Police breached charter rights of accused drunk driver with limited English: PEI Court of Appeal

An accused who had a limited understanding of English and claimed not to know the word “lawyer” did not understand her constitutional right to counsel and the options available to her, said the Prince Edward Island Court of Appeal has ruled.

In R. v Polusmiak, 2022 PECA 8, the appellant was born in Ukraine in 1972, grew up speaking Ukrainian, and was educated in Russian. She immigrated to Canada in 2017. Her level of English, according to her employer, was basic and limited.

She was involved in a single-vehicle accident in 2019. Police asked her to give breath samples for an approved screening device analysis under s. 320.27(1)(b) of the Criminal Code. When she did not provide samples after several attempts, she received a charge of refusal contrary to s. 320.15(1) of the Code. Police detained her for around eight hours.

A trial in PEI Provincial Court, aided by a translator, found the appellant guilty. She took the case to the Summary Conviction Appeal Court (SCAC), which dismissed her appeal. She then sought leave to appeal from the PEI Court of Appeal.

Conviction quashed

The appellate court granted leave to appeal, allowed the appeal, and quashed her conviction. The court excluded the evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms – relating to evidence obtained in a manner that infringed rights or freedoms under the charter – based on violations of ss. 10(b) and 9 of the charter – which deal with the rights to retain counsel and not be arbitrarily detained, respectively.

The SCAC improperly determined that the appellant understood her s. 10(b) rights, the appellate court ruled. The evidence showed that she had problems understanding English, including:

• the ambulance attendants observed that there was a language barrier
• a witness at the scene said that the appellant did not comprehend the words spoken to her
• a doctor said that the appellant’s husband had to assist in translating
• the appellant testified at trial that did not know what “lawyer” meant.

The police knew or should have known that her first language was not English and that she was having trouble understanding them, and they did not fulfill their duty to take further steps to ensure that she comprehended her rights, said the appellate court.

Next, the breach of the appellant’s s. 9 right started when the officer-in-charge – without assessing the criteria in s. 498 of the code and other relevant factors – turned her over to the back-up police officers for overnight detention in a correctional centre, the appellate court said.

The detention had severe impacts – after the back-up officers refused to let her go home to her husband, the appellant presumed that she was going to be kept in a police station, deemed herself a failure, and tried to end her life upon release.

Regarding s. 24(2) of the charter, the appellate court found that the evidence was obtained in a way that violated the appellant’s rights under both ss. 10(b) and 9 because her limited comprehension of English was a thread weaving through the whole incident.

The court conducted an analysis under R. v. Grant, 2009 SCC 32. The first factor – the seriousness of the charter-infringing state conduct – was met when police failed to ascertain that the appellant understood her rights under s. 10(b) despite her obvious comprehension difficulties.

The s. 9 breach was even more serious because none of the three officers involved seemed to consider ss. 493 to 499 of the code, the appellate court said. These breaches were systemic in nature, the court added.

The second criterion pertained to the impact of the charter-protected interest. The s. 10(b) violation prevented the appellant from receiving legal advice when she was vulnerable, while the s. 9 breach affected her liberty, the appellate court said.

The third factor involved the society’s interest in the adjudication of the merits. The court found it appropriate to exclude the evidence because admitting it would bring the administration of justice into disrepute.