DO
CITIZENS ALWAYS HAVE TO OBEY COPS?
If you click your mouse on the underlined words, you will get more information,
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.
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.
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