The Supreme Court of Canada (“SCC”) will hear Bela Kosoian, a woman arrested in a Quebec subway station for failing to hold an escalator handrail. Leave was granted on Thursday, November 15. I will discuss the background, legal framework, and procedural history of this case – which was recently featured in headlines internationally—before offering some thoughts about why a different result from the SCC may be more satisfying than the ones thus far from the Quebec Court of Justice (“QC”) and Quebec Court of Appeal (“QCA”).
The escalator handrail incident occurred in May 2009. Kosoian at the time was 38 years old, married with two children, and a student at Université du Québec à Montréal. She was on her way to an exam one evening and was rummaging in her backpack on the subway station escalator when an officer told her to hold the handrail. The officer, Fabio Camacho, referred to a black and yellow pictogram nearby the escalator that depicts a rider holding the rail (see picture above). Camacho believed the pictogram represented a rule; Kosoian saw it as a recommendation. When asked to comply, Kosoian refused, noting the presence of germs on the rail. Assuming Kosoian had broken a law, and likely upset she had disregarded his instruction, Camacho asked Kosoian for her identification so he could issue a ticket. Kosoian declined to offer it. A second officer came to the scene, and Kosoian was arrested and detained in a small room in the subway station, where she was handcuffed, and given two tickets—one ($100) for not holding the handrail, and the other ($320) for not providing her identification. The STM said at the time that it had never previously issued a ticket for refusing to hold a handrail.
In 2012, a Montreal Municipal Court acquitted Kosoian, throwing out the two tickets issued against her.?At Municipal Court, Camacho was not a credible witness and the finding related to the pictogram did not establish beyond a reasonable doubt an obligation to obey it. Later, in Kosoian c?Laval (Ville de), 2015 QCCQ 7948, [Kosoian QC], Kosoian initiated a lawsuit against the City of Laval, the Transportation Company of Montreal (“STM”), and officer Camacho. In addition to claiming that she had been wrongly arrested and detained, Kosoian objected to not being provided with a lawyer (Kosoian QC, para 31). She further alleged that the entire experience was traumatic and had lasting impacts on her psychological wellbeing (Kosoian QC, para 49).
STM By-law: Is the Pictogram a Rule or Recommendation?
An obvious question is whether the officer or Kosoian was right about the law—was it illegal not to hold the handrail?
Unsurprisingly, there is nothing about escalator handrails in the Criminal Code, RSC 1985 c C-46. The relevant law comes from the STM’s By-laws, specifically By-law R-036. Section 4(e) states that no person “within or on a building or rolling stock” shall “ignore a guideline or pictogram posted by the Société”; further, persons may not “delay or interfere with the work of an agent of the Société.” This is as close as the STM By-laws come to addressing the matter at hand. The arresting officer based his decision to arrest Kosoian on his interpretation of these broader provisions. As will be seen in the next section, despite the presence of the word “shall” in the By-law, the courts are dubious about the view that the pictogram articulates a legal obligation.
Quebec Court of Justice – Trial Level
At the trial level, Kosoian’s suit alleged moral damages, pain, suffering, inconvenience, and exemplary damages in the amount of $24,000 against Constable Camacho and the City of Laval, and $45,000 in moral and punitive damages against STM for fault committed by its agent (Kosoian QC, paras 1-2). Kosoian invoked Section 49 of the Quebec?Charter of Human Rights and Freedoms, RSQ c C-12, which states that:
“Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.”
The trial court was not convinced by Kosoian’s arguments and dismissed the suit. Justice Denis Le Reste concluded that “all the damages alleged by Kosoian stem solely from her actions and no fault is attributable to the defendants” (Kosoian QC, para 218). For instance, the court held that no fault could be attributed, pursuant to Article 1457 of the Civil Code of Québec, CCQ-1991, in her detention and arrest and further found?that “citizens are entitled to expect particularly high standards from their police officers” (Kosoian QC, para 262). However, the court relied on the SCC’s judgement in Hill v Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41 [Hill], discussing the standard of the “reasonable policeman,” to conclude that even if “minor errors” or “errors of judgment” were made by Constable Camacho the standard of care was still not violated (Hill, para 73; Kosoian QC, para 265). The court went even further in its support of Comacho, describing his conduct as “exemplary and irreproachable” (Kosoian QC, para 266).
By contrast, the court portrayed Kosoian’s behaviour very negatively, stating that her refusal to comply was “inconceivable, irresponsible and contrary to the basic rules of good citizenship of our society” (Kosoian QC, para 270). Kosoian’s assertions about her procedural rights were characterized by the court as an unfounded belief that she “knows all about the applicable law in similar matters, which is not the case” (Kosoian QC, para 275).
Quebec Court of Appeal – a Divided Ruling
Kosoian appealed to the QCA in Kosoian c?Montreal Transit Corporation, 2017 QCCA 1919 [Kosoian QCA], where the majority led by Justice Julie Dutil mainly concurred with the trial court, agreeing that the appeal should be dismissed. I will not spend much time on the majority and will instead turn to the? dissent. This opinion, far lengthier than either of the two brief opinions for the majority, likely had a role in the SCC’s decision to grant leave. Writing the dissent, Justice Mark Schrager found that the trial judge erred in his conclusion that the pictogram had a “binding criminal force” (Kosoian QCA, para 64).?There is no legal duty, he found, to hold the handrail when using the STM’s escalators, and the pictogram itself is merely a “warning” (Kosoian QCA, para 64).
Though Justice Schrager did not find Kosoian entirely blameless, he would have allowed the appeal, set aside the judgment at trial, and found civil liability. He attributed primary liability to the STM, writing that:
“It is the STM that is the source of the infringement of the appellant’s rights because of its unfortunate wording of the regulation, the inadequate training of constables and the appellant’s improper pursuit in the municipal court.” (Kosoian QCA, para 116)
Justice Schrager also held Camacho responsible. Although his officer training may have been inadequate, and he appeared to act in “good faith,” arresting Kosoian for an offense that is non-existent in law “can not be qualified as lawful” and the “absence of malice is not a defense” in civil liability (Kosoian QCA, para 88). Justice Schrager pointed out that the SCC has itself expressed “serious reservations” in R v Bédard,?2017 SCC 4 about the notion that an “agent of the state in the performance of his duties may invoke the defense of error of law caused by a person in authority” (Kosoian QCA, para 83). The SCC’s earlier 1950 decision, Frey v Fedoruk,  SCR 517, asserts the principle of Ignorantia legis non excusat (“ignorance of the law excuses not”) in a similar context of an officer erroneously concluding something was an offence.
Justice Schrager distinguished this case from Hill, writing that the standards of reasonableness for police officers as articulated?Hill?“belongs more to the factual situations that police officers face in the field” and is not as useful in “matters of law such as here” (Kosoian QCA, para 85).
How will the SCC Rule? ?
Kosoian seems to have been singled out for being perceived as rude. As mentioned earlier, no other instances had been reported by the STM where a ticket was given for this “offence.” Ultimately, like Kosoian, most people understand pictograms as safety instructions and liability shields, not legal prescriptions. Both the majority and dissent in the QCA judgment acknowledge the “poor drafting and implementation of section 4 (e),” yet Kosoian’s suit was dismissed (Kosoian QCA, para 22). The SCC will have to decide if civil remedies should be available to Kosoian. It is possible the land’s highest court will find that the arresting officer is immunized from liability based on his honest but mistaken belief under the applicable standard of care, which is not that of a “lawyer or reasonable judge” but that of a reasonable police officer in the circumstances (Kosoian QCA, paras 6 and 8). Alternatively, the SCC could side with Justice Schrager and find this same conduct inadequate.
While an officer’s knowledge of the law does not have to be perfect, I think the SCC may for policy reasons want to discourage officers from, as it were, legislating from the police station. It seems like too much discretion and latitude to be able to arrest people based on legal fictions, even if earnestly believed to be fact. Further, arresting and detaining a person is serious, and civil damages may be the appropriate remedy in some cases to ensure against incompetence, or worse, abuse of police power. Any other precedent is arguably dangerous for opening up the pretext for unlawful arrests and searches.
 All quotes from QC and QCA decisions are unofficial translations.