SCC Allows Appeal in Escalator Handrail Case

Last week, the Supreme Court of Canada (“SCC”) released its decision in Kosoian v Société de transport de Montréal, 2019 SCC 59 [Kosoian], a “bizarre decade-long legal case” involving a woman fined and arrested for not holding the handrail of an escalator in a Quebec subway station. After unsuccessful decisions from the Court of Quebec and the Quebec Court of Appeal (“QCCA”), Bela Kosoian appealed to the SCC, who finally agreed that her arrest was unlawful, and that she was entitled to civil remedies from the police officer and the subway authorities. The decision follows a recent trend of the SCC firmly endorsing limits on police powers, and provides important and necessary commentary of the right of Canadians to refuse to obey unlawful orders by the police.

Facts & Procedural History

The Montmorency subway station in Laval, Quebec had posted caution signs at the top of the escalators, with pictograms depicting figures holding the escalator handrail, and a warning stating “Hold Handrail” (Kosoian, para 9). Ms. Kosoian did not hold the handrail as she took the escalator one evening, believing the pictogram to be a warning rather than a legal obligation (Kosoian, para 9). A police officer monitoring the station, Constable Camacho, noticed her, and repeatedly ordered her to hold the handrail, which Ms. Kosoian refused to do (Kosoian, paras 12-13). At the bottom of the escalator, the officer tried to stop her, and when she did not comply with his directions, he physically restrained her, and brought her to a holding room. Ms. Kosoian continued to refuse to cooperate, and would not provide identification (Kosoian, paras 15-16). The officer then handcuffed her and searched her bag without her consent (Kosoian, para 18). Upon locating her identification, he issued her two tickets: one for disobeying the pictogram, and one for “hindering a police officer in his duties” (Kosoian, para 20).

After Ms. Kosoian was acquitted of both offences, she brought a civil claim against the officer and the Société de transport de Montréal (“STM”), the subway system authority, and the City of Laval (Kosoian, paras 23-24). She alleged that the officer had made an unlawful and unreasonable arrest “on the basis of a pictogram that did not create an offence but simply gave a ‘warning of danger’ (Kosoian, para 24), and argued that the City and the STM were also liable for his actions. At trial, Ms. Kosoian’s case was dismissed, with the court concluding that she was responsible for all the damage she suffered (Kosoian c Laval (Ville de), 2015 QCCQ 7948). The QCCA was divided, but the majority dismissed Ms. Kosoian’s appeal, agreeing that Ms. Kosoian “was the author of her own misfortune” (Kosoian c Montreal Transit Corporation, 2017 QCCA 1919, para 18). For more information on the Quebec Court of Appeal’s decision, please see our previous post here.

The police officer argued, which was accepted by both lower courts, that his actions were legally justified according to the STM by-laws. By-law R-036 states that no one shall disobey a guideline or pictogram posted by the STM (Kosoian, para 80). Accordingly, the police officer felt that Ms. Kosoian’s refusal to hold the handrail constituted an offence under the by-law, as she disobeyed the pictogram cautioning riders to hold the escalator handrail. Furthermore, the officer believed he was justified in arresting Ms. Kosoian given her refusal to provide identification when he was attempting to issue her a statement of offence (Kosoian, para 77). Article 74 of Quebec’s Code of Penal Procedure, CQLR c C-25.1 indicates that officers with reasonable grounds to believe someone has committed an offence can require an individual to identify themselves, and if they fail to do so, officers may arrest them (Kosoian, para 77). Consequently, the officer believed his actions against Ms. Kosoian were justified by law.

SCC Decision

Officer’s Liability

Contrary to the interpretation espoused by the lower courts, the SCC’s decision rested on a finding that under by-law R-036, the pictogram in question did not create a legally binding prohibition.  

Emphasizing the word “disobey,” the SCC held that a subway user cannot “disobey” a pictogram “unless it creates an obligation or prohibition” (Kosoian, para 85). As a result, “a pictogram that only warns, advises or informs cannot serve as the basis for this offence” (Kosoian, para 85). Pointing out contextual factors like colours and symbols on the pictogram, the SCC held that  “when the STM intends to impose an obligation or prohibition through a pictogram, it does so using well-known symbols, which indicate the binding nature of the pictogram,” which were not present on this pictogram (Kosoian, para 91). For example, the SCC noted that the pictogram in question had a yellow background, which “generally corresponds to a warning, not to an obligation,” and contained no symbols indicating an obligation, whereas other pictograms communicating an offence had symbols like a gavel or a red circle with a bar through it (Kosoian, para 91). Given these contextual factors, the SCC held that “it must be inferred that [this pictogram’s] intention is…simply to advise users to be careful” (Kosoian, para 92). Because the pictogram was neither an obligation nor a prohibition, the SCC found that it could not form an offence under by-law R-036, as it effectively could not be “disobeyed.”

As the pictogram did not create an offence under the by-law, the SCC held that the officer’s decision to arrest Ms. Kosoian was not reasonable or legally justified. In determining the liability of a police officer in such situations, the SCC noted that the relevant test was what a “normally prudent, diligent and competent police officer in the same circumstances” would have done (Kosoian, para 45). They explained that “the standard of conduct expected of police officers is justifiably high,” meaning that “a police officer who acts unlawfully cannot easily escape civil liability by relying on his or her ignorance or misunderstanding of the law” (Kosoian, para 50).

In Ms. Kosoian’s situation, the SCC held that a reasonable officer would 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” (Kosoian, para 95). Further, the SCC noted that when the officer stopped Ms. Kosoian at the bottom of the escalator, where “there was no longer any risk to her or others,” so his intervention “should have ended at that moment” (Kosoian, para 94).

The SCC also addressed a principle underlying the QCCA’s decision that the officer was not civilly liable: the presumption of validity. Generally, police officers may presume that the laws they are enforcing are legally valid—consistent with the Constitution (Kosoian, para 67). However, the SCC drew a distinction between presuming that existing laws are valid, which officers are entitled to do, and presuming that a law exists at all. They concluded that:

[T]he presumption of validity does not allow the very existence of an offence to be assumed. In other words, although an existing offence must be presumed to be valid, an offence is not presumed to exist simply because the state, a legal person established in the public interest or one of their representatives believes that it exists. There can be no justification for giving effect to legislation, regulations or by‑laws that have never in fact been passed or made (Kosoian, para 72).

Consequently, because the officer’s mistake was based on the existence of the offence itself, rather than the validity of the offence, the presumption of validity would not prevent him from being held civilly liable for enforcing the non-existent offence of disobeying this particular pictogram.

Accordingly, in Ms. Kosoian’s situation, the SCC concluded that the officer “committed a civil fault by ordering Ms. Kosoian to identify herself and by arresting her and conducting a search based on a non-existent offence” (Kosoian, para 53). Because police officers “are obliged to have an adequate knowledge and understanding of criminal and penal law,” and to “know the scope of their powers and the manner in which these powers are to be exercised,” his arrest of Ms. Kosoian “on the basis of a non-existent offence” rendered him civilly liable for the damage to Ms. Kosoian (Kosoian, para 55). His actions did not have a valid legal basis, and his unreasonable belief in the existence of the offence was not a sufficient defense to liability (Kosoian, para 97).

STM’s Liability

In addition to the officer’s liability, the SCC also held the STM liable for Ms. Kosoian’s situation. The SCC found the STM liable not only for the officer’s fault, as his mandator, but also for having “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 a by-law” (Kosoian, para 111). In discussing the STM’s direct fault, the SCC concluded that “[i]f 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 made it equally at fault” (Kosoian, para 115). Thus, ultimately, the SCC split the liability and the damages between the officer and the STM.

Ms. Kosoian’s Liability

In perhaps the most significant component of the ruling, the SCC held that Ms. Kosoian shared no liability for the situation, unlike the lower court decisions. Both lower courts blamed Ms. Kosoian for failing to comply with the police; however, the SCC firmly rejected this conclusion. They held that Ms. Kosoian “had no legal obligation to hold the handrail,” and consequently, that her lack of cooperation with the police and refusal to identify herself could not constitute a civil wrong (Kosoian, paras 129-130). Rather than blaming her for failing to cooperate, the SCC reiterated that “[i]t 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” (Kosoian, para 129). The SCC wrote:

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. (Kosoian, para 131)

Through denying that any responsibility lay with Ms. Kosoian, the SCC thus emphasized that Canadians have no obligation to obey an unlawful order from a police officer.

Kosoian’s Importance

The SCC’s decision in Kosoian has been long-anticipated, and provides important and necessary commentary on the limits of police powers. Through declaring that police officers may be held civilly liable for enforcing non-existent laws, the Court has made important strides in protecting Canadians’ civil liberties from aggressive policing. Further, through confirming that individuals cannot be held even partially liable for failing to comply with a police order that is unlawful, the SCC’s decision sends a clear message that responsibility for a situation like Ms. Kosoian’s lies entirely on the police officer attempting to enforce an unlawful order, rather than on the civilian for non-compliance. The lower courts’ decisions placing the responsibility on Ms. Kosoian for escalating the situation through non-compliance set an extremely dangerous precedent for mandating complete obedience to the police, regardless of the circumstances. It is crucial that the SCC intervened to correct their reasoning.

Kosoian follows in the footsteps of other recent decisions like Fleming v Ontario, 2019 SCC 45 [Fleming] with the SCC firmly upholding limits on police powers, and rejecting underlying ideas from lower courts which suggest a higher degree of deference be given to the police. In Fleming, the SCC repudiated the Ontario Court of Appeal’s argument that police action, if effective, is necessarily justified in restricting liberty, writing that “[t]hat is a recipe for a police state, not a free and democratic society” (Fleming, para 98). Their firm rejection in Kosoian of a requirement of “blind obedience to any demand made by a police officer, no matter how unreasonable, arbitrary or capricious it may appear” seems to echo their rhetoric from Fleming, again decisively rejecting unchecked police powers. These decisions are incredibly important—particularly because most individuals subjected to unlawful policing do not have the resources to escalate the situation all the way to the SCC, like Ms. Kosoian and Mr. Fleming did. Having Canada’s highest court unambiguously uphold Canadians’ rights to be free from aggressive policing is essential in protecting those without the enormous investment of time and money required to succeed in a case like Kosoian.