Prince Edward Island’s highest court has overturned the conviction of a Ukrainian-born woman accused of refusing to take a breathalyzer and held in jail overnight after a June 2019 crash, saying Charlottetown police violated its Charter rights. The Court of Appeal ruling released Friday said three police officers who confronted Vira Polusmiak after a car accident should have realized her English was very poor and should have made extra efforts to make sure she understood her rights. “This appeal raises the question of whether the police have adapted their practices to meet the challenge of changing demographics to ensure that the Charter’s protections apply regardless of one’s language or culture,” Judge John Mitchell wrote in 24 page decision. “The facts of this case constitute, in my view, a deplorable disregard for Polusmiak’s constitutional rights.” In response to the ruling, Charlottetown Police Chief Brad McConnell sent 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 our officers have the necessary tools to enforce of the laws in our province and to hold accountable those who violate them”. The ruling suggests that the officers could have used a translation app to provide Polusmiak 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 a record that could 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 obligations by repeating himself in a language the prisoner 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 the breathalyzer after the constable leading the search said he detected a faint odor of alcohol on her breath. “A police officer does not fulfill his obligations under the Charter by repeating himself in a language that the detainee does not understand,” the decision noted.
I didn’t understand the word “lawyer”
After Polusmiak made several unsuccessful attempts to blow into the device in a way that would result in an accurate reading, the officers gave up and accused her of refusing to provide a breath sample. He was asked if he wanted immediate access to a lawyer and he said no, but later testified that he did not understand what the word “lawyer” meant. A breathalyzer is shown in this file photo. The PEI Court of Appeal decision notes that police used gestures and demonstration to show the defendant how to blow into one, but she could not follow instructions and eventually ran out of clean mouthpieces. (CBC) “This woman, who was crying, upset and unfamiliar with the language, was handcuffed, taken to jail and held there for approximately seven hours,” the Court of Appeal’s decision said. “No one thought to ask if he had a spouse or family member he could be taken care of.” In fact, her husband was at home, just around the corner from the crash site, but was never contacted.
Director, doctor testify for lack of English
Polusmiak came to Canada in 2017, at age 45. She works as a housekeeper at a Charlottetown hotel where 18 different nationalities are represented among the 35-member staff, her supervisor testified. The same principal 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 he could understand.
The woman took sleeping pills after being released
“The detention had serious consequences,” Mitchell wrote in the appeals court decision. “Polusmiak testified that she thought she was being taken and held at a police station, which she understood from her Ukrainian citizenship. Considering herself a failure for being incarcerated, after her release she bought and then took sleeping pills to end her life. He woke up in the hospital.” Excerpt from the Court of Appeal decision describing Vira Polusmiak’s response to being taken to the Provincial Correctional Center overnight after the car accident in June 2019. (PEI Court of Appeal) Polusmiak was found guilty after a trial in November 2019 that included a translator. Her conviction was upheld on appeal in October 2021. An appeal hearing at the Court of Appeal level took place in May 2022.
Are people imprisoned “normally”?
Friday’s ruling also expressed concern that one of the Charlottetown police officers at the scene testified that they “typically” jail a defendant whose blood alcohol concentration is over 200 milligrams percent “if there is no one at home to take care of him.” .
In this case, Polusmiak was not asked if there was an adult at home to take responsibility for her, and in fact asked to be taken home to her husband while en route to the County Correctional Center. Also, her blood alcohol level was unknown.
“Jailing those charged with refusal simply because you don’t know the person’s blood alcohol concentration is stupid and against the law,” Mitchell wrote.
One need only walk the streets of Charlottetown and Summerside or walk 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 24 years and a constable who has been on the police force nine years ‘regularly’ or ‘usually’ put citizens in jail just because they have a reading over 200 or are charged with If he fails or refuses, then the police imprison many people for no reason. The court cannot condone this practice.”
The decision also made reference to the growing number of speakers of non-official languages in the province.
“During 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.
“Times have changed. One only has to walk the streets of Charlottetown and Summerside or walk 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 .”
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