DO CITIZENS  ALWAYS  HAVE TO OBEY COPS?

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A woman  took the descending escalator in a subway station in Montreal without holding on to 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 told police officers that holding the handrail was a legal  obligation under a city by‑law.

She refused to comply with the cop’s order 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 by refusing to obey the cop’s orders.   Note the word, should.

After being acquitted in the Municipal Court, She  instituted a civil liability action against the police officer, the police department 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 she  who had behaved in an inconceivable manner by refusing to comply with the officer’s orders. A majority of the Court of Appeal affirmed that decision. Then she appealed her case to the Supreme Court of Canada.

This issue is an important one because it raises a question as to whether or not the police have absolute authority to insist that every one of their demands must be obeyed even if they appear to be legitimate. 

To carry out their mission of maintaining peace, order and public security, police officers are required to limit some of the 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 article . 1457 C.C.Q., which imposes on every person “a duty to abide by the rules of conduct incumbent on him, (or her) 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 thus 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 since   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 Charter of Rights. 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 since 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 event 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 this case, 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.

Remember when I said that you should note the word, should?  There is a vast difference between the word should and the word must. The word should gives you an option whereas the word must is a demand that must be obeyed.

As for the STM, it has no public law immunity. The general rules of extra-contractual 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 to the officers accordingly.

 The STM is also liable for its authoritative command and instruction 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 paragraph . 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 which is a relationship that does not require any relationship of subordination.

The STM should have told the officers that the word should does not mean that the statement is an order to be obeyed.   In my opinion, the appellant is correct. A reasonable police officer looking at the STM’s sign would have concluded that the pictogram simply advises users to be careful and does not impose an obligation. In this sense, there should not have been an issue of confusion on the part of the officer since the word should is obviously not a mandatory order.   

A police officer’s employer (STM) is liable where the officer commits a fault, as the City is in the instant case.

 In the circumstances, and in light of Ms. Kosoian’s protests, Constable Camacho could not reasonably be certain that he was acting within his powers. He should have refrained from giving her a statement of offence and then made further inquiries as to the meaning of the pictogram and the scope of the by‑law. Moreover, when Ms. Kosoian was at the bottom of the escalator, there was no longer any risk to her or others. His intervention which was initially supposed to be an effort to “raise awareness” should have ended at that moment.

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. Such an officer would certainly not have arrested her if she refused, but would instead have allowed her to continue on her way.

Constable Camacho 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, which, having regard to the context, constituted a civil fault on the part of the police officer.

Any exercise of discretion by a police officer must have a valid legal justification. Since the offence alleged in this case did not exist, and since Constable Camacho’s belief in the existence of such an offence was unreasonable, any exercise of his discretion grounded on that non‑existent offence was not only unlawful but also unreasonable.  Police officers must exercise good judgment before issuing a statement of offence and must also act with prudence and restraint in exercising their powers of arrest.

In view of the non‑existence in law of the offence initially alleged, the force used was inevitably unwarranted.  Moreover, the search that was incidental to the arrest was unreasonable given that Ms. Kosoian was not lawfully arrested.

Constable Camacho’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, because it is not in dispute that Constable Camacho was acting in the performance of his duties, considering that his  his conduct  in this situation was unlawful.

 In my opinion, the STM has no public law immunity. It was  liable for Constable Camacho’s fault as his mandator, and it committed a direct fault by providing training that indicated to police officers that holding the handrail was a legal obligation under its by‑law.

In this present case, the STM argued that it enjoys the public law relative immunity that attaches to the exercise of a regulatory power.

STM argued that it was established in the public interest and thusly generally incurs no 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. 

The purpose of this immunity is to preserve the latitude that a legal person established in the public interest must have in order to make policy decisions in the interests of the community.

  In the case at bar, however, this relative immunity is of no assistance to the STM. As I explained above, Ms. Kosoian’s civil liability action is based not on the invalidity of By‑law R‑036, but rather on its  improper application both by the STM, which developed training that was legally incorrect, and by one of its inspectors,

Constable Camacho, who applied the inaccurate information he obtained during his training. The application of a by‑law falls within the “operational sphere”, that is, the practical execution of policy decisions, and is not protected by any form of immunity.

STM is not only liable for Constable Camacho’s fault as his mandator, but it also committed a direct fault by providing training that suggested to police officers called upon to enforce its by‑laws that holding the handrail was an obligation pursuant to its  by‑law.

This is, in fact, the corollary of the obligation of police officers to acquire knowledge of the law and to keep that knowledge up to date.  This is, moreover, recognized by the Police Act, since its first several provisions deal with the training provided to police officers and expressly set out, among other things, the objective of“updating  the knowledge and skills of police officers in the type of police work to which they are assigned.

Since Constable Camacho was at fault for believing that holding the handrail was an obligation, the fact that the public authority misinterpreted the by‑law he had to enforce and provided training accordingly, subsequently  made it equally at fault. Therefor the STM committed a civil fault in the context of the training provided to police officers, including Constable Camacho.

STM’s fault lies in the implementation of the by‑law, and specifically in the training provided to police officers. In addition, The court rejected STM’s argument based on extinctive prescription. While it is true that the STM was added as a defendant on August 21, 2012, more than three years after the events of May 13, 2009, the initial action against Constable Camacho and the City was filed within the time limit.

STM’s arguments to the effect that the autonomy of police officers in the performance of their duties is incompatible with the concept of its mandate. It is true that police officers occupy a public office and that their discretion derives directly from statute. 

There was a solidarity with both defendants who committed a common fault or contributory faults resulting in a single injury. In the instant case, the STM and Constable Camacho both committed faults that contributed to the injury suffered by the appellant. It must therefore be concluded that the plaintiff’s claim applies to all of the respondents.

The designation of a police officer as an inspector under s. 140 of the Act respecting public transit authorities creates a relationship analogous to that of mandate, a relationship in which a public transit authority may incur civil liability to a third person. 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, I fail to see why he or she could not be a mandatary under the rules of civil liability. The mandate relationship can frequently coexist with other relationships and subordinate, that of mandator and mandatary does not require any relationship of subordination.

 In short, Constable Camacho was not a subordinate of the STM, since he remained a subordinate of the City at all times. However, his designation as an inspector made him a mandatary of the STM. Given the fact that Constable Camacho committed the fault in question in carrying out his mandate and that the STM had not proved that it was impossible for it to prevent the injury, the court  concluded that the STM was liable not only for its direct fault, but also in its capacity as mandator for the police officer who was retained  by STM for his services as an inspector for STM. 

The STM must bear a large share of the liability that is shared in proportion to the seriousness of the fault. Here, it was first and foremost the responsibility of the STM — as a regulatory body to ensure that its inspectors acquired an adequate knowledge and understanding of By‑law R‑036 and of the pictograms posted in its facilities.

 However, Constable Camacho also had to exercise his professional judgment, regardless of the training he had received; as a result, he cannot avoid liability by arguing that he acted in accordance with that training. The court  therefore apportioned half of the liability to the STM and the other half to Constable Camacho.

As for Ms. Kosoian,, no liability can be imposed on her. The apportionment of a share of the liability to the victim implies that the victim is himself or herself at fault. This is not the case here. The appellant may not have acted in an exemplary fashion, but the fact remains that she had no legal obligation to hold the handrail. In this context, her lack of cooperation does not in itself constitute a civil fault. It was Constable Camacho who caused the situation to escalate by ordering her to hold the handrail, requiring her to identify herself and insisting on giving her a statement of offence. All of those actions were unlawful.

At that moment, given that the offence alleged did not exist in law, the appellant was perfectly entitled to refuse to identify herself and then simply walk away. Unless a statutory provision or common law rule clearly imposes it, there is no obligation for her to identify oneself to, or indeed to cooperate with, a police officer In the instant case. Constable Camacho should simply have allowed Ms. Kosoian to leave. He also could have advised Ms. Kosoian that it would be much more safer for her to hold onto the hand rail. Personally, I always hold onto a hand rail on an escalator.  If it stopped suddenly while it was going down, I could be catapulted down the steps. 

  To conclude that Ms. Kosoian 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. It is a short step from this to concluding that there must be blind obedience to any demand made by a police officer, no matter how unreasonable, arbitrary or capricious it may appear.

    Average citizens will, of course, often prefer to be cautious and to comply with an order given by a police officer even where they have doubts about its lawfulness. They will identify themselves and graciously accept a statement of offence, subject to contesting it later. In fact, they run serious risks if they refuse to comply because they believe that the offence alleged against them is non‑existent or invalid. If they are mistaken, they could, for example, be convicted of a criminal offence such as  wilfully obstructing a peace officer

Nevertheless, a well‑informed person does not commit a civil fault merely by refusing to comply with an order that proves to be unlawful. A person whose rights are infringed must be able to respond within reason, of course without being held civilly liable.

The judge that wrote the decision for the Supreme Court said in addition, “I have to discard the trial judge’s conclusion that Ms. Kosoian behaved in a manner that was “inconceivable, irresponsible and contrary to the basic rules of good citizenship” It is clear that the error of law made by the judge — presuming that it was an offence to disobey the pictogram in question — tainted his assessment of the facts. This is obvious from his reasons, particularly the passages where he emphasized that the appellant had “unlawfully and stubbornly refused to comply” and that she “thought she knew everything about the law applicable to such matters, which was not the case”. Since the trial judge did not find that the offence was non‑existent, his analysis of Ms. Kosoian’s behaviour was heavily influenced by this and must, in my view, be rejected.” Unquote

According to undisputed evidence, Ms. Kosoian suffered minor bodily injuries, but also above all, moral injury as a result of her unlawful arrest, the force used against her and the unreasonable search of her personal effects. As the dissenting judge clearly explained in his reasons, compensation for suffering, anguish and humiliation must be awarded in this case. 

The Supreme Court justice also  said, “I will  insist on one point.  An unlawful arrest even for a short time cannot be considered one of the “ordinary annoyances, anxieties and fears that people living in society routinely accept” and that, as a result, do not constitute compensable injury in the sense discussed previously by this Court in Mustapha, at para. 9. 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. When she took the escalator in the Montmorency subway station that evening, Ms. Kosoian certainly did not expect to end up sitting on a chair in a room containing a cell with her hands cuffed behind her back, nor did she expect to have her personal effects searched by police officers. I have no difficulty believing that such an experience caused her significant psychological stress. Unquote

Turning now to the amount of damages, the justice  set the total at $20,000, the amount identified by the dissenting Court of Appeal judge, because that amount was not challenged in this Court.

The Supreme Court ordered the respondents, Société de transport de Montréal, Ville de Laval and Fabio Camacho, to pay $20,000 with interest at the legal rate,  Among the respondents, the Société de transport de Montréal will be liable for 50 percent of the damages and Constable Fabio Camacho for 50 percent. There is no doubt  in my mind that the police service  services that hired the officer  will pay the officers part of the damages as is the usual practice in all police  services in Canada.