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FAULT - Abuse of powers - Abusive detention or arrest - Apportionment of liability

Friday, November 29, 2019 @ 2:58 PM  


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Appeal from a decision of the Quebec Court of Appeal dismissing Kosoian’s action for unlawful arrest against the Société de transport de Montréal (STM), the City of Laval (City) and Camacho, a police officer employed by the City. Kosoian was arrested by Camacho for failing to obey his order to hold the handrail while riding a descending escalator in a subway station. She was charged with disobeying a pictogram indicating that the handrail should be held, and hindering police in their duties. Camacho had been taught by the STM that holding the handrail was an obligation pursuant to a by-law. Kosoian was acquitted of the charges in Municipal Court, and instituted the present action, claiming that holding the handrail was not an obligation but simply a warning. The trial judge dismissed Kosoian’s action, holding that Comacho had not committed a civil fault, and Kosoian had been the author of her own misfortune by refusing to comply with his order. The Court of Appeal affirmed the decision.

HELD: Appeal allowed. The courts below erred in law in presuming the very existence of the alleged offence. The Court of Appeal could not rely on the presumption of validity applicable to the STM’s by law to support the reasonableness of Comacho’s belief in the existence of the alleged offence. In carrying out their mission of maintaining peace, order and public security and preventing and repressing crime and offences under the law, police officers were required to limit rights and freedoms using the coercive power of the state. In a society founded on the rule of law, it was important that there always be a legal basis for the actions taken by police officers. Police officers were therefore bound by strict rules of conduct, and could be civilly liable where they deviated from these rules. Under art. 1457 CCQ, police conduct was assessed according to the test of the normally prudent, diligent and competent police officer in the same circumstances. This test recognized the largely discretionary nature of police work, and was assessed in light of the limits imposed by, among other things, constitutional and quasi constitutional enactments, criminal and penal legislation and the constituting statutes and codes of ethics of police forces. Police officers were obliged to have an adequate knowledge and understanding of criminal and penal law, and to know the scope of their powers and the manner in which these powers were to be exercised. The standard to be met was a high one. Police officers could presume that the provisions of law that they were called upon to enforce were valid, applicable and operative. However, the presumption of validity did not extend to the very existence or scope of an offence. A reasonable police officer in the same circumstances as Comacho would not have concluded that disobeying the pictogram indicating that the handrail should be held was an offence under a by law, or at least would have had some doubt, and would have refrained from acting unreasonably by requiring Kosoian to identify herself and, when she refused, by arresting her by force and searching her personal effects. Although the STM taught police officers that it was an offence to disobey the pictogram indicating that the handrail should be held, the fact that police officers had received training did not authorize them to lay aside their own judgment. Camacho’s conduct constituted a fault. As principal, the City was bound to make reparation for the injury caused, since Camacho was acting in the performance of his duties. The STM had no public law immunity, and was liable for Camacho’s fault as his mandator, and also for its own direct fault by providing training that indicated to police officers that holding the handrail was an obligation under a by law. Liability was apportioned 50/50 between the STM and Camacho. As Kosoian had no legal obligation to hold the handrail and therefore committed no fault, no liability was apportioned to her. Kosoian suffered minor bodily injuries, but above all, moral injury as a result of her unlawful arrest, the force used against her and the unreasonable search of her personal effects. Unlawful arrest, even for a short time, could not be considered one of the ordinary annoyances, anxieties and fears that people living in society routinely accept. Damages of $20,000 were awarded.

Kosoian v. Société de transport de Montréal, [2019] S.C.J. No. 59, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., November 29, 2019. Digest No. TLD-November252019013-SCC