Court of Appeal of Quebec

Kosoian c. Société de transport de Montréal

December 05, 2017


Dutil, Vauclair, Schrager

Appeal from a judgment of the Court of Quebec dismissing an application claiming damages. Dismissed, with dissenting reasons.

The respondent police officer shouted out to the appellant, who was coming down the escalator of a metro station, to hold on to the hand rail. Because the appellant refused to comply with what the officer believed to be an obligation under By-law R-036 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, he decided to issue a statement of offence.  The appellant then refused to establish her identity, so the police officer decided to arrest her. Before the appellant was taken to the police station, her bag was searched to verify her identity. She was acquitted of the alleged offences and decided to sue the police officer, the Société de transport de Montréal (STM), and the Ville de Laval. The trial judge concluded that the police officer had not committed a civil fault and criticized the appellant for refusing to comply with the demand of a peace officer.

According to Dutil J.A., By-law R-036 and the training received by police officers on its application made it so that the latter had to assume that failing to hold the hand rail of an escalator in the metro was an offence. The police officer therefore had reasonable grounds to believe that an offence had been committed, which justified issuing a statement of offence to the appellant and arresting her because she refused to establish her identity. Had the police officer committed a fault, the appellant’s lack of cooperation and disproportionate reaction would have justified refusing to award her moral damages. The STM cannot be held liable for the poor drafting and implementation of s. 4(e) of By-law R-036 since the evidence does not establish that it acted in bad faith. With respect to the validity of the search, Vauclair J.A. stated that while a lawful arrest must precede a search incidental to the arrest for it to be legal, this does not mean that it always is. The objective of the search and the way it was performed must be assessed, and a police officer may search persons incidentally to their lawful arrest to discover their identity, so long as this search is not unreasonable. Schrager J.A., dissenting, would have held the three respondents liable and ordered them to pay the appellant compensation in the amount of $15,000 for the moral prejudice suffered.  

*Summary by SOQUIJ
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