The Canadian Charter of Rights and Freedoms ("Charter") guarantees certain protections to Canadian citizens, such as the right to life, liberty and security of the person; the right to be free from unreasonable search and seizure; and the right not to be subjected to any cruel or unusual treatment or punishment. The Charter regulates interactions between the state (federal, provincial and territorial governments) and individuals; it does not govern interactions between individuals.
If the Charter rights of an accused person were violated during the investigation against them, the court will exclude the evidence obtained in the investigation. This results in a dismissal of the charges.
As such, many accused persons will seek to advance a Charter violation argument, which is not often successful. However, in the case of Mr. Jung, the argument was successful.
Mr. Jung was stopped at a RIDE spot check in late February 2016. Mr. Jung was over the legal limit and therefore failed the roadside breath test. Mr. Jung was arrested by police at the spot check. Mr. Jung and his girlfriend – a passenger in the vehicle – were than transported to the police station for additional, more conclusive, breath tests.
Mr. Jung alleged that during his time with the arresting officers, his Charter rights were violated.
According to Mr. Jung, Constable Gill physically assaulted him while he was handcuffed. Mr. Jung stated that the police repeatedly bashed his head with a phone receiver, while the police officer claimed that he accidently hit Jung with the phone receiver.
Mr. Jung was also deprived of using the washroom for a prolonged period of time. As documented by in-car video evidence, the two police officers who arrested Jung at the RIDE spot check told Jung to urinate in the back seat of the police cruiser.
Mr. Jung's case was heard at the Ontario Court of Justice on April 5 and 6, 2017. Justice J. W. Bovard released his decision on the matter on July 19, 2017.
Justice Bovard found that the police did in fact violate Mr. Jung's Charter rights, and as such, the breath tests could not be admitted as evidence (at paragraph 126):
"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."
Besides the breath tests, there was no other evidence against Mr. Jung on the charge of impaired driving. Thus, the court was unable to find Mr. Jung guilty of impaired driving and the charge was therefore dismissed.
Toronto police have said that the court's decision is being reviewed by the internal Professional Standards Unit.
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