'This fight was against abuse of power'
By Lee Berthiaume
OTTAWA — A Quebec police officer stepped over the line when he detained a woman for refusing to hold onto an escalator handrail, the Supreme Court of Canada said in a scathing ruling on Friday that also slammed Quebec’s lower courts.
In a unanimous ruling, the court found the woman was within her rights when she refused to obey what was an ultimately unlawful order, and that a reasonable police officer would not have considered refusing to abide by a caution-notice pictogram on the escalator to be an offence.
The ruling, written by Justice Suzanne Cote, also blasted the Societe de transport de Montreal. The transit agency “committed a fault by teaching police officers that the pictogram in question imposed an obligation to hold the handrail.”
And it took issue with earlier rulings from the Court of Quebec and Quebec Court of Appeal, which had both dismissed a lawsuit brought forward by the woman against the police officer, the STM and City of Laval.
The appeal court had ruled the woman, Bela Kosoian, was “the author of her own misfortune.”
Instead, the Supreme Court ruled Kosoian is entitled to a total of $20,000 in damages from Const. Fabio Camacho, the City of Laval as the police officer’s employer, and the STM.
“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,’ ” Cote wrote in the Supreme Court’s ruling, referring to an earlier decision setting standards for when inconveniences become injuries that warrant compensation.
“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.”
Kosoian was in a subway station in the Montreal suburb of Laval in 2009 when Camacho told her to respect the pictogram bearing the instruction, “Hold the handrail.” She had been rummaging in her bag for the transit fare as she rode the escalator.
She replied that she did not consider the image, which also featured the word “Careful,” to be an obligation, declined to hold the handrail and refused to identity herself.
Officers subsequently detained Kosoian for about 30 minutes, during which they held her in handcuffs and searched her belongings before letting her go with two tickets: one for $100 for disobeying the pictogram and another for $320 for obstructing the work of an inspector.
She was acquitted of the infractions in Montreal municipal court in 2012 and subsequently filed a $45,000 lawsuit. But her suit was rejected by Quebec court in 2015 and two years later by the Quebec Court of Appeal.
But the Supreme Court found holding the handrail was not a legal requirement and, “given that the offence alleged did not exist in law, (Kosoian) was perfectly entitled to refuse to identify herself and then simply to walk away.”
Camacho was also found to have 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, namely disobeying the pictogram indicating that the handrail should be held.”
Both findings contradicted those of Quebec’s lower courts, which the Supreme Court said had erred in several ways.
“It follows that a pictogram that only warns, advises or informs cannot serve as the basis for this offence. After all, one does not ’disobey’ a warning. At most, one refuses to take notice of it,” Cote wrote.
“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.”
The Supreme Court also ruled the STM “committed a direct fault by providing training that indicated to police officers that holding the handrail was an obligation under a bylaw.”
After the decision landed, Kosoian held a news conference at the Montreal offices of the Centre for Research-Action on Race Relations.
She thanked the judges and her lawyer. She also mentioned she is studying to take the bar exam and hopes to become a practising lawyer in Ontario.
“This fight was against abuse of power,” she said.
“I did not break any law. I’m going to be a lawyer. I am a mother of children. It was an unlawful order. I have principles and I fought and I fought because it’s going to serve all Canadians and Quebecers.”
This report by The Canadian Press was first published Nov. 29, 2019.