Liability for unlawful arrest and right to refuse to comply

On November 29, 2019, the Supreme Court of Canada (SCC) rendered its decision in Kosoian v. Société de transport de Montréal, 2019 SCC 59 and unanimously ruled in favour of Bela Kosoian, overturning the decisions of the Québec courts below and ordering the Société de transport de Montréal (STM) (the authority responsible for the subway system), the City of Laval and constable Fabio Camacho to pay her $20,000 in relation with her detention and arrest 10 years ago.

This decision is an important victory for Kosoian, but also for the Canadian Civil Law Association, which acted as intervener before the SCC in this case, and for all Canadians. Indeed, the Supreme Court ruled that police officers are civilly liable if they interfere with Canadians’ rights and freedoms based on a non-existent offence. The SCC also confirmed that Canadians can refuse to identify themselves to police officers when such request has no valid legal basis, ruling that if the offence the police officer believes has been committed does not exist, neither the Québec Code of penal procedure nor any statute or common law rule gives police officers the power to require a person to follow their orders and to identify themselves.

The case arose after Kosoian was told by constable Camacho to hold the handrail of a subway station escalator as described in a pictogram and she refused to do so. She was asked to follow Camacho so a statement of offence could be issued. She refused, and Camacho and one of his colleagues then intervened physically to bring her to a holding room. She was asked to provide identification and she refused to do so. Tensions mounted, and she was arrested for refusing to identify herself, handcuffed and searched. Her ID was found, and she was issued two statements of offence: one for “disobeying a pictogram” and one for refusing to identify herself. Both infractions were dismissed by the Montreal municipal court.

Kosoian then brought a civil liability action in relation to her detention and arrest. The Court of Québec dismissed the action, finding that Camacho had not committed a fault, and the majority of the Québec Court of Appeal reached the same conclusion. The SCC unanimously granted the appeal and awarded $20,000 in damages to Kosoian, ruling that not holding an escalator’s handrail as suggested by a pictogram is not an offence at law and concluding otherwise is unreasonable. Camacho therefore acted unlawfully and Kosoian was entitled to refuse his order to hold the handrail and to identify herself.

Impact of decision on Canadians’ rights

Justice Suzanne Côté, writing for the SCC, stressed that in a free and democratic country like Canada, while police officers are granted important coercive powers to carry out their mission of maintaining peace, order and public security, they may only interfere with citizens’ rights and freedoms to the extent provided by law. The risk of abuse by police officers being undeniable, in the absence of a legal basis justifying it, a police officer’s interference with citizens’ rights and freedoms, including by detaining, arresting or conducting searches for seizures, is unlawful.

Police officers acting unlawfully may be civilly liable for the injury caused to another by their conduct depending on the context. The fact that a police officer’s conduct is unlawful is not necessarily enough to incur civil liability. In Québec, whether a police officer should be held civilly liable must be determined in accordance with art. 1457 of the Civil Code of Québec, namely if the cumulative conditions of fault, injury and causal link between the two are met.

To determine whether a police officer committed a fault, his/her conduct must be assessed according to the reasonable police officer test—a police officer commits a civil fault where his/her conduct departs from that of a normally prudent, diligent and competent police officer. The SCC referred to its common law decision in Hill v. Hamilton-Wentworth Regional Police Services Board 2007 SCC 41 through the judgment on this point, which implies that this principle is equally applicable outside Québec.

The SCC also ruled that police officers cannot avoid civil liability by simply arguing that they thought they were acting lawfully or that their conduct was consistent with their training. Their conduct must be demonstrably reasonable in light of the law in force at the time of the events.

Although police officers are not held to the same standards as lawyers, the expectations regarding their conduct in a democratic society remain high and they must exercise professional judgment with respect to applicable law. If they are uncertain about the law in force, including about the existence of an offence at law, they must make the inquiries reasonable in the circumstances. Therefore, a police officer commits a fault if his/her actions are based on a non-existent offence if the belief in the existence of such an offence is unreasonable.

The SCC also emphasized that the presumption of validity of a statute regulation or bylaw does not extend to the existence or scope of an offence pursuant to such statute, regulation or bylaw. The relative immunity that attaches to the exercise of a regulatory power does not cover the improper application of the law as this falls within the operational sphere. Consequently, legal persons established in public interest may be held civilly liable for making an error of law in implementing statute, regulation or bylaw by suggesting that an offence exists when it does not, and it is not reasonable to suggest that it does.

This is what happened in this case. The SCC held that to create an obligation or prohibition, a pictogram must be clear. When a pictogram like the one at issue in this case only warns, it cannot serve as the basis for an offence, and it is unreasonable to believe that it does. The STM committed a fault by providing training to police officers suggesting that the pictogram created an obligation to hold the escalator’s handrail pursuant to a bylaw when it is obvious that it is only a cautious sign suggesting holding the handrail, and Camacho was equally at fault for blindly relying on this training and instructions when they were obviously unreasonable.

In this decision, the SCC confirmed that citizens have no obligation to identify themselves to a police officer or to co-operate with them unless a statutory provision or a common law rule provides otherwise. In the absence of such a statutory provision or common law rule, citizens refusing to comply with unlawful orders given by police officers do not commit a civil fault. The fact that the SCC specifically referred to common law rule and to common law decisions in that regard implies that even if this decision was rendered under Québec laws, this principle is equally applicable in the rest of Canada.

While this principle is important for Canadians’ rights, citizens must be cautious if they refuse to comply with an order given by a police officer because they believe that such order is unlawful. If the order is in fact lawful, they could be convicted of a criminal office for refusing to follow it.

Overall, this case is an important reminder of the limits to police officers’ coercive powers and a big win for the protection of Canadians’ civil liberties.

This article was originally published by The Lawyer’s Daily, part of the LexisNexis Canada Group Inc.