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Arrest for non-existent offence results in $20K judgement


January 14, 2020
By Mike Novakowski

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An appendix attached to the judgement. Photo submitted by columnist.

A 38-year old woman who was arrested by a police officer after she refused to identify herself when the officer saw her not holding the handrail of an escalator at a Quebec subway station has been awarded $20,0000 in damages plus court costs.

In Kosoian v. Société de transport de Montréal, 2019 SCC 59, the court heard how Ms. Kosoian was leaning forward and rummaging through her bag as she descended an escalator at a Laval subway station. She was not holding the escalator’s handrail, despite a pictogram indicating that the handrail should be held. A police officer saw her, approached her and said, “Careful, you might fall. It’s dangerous. You should hold the handrail.”

Kosoian refused to hold the handrail and a heated exchange occurred. The officer ordered her several times to hold the handrail but she refused to comply. When she reached the bottom of the escalator, she refused to accompany the officer to a room so he could ticket her and she tried to walk away. She was physically escorted to a holding room where she refused to provide identification. She was handcuffed, forced to sit in a chair and her bag was searched. She was subsequently identified and ticketed for disobeying a pictogram and hindering police in their duties.

Kosoian was acquitted of the offences in a Quebec Municipal Court because the judge concluded he was not satisfied beyond a reasonable doubt that there was an obligation to obey the pictogram.

Kosoian then brought a civil liability action against the police officer who arrested her, the city who employed him (Laval), and the authority responsible for the subway system (Société de transport de Montréal). She argued that her arrest was unlawful and unreasonable, and it constituted a fault under Quebec civil law. In her view, holding the handrail was not an obligation under a by‑law, but simply a warning, and a reasonable police officer in the same circumstances would not have acted as the arresting officer did. She claimed to suffer significant psychological stress and humiliation and sought $69,000 in compensatory and punitive damages.

In the Court of Quebec, Kosoian’s arguments were rejected and her civil liability action was dismissed. In the judge’s view, the rules were clear and their implementation was beyond reproach. Further, the officer’s actions were exemplary and irreproachable. Kosoian was not unlawfully detained and the officer’s conduct was entirely justified. She was the author of her own misfortune by refusing to comply with the officer’s order and not holding the escalator’s handrail.

The plaintiff appealed to Quebec’s top court. In a split decision, the Quebec Court of Appeal rejected her submissions. A two-member majority ruled that the officer did not commit a civil fault by ticketing and arresting her when she refused to identify herself. The majority opined that failing to hold the handrail was a bylaw offence, which was presumed valid. The officer had been trained that holding the handrail was an obligation under a bylaw and he acted as a reasonable police officer would have done under the same circumstances.

A dissenting judge, however, found there was no obligation imposed under a bylaw that required a person to comply with the pictogram and hold the handrail. First, the pictogram had not been approved by the city, a requirement for making a bylaw offence. Second, the pictogram only communicated a warning to hold the handrail, not a directive to do so.
The dissenting judge would have awarded Kosoian $20,000, but reduced it to $15,000 after finding she was 25 per cent at fault for aggravating the situation by failing to co-operate with police. The $15,000 was to be paid by the subway authority because it drafted the bylaw, trained the police officers and prosecuted Kosoian.

Kosoian then appealed to Canada’s highest court. In a unanimous judgment delivered by Justice Côté, the Supreme Court of Canada found the bylaw did not create an offence for not holding the handrail. The pictogram was only a warning to hold the handrail and communicated advice to be careful. It did not impose an obligation to do so. The officer unreasonably believed in the existence of an offence that did not exist in law. Since there was no legal basis for the actions taken by the officer, his conduct was unlawful.

“In short, a reasonable police officer in the same circumstances would necessarily have doubted the existence in law of the offence and, as a result, would not have required Ms. Kosoian to identify herself so that she could be given a statement of offence,” Côté said. “Such an officer would certainly not have arrested her if she refused, but would instead have allowed her to continue on her way. I therefore conclude that [the officer] departed from the conduct expected of a reasonable police officer by grabbing Ms. Kosoian in order to prevent her from leaving and by taking her to the holding room. By acting in that manner, he made an arrest which was unlawful … and which, having regard to the context, constituted a civil fault.”

Police training

In its judgment, the Supreme Court considered the obligation of police officers to know and understand the law. In doing so, Justice Côté made the following comments:

  • “Police officers are obliged to have an adequate knowledge and understanding of criminal and penal law, of the offences they are called upon to prevent and repress and of the rights and freedoms protected by the Charters. They also have an obligation to know the scope of their powers and the manner in which these powers are to be exercised. A police officer whose application of the law departs from that of a reasonable police officer in the same circumstances commits a civil fault. In this respect, an officer who arrests someone on the basis of a non‑existent offence may be civilly liable.”
  • “[W]hile police officers are not held to an obligation of result with regard to knowledge of the law, the applicable standard is a high one. Citizens rightly expect them to have an adequate knowledge and understanding of the statutes, regulations and bylaws they are called upon to enforce and of the limits of their authority.”
  • “Police officers cannot claim to carry out their mission — to maintain peace, order and public security and to prevent and repress crime and offences under the law and bylaws — without having an adequate knowledge and understanding of the fundamental principles of criminal and penal law, of the rights and freedoms protected by the Charters and of the offences they are called upon to repress, and without knowing the limits of their authority.
  • “As professionals responsible for law enforcement, police officers must be able to exercise judgment with respect to the applicable law. They cannot rely blindly on the training and instructions given to them, nor can they mechanically follow internal policies, directives and procedures or usual police practices.”
  • “[I]t is well established that police officers cannot avoid personal civil liability simply by arguing that they were merely carrying out an order that they knew or ought to have known was unlawful. … The same is true of the training and instructions given to police officers and of internal police force policies, directives and procedures.”
  • “[P]olice officers are not lawyers and are not held to the same standards as lawyers. For example, they are not themselves expected to carry out thorough research or to engage in extensive reflection concerning the subtleties of conflicting case law. Moreover, where a question of law is controversial, a police officer’s conduct should not be found to constitute fault insofar as it is based on an interpretation that is reasonable and consistent with the training and instructions given to the officer.”
  • “[T]he expectations that exist for police officers remain high. Where there is uncertainty about the law in force, it is incumbent on them to make the inquiries that are reasonable in the circumstances, for example by suspending their activities in order to consult with a prosecutor or by rereading the relevant provisions and the available documentation. In principle, an error will be judged less severely if it is made during an emergency response, or in a situation where public safety is at stake, rather than in the context of a carefully planned operation or the routine application of a by‑law. In other words, unless the circumstances require immediate intervention, it is not appropriate to act first and make inquiries later. I note that — even in an emergency — the fact that conduct seems dangerous to a police officer does not permit the officer to presume the existence of an offence.”
  • “[P]olice officers sometimes commit a civil fault if they act unlawfully, even where their conduct is otherwise consistent with the training and instructions they have received, with existing policies, directives and procedures and with the usual practices. It is all a matter of context: the question is whether a reasonable police officer would have acted in the same manner.”
  • “[A] police officer’s conduct must be assessed in light of the law in force at the time of the events. An officer can hardly be faulted for applying a provision that was presumed to be valid, applicable and operative at the relevant time.” (references omitted, paras. 58-65)

Liability

As for apportioning liability, Côté found the subway authority, the City of Laval, and the police officer all liable.

The subway authority was at fault as the officer’s mandator by designating the officer as a transit inspector, and for implementing the bylaw and teaching police officers the pictogram imposed an obligation to hold the handrail.

The City of Laval was liable as the police officer’s employer. However, since Kosoian had no legal obligation to hold the handrail and was entitled to refuse to obey an unlawful order, no apportionment of liability was imposed on her.

Kosoian’s appeal was allowed, the Quebec Court of Appeal’s judgment was set aside, and the award of $20,000 in damages set by the dissenting judge in the Court of Appeal was assessed, 50 per cent apportioned to the subway authority and 50 per cent to the officer involved.

Mike Novakowski is Blue Line’s case law columnist.


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