Unlawful and unreasonable arrest: Victory for the Canadian Civil Liberties Association in Supreme Court civil liability case

December 3, 2019

By Torys’ Litigation and Dispute Resolution Practice

On November 29, the Canadian Civil Liberties Association (CCLA), as intervener, won a major victory in the Supreme Court of Canada (SCC) case of Kosoian v. Société de transport de Montréal. Torys represented the CCLA in its intervention with a team comprised of Sylvie Rodrigue, Marie-Ève Gingras and Emma Loignon-Giroux.

The main issues in this case were: a) whether police officers should be held liable for damages caused to a person detained, arrested and searched based on a non-existent offence even if they believed that such offence existed and acted in good faith; and b) whether Canadians can refuse to identify themselves to police officers when such request has no valid legal basis.

The case arose after Bela Kosoian was told by Constable Fabio Camacho to hold the handrail of a subway station escalator and refused to do so. She was asked to follow Constable Camacho so a statement of offence could be issued, but she refused. Constable Camacho and one of his colleagues then brought her to a holding room where she was asked to provide identification and, again, refused to do so. Tensions mounted and Ms. Kosoian was arrested for refusing to identify herself, handcuffed and searched. Her ID was found, and she was issued two statements of offence: one for “disobeying a pictogram”, and one for refusing to identify herself. Both infractions were dismissed by the Montréal municipal court. Ms. Kosoian then brought a civil liability action in relation to her detention and arrest. The Court of Québec dismissed the action, finding that Constable Camacho had not committed a fault, and the majority of the Québec Court of Appeal reached the same conclusion. The SCC unanimously granted the appeal and ordered the Société de transport de Montréal (the authority responsible for the subway system), the City of Laval and Constable Camacho to pay $20,000 to Ms. Kosoian.

The CCLA intervened in the case before the SCC to argue that the detention, arrest and search of a person in relation to a non-existent offence cannot be considered as reasonable police conduct. The SCC agreed with the CCLA and made it clear that police officers are civilly liable if they interfere with Canadians’ rights and freedoms based on a non-existent offence. They cannot avoid liability by arguing that they believed in good faith that an offence existed if such erroneous belief is unreasonable. The SCC specified that the presumption of validity of statutes, regulations and by-law provisions does not extend to the very existence of an offence. Moreover, an offence does not exist simply because the state, legal persons or their representatives believe that it exists.

The CCLA also intervened to argue that Canadians have no obligation to identify themselves to police officers acting unlawfully. Again, the SCC agreed with the CCLA and confirmed that police officers must ensure that they have a valid legal justification to ask citizens to disclose their identify—if the offence the police officer believes has been committed does not exist, neither the Québec Code of penal procedure nor any statute or common law rule gives the police officer the power to require a person to follow their orders and to identify themselves.

Applying these principles to the facts, the SCC concluded that not holding an escalator’s handrail as suggested by a pictogram is not an offence at law and that concluding otherwise is unreasonable. Constable Camacho therefore acted unlawfully, and Ms. Kosoian was entitled to refuse his order to hold the handrail and to identify herself.

Although this decision was rendered pursuant to Québec laws, the SCC’s ruling in this case applies outside of Québec as it appears from the SCC’s reliance on numerous common law decisions and reference to common law rules.

The SCC’s decision can be found on Lexum’s website.