Kosoian v. Société de transport de Montréal, 2019 SCC 59

Police — Civil liability — Fault — Offence non‑existent in law

On appeal from a judgment of the Quebec Court of Appeal (2017 QCCA 1919), affirming a decision of Le Reste J.C.Q. (2015 QCCQ 7948).

K took the descending escalator in a subway station without holding 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 taught police officers that holding the handrail was an obligation under a by‑law. K refused to comply 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. After being acquitted in the Municipal Court, K instituted a civil liability action against the police officer, his employer 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 K who had behaved in an inconceivable manner by refusing to comply with the officer’s order. A majority of the Court of Appeal affirmed that decision.

Held: The appeal should be allowed.

A reasonable police officer in the same circumstances would not have considered failure to hold the handrail to be an offence. The police officer therefore committed a fault when he arrested K. The STM committed a fault by teaching police officers that the pictogram in question imposed an obligation to hold the handrail, a fault that explains — at least in part — the officer’s conduct. Finally, as the officer’s principal, the city must be held liable for his fault. As for K, she was entitled to refuse to obey an unlawful order, and she therefore committed no fault that would justify an apportionment of liability.

To carry out their mission of maintaining peace, order and public security, police officers are required to limit 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 art. 1457 C.C.Q., which imposes on every person “a duty to abide by the rules of conduct incumbent on him, 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; 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: 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 Charters. 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: 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 events — 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 the case at bar, 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.

As for the STM, it has no public law immunity. The general rules of extracontractual 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 accordingly.

The STM is also liable as mandator 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 para. 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 — a relationship that does not require any relationship of subordination.

K was entitled to refuse to obey an unlawful order and therefore committed no fault that would justify an apportionment of liability under art. 1478 para. 2 C.C.Q. Unless a statutory provision or common law rule clearly imposes it, there is no obligation to identify oneself to, or indeed to cooperate with, a police officer. To conclude that K 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. A well‑informed person whose rights are infringed must be able to respond — within reason — without being held civilly liable. Similarly, K cannot be faulted for not doing anything to mitigate the injury she suffered. A reasonable, prudent and diligent person is not under an obligation to obey an unlawful order. The duty to mitigate must sometimes be displaced where it conflicts with respect for rights and freedoms. 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.

Citation:                  Kosoian v. Société de transport de Montréal, 2019 SCC 59

SCC File No.:         38012

Reasons for Judgment:       Côté J. (Wagner C.J. and Abella, Moldaver,                                             Karakatsanis, Gascon, Brown, Rowe and                                             Martin JJ. concurring)