P.E.I. court overturns breathalyzer conviction of woman who couldn’t understand police

Warning: This story refers to a suicide attempt. A list of resources appears at the end of the text. 

Prince Edward Island’s top court has quashed the conviction of a Ukraine-born woman who was charged with refusing a breathalyzer and kept in jail overnight after a June 2019 accident, on the grounds that Charlottetown police breached her Charter rights. 

The Court of Appeal ruling released Friday said three police officers who dealt with Vira Polusmiak in the wake of a single-vehicle crash should have realized her English was very poor and made extra efforts to be sure she understood her rights.

“This appeal raises the question as to whether the police have adapted their practices to meet the challenge of changing demographics so as to ensure Charter protections apply regardless of one’s language or culture,” Justice John Mitchell wrote in the 24-page ruling. 

“The facts of this case constitute, in my view, a regrettable disregard for Polusmiak’s constitutional rights.” 

In response to the ruling, Charlottetown Police Chief Brad McConnell emailed this statement to CBC News: “I respect the court’s decision, and as we adapt to the growing diversity in our province, we will ensure that our officers have the necessary tools to enforce the laws in our province and to hold those accountable who break them.” 

The ruling suggested that police officers could have used a translation app to provide Polusmiak with a Ukrainian or Russian translation of what they were trying to get across to her. 

“There are many such options on the market now and some even keep a record which could prove invaluable in court,” Mitchell wrote. “Those simple steps could have confirmed her understanding or lack of understanding.”

A police officer does not discharge his obligations under the Charter by repeating himself in a language which the detainee does not understand.— Court of Appeal ruling

Instead, the officers repeated their questions and instructions more slowly in English, used exaggerated gestures, and demonstrated how she was expected to blow into the breathalyzer device, after the constable leading the investigation said he detected a slight odour of alcohol on her breath.

“A police officer does not discharge his obligations under the Charter by repeating himself in a language which the detainee does not understand,” the ruling noted. 

Didn’t understand word ‘lawyer’

After Polusmiak made several unsuccessful attempts to blow into the device in a way that would result in an accurate reading, officers gave up and charged her with refusing to provide a breath sample. 

She was asked if she wanted access to a lawyer immediately and said no, but later testified that she didn’t understand what the word “lawyer” meant. 

A breathalyzer device is demonstrated in this file photo. The P.E.I. Court of Appeal ruling notes that police used hand gestures and a demonstration to show the accused how to blow into one, but she could not follow the instructions and they eventually ran out of clean mouthpieces. (CBC)

“This woman, crying, upset and unfamiliar with the language, was handcuffed, put in jail and kept there for approximately seven hours,” the Court of Appeal ruling said. “Nobody thought to ask if she had a husband or family member in whose care she could be put.” 

In fact, her husband was at home, just around the corner of the crash site, but he was never contacted. 

Manager, doctor testify about lack of English

Polusmiak came to Canada in 2017, at the age of 45. She works as a housekeeper at a Charlottetown hotel where 18 different nationalities are represented among the 35-person staff, her supervisor testified. 

The same manager said she had to use Google Translate to communicate with Polusmiak because her English was so limited, and the only reason she was hired was because another staff member who spoke Russian was available to train her. 

Her doctor also testified that her English was so poor that her husband had to be present to translate medical results into a language she could understand. 

Woman took sleeping pills after release

“The detention had severe consequences,” Mitchell wrote in the appeal court ruling.

“Polusmiak testified she thought she was being taken to and kept in a police station, which was her understanding from being a citizen of Ukraine. Considering herself a failure because she had been detained, upon release she bought and then took sleeping pills in order to end her life. She awoke in hospital.”

An excerpt from the Court of Appeal ruling describing Vira Polusmiak’s reaction to being taken to the Provincial Correctional Centre overnight after the car crash in June 2019. (P.E.I. Court of Appeal)

Polusmiak was found guilty after a November 2019 trial that included a translator. Her conviction was upheld upon appeal in October 2021. A hearing to appeal at the Court of Appeal level took place in May 2022. 

People ‘normally’ jailed? 

Friday’s ruling also expressed concern that one of the Charlottetown police officers at the scene testified that they “normally” jail an accused person whose blood alcohol concentration is over 200 milligrams per cent “if there is nobody at home to take care of them.” 

In this case, Polusmiak was not asked whether there was an adult at home to assume responsibility for her, and indeed asked to be taken home to her husband while on the way to the Provincial Correctional Centre. As well, her blood alcohol level was unknown. 

“Incarcerating those who are charged with refusal simply because you don’t know the individual’s blood alcohol concentration is nonsensical and contrary to the law,” Mitchell wrote. 

One only has to walk the streets of Charlottetown and Summerside or walk through the halls of some of our high schools to see and hear that Prince Edward Island, in the 21st century, is a much more diverse province.— Court of Appeal ruling

“If a sergeant who has been with the police force 24 years and a constable who has been with the police force nine years ‘normally’ or ‘usually’ put citizens in jail solely because they have a reading of over 200 or they are charged with failing or refusing, then the police are incarcerating a lot of individuals unnecessarily. The court cannot condone this practice.”

The ruling also made mention of the province’s increasing number of speakers of non-official languages. 

“During the 20th century Prince Edward Island was almost exclusively white, Anglo-Saxon, Acadian, Catholic, Protestant with a small Indigenous population. It was a rare and exotic occurrence indeed to hear a language other than English or French spoken. 

“Times have changed. One only has to walk the streets of Charlottetown and Summerside or walk through the halls of some of our high schools to see and hear that Prince Edward Island, in the 21st century, is a much more diverse province.”

Suicide prevention resources

The Canada Suicide Prevention Service has a 24/7 toll-free phone service at 1-833-456-4566. You can connect via text at 45645, from 5 pm AT to 1 am AT. Kids Help Phone text services: Text “CONNECT” to 686868 (children and youth).

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