Full Decision
The plaintiff entered the subway station in Montreal to travel to university. She was descending the escalator without holding the handrail.
There was a sign posted at the top of the escalator titled “CAUTION” with a picture of a figure holding the escalator handrail. Below the picture were the words “Hold Handrail”. The figure was referred to as a “pictogram”.
A police officer employed by the City, who was also representing the subway authority, STM, saw the plaintiff on the escalator. He ordered her to hold the handrail many times. The plaintiff refused. He threatened to issue a statement of offence (ticket). The plaintiff still refused.
At the bottom of the escalator, the officer asked her to follow him to STM headquarters where he would issue ticket. She ignored the officer’s request and started to walk away. The officer took hold of her forearm and led her by force to a holding room with a colleague. For a time, she was briefly held by her elbows.
In the holding room, the officer asked for a piece of identification. She refused to comply. She was arrested and informed her of her constitutional rights. The officers searched the plaintiff’s bag for her ID without permission. She tried to interfere. The officers then handcuffed her with her hands behind her back while she was seated on a chair. They searched her bag, without consent, and obtained her ID. They then gave her a ticket for disobeying a directive or pictogram ($100 fine) and for hindering the inspectors in their duties ($320 fine).
The plaintiff was prosecuted by the STM in municipal court. She was acquitted. The judge was not satisfied beyond reasonable doubt that there was an obligation to obey the pictogram.
The plaintiff sued the officer, the City, and the STM because the arrest was unlawful and unreasonable and resulted in civil liability. She argued that the pictogram was a warning only and did not create an obligation to hold the handrail.
Ultimately, the SCC found that the pictogram did not create an obligation to hold the handrail. It was merely a warning.
The officer was held liable because he ordered the plaintiff to identify herself, arrested her and conducted a search all based on a non-existent offence. While the officer subjectively thought the pictogram created an offence, a reasonable officer would have had doubts that the pictogram created an obligation. Because of those doubts, a reasonable officer would not have required the plaintiff to identify herself, arrested the plaintiff, handcuffed her and searched her personal affects.
Before depriving someone of her liberty, officer must ensure there is a valid justification for his actions. Under the Quebec Code of Penal Procedure (like the Criminal Code) an officer is permitted to make an arrest without a warrant if he has reasonable grounds to believe an offence had been committed. However, reasonable grounds apply only to facts and not the existence of a law. The law did not exist. Therefore, there were no reasonable grounds to make the arrest. The arrest was without valid justification and was therefore unlawful.
The officer argued that the STM taught him that a failure to obey the pictogram was an offence. His conduct was reasonable because of that training. The SCC found, however, that training does not displace an officer’s reasonable judgment. The very sight of the pictogram would have created a doubt in the reasonable officer’s mind as to whether or not it created a legal obligation.
As for the force used and the search of the plaintiff’s purse, the SCC held that officer can use the force necessary to make an arrest, but only where the officer acts lawfully. Only reasonable searches incidental to arrest are permitted. The officer was acting unlawfully when he used force because there was no offence in the first place. If the arrest is unlawful then any force used to make that arrest is unnecessary. The later search was then unreasonable because the plaintiff was never lawfully arrested.
The city of Montreal was held vicariously liable for the conduct of the officer. The officer was acting in the performance of his duties, even though his conduct was unlawful. The officer was an agent of the city. The city was his principal.
STM, the subway authority, was also held liable. Where officers or subordinates of public corporations perform acts to implement a statute, regulation or by-law, the public corporation is civilly liable for those acts performed in error of fact or law, even if the error was due to simple negligence. In this case, the officer was an inspector of the STM. He made an error of law in trying to implement a by-law so STM was vicariously liable.
STM was also directly liable because it negligently trained its inspectors. It taught them that all pictograms created legal obligations.
However, the STM decision to implement legal proceedings against the plaintiff was protected by prosecutors’ immunity. For the immunity to be lifted, it must be shown that the proceedings were not based on reasonable and probable cause and were motivated by an improper purpose. There was no motive of improper purpose.
As for damages, it was undisputed that she suffered minor bodily injuries and above all a “moral injury”. The trial judge found no liability so did not address damages. The majority of the Quebec Court of Appeal found that there no damages because according to Mustapha v. Culligan minor and transient upsets are not compensable injuries in tort law. The dissenting Justice of the Court of Appeal awarded $20,000 in damages for a “moral injury”.
The SCC awarded damages of $20,000 because that amount was not challenged on appeal (even though it was the dissenting opinion). With that said, the court did make some important comments about damages in unlawful arrest and search and seizure cases. In a free and democratic society, no one should accept unjustified state intrusions. Interference with the freedom of movement cannot be trivialized. Mustapha v. Culligan could not prevent compensation. An unlawful arrest, even for a short time, cannot be considered an ordinary annoyance, anxiety or fear that people must routinely accept in society. The court had no difficulty in believing that the plaintiff’s experience caused significant psychological distress by virtue of being detained and handcuffed, with her personal affects searched.
Kosoian v. Société de transport de Montreal is a Supreme Court of Canada ruling that OTLA members trying to expand their practice, or OTLA members who already prosecute police officers in negligence, may find helpful.
This case, in my opinion, is important for several reasons.
- It addresses when officers may be held civilly liable, and in so doing, outlines a number of general legal principles relevant to assessing officer negligence.
- It addresses when officers may deprive someone of her liberty, when they can search someone incidental to arrest and when someone is detained for the purposes of informing that person of her Charter rights.
- Negligent training does not vitiate officer negligence if the reasonable officer would nevertheless have acted differently than the tortfeasor and in so doing would have avoided some of or all the damages suffered.
- Municipalities will be held vicariously liable for a police officer’s conduct if the officer is acting in the course of his duties for the municipality, even where the officer’s conduct is unlawful. Therefore, if an officer is being sued, very strongly consider suing the municipality or region or province (depending on for whom the officer works).
- Public corporations created in the public interest (e.g. a transit authority) will be vicariously liable when officers perform acts in error of law or fact when it comes to implementing statutes, regulations or by-laws on behalf of the public corporation. If an officer is being sued, consider whether or not the officer represents some kind of public corporation.
- Unlawful arrests, even for short periods of time, will not be tolerated and damages will be awarded even if the injuries are minor or there is only a moral injury (e.g. humiliation, distress, temporary anxiety).
- Not insignificant damage awards ($20,000) seem appropriate with an unlawful arrest (and search) with handcuffs even where the injury is a mere moral one, with limited physical force used by officers.
