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

Warning: This story contains details about 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." 

The ruling suggested that the police officers could have used a translation app to provide her 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."

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. 

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. 

"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. 

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.