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

SUPREME COURT OF CANADA Citation: Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335 Appeal Heard: April 16, 2019 Judgment Rendered : November 29, 2019 Docket: 38012 Between: Bela Kosoian Appellant and Société de transport de Montréal, Ville de Laval and Fabio Camacho Respondents - and - Canadian Civil Liberties Association Intervener Official English Translation Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 141) Côté J. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Brown, Rowe and Martin JJ. concurring)

kosoian v. société de transport de montréal Bela Kosoian Appellant v. Société de transport de Montréal, Ville de Laval and Fabio Camacho Respondents and Canadian Civil Liberties Association Intervener Indexed as: Kosoian v. Société de transport de Montréal 2019 SCC 59 File No.: 38012. 2019: April 16; 2019: November 29.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for quebec Police — Civil liability — Fault — Offence non-existent in law — Police officer arresting and searching citizen after she refused to hold escalator handrail in subway and to identify herself — Citizen bringing civil liability action against police officer, his employer and public transit authority for which he acted as inspector — Whether police officer incurred civil liability and engaged his employer’s civil liability by acting as he did toward citizen — Whether citizen must bear share of liability because of her refusal to cooperate with police officer — Civil Code of Québec, art. 1457 .

Civil liability — Legal person established in public interest — Immunity — Fault — Public transit authority providing police officers designated as subway inspectors with training indicating that holding escalator handrail was obligation under by-law — Police officer arresting and searching citizen who did not hold handrail on basis of that training — Citizen bringing civil liability action against police officer, his employer and public transit authority — Whether public transit authority incurred civil liability — If so, whether it can claim public law relative immunity.

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 notenough to show that the officer’s conduct was unlawful. Nevertheless, the mere fact that there is a legal basis for a police officer’sactions does not necessarily exempt the officer from civil liability. Police officers are obliged to have an adequate knowledge andunderstanding of criminal and penal law, of the offences they are called upon to prevent and repress and of the rights and freedomsprotected by the Charters.

They must be able to exercise judgment with respect to the applicable law and cannot rely blindly on thetraining and instructions received, which, although they must be considered in assessing an officer’s conduct, are not conclusive inthemselves. Police officers cannot avoid personal civil liability simply by arguing that they were merely carrying out an order that theyknew or ought to have known was unlawful.

Therefore, they will sometimes commit a civil fault if they act unlawfully, even where theirconduct is otherwise consistent with the training and instructions received, with existing policies, directives and procedures and with theusual 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 issubsequently declared invalid, provided that they do not otherwise commit a fault in exercising their powers.

However, it does not followthat 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 thiseffect 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 andconducting a search based on a non-existent offence, namely disobeying the pictogram indicating that the handrail should be held.

Areasonable police officer in the same circumstances would not have concluded that disobeying the pictogram was an offence under aby-law. Before depriving K of her liberty, the officer had to ensure that there was valid legal justification for his actions. A reasonablepolice officer would have concluded that the pictogram simply advises users to be careful, despite the training received. Therefore, theofficer’s conduct necessarily constituted a fault insofar as it resulted from an unreasonable belief in the existence of an offence that didnot 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 thoughhis 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 fromthem.

A legal person established in the public interest does not incur civil liability where it makes or passes a regulation or by-law that issubsequently held to be invalid, unless its decision to do so was made in bad faith or was irrational. It may nonetheless be civilly liable ifit makes an error of law in implementing its own regulations or by-laws. In the instant case, the training provided to police officers bythe 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 committeda direct fault in the implementation of the by-law by providing training that suggested to police officers called upon to enforce its by-lawsthat holding the handrail was an obligation pursuant to a by-law. Once the STM undertook to provide police officers with training, it hadto ensure that the training would be appropriate and that it would reflect the law. If the police officer was at fault for believing thatholding 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 inspectorcreates a legal relationship analogous to that of mandate within the meaning of art. 2130 para. 1 C.C.Q., in which a public transitauthority may incur civil liability to a third person. In enforcing the by-laws of a public transit authority, a police officer ipso factorepresents that authority in the performance of a juridical act, which must be interpreted broadly. This conclusion in no way compromisesthe autonomy that a police officer has in exercising his or her powers.

If a police officer can be characterized as a subordinate, there is noreason why he or she could not be a mandatary under the rules of civil liability — a relationship that does not require any relationship ofsubordination. K was entitled to refuse to obey an unlawful order and therefore committed no fault that would justify an apportionment ofliability under art. 1478 para. 2 C.C.Q. Unless a statutory provision or common law rule clearly imposes it, there is no obligation toidentify oneself to, or indeed to cooperate with, a police officer.

To conclude that K must be apportioned a share of the liability wouldamount to saying that there is, in all circumstances, a rule of conduct requiring compliance with an unlawful order given by a policeofficer, even where the order is based on an offence that simply does not exist in law. A well-informed person whose rights are infringedmust be able to respond — within reason — without being held civilly liable. Similarly, K cannot be faulted for not doing anything tomitigate the injury she suffered. A reasonable, prudent and diligent person is not under an obligation to obey an unlawful order.

The dutyto mitigate must sometimes be displaced where it conflicts with respect for rights and freedoms. In a free and democratic society, no oneshould accept — or expect to be subjected to — unjustified state intrusions. Interference with freedom of movement, just like invasion ofprivacy, must not be trivialized. Cases Cited Referred to: Godin v. Montréal (Ville de), 2015 QCCQ 5513; Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2S.C.R. 114; Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2; R. v. Sharma, (SCC), [1993] 1 S.C.R.650; Hill v.

Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Jauvin v. Québec (Procureurgénéral), (QC CA), [2004] R.R.A. 37; Régie intermunicipale de police des Seigneuries v. Michaelson, [2005]R.R.A. 7; Popovic v. Montréal (Ville de), 2008 QCCA 2371, [2009] R.R.A. 1; St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64,[2008] 3 S.C.R. 392; Bou Malhab v. Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214; Roberge v. Bolduc, (SCC), [1991] 1 S.C.R. 374; Chartier v. Attorney General of Quebec, (SCC), [1979] 2 S.C.R. 474; Lacombev. André, (QC CA), [2003] R.J.Q. 720; St-Martin v.

Morin (Succession de), 2008 QCCA 2106, [2008] R.J.Q. 2539;Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600; Compagnie d’assurance Continental duCanada v. 136500 Canada inc., [1998] R.R.A. 707; Morin v. Blais, (SCC), [1977] 1 S.C.R. 570; Harvey v. Trois-Rivières(Ville de), 2013 QCCA 772, [2013] R.J.Q. 650; L. (J.) v. Gingues, 2008 QCCA 2242, 93 C.C.L.T. (3d) 67; R. v. Grant, 2009 SCC 32,[2009] 2 S.C.R. 353; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692; R. v. Genest, (SCC), [1989] 1 S.C.R. 59; R. v.Kokesch, (SCC), [1990] 3 S.C.R. 3; Gounis v. Ville de Laval, 2019 QCCS 479; Simard v.

Amyot, 2009 QCCS 5509;Bellefleur v. Montréal (Communauté urbaine de), [1999] R.R.A. 546; R. v. Rouleau, ; R. v. Beaudry, 2007 SCC 5,[2007] 1 S.C.R. 190; Chaput v. Romain, (SCC), [1955] S.C.R. 834; Pelletier v. Cour du Québec, (QC CA), [2002] R.J.Q. 2215; Dubé v. Gélinas, 2013 QCCS 1681; Boisvenu v. Sherbrooke (Ville de), 2009 QCCS 2688; Communauté

urbaine de Montréal v. Cadieux, [2002] R.J.D.T. 80; Guimond v. Quebec (Attorney General), (SCC), [1996] 3 S.C.R.347; R. v. Wiley, (SCC), [1993] 3 S.C.R. 263; Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013SCC 64, [2013] 3 S.C.R. 810; Breslaw v. Montreal (City), 2009 SCC 44, [2009] 3 S.C.R. 131; Mackin v. New Brunswick (Minister ofFinance), 2002 SCC 13, [2002] 1 S.C.R. 405; Beauchemin v. Blainville (Town) (2003), (QC CA), 231 D.L.R. (4th)706; Ryan v. Auclair (1989), (QC CA), 60 D.L.R. (4th) 212; Procureur général du Québec v. Ouellet, ; Frey v. Fedoruk, (SCC), [1950] S.C.R. 517; Moore v.

The Queen, (SCC), [1979] 1 S.C.R. 195;R. v. Guthrie (1982), 1982 ABCA 201 , 21 Alta. L.R. (2d) 1; R. v. Coles (2003), 2003 PESCAD 3 , 221 Nfld. &P.E.I.R. 98; R. v. Houle (1985), 1985 ABCA 275 , 41 Alta. L.R. (2d) 295; Crépeau v. Yannonie, [1988] R.R.A. 265; AttorneyGeneral of Quebec v. Blaikie, (SCC), [1981] 1 S.C.R. 312; R. v. Latimer, (SCC), [1997] 1 S.C.R. 217;R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 S.C.R. 3; Figueiras v. Toronto Police Services Board, 2015 ONCA 208, 124 O.R. (3d) 641;R. v. Saeed, 2016 SCC 24, [2016] 1 S.C.R. 518; Solomon v.

Québec (Procureur général), 2008 QCCA 1832, [2008] R.J.Q. 2127;Pierre-Louis v. Québec (Ville de), 2014 QCCA 1554; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Prud’homme v.Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 663; Entreprises Sibeca Inc. v. Frelighsburg (Municipality), 2004 SCC 61, [2004] 3 S.C.R.304; Welbridge Holdings Ltd. v. Greater Winnipeg, (SCC), [1971] S.C.R. 957; Papachronis v. Ste-Anne-de-Bellevue(Ville), 2007 QCCA 770, 38 M.P.L.R. (4th) 161; R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Hinse v.Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; Laurentide Motels Ltd. v. Beauport (City), (SCC),[1989] 1 S.C.R. 705; Maska Auto Spring Ltée v. Ste-Rosalie (Village), (SCC), [1991] 2 S.C.R. 3; Maska Auto SpringLtée v. Ste-Rosalie (Corp. municipale du village de), (QC CA), [1988] R.J.Q. 1576; Pincourt (Ville de) v. ConstructionCogerex ltée, 2013 QCCA 1773; Chelsea (Municipalité de) v. Laurin, 2010 QCCA 1723; Foley v. Shamess, 2008 ONCA 588, 297D.L.R. (4th) 287; Proulx v.

Quebec (Attorney General), 2001 SCC 66, [2001] 3 S.C.R. 9; Nelles v. Ontario, (SCC),[1989] 2 S.C.R. 170; Montréal (Ville) v. Lonardi, 2018 SCC 29, [2018] 2 S.C.R. 103; Doré v. Verdun (City), (SCC),[1997] 2 S.C.R. 862; R. v. Campbell, (SCC), [1999] 1 S.C.R. 565; McCleave v. City of Moncton (1902), (SCC), 32 S.C.R. 106; Commission des droits de la personne et des droits de la jeunesse v. Poulin, ; R. v. Gagné, (QC CA), [1987] R.J.Q. 1008, aff’d (SCC), [1989] 1 S.C.R. 1584; Vigneault v. La Reine, , aff’g ; Mongeau v. Montréal (Communauté urbaine), [2000] J.Q. no 5823 (QL).

Statutes and Regulations Cited Act respecting public transit authorities, CQLR, c. S-30.01, ss. 140, 144(1). Act respecting public transit authorities, R.S.Q., c. S-30.01, s. 143. By-law on the standards of safety and conduct to be observed by persons in the rolling stock and buildings operated by or for the Sociétéde transport de Montréal,

preamble, arts. 4(e), 17 [now s. 26] [made under the Act respecting public transit authorities, R.S.Q.,c. S-30.01, s. 144]. Canadian Charter of Rights and Freedoms, ss. 9, 10(b). Charter of human rights and freedoms, CQLR, c. C-12, ss. 24, 29, 49 para. 1. Charter of the French language, CQLR, c. C-11, s. 8. Cities and Towns Act, CQLR, c. C-19, s. 364. Civil Code of Québec, arts. 300, 1376, 1457, 1463, 1464, 1478, 1479, 1526, 1619, 2130 para. 1, 2164, 2892, 2900. Code of ethics of Québec police officers, CQLR, c. P-13.1, r. 1, ss. 2, 3, 6 para. 1. Code of Penal Procedure, CQLR, c.

C-25.1, arts. 72 para. 1, 73, 74, 82. Constitution Act, 1867, s. 133. Criminal Code, R.S.C. 1985, c. C-46, s. 129. Municipal Code of Québec, CQLR, c. C-27.1, art. 452. Police Act, CQLR, c. P-13.1, ss. 1 to 6, 48, 49, 69. Authors Cited Baudouin, Jean-Louis, et Claude Fabien. “L’indemnisation des dommages causés par la police” (1989), 23 R.J.T. 419. Baudouin, Jean-Louis, Patrice Deslauriers et Benoît Moore. La responsabilité civile, 8e éd. Cowansville, Que.: Yvon Blais, 2014. Ceyssens, Paul. Legal Aspects of Policing, vol. 1. Saltspring Island, B.C.: Earlscourt, 1994 (loose-leaf updated December 2018,release 34).

Code civil du Québec: Annotations — Commentaires 2018-2019, 3e éd. par Benoît Moore, dir., et autres. Montréal: Yvon Blais, 2018. Crépeau, Paul-André. L’intensité de l’obligation juridique ou Des obligations de diligence, de résultat et de garantie. Montréal: YvonBlais, 1989. Fabien, Claude. “Les règles du mandat”, dans Extraits du Répertoire de droit. Montréal: Chambre des notaires du Québec, 1989.

Fabien, Claude. “Mandate”, in Reform of the Civil Code , vol. 2, Obligations, VII, VIII . Translated by Susan Altschul. Texts written for Barreau du Québec and the Chambre des notaires du Québec. Montréal : Barreau du Québec, 1993, 2. Garant, Patrice. Droit administratif , 7 e éd. Montréal: Yvon Blais, 2017. Hétu , Jean , et Yvon Duplessis, avec la collaboration de Lise Vézina. Droit municipal: Principes généraux et contentieux , vol. 1, 2 e éd. Brossard, Que.: Wolters Kluwer, 2002 (feuilles mobiles mises à jour janvier 2019).

Jobin, Pierre-Gabriel. “La violation d’une loi ou d’un règlement entraîne-t-elle la responsabilité civile?” (1984), 44 R. du B. 222. Jobin-Laberge, Odette. “Norme, infraction et faute civile”, dans Service de la formation permanente — Barreau du Québec, vol. 137, Développements récents en déontologie, droit professionnel et disciplinaire . Cowansville, Que.: Yvon Blais, 2000, 31. Karim, Vincent. Les obligations , vol. 1 , 4 e éd. Montréal: Wilson & Lafleur, 2015.

Lacroix, Mariève. “Le fait générateur de responsabilité civile extracontractuelle personnelle: continuum de l’illicéité à la faute simple, au regard de l’

article 1457 C.c.Q. ” (2012), 46 R.J.T. 25. Lacroix, Mariève. L’illicéité: Essai théorique et comparatif en matière de responsabilité civile extracontractuelle pour le fait personnel . Cowansville, Que.: Yvon Blais, 2013. Lacroix, Mariève. “Responsabilité civile des forces policières”, dans JurisClasseur Québec — Responsabilité professionnelle , par Anne Bélanger, dir. Montréal: LexisNexis, 2015, fascicule 13. Massé, Chantale. “Chronique — Arrestation illégale et brutalité policière: dans quelles circonstances la responsabilité des policiers peut-elle être engagée?”, Repères , mai 2013 (available on La référence). Nadeau, Alain-Robert. Droit policier:

Loi sur la police annotée et règlements concernant la police , 12 e éd. Cowansville, Que.: Yvon Blais, 2008. Oxford English Dictionary , 2nd ed. Oxford: Clarendon Press, 1989, “ignore”. Patenaude, Pierre. “De la recevabilité des preuves obtenues au moyen de l’utilisation par la police de techniques modernes d’enquête et de surveillance”, dans Police, techniques modernes d’enquête ou de surveillance et droit de la preuve , par Pierre Patenaude, dir. Sherbrooke: Revue de droit de l’Université de Sherbrooke, 1998.

Petit Larousse illustré , éd. 2020, Paris: Larousse, 2019, “ désobéir ”, “ désobéissance ”, “ ignorer ”. Petit Robert : dictionnaire alphabétique et analogique de la langue française , nouvelle éd. Paris: Le Robert, 2020, “ désobéir ”, “ désobéissance ”, “ ignorer ”. Régimbald , Guy. Canadian Administrative Law , 2nd ed. Markham, Ont.: LexisNexis, 2015. Robert & Collins: Dictionnaire français-anglais, anglais-français , 10 e éd. Paris: Dictionnaires Le Robert-SEJER, 2016, “ignore”. Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014. Tancelin, Maurice.

Des obligations en droit mixte du Québec , 7 e éd. Montréal: Wilson & Lafleur, 2009. Vauclair, Martin, et Tristan Desjardins . Traité général de preuve et de procédure pénales , 26 e éd. Montréal: Yvon Blais, 2019. Vézina, Nathalie. “Du phénomène de pollution lumineuse appliqué à l’observation des astres jurisprudentiels: responsabilité objective, responsabilité subjective et l’arrêt Ciment du Saint-Laurent ”, dans Générosa Bras Miranda et Benoît Moore, dir., Mélanges Adrian Popovici: Les couleurs du droit . Montréal: Thémis, 2010, 357. Viney, Geneviève, et Patrice Jourdain.

Traité de droit civil: Les conditions de la responsabilité , 2 e éd., par Jacques Ghestin, dir. Paris: L.G.D.J., 1998. Zhou, Han-Ru. “Le test de la personne raisonnable en responsabilité civile” (2001), 61 R. du B. 451. APPEAL from a judgment of the Quebec Court of Appeal (Dutil, Vauclair and Schrager JJ.A.), 2017 QCCA 1919 , [2017] J.Q. n o 17168 (QL), 2017 CarswellQue 10898 (WL Can.), affirming a decision of Le Reste J.C.Q., 2015 QCCQ 7948 , [2015] J.Q. n o 8499 (QL), 2015 CarswellQue 8746 (WL Can.). Appeal allowed. Aymar Missakila and Ghassan Hamod , for the appellant.

Daniel Maillé , for the respondent Société de transport de Montréal. Alexandre Thériault-Marois , Maryann Carter and Marie-Pier Dussault-Picard , for the respondents Ville de Laval and Fabio Camacho. Sylvie Rodrigue and Emma Loignon-Giroux , for the intervener the Canadian Civil Liberties Association.

TABLE OF CONTENTS Paragraph I. Overview 1 II. Background 8 III. Judicial History 25 A. Court of Québec ( 2015 QCCQ 7948 ) 25 B. Quebec Court of Appeal ( 2017 QCCA 1919 ) 27 IV. Issues 36 V. Analysis 37 A. Civil Liability of the Police Under Quebec Law 37

(1) Application of the General Rules in

Article 1457 C.C.Q. 37

(2) Civil Fault and the Reasonable Police Officer Test 42 B. Liability of Constable Camacho and the City 53

(1) Obligation of Police Officers to Know and Understand the Law 55

(2) Presumption of Validity and Non-existence of an Offence 67

(3) Application to the Facts 75 C. Liability of the STM 105

(1) Relative Immunity in the Exercise of a Regulatory Power 106

(2) Direct Fault of the STM 111

(3) Liability of the STM as Mandator 118 D. Apportionment of Liability 128 E. Injury and the Amount of Damages 138 VI. Conclusion 141 Appendix English version of the judgment of the Court delivered by Côté J . — I. Overview [ 1 ] On an evening in May 2009, the appellant, Bela Kosoian, entered a subway station in order to travel to university. She took the descending escalator. Like many subway users, she did not hold the handrail. She leaned forward and rummaged through her bag. A police officer saw her and ordered her several times to hold the handrail. Ms.

Kosoian refused to comply and then refused to identify herself once she reached the bottom of the escalator. A few moments later, as she tried to leave, the police officer and a colleague took her by the elbows and led her to a holding room. Given her refusal to provide a piece of identification and her agitated behaviour, the police officers handcuffed her with her arms crossed behind her back and forced her to sit on a chair.

After searching her bag, still without her consent, the officers finally gave her a statement of offence for $100 for disobeying a pictogram indicating that the handrail should be held and another statement of offence for $320 for hindering them in their duties. Ms. Kosoian was later acquitted in the Municipal Court. [ 2 ] This appeal concerns Ms. Kosoian’s civil liability action against the police officer who arrested her, Constable Fabio Camacho, his employer, Ville de Laval (“City”), and the authority responsible for the subway system, Société de transport de Montréal (“STM”). Ms.

Kosoian submits that not only was the arrest unlawful and unreasonable, but it also constituted a fault. She argues that holding the handrail was not an obligation under a by-law, but simply a warning. Furthermore, a reasonable police officer in the same circumstances would not have acted in such a manner. [ 3 ] The courts below rejected Ms. Kosoian’s arguments and found that the respondents, Constable Camacho, the City and the STM, had not incurred any civil liability. In their view, Ms. Kosoian had instead been the author of her own misfortune by refusing to cooperate. [ 4 ] I disagree.

With respect, the courts below erred in law in presuming the very existence of the alleged offence. The majority of the Quebec Court of Appeal could not rely on the presumption of validity applicable to the STM’s By-law on the standards of safety and conduct to be observed by persons in the rolling stock and buildings operated by or for the Société de transport de Montréal (“By-law R-036”) to support the reasonableness of Constable Camacho’s belief in the existence in law of the alleged offence. The basis for the action instituted by Ms.

Kosoian is not that the by-law is invalid, but rather that it does not create the offence alleged against her. In other words, she argues that that offence does not exist in law; yet the presumption that a by-law is valid does not extend to the very existence or scope of an offence. I would add that the validity of the by-law is not challenged in this case and is therefore not a matter I need to address. [ 5 ] In my view, a reasonable police officer in the same circumstances would not have considered failure to hold the handrail to be an offence.

Constable Camacho therefore committed a fault when he took hold of Ms. Kosoian in order to prevent her from leaving and detained her in the holding room . The STM, for its part, 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 — Constable Camacho’s conduct. Finally, as the police officer’s principal, the City must be held liable for his fault. As for Ms.

Kosoian, she was entitled to refuse to obey an unlawful order, and she therefore committed no fault that would justify an apportionment of liability. [ 6 ] In a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law. Every person can therefore legitimately expect that police officers who deal with him or her will comply with the law in force, which necessarily requires them to know the statutes, regulations and by-laws they are called upon to enforce.

Police officers are thus obliged to have an adequate knowledge and understanding of the statutes, regulations and by-laws they have to enforce. Police forces and municipal bodies have a correlative obligation to provide police officers with proper training, including with respect to the law in force. Under Quebec law, a breach of these obligations may, depending on the circumstances, constitute a civil fault.

[7] That is the case here. Ms. Kosoian’s appeal must therefore be allowed against the three respondents, with coststhroughout. II. Background [8] On May 13, 2009 at 5:05 p.m., Ms. Kosoian, a 38-year-old student and mother, was in the Montmorency subwaystation in Laval. She planned to take the Montréal subway to travel to the Université du Québec à Montréal to attend a class. [9] Ms. Kosoian went down the station’s long escalator. There was a sign posted at the top of the escalator in plainview of users (see the reproduction in the appendix to these reasons).

The sign was titled [translation] “CAUTION” and containedseveral pictograms, including one showing a figure holding the escalator handrail (except where otherwise indicated, I use the term“pictogram” in my reasons to refer specifically to this figure). The pictogram in question was accompanied by the following warning:[translation] “Hold Handrail”. Ms. Kosoian was aware of the existence of the pictogram. She believed that it simply constituted awarning, not an obligation under a by-law. [10] As she went down the escalator, Ms. Kosoian rummaged through her backpack looking for money to pay for herticket.

While she did so, she did not hold the handrail. [11] That evening, Constable Camacho, a police officer with the City, was assigned with a colleague to monitor thesubway stations in Laval, including the Montmorency station. The STM had designated the two police officers as inspectors and, for thatpurpose, had given them nearly 20 hours of training on safety in the subway system, the applicable by-laws and the actions they were totake. Among other things, the STM taught the police officers that holding the handrail was an obligation under a by-law.

In fact, inConstable Camacho’s view, all of the pictograms in the subway established prohibitions or obligations, and failure to comply with themwas an offence. [12] While patrolling the Montmorency station, Constable Camacho saw that Ms. Kosoian was going down the escalatorwithout holding the handrail. Fearing for her safety, he decided to intervene to [translation] “raise awareness”. He approached her andwarned: “Careful, you might fall. It’s dangerous. You should hold the handrail” (C.Q. reasons, 2015 QCCQ 7948, at para. 139 ). [13] Ms. Kosoian refused to do so, and a heated exchange ensued.

Although the versions of events differ, it is clear that theappellant was upset by the police officers’ actions and that she questioned their authority. For their part, the police officers found hertone to be arrogant and aggressive. In the end, Constable Camacho ordered her to hold the handrail and threatened to give her a statementof offence if she refused to comply. Ms. Kosoian persisted in refusing to do so. [14] Ms. Kosoian and Constable Camacho arrived at the bottom of the escalator. Any potential danger had now passed.Constable Camacho nonetheless stood by his decision to give Ms.

Kosoian a statement of offence for disobeying the pictogram. Heasked her to follow him to the STM’s holding room so he could draw up the statement there, but she ignored his request and tried to walktoward the subway turnstiles instead. [15] The police officers then intervened physically. Constable Camacho took hold of Ms. Kosoian’s forearm to restrainher. With his colleague’s help, he then led her to the holding room by force, holding her — at least briefly — by the elbows. The roomcontained a table, chairs and a cell.

There was a surveillance camera in the room that filmed the scene. [16] Once inside the room, Constable Camacho asked Ms. Kosoian to give him a piece of identification. She refused toidentify herself and asked to be allowed to contact a lawyer. Constable Camacho then told her that he would arrest her for hindering apolice officer in his duties if she did not cooperate. Faced with her repeated refusals to cooperate and her agitation, he advised her that shewas under arrest and informed her of her constitutional rights. [17] Constable Camacho then tried to search Ms.

Kosoian’s backpack to find a piece of identification, but she objected. He[translation] “placed his foot on hers, pressing firmly with his shoe”, and attempted to take the backpack from her (C.Q. reasons, atpara. 32). [18] It was then that the police officers decided — following a warning — to handcuff Ms. Kosoian by pulling her armsback, pinning her against the wall and placing the cuffs on her. They then forced her to sit on a chair before they searched her bag, inwhich they quickly found her wallet and identification cards. [19] While Constable Camacho was drawing up the statements of offence, Ms.

Kosoian continued to protest and movedcloser to him several times to look at what he was writing. The police officers had to use force to keep her on her chair. Because of heragitated behaviour, Constable Camacho placed his right foot on the left leg of the chair. In the end, the officers told Ms. Kosoian aboutthe presence of the surveillance camera, which apparently had the effect of easing tensions. [20] At 5:29 p.m., the police officers finally gave her two statements: one for $100 for disobeying a directive or pictogramposted by the STM contrary to art. 4(

e) of By-law R-036, and another for $320 for hindering an inspector in the performance ofinspection duties contrary to s. 143 of the Act respecting public transit authorities, R.S.Q., c. S-30.01. The police officers then removedthe handcuffs from Ms. Kosoian’s wrists, and she took the statements and left. [21] According to Ms. Kosoian, she experienced significant psychological stress and humiliation as a result of the policeaction. The following day, she saw a physician, who found that she was suffering from post-arrest anxiety and had superficial abrasionson her wrists and one of her feet.

A few days later, another physician diagnosed her with post-traumatic stress and a sprained wrist. [22] Meanwhile, Ms. Kosoian’s spouse filed a complaint with the STM the day after the police action. He formallyrequested that the videotapes be given to him. His request went unheeded. Because Constable Camacho was on vacation when thecomplaint was filed, it was only once he returned on May 19 that he was able to request that the tapes be kept. It was too late. After fivedays, the surveillance system had already erased the images of the incident.

[23] In accordance with the statements of offence issued on its behalf, the STM, as prosecutor, instituted penal proceedingsin the Municipal Court of Ville de Montréal. Ms. Kosoian was ultimately acquitted of the two offences on March 14, 2012. In hisdecision, Judge Bisson concluded that he was not [translation] “satisfied beyond a reasonable doubt that there is an obligation to obey[the] pictogram” (A.R., vol. II, at para. 48). He also stated that Ms. Kosoian’s testimony was “credible and believed” (ibid.).

Conversely,he did not accept the prosecution’s evidence “in light of the contradictions between the abridged offence reports and the testimony of theconstable [Camacho]” (ibid.). He even stated that he had “the impression that adjustments were made to the evidence to justify the failureof this intervention, which basically should have been routine” (ibid.). [24] Ms. Kosoian subsequently instituted the civil liability action that is the subject of this appeal.

She alleged, amongother things, that Constable Camacho had committed a civil fault by making an unlawful and unreasonable arrest on the basis of apictogram that did not create an offence but simply gave a [translation] “warning of danger”. She added that the physical restraint usedagainst her was unreasonable in the circumstances. She argued that the City was also liable as Constable Camacho’s principal. As for theSTM, Ms.

Kosoian reproached it for improperly applying By-law R-036 by treating failure to comply with the pictogram indicating thatthe handrail should be held as if it were an offence, and for instituting and pursuing penal proceedings on that basis over a three-yearperiod. She argued that the STM was also liable, as mandator, for the faults committed by Constable Camacho, since it had designatedhim to enforce its by-laws. According to Ms. Kosoian, the faults committed by Constable Camacho and the STM had caused herpsychological suffering and minor bodily injuries in addition to impairing her dignity.

She claimed a total of $69,000 in compensatoryand punitive damages. III. Judicial History A. Court of Québec (2015 QCCQ 7948) [25] The trial judge, the Honourable Denis Le Reste, dismissed the civil liability action. He found that Constable Camachohad not committed any civil fault (para. 270). In his view, the applicable rules and directives were [translation] “clear” and theirimplementation “beyond reproach” (para. 281), so much so that Constable Camacho’s work had been “exemplary and irreproachable”(para. 266).

He also stated that he did not have the “slightest suspicion of unreasonable methods used by the police officers” (para. 279).He found that Ms. Kosoian had at no time been “unlawfully detained” (para. 276) and that the actions taken against her, including the useof handcuffs, had been “entirely justified” in the circumstances (paras. 277-80). Rather, it was Ms.

Kosoian who had behaved in an“inconceivable” manner by “unlawfully and stubbornly” refusing to comply with a police officer’s order and to hold the escalatorhandrail (paras. 270-72). [26] In light of these findings, the trial judge did not assess the amount of damages. However, in quoting Godin v.Montréal (Ville de), 2015 QCCQ 5513, he did reproduce an excerpt from Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2S.C.R. 114, at para. 9, in which the Court stated that “minor and transient upsets” do not constitute compensable injury in tort law. B.

Quebec Court of Appeal (2017 QCCA 1919) [27] The majority dismissed Ms. Kosoian’s appeal. The Honourable Julie Dutil, writing for the majority, expressed theview that Constable Camacho did not commit a civil fault by giving the appellant a statement of offence and by arresting her when sherefused to identify herself (para. 6 ). Dutil J.A. noted that, in matters of civil liability, a police officer is held to the standard of areasonable police officer in the same circumstances, such that the officer’s conduct must be considered in light of the facts known to himor her at the time of the events (ibid.).

In this case, she noted that By-law R-036 was presumed to be valid at the time of the events andthat Constable Camacho had also received training on the subject (paras. 7-8, 11 and 13). For these reasons, he had to assume that failingto hold the handrail was an offence under the by-law in force (ibid.). Dutil J.A. added that it was not Constable Camacho’s role toanalyze the law to determine whether the offence existed in law (para. 11). In the end, she concluded that it was [translation] “[t]heappellant [who] was the author of her own misfortune” (para. 18). Ms.

Kosoian should have cooperated with the police, even if shecontested the statements of offence later. In this context, even on the assumption that a fault had been committed, it would not beappropriate to award damages as a remedy (para. 18). [28] On the issue of the STM’s liability, Dutil J.A. stated that that public body enjoys relative immunity in the exercise ofits regulatory power, which includes the implementation of By-law R-036 (para. 21). For the STM to be found civilly liable on this basis,Ms. Kosoian had to establish that it had acted in bad faith.

In Dutil J.A.’s view, she had not proved this (para. 22). [29] The Honourable Martin Vauclair wrote concurring reasons in which he agreed with Dutil J.A.’s opinion (para. 25) butalso stated that the police officers could lawfully search Ms. Kosoian’s bag, incidentally to her arrest, in order to identify her (para. 42).Dutil J.A. found that it was not necessary to decide that question (para. 15). [30] The dissenting judge, the Honourable Mark Schrager, would have allowed the appeal, set aside the trial judgment andordered the respondents to pay Ms. Kosoian $15,000 in damages.

In his opinion, the trial judge had erred in law in finding that there wasan obligation under a by-law to hold the handrail on the STM’s escalators (paras. 58 and 64). [31] First, he expressed the view that art. 4(

e) of By-law R-036 could not render it an offence to fail to comply with apictogram (paras. 58-59 and 64-65). This would be an unlawful subdelegation of the STM’s regulatory power to the person responsiblefor making and posting pictograms. The enabling provision, s. 144(1) of the Act respecting public transit authorities, CQLR, c. S-30.01,authorizes the STM to prescribe standards of safety and conduct only through a by-law approved by the city.

However, the pictogram inquestion did not receive such approval. [32] The dissenting judge then noted, on an alternative basis, that [translation] “the pictogram communicates only awarning to hold the handrail” and therefore does not set out a directive (paras. 67-70 (emphasis added)). He found that a pictogramcannot be the source of an offence under art. 4(

e) unless it amounts to a directive (paras. 71-72). As such, Ms. Kosoian could not bereproached legally for disobeying a message that in fact only advises users to be careful (para. 67). The dissenting judge concluded thatBy-law R-036 does not render it an offence to fail to hold the handrail (para. 73).

[33] In the dissenting judge’s view, not only were the arrest and search unlawful, but they also constituted a fault giventhat the offence that could have justified them did not exist (paras. 90-91). He stated that police officers must know the general principlesof criminal and penal law they have to apply (para. 84) and that ignorance of the law is no defence (para. 82). In the instant case,therefore, it was not sufficient that Constable Camacho sincerely believed that art. 4(

e) of By-law R-036 created an offence (para. 84).The dissenting judge was also of the view that the reasonable police officer standard can be of no assistance where a court is called uponto decide a question of law rather than to assess a fact situation (para. 85).

When an arrest is made for an offence that does not exist inlaw, the act constitutes a fault even if it also results from improper training (para. 88). [34] The dissenting judge further found that in addition to being liable for its own faults in the drafting andimplementation of By-law R-036, including the training given to police officers, the STM was liable as mandator for ConstableCamacho’s fault (paras. 97-98). He was of the opinion that, in the circumstances, the STM could not claim the relative immunityenjoyed by public bodies in the exercise of their regulatory power (para. 100).

The STM was also at fault for failing to discontinue theproceedings against Ms. Kosoian in the Municipal Court of Montréal (para. 101). Finally, the City too was liable for ConstableCamacho’s fault in its capacity as his principal (para. 102). [35] The dissenting judge expressed the view that the events had caused moral injury to Ms. Kosoian. After reviewing therelevant jurisprudence, he set the total amount of compensation at $20,000 (paras. 105-12).

However, he found that 25 percent of theliability should be apportioned to the appellant because her failure to cooperate with the police officers had aggravated the situation. Shehad thus breached her duty to mitigate the injury (para. 113). Schrager J.A. would therefore have ordered the respondents solidarily topay the appellant $15,000 while apportioning all of the liability to the STM, among the three respondents, because of its role in draftingthe by-law, training the police officers and prosecuting Ms. Kosoian in the Municipal Court (para. 116). IV.

Issues [36] The following issues must be considered in this appeal: (

a) What are the general principles governing the civil liability of the police? (

b) Did Constable Camacho incur civil liability by acting as he did toward Ms. Kosoian because of the fact that shewas not holding the escalator handrail? (

c) Did the STM incur civil liability by committing a direct fault? If so, can it claim public law relative immunity? Didit also incur liability as mandator? (

d) On the assumption that Ms. Kosoian is successful, must she bear a share of the liability because of her refusal tocooperate with the police? V. Analysis A. Civil Liability of the Police Under Quebec Law

(1) Application of the General Rules in

Article 1457 C.C.Q. [37] Under Quebec civil law, s. 48 of the Police Act, CQLR, c. P-13.1, specifically entrusts police officers with themission of maintaining peace, order and public security and preventing and repressing crime and offences under the law and municipalby-laws. In doing so, police officers help to ensure the safety of persons and property and to safeguard rights and freedoms (see, e.g.,A.-R. Nadeau, Droit policier:

Loi sur la police annotée et règlements concernant la police (12th ed. 2008), at p. XIII). [38] In carrying out their mission, police officers are required to limit these same rights and freedoms using the coercivepower of the state, including by detaining or arresting individuals and by conducting searches or seizures. The risk of abuse isundeniable. That is why, in a society founded on the rule of law, it is important that there always be a legal basis for the actions taken bypolice officers (Dedman v. The Queen, (SCC), [1985] 2 S.C.R. 2, at pp. 28-29; R. v. Sharma, (SCC),[1993] 1 S.C.R. 650, at pp. 672-73).

In the absence of such justification, their conduct is unlawful and cannot be tolerated. [39] In exercising these powers, police officers are therefore bound by strict rules of conduct that are meant to preventarbitrariness and unjustified restrictions on rights and freedoms (Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC41, [2007] 3 S.C.R. 129, at para. 71; Jauvin v. Québec (Procureur général), (QC CA), [2004] R.R.A. 37 (C.A.), atpara. 46). Police officers who deviate from these rules may be civilly liable.

They have no public law immunity in this regard (Jauvin, atpara. 42; Régie intermunicipale de police des Seigneuries v. Michaelson, [2005] R.R.A. 7 (Que. C.A.), at para. 22; Popovic v. Montréal(Ville de), 2008 QCCA 2371, [2009] R.R.A. 1, at para. 63). [40] Under Quebec law, a police officer, like any other person, is held civilly liable for the injury caused to another by hisor her fault, in accordance with art. 1457 of the Civil Code of Québec (“C.C.Q.”).

The officer’s employer is bound to make reparation forthe injury if the fault was committed in the performance of the officer’s duties, pursuant to arts. 1463 and 1464 C.C.Q. In short, there areno exceptional rules applicable to the police (M. Lacroix, “Responsabilité civile des forces policières”, in JurisClasseur Québec —Responsabilité professionnelle, by A. Bélanger, ed., fasc. 13, at para. 6; J.-L. Baudouin and C.

Fabien, “L’indemnisation des dommagescausés par la police” (1989), 23 R.J.T. 419, at p. 422). [41] Whether a police officer should be held civilly liable must be determined by referring to the cumulative conditions setout in art. 1457 C.C.Q., namely fault, injury and a causal link between the two. The case at bar specifically requires the Court to considerthe concept of a police officer’s civil fault and the test to establish such a fault, that is, the reasonable police officer in the samecircumstances.

On this point, I agree with the majority of the Court of Appeal: the reasonable police officer test remains relevant wherecompliance with the law is in issue.

(2) Civil Fault and the Reasonable Police Officer Test [42] Under Quebec civil law, art. 1457 C.C.Q. imposes on every person “a duty to abide by the rules of conduct incumbenton him, according to the circumstances, usage or law, so as not to cause injury to another”. An extracontractual civil fault occurs where aperson who is endowed with reason fails in this duty by acting in a manner that departs from the conduct of a reasonable, prudent anddiligent person in the same circumstances (St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392, at para. 21; BouMalhab v.

Diffusion Métromédia CMR inc., 2011 SCC 9, [2011] 1 S.C.R. 214, at para. 24; J.-L. Baudouin, P. Deslauriers and B. Moore,La responsabilité civile (8th ed. 2014), vol. 1, at Nos. 1-182 and 1-195; V. Karim, Les obligations (4th ed. 2015), vol. 1, at paras. 2505,2508 and 2514-15). In this sense, fault is a [translation] “universal concept” that applies in any lawsuit based on art. 1457 C.C.Q.(St. Lawrence Cement, at para. 33, citing P.-G.

Jobin, “La violation d’une loi ou d’un règlement entraîne-t-elle la responsabilité civile?”(1984), 44 R. du B. 222, at p. 223). [43] The standard of conduct that a reasonable person is expected to meet corresponds to an obligation of means(St. Lawrence Cement, at paras. 21 and 34; see P.-A. Crépeau, L’intensité de l’obligation juridique ou Des obligations de diligence, derésultat et de garantie (1989), at pp. 7 and 55).

The general rules of extracontractual civil liability do not demand [translation] “totalinfallibility”, nor do they require the “conduct of a person endowed with superior intelligence and exceptional skill who is capable offoreseeing and knowing everything and who acts properly in all circumstances” (Baudouin, Deslauriers and Moore, vol. 1, at No. 1-195). [44] It goes without saying, moreover, that the reasonable person test takes into account the nature of the activity in issue.The practice of a profession will therefore be assessed by reference to the normally prudent, diligent and competent professional in thesame circumstances (see Roberge v.

Bolduc, (SCC), [1991] 1 S.C.R. 374, at pp. 393-95; Baudouin, Deslauriers andMoore, vol. 1, at No. 1-196; Karim, at paras. 2510-13). It follows that [translation] “the requisite knowledge and ability must bedetermined on the basis of the skills that exist within the particular group, that is, the group of persons practising the same profession asthe defendant” (H.-R.

Zhou, “Le test de la personne raisonnable en responsabilité civile” (2001), 61 R. du B. 451, at p. 488). [45] It is well established that police conduct must be assessed according to the test of the normally prudent, diligent andcompetent police officer in the same circumstances (Chartier v. Attorney General of Quebec, (SCC), [1979] 2 S.C.R.474, at pp. 512-13, per Pratte J., dissenting in part, but not on this point; Hill, at para. 72; Jauvin, at paras. 44 and 59; Michaelson, atpara. 22; Popovic, at para. 63; Lacombe v.

André, (QC CA), [2003] R.J.Q. 720 (C.A.), at para. 41; St-Martin v.Morin (Succession de), 2008 QCCA 2106, [2008] R.J.Q. 2539, at para. 101; Lacroix, “Responsabilité civile des forces policières”, atparas. 14-15). Professors Baudouin and Fabien provide the following explanation of the approach to be taken by a court ruling on apolice officer’s alleged fault: [translation] A court that has to judge a police officer’s conduct must begin by assessing the facts in abstracto against the ideal,abstract standard of a police officer of ordinary prudence, diligence and skill.

This standard is not necessarily the result of observing theaverage conduct of the coworkers of the police officer in question. In determining this standard, the court can consider empirical data.However, it is not bound by such data and can project onto the standard its own idea of what seems socially desirable. The “prudentadministrator” of the Civil Code is not a sociological fact, but a normative creation. The standard of conduct that is applied to determine whether a police officer committed a fault is not one of excellence. It is anaverage standard, neither the best nor the most mediocre.

Next, it is important to properly place the “yardstick police officer” in the same external circumstances as the police officer whoseconduct is being assessed. The circumstances of place (temperature, visibility, urgency, etc.) and time must be considered. (Baudouin and Fabien, at pp. 423-24; see also C.

Massé, “Chronique — Arrestation illégale et brutalité policière: dans quellescirconstances la responsabilité des policiers peut-elle être engagée?”, Repères, May 2013 (online), at p. 2.) [46] The reasonable police officer test recognizes the largely discretionary nature of police work (Hill, at paras. 51-52 and73).

In this regard, the observations made by the Court in Hill concerning the tort of negligent investigation can, for the most part, betransposed to Quebec civil law: Police exercise their discretion and professional judgment in accordance with professional standards and practices, consistent withthe high standards of professionalism that society rightfully demands of police in performing their important and dangerous work. . . . The standard is not perfection, or even the optimum, judged from the vantage of hindsight.

It is that of a reasonable officer, judgedin the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies ofinformation. The law of negligence does not require perfection of professionals; nor does it guarantee desired results. [Citation omitted;paras. 52 and 73.] [47] The content of the law governing the work of the police determines, to some degree, the scope of “the duty ofprudence and diligence that applies in a given context” (see St. Lawrence Cement, at para. 36).

In a civil liability action, a court willtherefore have to assess a police officer’s conduct in light of the limits imposed by, among other things, constitutional andquasi-constitutional enactments, criminal and penal legislation and the constituting statutes and codes of ethics of police forces (see, e.g.,Hill, at para. 41; see also M. Vauclair and T.

Desjardins, Traité général de preuve et de procédure pénales (26th ed. 2019), atparas. 207-11; Lacroix, “Responsabilité civile des forces policières”, at paras. 6-11; Baudouin, Deslauriers and Moore, vol. 2, at Nos. 2-1to 2-2). [48] A violation of such statutory or regulatory rules of conduct can often, absent special circumstances, be considered acivil fault (see Infineon Technologies AG v. Option consommateurs, 2013 SCC 59, [2013] 3 S.C.R. 600, at para. 96; Compagnied’assurance Continental du Canada v. 136500 Canada inc., [1998] R.R.A. 707 (Que. C.A.), at p. 712).

This will particularly be the casewhere a provision itself lays down an elementary standard of prudence or diligence (Morin v. Blais, (SCC), [1977] 1

S.C.R. 570, at p. 580; Harvey v. Trois-Rivières (Ville de), 2013 QCCA 772, [2013] R.J.Q. 650, at paras. 56-62). Nevertheless, underQuebec law, conduct that is unlawful does not systematically constitute a civil fault (St. Lawrence Cement, at paras. 21 and 34; L. (J.) v.Gingues, 2008 QCCA 2242, 93 C.C.L.T. (3d) 67, at para. 5; see, in this regard, Baudouin, Deslauriers and Moore, vol. 1, at No. 1-191;Karim, at para. 2519; M. Tancelin, Des obligations en droit mixte du Québec (7th ed. 2009), at para. 634; N.

Vézina, “Du phénomène depollution lumineuse appliqué à l’observation des astres jurisprudentiels: responsabilité objective, responsabilité subjective et l’arrêtCiment du Saint-Laurent”, in G. Bras Miranda and B. Moore, eds., Mélanges Adrian Popovici: Les couleurs du droit (2010), 357, atpp. 369-83; M. Lacroix, L’illicéité: Essai théorique et comparatif en matière de responsabilité civile extracontractuelle pour le faitpersonnel (2013), at p. 160; M.

Lacroix, “Le fait générateur de responsabilité civile extracontractuelle personnelle: continuum del’illicéité à la faute simple, au regard de l’article 1457 C.c.Q.” (2012), 46 R.J.T. 25, at pp. 37-38; Jobin, at pp. 224-29). [49] In other words, while, as stated in art. 1457 para. 1 C.C.Q., a reasonable person must of course comply with the rulesof conduct imposed by law, these rules do not create obligations of result under the general rules of civil liability (with regard to thisconcept, see Crépeau, at pp. 11-12). In St.

Lawrence Cement, the Court rejected the proposition that the violation of statutory orregulatory rules constitutes an objective “civil fault” that requires a form of strict liability regardless of the prudence and diligenceexercised by the person who caused the injury, having regard to the circumstances: The standard of civil fault corresponds to an obligation of means. Consequently, what must be determined is whether there wasnegligence or carelessness having regard to the specific circumstances of each disputed act or each instance of disputed conduct.

Thisrule applies to the assessment of the nature and consequences of a violation of a legislative standard. [Emphasis added; para. 34.] (See, in this regard, Baudouin, Deslauriers and Moore, vol. 1, at No. 1-164.) [50] Under Quebec civil law, it is not enough to show that a police officer’s conduct was unlawful. The obligation restingon the officer remains an obligation of means, even where compliance with the law is in issue.

To obtain reparation, the plaintiff mustfirst establish the existence of fault within the meaning of art. 1457 C.C.Q., that is, a departure from the conduct of a reasonable policeofficer in the same circumstances. This is not to say that the general rules of civil liability are lax.

As I will explain below, the standardof conduct expected of police officers is justifiably high: a police officer who acts unlawfully cannot easily escape civil liability byrelying on his or her ignorance or misunderstanding of the law. [51] In addition, the mere fact that there is a legal basis for a police officer’s actions does not necessarily exempt theofficer from civil liability (see Infineon, at para. 96; Baudouin, Deslauriers and Moore, vol. 1, at No. 1-192).

In exercising theirdiscretion, police officers must act reasonably and comply with the general obligation of prudence and diligence toward others that isincumbent on them in the circumstances, pursuant to art. 1457 C.C.Q. (in the common law, see Hill, at para. 41). [52] Before proceeding any further, I will clarify one point. This appeal concerns an action based on art. 1457 C.C.Q., noton s. 49 para. 1 of the Charter of human rights and freedoms, CQLR, c. C-12 (“Quebec Charter”).

As a result, I do not have to considerthe concept of unlawful interference under s. 24 of the Quebec Charter, which states that “[n]o one may be deprived of his liberty or ofhis rights except on grounds provided by law and in accordance with prescribed procedure”. I prefer to leave consideration of thestandard applicable to unlawful interference under s. 24 for another day, when the Court has the benefit of full submissions on the matter. B. Liability of Constable Camacho and the City [53] In my view, Constable Camacho committed a civil fault by ordering Ms.

Kosoian to identify herself and by arrestingher and conducting a search based on a non-existent offence, namely disobeying the pictogram indicating that the handrail should beheld. [54] Before examining the facts of this case more closely, I will deal with the following points: (1) police officers’obligation, under the general rules of civil liability, to have an adequate knowledge and understanding of the law; and (2) the scope of thepresumption of validity in this context.

(1) Obligation of Police Officers to Know and Understand the Law [55] Police officers are obliged to have an adequate knowledge and understanding of criminal and penal law, of theoffences they are called upon to prevent and repress and of the rights and freedoms protected by the Charters. They also have anobligation to know the scope of their powers and the manner in which these powers are to be exercised. A police officer whoseapplication of the law departs from that of a reasonable police officer in the same circumstances commits a civil fault.

In this respect, anofficer who arrests someone on the basis of a non-existent offence may be civilly liable. [56] In Chartier, Pratte J., dissenting, but not on this point, stated the following in this regard: “The authority of a policeofficer is not of course unlimited; he must know its limits, and if he disregards or ignores them, he commits a fault: ignorance of what aperson is supposed to know is not an excuse . . .” (p. 513 (emphasis added); see also the majority reasons, at p. 498). This Court alsodiscussed this duty in R. v.

Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: “While police are not expected to engage in judicial reflection onconflicting precedents, they are rightly expected to know what the law is” (para. 133 (emphasis added); see also R. v. Le, 2019 SCC 34,[2019] 2 S.C.R. 692, at para. 149). The Court also emphasized this point in R. v. Genest, (SCC), [1989] 1 S.C.R. 59, atp. 87: “While it is not to be expected that police officers be versed in the minutiae of the law concerning search warrants, they should beaware of those requirements that the courts have held to be essential for the validity of a warrant” (see also R. v.

Kokesch, (SCC), [1990] 3 S.C.R. 3, at pp. 32-33; Gounis v. Ville de Laval, 2019 QCCS 479, at para. 112 ; Simard v. Amyot, 2009QCCS 5509, at para. 41 ). [57] Under Quebec civil law, the obligation of police officers to have an adequate knowledge and understanding of thestatutes, regulations and by-laws they are called upon to enforce is also reflected in several provisions of the Code of ethics of Québecpolice officers, CQLR, c.

P-13.1, r. 1, which set out the standard of conduct expected of a reasonable police officer in the context of civilliability (see Baudouin, Deslauriers and Moore, vol. 2, at Nos. 2-1 to 2-2; O. Jobin-Laberge, “Norme, infraction et faute civile”, inService de la formation permanente — Barreau du Québec, vol. 137, Développements récents en déontologie, droit professionnel et

disciplinaire (2000), 31, at p. 33). Police officers are subject to stringent requirements in this regard, particularly when it comes torespect for rights and freedoms: 2. In order to promote the quality of the police department in its relations with the public, a police officer shall promote, to theextent of his capabilities, the development of his profession through the exchange of knowledge and through participation in upgradingcourses and training programs. 3.

This Code is intended to ensure better protection of the public by developing high standards of public service and professionalconscience within police departments and to ensure the respect of human rights and freedoms including those set out in the Charter ofhuman rights and freedoms (chapter C-12). . . . 6.

A police officer must avoid any form of abuse of authority in his relations with the public. (Code of ethics of Québec police officers, ss. 2, 3 and 6 para. 1) [58] In other words, while police officers are not held to an obligation of result with regard to knowledge of the law, theapplicable standard is a high one. Citizens rightly expect them to have an adequate knowledge and understanding of the statutes,regulations and by-laws they are called upon to enforce and of the limits of their authority (see, e.g., Bellefleur v. Montréal(Communauté urbaine de), [1999] R.R.A. 546 (Que. Sup. Ct.), at p. 550; R. v.

Rouleau, (C.Q.), at para. 103). Policeofficers cannot claim to carry out their mission — to maintain peace, order and public security and to prevent and repress crime andoffences under the law and by-laws (Police Act, s. 48 para. 1) — without having an adequate knowledge and understanding of thefundamental principles of criminal and penal law, of the rights and freedoms protected by the Charters and of the offences they are calledupon to repress, and without knowing the limits of their authority (see P.

Patenaude, “De la recevabilité des preuves obtenues au moyende l’utilisation par la police de techniques modernes d’enquête et de surveillance”, in Police, techniques modernes d’enquête ou desurveillance et droit de la preuve (1998), by P. Patenaude, ed., at pp. 1-2). [59] The training and instructions given to police officers, as well as internal police force policies, directives andprocedures, must be considered in assessing an officer’s conduct, although they are not conclusive in themselves. A reasonable policeofficer must know that they do not have the force of law (see R. v.

Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 44-46).Similarly, the usual practices are at most a relevant factor. As the Court stated in Roberge in the context of a civil liability action arisingout of an error of law made by a notary, “[i]t is not sufficient . . . that the common professional practice be followed in order to avoidliability. That practice has to be demonstrably reasonable” (p. 434).

The mere fact that an error of law is repeated does not make itexcusable. [60] As professionals responsible for law enforcement, police officers must be able to exercise judgment with respect tothe applicable law.

They cannot rely blindly on the training and instructions given to them, nor can they mechanically follow internalpolicies, directives and procedures or usual police practices. [61] Similarly, it is well established that police officers cannot avoid personal civil liability simply by arguing that theywere merely carrying out an order that they knew or ought to have known was unlawful (Chartier, at p. 498; Chaput v. Romain, (SCC), [1955] S.C.R. 834, at p. 842; Pelletier v. Cour du Québec, (QC CA), [2002] R.J.Q. 2215 (C.A.),at para. 37; Lacroix, “Responsabilité civile des forces policières”, at para. 16).

Baudouin, Deslauriers and Moore put this point aptly:[translation] “In the civil context, it is disobedience of an unlawful order that must be considered the normal conduct of a prudent anddiligent person, and not the reverse” (vol. 1, at No. 1-206; see also G. Viney and P. Jourdain, Traité de droit civil: Les conditions de laresponsabilité (2nd ed. 1998), by J. Ghestin, ed., at p. 502).

The same is true of the training and instructions given to police officers andof internal police force policies, directives and procedures. [62] Of course, police officers are not lawyers and are not held to the same standards as lawyers (Hill, at para. 50). Forexample, they are not themselves expected to carry out thorough research or to engage in extensive reflection concerning the subtleties ofconflicting case law (see Grant, at para. 133). Moreover, where a question of law is controversial, a police officer’s conduct should not befound to constitute fault insofar as it is based on an

interpretation that is reasonable and consistent with the training and instructions givento the officer (see, by analogy, Roberge, at p. 436). [63] That being said, the expectations that exist for police officers remain high. Where there is uncertainty about the law inforce, it is incumbent on them to make the inquiries that are reasonable in the circumstances, for example by suspending their activitiesin order to consult with a prosecutor or by rereading the relevant provisions and the available documentation.

In principle, an error willbe judged less severely if it is made during an emergency response, or in a situation where public safety is at stake, rather than in thecontext of a carefully planned operation or the routine application of a by-law. In other words, unless the circumstances requireimmediate intervention, it is not appropriate to act first and make inquiries later.

I note that — even in an emergency — the fact thatconduct seems dangerous to a police officer does not permit the officer to presume the existence of an offence (see Baudouin and Fabien,at pp. 423-24). [64] In short, police officers sometimes commit a civil fault if they act unlawfully, even where their conduct is otherwiseconsistent with the training and instructions they have received, with existing policies, directives and procedures and with the usualpractices. It is all a matter of context: the question is whether a reasonable police officer would have acted in the same manner.

Inassessing a police officer’s conduct, a court must therefore [translation] “give significant weight to the external circumstances” and“avoid the perfect vision afforded by hindsight” (Dubé v. Gélinas, 2013 QCCS 1681, at para. 68 ; see also Hill, at para. 73;Gounis, at para. 29; Boisvenu v. Sherbrooke (Ville de), 2009 QCCS 2688, at para. 79 ). [65] In this regard, I emphasize that a police officer’s conduct must be assessed in light of the law in force at the time of theevents (Hill, at para. 73; St-Martin, at para. 94; L. (J.), at para. 5; Communauté urbaine de Montréal v. Cadieux, [2002] R.J.D.T. 80(Que.

C.A.), at paras. 39-41). An officer can hardly be faulted for applying a provision that was presumed to be valid, applicable and

operative at the relevant time (Guimond v. Quebec (Attorney General), (SCC), [1996] 3 S.C.R. 347, at para. 14). [66] This brings me to the presumption of validity on which the opinion of the majority of the Court of Appeal is based,at least in part.

(2) Presumption of Validity and Non-existence of an Offence [67] In principle, police officers may presume that the provisions of the statutes, regulations and by-laws they are calledupon to enforce are valid, applicable and operative. For example, it is not up to them to determine whether a regulation or by-law isconsistent with its enabling legislation, the constitutional division of legislative powers or the Canadian Charter of Rights and Freedoms(“Charter”) (see R. v.

Wiley, (SCC), [1993] 3 S.C.R. 263, at p. 279; Kokesch, at pp. 33-34). [68] Indeed, under the presumption of validity, it is presumed that a provision was “in fact . . . validly enacted andtherefore is to be given legal effect unless and until a court with the jurisdiction to do so declares it to be invalid” (R. Sullivan, Sullivanon the Construction of Statutes (6th ed. 2014), at p. 523 (emphasis in original)).

The presumption of validity thus places the burden on achallenger to demonstrate the invalidity of a provision rather than on the regulatory body that adopted the provision to justify it (KatzGroup Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 25; Sullivan, at p. 523). In themeantime, the requirements of the provision must be satisfied (Breslaw v. Montreal (City), 2009 SCC 44, [2009] 3 S.C.R. 131, atpara. 23). Moreover, in the municipal context in Quebec, s. 364 of the Cities and Towns Act, CQLR, c. C-19, and art. 452 of theMunicipal Code of Québec, CQLR, c.

C-27.1, specifically state that every by-law remains in force and executory until it has beenannulled by a competent authority (see J. Hétu and Y. Duplessis, with the collaboration of L. Vézina, Droit municipal: Principesgénéraux et contentieux (2nd ed. (loose-leaf)), vol. 1, at p. 8151). [69] However, the presumption that a provision is valid does not extend to the very existence or scope of an offence. Infact, “[i]t says nothing about the

interpretation of the legislation [or regulation or by-law] whose validity is being challenged” (Sullivan,at p. 523). [70] It is therefore important to distinguish the legal existence and scope of an offence from its validity. The existence andscope of a provision creating an offence — like any provision — are related to the intention of the legislature or regulatory bodyconcerned. What must essentially be determined is whether that authority, through a statute, regulation or by-law, expressed the intentionto prohibit the conduct in question.

By contrast, the validity of a provision rests on its compliance with constitutional requirements and,in the case of a regulation or by-law, with the enabling legislation and the general principles of administrative law (see, e.g., P. Garant,Droit administratif (7th ed. 2017), at pp. 287-345; Hétu and Duplessis, vol. 1, at pp. 8021-8291; G.

Régimbald, Canadian AdministrativeLaw (2nd ed. 2015), at pp. 151-64; Sullivan, at pp. 523-24). [71] In the civil liability context, the corollary of the presumption of validity is that the mere enforcement of a provisionthat is subsequently declared invalid will generally not be considered a fault — absent bad faith or conduct that is abusive or otherwisewrongful, of course (see Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405, at paras. 78-79; Guimond,at paras. 13-19; Beauchemin v. Blainville (Town) (2003), (QC CA), 231 D.L.R. (4th) 706 (Que.

C.A.), at para. 57).The legitimate action of the state and of legal persons established in the public interest would be unduly hampered if their representatives— including police officers — could not presume that provisions are valid. This is why, as I stated above, their liability should beassessed by reference to the [translation] “law as it existed at the time of the impugned act” (Cadieux, at para. 39 (emphasis added)). [72] However, the 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 personestablished in the public interest or one of their representatives believes that it exists. There can be no justification for giving effect tolegislation, regulations or by-laws that have never in fact been passed or made. [73] It is, I agree, undoubtedly rare for a police officer to think that an offence exists when it is in reality non-existent.

Butit may happen that the state, a legal person established in the public interest or one of their representatives mistakenly believes that an actor omission constitutes an offence because of an error regarding the scope of a law. In Ryan v. Auclair (1989), (QCCA), 60 D.L.R. (4th) 212, for example, the Quebec Court of Appeal had to determine whether police officers had committed a fault byarresting nuns who had distributed religious tracts door to door. The nuns argued that the municipal by-law prohibiting the distribution ofcirculars applied only to commercial leaflets.

Although the court ultimately did not find the police officers civilly liable, it did notpresume that their

interpretation was correct. Moreover, in Procureur général du Québec v. Ouellet, , the Court ofAppeal upheld a decision awarding damages to the operator of a business that sold products for making wine, cider and beer following aseizure based on an offence that did not actually exist under the Act respecting the Société des alcools du Québec, R.S.Q., c. S-13. Ineach of those decisions, the presumption of validity played no role in the assessment of civil liability. The reasoning remains the same,regardless of the reason for the police officer’s error. Whether the officer believes that

an act or omission constitutes an offence becauseof an error regarding the scope of a law or an error regarding the existence of a law, the presumption of validity is of no assistance to theofficer. [74] In short, it is true that police officers are generally not civilly liable for enforcing a provision — presumed to be validat the time of the events — that is subsequently declared invalid, provided of course that they do not otherwise commit a fault inexercising their powers.

Furthermore, once the courts have recognized the existence of an offence or clarified its scope, police officerscan certainly rely on it without fear that their conduct in this regard will be found to constitute a fault. It does not follow, however, thatthe existence in law — or the scope — of an offence must be assumed in a civil liability action on the basis of bare assertions to thiseffect made by the state, a legal person established in the public interest or one of their representatives.

(3) Application to the Facts [75] In my view, Constable Camacho’s conduct constituted a fault. A reasonable police officer in the same circumstanceswould not have concluded that disobeying the pictogram indicating that the handrail should be held was an offence under a by-law. Atthe least, a reasonable police officer would have had some doubt in this regard and would therefore have refrained from acting as

Constable Camacho did, that is, unreasonably by requiring Ms. Kosoian to identify herself and, when she refused, by arresting her byforce and searching her personal effects. [76] Before depriving Ms. Kosoian of her liberty, Constable Camacho had to ensure that there was valid legal justificationfor his actions (Dedman, at pp. 28-29).

As a police officer, he could obviously not have been unaware that both s. 9 of the Charter ands. 24 of the Quebec Charter protect every person from “unjustified state intrusions upon physical liberty, but also against incursions onmental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequatejustification” (Grant, at para. 20). [77] In enforcing the STM’s by-laws,[1] the City’s police officers exercise, among other things, the powers conferred onthem by the Code of Penal Procedure, CQLR, c. C-25.1 (“C.P.P.”).

Where a police officer wishes to issue a statement of offence, art. 74C.P.P. gives the officer the power to arrest without a warrant a person informed of the offence alleged against him or her who refuses toidentify himself or herself, provided, of course, that the offence exists in law: 72. A peace officer who has reasonable grounds to believe that a person has committed an offence may require the person to givehim his name and address, if he does not know them, so that a statement of offence may be prepared. . . . 73.

A person may refuse to give his name and address or further information to confirm their accuracy so long as he is not informedof the offence alleged against him. 74.

A peace officer may arrest without a warrant a person informed of the offence alleged against him who, despite the peaceofficer’s demand, fails or refuses to give him his name and address or further information to confirm their accuracy. (Articles 72 para. 1, 73 and 74 C.P.P.) [78] The exercise of these powers presupposes that there are reasonable grounds to believe an offence has been committed.The “reasonable grounds” concept relates to the facts, not to the existence in law of the offence in question (Frey v. Fedoruk, (SCC), [1950] S.C.R. 517, at p. 531).

If the offence that the police officer believes has been committed simply does not exist,neither the C.P.P. nor, for that matter, any other statute or common law rule gives the officer the power to require a person to identifyhimself or herself and to arrest the person if he or she refuses to comply (see Moore v. The Queen, (SCC), [1979] 1S.C.R. 195, at pp. 205-6, per Dickson J., dissenting; R. v. Guthrie (1982), 1982 ABCA 201 , 21 Alta. L.R. (2d) 1, at p. 8; R. v.Coles (2003), 2003 PESCAD 3 , 221 Nfld. & P.E.I.R. 98, at para. 14).

An officer who makes an arrest on this basis is actingunlawfully, even if he or she believes in good faith that the offence exists (R. v. Houle (1985), 1985 ABCA 275 , 41 Alta. L.R.(2d) 295, at pp. 297-99; Crépeau v. Yannonie, [1988] R.R.A. 265 (Que. Sup. Ct.), at p. 269; see also P. Ceyssens, Legal Aspects ofPolicing (loose-leaf), vol. 1, at p. 2‒3). It was therefore incumbent upon Constable Camacho to verify the existence of the offencealleged against Ms. Kosoian before using the powers conferred on

[…]