After ruling that a Toronto police officer assaulted a drunk driving suspect and told him to urinate in the back seat of a police cruiser, a judge threw out an impaired driving charge this month.

Const. Amanpreet Gill, a police officer for 15 years, showed a “lack of honesty” with the court about what happened that night, Ontario Court Judge Joseph Bovard said in his decision.

“Officer Gill’s evidence about the incident and about what happened afterwards was vague and at times evasive,” Bovard said, finding that Gill assaulted Jong-Won Jung and thereby violated his charter rights.

“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 Section 7 of the charter.”

Jung was arrested at a RIDE stop after midnight on Feb. 28, 2016, after he failed a roadside breathalyzer test, according to the ruling. His girlfriend was in the car with him. His first breath test at the police station showed a level of 140 milligrams of alcohol in 100 millilitres of blood (the legal limit is 80), Bovard said.

As a result of the charter breach, the breath test results were excluded as evidence and, since there was no other evidence, Bovard found Jung not guilty.

Jung had one hand cuffed to a bench at the 41 Division police station and was waiting for his second breath test at about 1 a.m. when Gill said Jung’s girlfriend was being disruptive at the front desk, according to the ruling.

Gill testified he asked Jung to speak to her on the phone and calm her down. He said he put the phone to Jung’s ear but Jung pushed his hand away, causing him to accidentally hit Jung with the phone receiver.

Jung, however, testified that Gill shoved him repeatedly, causing his head to hit the wall five or six times, and hit him in the head with the phone receiver six or seven times. His left collarbone was injured.

He said Gill saw his rookie partner, Const. Corey Sinclair, coming to take Jung for his second breath test and stopped. Jung said the assault lasted 10 or 15 seconds.

“I was in a state of shock,” he testified, according to Bovard’s ruling. “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.”

Jung told the officer conducting the breath test he was subjected to “police brutality” and “almost punched,” according to the video from the breath test room.

He said he wasn’t able to be clearer because he was in shock. He also mentioned the “police brutality” to Sinclair before he was released.

Sinclair denied seeing an assault take place. Though he acknowledged Jung made allegations of “police brutality,” he did not follow up, he told the court.

Jung said he did not complain again while at the station because he felt there was no point given the lack of response up to then — a feeling Bovard said was entirely valid.

“His account of the assault is completely plausible,” Bovard said. “I find that the conduct of the police further exacerbates the (charter breach) … 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.”

A Toronto police spokesperson, Meaghan Gray, said the court’s decision is being reviewed by the internal Professional Standards Unit.

Gill’s and Sinclair’s testimony also “lacked candour” when it came to what happened in the police cruiser until confronted with the in-car video, Bovard found.

The video shows Jung saying he really needs to go to the washroom while waiting in the cruiser to enter the booking area at 41 Division. Gill responds by telling Jung to hold it and that he needs to be processed first.

Then “Gill went further and demonstrated a belligerent and demeaning attitude toward Mr. Jung,” Bovard said. “He told him to urinate in the police cruiser.”

Both officers said they arranged for Jung to use the washroom prior to the start of the booking process.

Speaking generally about cases involving charter violations like this one, Jung’s lawyer, Heather Spence, said video has been a game-changer.

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“One of the main concerns is cases slipping through the cracks where people plead guilty because they are not sure they will be believed over what the officers have to say,” she said. But the presence of video can make these cases less challenging, she says.

Jung did not respond to a request for comment through his lawyer.

Correction – July 31, 2017: This article was edited from a previous version that misstated lawyer Heather Spence’s given name.