Police: Civil Liability in Québec
Kosoian v. Société de transport de Montréal, 2019 SCC 59 (38012)
(The “pictograph” referenced in the judgment is on the second last page of the judgment itself, and also described in para. 91 by Justice Côté).
“K took the descending escalator in a subway station without holding the handrail. A police officer employed by the city, who had been designated as an inspector by the authority responsible for the subway system (“STM”), ordered her several times to hold the handrail, since the STM taught police officers that holding the handrail was an obligation under a by‑law. K refused to comply and to identify herself. The police officer arrested her and searched her bag. He gave her a statement of offence for disobeying a pictogram indicating that the handrail should be held, which the STM had posted near the escalator pursuant to its By‑law R‑036, and another statement of offence for hindering the police in their duties. After being acquitted in the Municipal Court, K instituted a civil liability action against the police officer, his employer and the STM, arguing that the arrest was unlawful and unreasonable and that it constituted a fault because holding the handrail was not an obligation under a by‑law, but simply a warning. The trial judge dismissed the action, finding that the police officer had not committed any civil fault and that it was K who had behaved in an inconceivable manner by refusing to comply with the officer’s order. A majority of the Court of Appeal affirmed that decision.”
The S.C.C. (9:0) allowed the appeal.
Justice Côté wrote as follows (at paras. 4-6, 138-140):
“…With respect, the courts below erred in law in presuming the very existence of the alleged offence. The majority of the Quebec Court of Appeal could not rely on the presumption of validity applicable to the STM’s By‑law on the standards of safety and conduct to be observed by persons in the rolling stock and buildings operated by or for the Société de transport de Montréal (“By‑law R‑036”) to support the reasonableness of Constable Camacho’s belief in the existence in law of the alleged offence. The basis for the action instituted by Ms. Kosoian is not that the by‑law is invalid, but rather that it does not create the offence alleged against her. In other words, she argues that that offence does not exist in law; yet the presumption that a by‑law is valid does not extend to the very existence or scope of an offence. I would add that the validity of the by‑law is not challenged in this case and is therefore not a matter I need to address.
In my view, a reasonable police officer in the same circumstances would not have considered failure to hold the handrail to be an offence. Constable Camacho therefore committed a fault when he took hold of Ms. Kosoian in order to prevent her from leaving and detained her in the holding room. The STM, for its part, committed a fault by teaching police officers that the pictogram in question imposed an obligation to hold the handrail, a fault that explains — at least in part — Constable Camacho’s conduct. Finally, as the police officer’s principal, the City must be held liable for his fault. As for Ms. Kosoian, she was entitled to refuse to obey an unlawful order, and she therefore committed no fault that would justify an apportionment of liability.
In a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law. Every person can therefore legitimately expect that police officers who deal with him or her will comply with the law in force, which necessarily requires them to know the statutes, regulations and by‑laws they are called upon to enforce. Police officers are thus obliged to have an adequate knowledge and understanding of the statutes, regulations and by‑laws they have to enforce. Police forces and municipal bodies have a correlative obligation to provide police officers with proper training, including with respect to the law in force. Under Quebec law, a breach of these obligations may, depending on the circumstances, constitute a civil fault.
According to undisputed evidence, Ms. Kosoian suffered minor bodily injuries, but also above all, moral injury as a result of her unlawful arrest, the force used against her and the unreasonable search of her personal effects. As the dissenting judge clearly explained in his reasons (paras. 105 and 107), compensation for suffering, anguish and humiliation must be awarded in this case (see Baudouin, Deslauriers and Moore, vol. 1, at No. 1‑595).
I insist on one point: an unlawful arrest — even for a short time — cannot be considered one of the “ordinary annoyances, anxieties and fears that people living in society routinely . . . accept” and that, as a result, do not constitute compensable injury in the sense discussed by this Court in Mustapha, at para. 9. In a free and democratic society, no one should accept — or expect to be subjected to — unjustified state intrusions. Interference with freedom of movement, just like invasion of privacy, must not be trivialized. When she took the escalator in the Montmorency subway station that evening, Ms. Kosoian certainly did not expect to end up sitting on a chair in a room containing a cell with her hands cuffed behind her back, nor did she expect to have her personal effects searched by police officers. I have no difficulty believing that such an experience caused her significant psychological stress.
… I would set the total at $20,000, the amount identified by the dissenting Court of Appeal judge, because that amount was not challenged in this Court.”