
92Meanwhile, Mr. Jung's girlfriend was raising a ruckus in the lobby of the police station. Officer Gill went out to speak with her but he could not calm her down. He returned to the waiting room. Then, Officer Sinclair went out to speak to her and left Mr. Jung with Officer Gill. It is clear from the evidence that Officer Gill and the other officers were quite desirous of Mr. Jung speaking to his girlfriend in order to calm her down.
93At one point a telephone call came in from the lobby to the waiting room. Officer Gill answered the telephone and tried to get Mr. Jung to speak to his girlfriend in order to calm her down. Officer Gill's desire for Mr. Jung to speak to his girlfriend was increasing. He said that "I really needed him to speak to his girlfriend because I didn't want his girlfriend to get arrested, and I needed him to speak to his girlfriend".
94Officer Gill held the telephone receiver up to Mr. Jung's ear and tried to get him to speak to her. Mr. Jung wanted to speak to a lawyer first. Officer Gill said that his hand was "almost locked in the air" as he held it up to Mr. Jung's head. Mr. Jung pushed his hand out of the way. When Mr. Jung's hand slipped off of Officer Gill's hand, Officer Gill's hand snapped back by accident causing him to hit Mr. Jung in the head with the telephone. This may have happened in the way that Officer Gill explained. It is very difficult to tell.
95However, Officer Gill's evidence about the incident and about what happened afterwards was vague and at times evasive. He said that he spoke to Mr. Jung about it afterwards and he checked for injuries. He thought that Mr. Jung mentioned injuries, but he could not remember if it was right after the incident or later, during the release procedure. He could not remember what Mr. Jung said about injuries. Officer Gill did not make any notes about the incident or about what happened afterwards.
96I find this difficult to understand. This was an important episode; one about which an officer would be expected to make notes. This shows a lack of diligence with regard to the incident and perhaps an effort to obfuscate it.
97Mr. Jung disagreed with Officer Gill's rendition of the incident. He said that Officer Gill insisted that he speak to his girlfriend and that he grabbed him by the collar and kept pulling and pushing him in staccato motions while holding the telephone receiver up to his head. This caused his head to bounce off of the wall several times and caused a redness on his left collarbone.
98There are two pictures that depict a significant red mark on Mr. Jung's left collarbone. He did not suffer any injuries to his head. Mr. Jung described the incident to Officer Simakov before the second breath test. He told him that he was "almost punched". Mr. Jung explained that he was in a state of shock at what had just happened and consequently, it was "hard to be very descriptive in that environment".
99After he reported the assault to Officer Simakov, Mr. Jung did not say anything to any other police officer about the assault. He felt that Officer Simakov was not very helpful. He just told him to speak to a lawyer. In the circumstances, Mr. Jung felt that the response would be the same from any other officer that he might tell about the assault. He tried to mention it to Officer Sinclair as he was leaving the police station, but the officer did not respond.
100I grant that it is odd that Mr. Jung would not have received any injury to his head given that he said it hit the wall several times. He could not explain this peculiarity. I cannot resolve this, but that alone does not cause me to disbelieve him about the assault. I note that Officer Gill admitted that he hit Mr. Jung on the side of the head with the receiver when his hand snapped back, but no injury was visible. This, too, is odd, but there is no dispute that it happened.
101What is clear is that Mr. Jung had an injury to his left collar bone that corresponds to the way that he said Officer Gill assaulted him.
102His statement to Officer Simakov that he was "almost punched" does not detract from his account of the assault given in his testimony. I find that his explanation for this is reasonable. I accept it.
103I find that Mr. Jung testified in a credible manner. Any flaws in his evidence are not sufficient to cause be to disbelieve his account of the assault. This was a very traumatic event. It is understandable that in those circumstances one might not speak as accurately as one would in a calmer setting.
104I also find that given the response that he got from Officer Simakov and Officer Sinclair, it was understandable why he did not continue to complain to other officers about the assault.
105I find that Mr. Jung's evidence was consistent with what was occurring with the officers' desire for him to speak to his girlfriend, especially Officer Gill. His account of the assault is completely plausible. His evidence was not undermined. It was balanced. He did not try to cast blame on all of the officers. Except for not properly following up with his allegations of assault, he acknowledged that all but Officer Gill treated him well.
106In addition, the assault described by Mr. Jung was in keeping with Officer Gill's general attitude towards him; from telling him to urinate in the police cruiser, to insisting that he speak to his girlfriend.
107In contrast, I find Officer Gill's evidence problematic. I do not believe it. I pointed out above several areas of his testimony that raise serious doubts about his veracity on this issue.
108Therefore, for all of the above reasons, I find that the defence proved on a balance of probabilities that Officer Gill assaulted Mr. Jung as Mr. Jung said that he did.
The Law
109Section 25(1)(b) of the Criminal Code states that:
Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(b) as a peace officer or public officer,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
110The Crown argued that this section entitled Officer Gill to hold up the telephone receiver to Mr. Jung's ear. One might argue that Officer Gill was "authorized by law" to try and keep the peace in the police station lobby and that he was acting within this authority when he tried to persuade Mr. Jung to speak to his girlfriend. If I had found that all that happened was that Officer Gill held the receiver up to Mr. Jung's head and that it accidentally hit him, then perhaps this section would apply to Officer Gill. But I have found that he did much more.
111I found that Officer Gill assaulted Mr. Jung by grabbing his collar and pushing and pulling him back and forth and hitting his head against the wall to try to force him to speak to his girlfriend. Officer Gill used more force than was necessary to accomplish his purpose. Moreover, Mr. Jung did not have any obligation to speak to his girlfriend as Officer Gill wanted him to. In these circumstances, I find that s. 25(1)(b) does not apply to Officer Gill.
Should the Breath Readings be Excluded Pursuant to Section 24(2) of the Charter?
112Section 24 of the Charter states that:
(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), 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.
113One might wonder if the breath test results were "obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter". In R. v. Pino the Ontario Court of Appeal dealt with this issue. Justice Laskin reviewed the jurisprudence and found that the Supreme Court of Canada has adopted a "generous and increasingly broad approach to the 'obtained in a manner' requirement".
114Laskin J.A., found further that:
On a superficial reading of s. 24(2), one might be tempted to conclude that the "obtained in a manner" requirement can only be met by a causal connection between the breach and the discovery of the evidence: "but for" the breach the evidence would not have been discovered. But the Supreme Court has long recognized that a causal connection is unnecessary.
115In paragraph 55, he pointed out that in R. v. Wittwer, the Supreme Court of Canada dealt with a statement by the accused. They found that:
In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, at p. 1005. The required connection between the breach and the subsequent statement may be "temporal, contextual, causal or a combination of the three": R. v. Plaha, 189 O.A.C. 376, at para. 45. A connection that is merely "remote" or "tenuous" will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.
116In the case at bar the evidence is breath tests results, but I do not think that there should be a difference in how to treat this evidence and the statement evidence in Wittwer.
117In R. v. Strachan the court held that:
So long as a violation of one of these rights precedes the discovery of evidence, for the purposes of the first stage of s. 24(2) it makes little sense to draw distinctions based on the circumstances surrounding the violation or the type of evidence recovered. A better approach, in my view, would be to consider all evidence gathered following a violation of a Charter right, including the right to counsel, as within the scope of s. 24(2).
118In the case at bar one of the breath test results preceded the Charter breach, but the second breath test result came after the breach. But it is clear that the Charter breach occurred during the breath testing procedure because it was between the first and the second test.
119Therefore, the breach and the breath tests "can be said to be part of the same transaction or course of conduct". Since the required connection between the breach and the evidence sought to be excluded may be "temporal, contextual, causal or a combination of the three …" I find that both breath test results come within the ambit of s. 24 of the Charter.
120In R. v. Grant, the court explained a three-part test for deciding whether evidence should be excluded after the breach of a person's rights under the Charter:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.
121Regarding the first factor, I find that this was a grievous breach of Mr. Jung's rights under s. 7 of the Charter. An assault on a person in custody while handcuffed to a bench to try to persuade him to do something that he has no obligation to do is indeed a grievous breach of the person's rights under s. 7 of the Charter.
122I find that the conduct of the police further exacerbates the breach. As I found above, Officers Sinclair and Gill were not forthright with the court. None of the officers responded responsibly to Mr. Jung's report that Officer Gill had assaulted him. They did nothing to follow up, investigate, or even report the allegation to their superiors.
123Officers Sinclair and Simakov conceded that they should have done more. Mr. Jung even gave Officer Sinclair a last chance to do something as he was leaving the police station, but Mr. Jung testified that Officer Sinclair ignored him, which incidentally, bore out his assessment of the futility of saying anything more to anyone after he told Officer Simakov about the incident and received an unhelpful response.
124After considering the second factor, I find that the impact of the breach on Mr. Jung's Charter-protected interest of the security of his person was gravely impacted by being assaulted by one of the police officers that was holding him in custody.
125Concerning the third factor, society has a strong interest in seeing drinking and driving charges adjudicated on their merits. The breath test results are reliable evidence obtained by a minimally intrusive procedure. The exclusion of the tests would be fatal to the Crown's case.
126After considering all of the circumstances, the law, and the submissions of counsel, I find that in light of this very serious breach of Mr. Jung's right to security of the person, and considering the behaviour of the police regarding the breach, to admit the breath tests into evidence would bring the administration of justice into disrepute.
127Therefore, the breath test results are excluded from evidence. There being no other evidence against Mr. Jung on the charge, I find him not guilty. The charge is dismissed.
128Given my findings on ss. 7 and 24 of the Charter, it is not necessary for me to consider whether the police action breached Mr. Jung's rights under s. 12 of the Charter.
Released: July 19, 2017
Signed: Justice J.W. Bovard