Warning: This story involves a suicide attempt. A list of resources appears at the end of the text.
Prince Edward Island’s Supreme Court has overturned the conviction of a Ukrainian-born woman who was charged with refusing a dragster and held overnight in jail after an incident in June 2019, on the grounds that Charlottetown police violated her Charter rights .
The Court of Appeal ruling, published on Friday, said three police officers who dealt with Vira Polusmiak after a single-vehicle crash should have realized her English was very poor and made extra efforts to make sure she understands her rights.
“This appeal raises the question of whether the police have adapted their practices to meet the challenge of changing demographics so as to ensure that the protections of the Charter apply regardless of a person’s language or culture,” Justice John Mitchell wrote in the 24 pages.
“The facts of this case constitute, in my view, a deplorable disregard for Polusmiak’s constitutional rights.”
In response to the decision, 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 of our province, we will ensure our officers have the tools they need to enforce the law in our province and to hold accountable those who violate them.”
The ruling suggests that police officers may have used a translation app to provide Polusmyak with a Ukrainian or Russian translation of what they were trying to convey to her.
“There are many such options on the market now, and some even keep records that can prove invaluable in court,” Mitchell wrote. “These simple steps could confirm her understanding or lack of understanding.”
A police officer fails to fulfill his Charter duties by repeating himself in a language that the detainee does not understand.— Court of Appeal decision
Instead, officers repeated their questions and instructions more slowly in English, used exaggerated gestures and demonstrated how she was expected to blow into a breathalyzer after the investigating officer said he detected a faint odor of alcohol on her breath her
“A police officer fails to fulfill his Charter duties by repeating himself in a language that the detainee does not understand,” the ruling noted.
I didn’t understand the word “lawyer”
After Polusmiak made several unsuccessful attempts to blow into the device in a way that would produce an accurate reading, officers gave up and charged her with refusing to provide a breath sample.
She was asked if she wanted immediate access to a lawyer and she said no, but later testified that she did not understand what the word “lawyer” meant.
A breathalyzer is demonstrated in this file photo. The PEI Court of Appeal ruling noted that police used hand gestures and a demonstration to show the accused how to blow into one, but she was unable to follow instructions and eventually ran out of clean mouthpieces. (CBC)
“This woman, crying, upset and not knowing the language, was handcuffed, thrown into prison and kept there for about seven hours,” the Court of Appeals ruled. “No one thought to ask if she had a husband or family member in whose care she could be left.”
In fact, her husband was at home, just around the corner from the crash site, but he was never contacted.
A manager, a doctor testify to the lack of English
Polusmiak came to Canada in 2017 at the age of 45. She worked as a housekeeper at a Charlottetown hotel where 18 different nationalities were represented among the 35-member 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 Russian-speaking staff member was available to train her.
Her doctor also testified that her English was so poor that her husband had to be present to translate the medical results into a language she could understand.
The woman took sleeping pills after being released
“The detention had dire consequences,” Mitchell wrote in the appeals court ruling.
“Polusmyak testified that she thought she was being taken and held at a police station, which was her understanding because she was a citizen of Ukraine. Considering herself a failure for being detained, after her release she bought and then took sleeping pills to end her life. She woke up in the hospital.”
Excerpt from the Court of Appeal decision describing Vira Polusmiak’s reaction to being taken to the Provincial Correctional Center the night after the car crash in June 2019 (PEI Court of Appeal)
Polusmyak was found guilty after a trial in November 2019 that included an interpreter. Her sentence was upheld on appeal in October 2021. An appeal hearing at Court of Appeal level took place in May 2022.
People “normally” closed?
Friday’s ruling also raised concerns that one of the Charlottetown police officers at the scene testified that they “typically” arrest a defendant whose blood-alcohol concentration is over 200 milligrams percent “if there’s no one home to take care of them “.
In this case, Polusmiak was not asked if there was an adult at home to take responsibility for her, and indeed asked to be taken home to her husband while en route to the provincial correctional centre. Additionally, her blood alcohol level was unknown.
“Incarcerating those charged with refusal simply because you don’t know the individual’s blood alcohol concentration is senseless and against the law,” Mitchell wrote.
One need only 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 Decision
“If a sergeant who has been on the police force for 24 years and a constable who has been on the police force for nine years ‘normally’ or ‘routinely’ put citizens in jail just because they have statements over 200 or are accused of failure or refusal, then the police imprisons many people unnecessarily. The court cannot condone this practice.”
The decision also mentions the growing number of non-official language speakers in the province.
“In the 20th century, Prince Edward Island was almost exclusively white, Anglo-Saxon, Acadian, Catholic, Protestant with a small indigenous population. It was indeed a rare and exotic phenomenon to hear a language other than English or French being 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.”
Resources for suicide prevention
The Canadian Suicide Prevention Lifeline has a 24-hour toll-free telephone service at 1-833-456-4566. You can be reached via text message to 45645, from 17:00 AT to 1:00 AT. Children’s Help Phone Text Services: Text “CONNECT” to 686868 (children and youth).
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