Kosoian v. Société de transport de Montréal

Kosoian v. Société de transport de Montréal
Collection
Supreme Court Judgments
Date
2019-11-29
Neutral citation
2019 SCC 59
Report
[2019] 4 SCR 335
Case number
38012
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Quebec
Subjects
Torts
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335
Appeal Heard: April 16, 2019 Judgment Rendered: November 29, 2019 Docket: 38012
Between:
Bela Kosoian
Appellant
and
Société de transport de Montréal,
Ville de Laval and
Fabio Camacho
Respondents
- and -
Canadian Civil Liberties Association
Intervener
Official English Translation
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Reasons for Judgment: (paras. 1 to 141)
Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. concurring)
kosoian v. société de transport de montréal
Bela Kosoian Appellant
v.
Société de transport de Montréal,
Ville de Laval and
Fabio Camacho Respondents
and
Canadian Civil Liberties Association Intervener
Indexed as: Kosoian v. Société de transport de Montréal
2019 SCC 59
File No.: 38012.
2019: April 16; 2019: November 29.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the court of appeal for quebec
Police — Civil liability — Fault — Offence non‑existent in law — Police officer arresting and searching citizen after she refused to hold escalator handrail in subway and to identify herself — Citizen bringing civil liability action against police officer, his employer and public transit authority for which he acted as inspector — Whether police officer incurred civil liability and engaged his employer’s civil liability by acting as he did toward citizen — Whether citizen must bear share of liability because of her refusal to cooperate with police officer — Civil Code of Québec, art. 1457.
Civil liability — Legal person established in public interest — Immunity — Fault — Public transit authority providing police officers designated as subway inspectors with training indicating that holding escalator handrail was obligation under by‑law — Police officer arresting and searching citizen who did not hold handrail on basis of that training — Citizen bringing civil liability action against police officer, his employer and public transit authority — Whether public transit authority incurred civil liability — If so, whether it can claim public law relative immunity.
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.
Held: The appeal should be allowed.
A reasonable police officer in the same circumstances would not have considered failure to hold the handrail to be an offence. The police officer therefore committed a fault when he arrested K. The STM 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 — the officer’s conduct. Finally, as the officer’s principal, the city must be held liable for his fault. As for K, she was entitled to refuse to obey an unlawful order, and she therefore committed no fault that would justify an apportionment of liability.
To carry out their mission of maintaining peace, order and public security, police officers are required to limit citizens’ rights and freedoms using the coercive power of the state. Because the risk of abuse is undeniable, it is important that there always be a legal basis for the actions taken by police officers; in the absence of such justification, their conduct is unlawful and cannot be tolerated. In exercising their powers, police officers are therefore bound by strict rules of conduct that are meant to prevent arbitrariness and unjustified restrictions on rights and freedoms. Police officers who deviate from these rules have no public law immunity. Under Quebec law, a police officer, like any other person, is held civilly liable for the injury caused to another by his or her fault, in accordance with art. 1457 C.C.Q., which imposes on every person “a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another”. A police officer commits a civil fault where he or she acts in a manner that departs from the conduct of a reasonable officer in the same circumstances. Police conduct must be assessed according to the test of the normally prudent, diligent and competent police officer in the same circumstances; this test recognizes the largely discretionary nature of police work.
The standard of conduct that a reasonable police officer is expected to meet corresponds to an obligation of means: it is not enough to show that the officer’s conduct was unlawful. Nevertheless, the mere fact that there is a legal basis for a police officer’s actions does not necessarily exempt the officer from civil liability. 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 must be able to exercise judgment with respect to the applicable law and cannot rely blindly on the training and instructions received, which, although they must be considered in assessing an officer’s conduct, are not conclusive in themselves. 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. Therefore, they will sometimes commit a civil fault if they act unlawfully, even where their conduct is otherwise consistent with the training and instructions 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. Police officers will generally not be civilly liable for enforcing a provision — presumed to be valid at the time of the events — that is subsequently declared invalid, provided that they do not otherwise commit a fault in exercising their powers. However, it does not follow that the existence in law — or the scope — of an offence must be assumed in a civil liability action on the basis of bare assertions to this effect made by the state, a legal person established in the public interest or one of their representatives.
In the case at bar, the police officer committed a civil fault by ordering K to identify herself and by arresting her and conducting a search based on a non‑existent offence, namely disobeying the pictogram indicating that the handrail should be held. A reasonable police officer in the same circumstances would not have concluded that disobeying the pictogram was an offence under a by‑law. Before depriving K of her liberty, the officer had to ensure that there was valid legal justification for his actions. A reasonable police officer would have concluded that the pictogram simply advises users to be careful, despite the training received. Therefore, the officer’s conduct necessarily constituted a fault insofar as it resulted from an unreasonable belief in the existence of an offence that did not exist in law. As principal, the city is also bound to make reparation for the injury caused, pursuant to arts. 1463 and 1464 C.C.Q., because it is not in dispute that the police officer was acting in the performance of his duties when the fault was committed, even though his conduct was also unlawful.
As for the STM, it has no public law immunity. The general rules of extracontractual civil liability are, in principle, applicable to a legal person established in the public interest, unless that person shows that a specific rule of public law derogates from them. A legal person established in the public interest does not incur civil liability where it makes or passes a regulation or by‑law that is subsequently held to be invalid, unless its decision to do so was made in bad faith or was irrational. It may nonetheless be civilly liable if it makes an error of law in implementing its own regulations or by‑laws. In the instant case, the training provided to police officers by the STM is part of the implementation of By‑law R‑036. In this respect, the STM cannot avoid the rules in art. 1457 C.C.Q. It committed a direct fault in the implementation of the by‑law by providing training that suggested to police officers called upon to enforce its by‑laws that holding the handrail was an obligation pursuant to a by‑law. Once the STM undertook to provide police officers with training, it had to ensure that the training would be appropriate and that it would reflect the law. If the police officer was at fault for believing that holding the handrail was an obligation, the STM was equally at fault for misinterpreting the by‑law and providing training accordingly.
The STM is also liable as mandator for the police officer’s fault. The designation of a police officer as a subway inspector creates a legal relationship analogous to that of mandate within the meaning of art. 2130 para. 1 C.C.Q., in which a public transit authority may incur civil liability to a third person. In enforcing the by‑laws of a public transit authority, a police officer ipso facto represents that authority in the performance of a juridical act, which must be interpreted broadly. This conclusion in no way compromises the autonomy that a police officer has in exercising his or her powers. If a police officer can be characterized as a subordinate, there is no reason why he or she could not be a mandatary under the rules of civil liability — a relationship that does not require any relationship of subordination.
K was entitled to refuse to obey an unlawful order and therefore committed no fault that would justify an apportionment of liability under art. 1478 para. 2 C.C.Q. Unless a statutory provision or common law rule clearly imposes it, there is no obligation to identify oneself to, or indeed to cooperate with, a police officer. To conclude that K must be apportioned a share of the liability would amount to saying that there is, in all circumstances, a rule of conduct requiring compliance with an unlawful order given by a police officer, even where the order is based on an offence that simply does not exist in law. A well‑informed person whose rights are infringed must be able to respond — within reason — without being held civilly liable. Similarly, K cannot be faulted for not doing anything to mitigate the injury she suffered. A reasonable, prudent and diligent person is not under an obligation to obey an unlawful order. The duty to mitigate must sometimes be displaced where it conflicts with respect for rights and freedoms. 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.
Cases Cited
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Statutes and Regulations Cited
Act respecting public transit authorities, CQLR, c. S‑30.01, ss. 140, 144(1).
Act respecting public transit authorities, R.S.Q., c. S‑30.01, s. 143.
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, preamble, arts. 4(e), 17 [now s. 26] [made under the Act respecting public transit authorities, R.S.Q., c. S‑30.01, s. 144].
Canadian Charter of Rights and Freedoms, ss. 9 , 10(b) .
Charter of human rights and freedoms, CQLR, c. C‑12, ss. 24, 29, 49 para. 1.
Charter of the French language, CQLR, c. C‑11, s. 8.
Cities and Towns Act, CQLR, c. C‑19, s. 364.
Civil Code of Québec, arts. 300, 1376, 1457, 1463, 1464, 1478, 1479, 1526, 1619, 2130 para. 1, 2164, 2892, 2900.
Code of ethics of Québec police officers, CQLR, c. P‑13.1, r. 1, ss. 2, 3, 6 para. 1.
Code of Penal Procedure, CQLR, c. C‑25.1, arts. 72 para. 1, 73, 74, 82.
Constitution Act, 1867, s. 133 .
Criminal Code, R.S.C. 1985, c. C‑46, s. 129 .
Municipal Code of Québec, CQLR, c. C‑27.1, art. 452.
Police Act, CQLR, c. P‑13.1, ss. 1 to 6, 48, 49, 69.
Authors Cited
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Ceyssens, Paul. Legal Aspects of Policing, vol. 1. Saltspring Island, B.C.: Earlscourt, 1994 (loose‑leaf updated December 2018, release 34).
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Fabien, Claude. “Les règles du mandat”, dans Extraits du Répertoire de droit. Montréal: Chambre des notaires du Québec, 1989.
Fabien, Claude. “Mandate”, in Reform of the Civil Code, vol. 2, Obligations, VII, VIII. Translated by Susan Altschul. Texts written for Barreau du Québec and the Chambre des notaires du Québec. Montréal : Barreau du Québec, 1993, 2.
Garant, Patrice. Droit administratif, 7e éd. Montréal: Yvon Blais, 2017.
Hétu, Jean, et Yvon Duplessis, avec la collaboration de Lise Vézina. Droit municipal: Principes généraux et contentieux, vol. 1, 2e éd. Brossard, Que.: Wolters Kluwer, 2002 (feuilles mobiles mises à jour janvier 2019).
Jobin, Pierre‑Gabriel. “La violation d’une loi ou d’un règlement entraîne‑t‑elle la responsabilité civile?” (1984), 44 R. du B. 222.
Jobin‑Laberge, Odette. “Norme, infraction et faute civile”, dans Service de la formation permanente — Barreau du Québec, vol. 137, Développements récents en déontologie, droit professionnel et disciplinaire. Cowansville, Que.: Yvon Blais, 2000, 31.
Karim, Vincent. Les obligations, vol. 1, 4e éd. Montréal: Wilson & Lafleur, 2015.
Lacroix, Mariève. “Le fait générateur de responsabilité civile extracontractuelle personnelle: continuum de l’illicéité à la faute simple, au regard de l’article 1457 C.c.Q.” (2012), 46 R.J.T. 25.
Lacroix, Mariève. L’illicéité: Essai théorique et comparatif en matière de responsabilité civile extracontractuelle pour le fait personnel. Cowansville, Que.: Yvon Blais, 2013.
Lacroix, Mariève. “Responsabilité civile des forces policières”, dans JurisClasseur Québec — Responsabilité professionnelle, par Anne Bélanger, dir. Montréal: LexisNexis, 2015, fascicule 13.
Massé, Chantale. “Chronique — Arrestation illégale et brutalité policière: dans quelles circonstances la responsabilité des policiers peut‑elle être engagée?”, Repères, mai 2013 (available on La référence).
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Patenaude, Pierre. “De la recevabilité des preuves obtenues au moyen de l’utilisation par la police de techniques modernes d’enquête et de surveillance”, dans Police, techniques modernes d’enquête ou de surveillance et droit de la preuve, par Pierre Patenaude, dir. Sherbrooke: Revue de droit de l’Université de Sherbrooke, 1998.
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APPEAL from a judgment of the Quebec Court of Appeal (Dutil, Vauclair and Schrager JJ.A.), 2017 QCCA 1919, [2017] J.Q. no 17168 (QL), 2017 CarswellQue 10898 (WL Can.), affirming a decision of Le Reste J.C.Q., 2015 QCCQ 7948, [2015] J.Q. no 8499 (QL), 2015 CarswellQue 8746 (WL Can.). Appeal allowed.
Aymar Missakila and Ghassan Hamod, for the appellant.
Daniel Maillé, for the respondent Société de transport de Montréal.
Alexandre Thériault‑Marois, Maryann Carter and Marie‑Pier Dussault‑Picard, for the respondents Ville de Laval and Fabio Camacho.
Sylvie Rodrigue and Emma Loignon‑Giroux, for the intervener the Canadian Civil Liberties Association.
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Background
8
III. Judicial History
25
A. Court of Québec (2015 QCCQ 7948)
25
B. Quebec Court of Appeal (2017 QCCA 1919)
27
IV. Issues
36
V. Analysis
37
A. Civil Liability of the Police Under Quebec Law
37
(1) Application of the General Rules in Article 1457 C.C.Q.
37
(2) Civil Fault and the Reasonable Police Officer Test
42
B. Liability of Constable Camacho and the City
53
(1) Obligation of Police Officers to Know and Understand the Law
55
(2) Presumption of Validity and Non‑existence of an Offence
67
(3) Application to the Facts
75
C. Liability of the STM
105
(1) Relative Immunity in the Exercise of a Regulatory Power
106
(2) Direct Fault of the STM
111
(3) Liability of the STM as Mandator
118
D. Apportionment of Liability
128
E. Injury and the Amount of Damages
138
VI. Conclusion
141
Appendix
English version of the judgment of the Court delivered by
Côté J. —
I. Overview
[1] On an evening in May 2009, the appellant, Bela Kosoian, entered a subway station in order to travel to university. She took the descending escalator. Like many subway users, she did not hold the handrail. She leaned forward and rummaged through her bag. A police officer saw her and ordered her several times to hold the handrail. Ms. Kosoian refused to comply and then refused to identify herself once she reached the bottom of the escalator. A few moments later, as she tried to leave, the police officer and a colleague took her by the elbows and led her to a holding room. Given her refusal to provide a piece of identification and her agitated behaviour, the police officers handcuffed her with her arms crossed behind her back and forced her to sit on a chair. After searching her bag, still without her consent, the officers finally gave her a statement of offence for $100 for disobeying a pictogram indicating that the handrail should be held and another statement of offence for $320 for hindering them in their duties. Ms. Kosoian was later acquitted in the Municipal Court.
[2] This appeal concerns Ms. Kosoian’s civil liability action against the police officer who arrested her, Constable Fabio Camacho, his employer, Ville de Laval (“City”), and the authority responsible for the subway system, Société de transport de Montréal (“STM”). Ms. Kosoian submits that not only was the arrest unlawful and unreasonable, but it also constituted a fault. She argues that holding the handrail was not an obligation under a by‑law, but simply a warning. Furthermore, a reasonable police officer in the same circumstances would not have acted in such a manner.
[3] The courts below rejected Ms. Kosoian’s arguments and found that the respondents, Constable Camacho, the City and the STM, had not incurred any civil liability. In their view, Ms. Kosoian had instead been the author of her own misfortune by refusing to cooperate.
[4] I disagree. 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.
[5] 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.
[6] 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.
[7] That is the case here. Ms. Kosoian’s appeal must therefore be allowed against the three respondents, with costs throughout.
II. Background
[8] On May 13, 2009 at 5:05 p.m., Ms. Kosoian, a 38‑year‑old student and mother, was in the Montmorency subway station in Laval. She planned to take the Montréal subway to travel to the Université du Québec à Montréal to attend a class.
[9] Ms. Kosoian went down the station’s long escalator. There was a sign posted at the top of the escalator in plain view of users (see the reproduction in the appendix to these reasons). The sign was titled [translation] “CAUTION” and contained several pictograms, including one showing a figure holding the escalator handrail (except where otherwise indicated, I use the term “pictogram” in my reasons to refer specifically to this figure). The pictogram in question was accompanied by the following warning: [translation] “Hold Handrail”. Ms. Kosoian was aware of the existence of the pictogram. She believed that it simply constituted a warning, not an obligation under a by‑law.
[10] As she went down the escalator, Ms. Kosoian rummaged through her backpack looking for money to pay for her ticket. While she did so, she did not hold the handrail.
[11] That evening, Constable Camacho, a police officer with the City, was assigned with a colleague to monitor the subway stations in Laval, including the Montmorency station. The STM had designated the two police officers as inspectors and, for that purpose, had given them nearly 20 hours of training on safety in the subway system, the applicable by‑laws and the actions they were to take. Among other things, the STM taught the police officers that holding the handrail was an obligation under a by‑law. In fact, in Constable Camacho’s view, all of the pictograms in the subway established prohibitions or obligations, and failure to comply with them was an offence.
[12] While patrolling the Montmorency station, Constable Camacho saw that Ms. Kosoian was going down the escalator without holding the handrail. Fearing for her safety, he decided to intervene to [translation] “raise awareness”. He approached her and warned: “Careful, you might fall. It’s dangerous. You should hold the handrail” (C.Q. reasons, 2015 QCCQ 7948, at para. 139 (CanLII)).
[13] Ms. Kosoian refused to do so, and a heated exchange ensued. Although the versions of events differ, it is clear that the appellant was upset by the police officers’ actions and that she questioned their authority. For their part, the police officers found her tone to be arrogant and aggressive. In the end, Constable Camacho ordered her to hold the handrail and threatened to give her a statement of offence if she refused to comply. Ms. Kosoian persisted in refusing to do so.
[14] Ms. Kosoian and Constable Camacho arrived at the bottom of the escalator. Any potential danger had now passed. Constable Camacho nonetheless stood by his decision to give Ms. Kosoian a statement of offence for disobeying the pictogram. He asked her to follow him to the STM’s holding room so he could draw up the statement there, but she ignored his request and tried to walk toward the subway turnstiles instead.
[15] The police officers then intervened physically. Constable Camacho took hold of Ms. Kosoian’s forearm to restrain her. With his colleague’s help, he then led her to the holding room by force, holding her — at least briefly — by the elbows. The room contained a table, chairs and a cell. There was a surveillance camera in the room that filmed the scene.
[16] Once inside the room, Constable Camacho asked Ms. Kosoian to give him a piece of identification. She refused to identify herself and asked to be allowed to contact a lawyer. Constable Camacho then told her that he would arrest her for hindering a police officer in his duties if she did not cooperate. Faced with her repeated refusals to cooperate and her agitation, he advised her that she was under arrest and informed her of her constitutional rights.
[17] Constable Camacho then tried to search Ms. Kosoian’s backpack to find a piece of identification, but she objected. He [translation] “placed his foot on hers, pressing firmly with his shoe”, and attempted to take the backpack from her (C.Q. reasons, at para. 32).
[18] It was then that the police officers decided — following a warning — to handcuff Ms. Kosoian by pulling her arms back, pinning her against the wall and placing the cuffs on her. They then forced her to sit on a chair before they searched her bag, in which they quickly found her wallet and identification cards.
[19] While Constable Camacho was drawing up the statements of offence, Ms. Kosoian continued to protest and moved closer to him several times to look at what he was writing. The police officers had to use force to keep her on her chair. Because of her agitated behaviour, Constable Camacho placed his right foot on the left leg of the chair. In the end, the officers told Ms. Kosoian about the presence of the surveillance camera, which apparently had the effect of easing tensions.
[20] At 5:29 p.m., the police officers finally gave her two statements: one for $100 for disobeying a directive or pictogram posted by the STM contrary to art. 4(e) of By‑law R‑036, and another for $320 for hindering an inspector in the performance of inspection duties contrary to s. 143 of the Act respecting public transit authorities, R.S.Q., c. S‑30.01. The police officers then removed the handcuffs from Ms. Kosoian’s wrists, and she took the statements and left.
[21] According to Ms. Kosoian, she experienced significant psychological stress and humiliation as a result of the police action. The following day, she saw a physician, who found that she was suffering from post‑arrest anxiety and had superficial abrasions on her wrists and one of her feet. A few days later, another physician diagnosed her with post‑traumatic stress and a sprained wrist.
[22] Meanwhile, Ms. Kosoian’s spouse filed a complaint with the STM the day after the police action. He formally requested that the videotapes be given to him. His request went unheeded. Because Constable Camacho was on vacation when the complaint was filed, it was only once he returned on May 19 that he was able to request that the tapes be kept. It was too late. After five days, the surveillance system had already erased the images of the incident.
[23] In accordance with the statements of offence issued on its behalf, the STM, as prosecutor, instituted penal proceedings in the Municipal Court of Ville de Montréal. Ms. Kosoian was ultimately acquitted of the two offences on March 14, 2012. In his decision, Judge Bisson concluded that he was not [translation] “satisfied beyond a reasonable doubt that there is an obligation to obey [the] pictogram” (A.R., vol. II, at para. 48). He also stated that Ms. Kosoian’s testimony was “credible and believed” (ibid.). Conversely, he did not accept the prosecution’s evidence “in light of the contradictions between the abridged offence reports and the testimony of the constable [Camacho]” (ibid.). He even stated that he had “the impression that adjustments were made to the evidence to justify the failure of this intervention, which basically should have been routine” (ibid.).
[24] Ms. Kosoian subsequently instituted the civil liability action that is the subject of this appeal. She alleged, among other things, that Constable Camacho had committed a civil fault by making an unlawful and unreasonable arrest on the basis of a pictogram that did not create an offence but simply gave a [translation] “warning of danger”. She added that the physical restraint used against her was unreasonable in the circumstances. She argued that the City was also liable as Constable Camacho’s principal. As for the STM, Ms. Kosoian reproached it for improperly applying By‑law R‑036 by treating failure to comply with the pictogram indicating that the handrail should be held as if it were an offence, and for instituting and pursuing penal proceedings on that basis over a three‑year period. She argued that the STM was also liable, as mandator, for the faults committed by Constable Camacho, since it had designated him to enforce its by‑laws. According to Ms. Kosoian, the faults committed by Constable Camacho and the STM had caused her psychological suffering and minor bodily injuries in addition to impairing her dignity. She claimed a total of $69,000 in compensatory and punitive damages.
III. Judicial History
A. Court of Québec (2015 QCCQ 7948)
[25] The trial judge, the Honourable Denis Le Reste, dismissed the civil liability action. He found that Constable Camacho had not committed any civil fault (para. 270). In his view, the applicable rules and directives were [translation] “clear” and their implementation “beyond reproach” (para. 281), so much so that Constable Camacho’s work had been “exemplary and irreproachable” (para. 266). He also stated that he did not have the “slightest suspicion of unreasonable methods used by the police officers” (para. 279). He found that Ms. Kosoian had at no time been “unlawfully detained” (para. 276) and that the actions taken against her, including the use of handcuffs, had been “entirely justified” in the circumstances (paras. 277‑80). Rather, it was Ms. Kosoian who had behaved in an “inconceivable” manner by “unlawfully and stubbornly” refusing to comply with a police officer’s order and to hold the escalator handrail (paras. 270‑72).
[26] In light of these findings, the trial judge did not assess the amount of damages. However, in quoting Godin v. Montréal (Ville de), 2015 QCCQ 5513, he did reproduce an excerpt from Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9, in which the Court stated that “minor and transient upsets” do not constitute compensable injury in tort law.
B. Quebec Court of Appeal (2017 QCCA 1919)
[27] The majority dismissed Ms. Kosoian’s appeal. The Honourable Julie Dutil, writing for the majority, expressed the view that Constable Camacho did not commit a civil fault by giving the appellant a statement of offence and by arresting her when she refused to identify herself (para. 6 (CanLII)). Dutil J.A. noted that, in matters of civil liability, a police officer is held to the standard of a reasonable police officer in the same circumstances, such that the officer’s conduct must be considered in light of the facts known to him or her at the time of the events (ibid.). In this case, she noted that By‑law R‑036 was presumed to be valid at the time of the events and that Constable Camacho had also received training on the subject (paras. 7-8, 11 and 13). For these reasons, he had to assume that failing to hold the handrail was an offence under the by‑law in force (ibid.). Dutil J.A. added that it was not Constable Camacho’s role to analyze the law to determine whether the offence existed in law (para. 11). In the end, she concluded that it was [translation] “[t]he appellant [who] was the author of her own misfortune” (para. 18). Ms. Kosoian should have cooperated with the police, even if she contested the statements of offence later. In this context, even on the assumption that a fault had been committed, it would not be appropriate to award damages as a remedy (para. 18).
[28] On the issue of the STM’s liability, Dut