CCLA at the Supreme Court: What happens when the police arrest you for a non-existent offence?

April 18, 2019

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

Sometimes truth really is stranger than fiction. It may be hard to believe, but earlier this week the Supreme Court of Canada – nine of the finest legal minds in the country – spent the morning hearing arguments in a case that involved the arrest of a woman who…wouldn’t hold an escalator handrail (gasp)!

In Kosoian v. STM et al, the Court had to consider whether the police should be liable for their actions in arresting, handcuffing, and searching the backpack of Ms. Kosoian in a Montreal metro station. She was alleged to have committed the infraction of failing to obey a pictogram (the picture that encourages people to hold the escalator handrail) and also ticketed for refusing to provide her name to the police so they could give her a ticket for her deplorable actions. Ms. Kosoian was acquitted of these “charges” and sued the transportation authority, police and the individual officer whose actions were at issue. Both the trial court and Quebec Court of Appeal found that the police were not liable, even though there was agreement that not holding the handrail isn’t actually an infraction at all. In fact, both courts made comments suggesting that Ms. Kosoian was the author of her own misfortune for daring to disobey an officer of the law.

While the facts sound trivial, the legal principles at issue in the case are significant. When does the law require you to provide your name to the police? Can a pictogram form the basis of an offence? What happens when the police arrest you for a non-existent offence? CCLA intervened in this case to argue that an ambiguous pictogram cannot create an offence – this violates the fundamental principle of fair notice of the law. In addition, CCLA said that the police must bear liability when an error has been made in conducting an arrest. Even where a police officer may have received training that led to their error, the costs of that mistake should be borne by the police, not the innocent civilian who is arrested. Finally, CCLA argued that absent a specific legal obligation, individuals do not have to identify themselves to the police. Under a provision of the Quebec Code of penal procedure, CCLA argued that in order for the obligation to identify oneself to kick in, there must be an infraction, there must be reasonable grounds to believe the individual has committed the infraction, and the individual must be informed of the infraction that they are alleged to have committed before being required to provide their identity. These requirements help to mitigate the concern that police may unreasonably force individuals to identify themselves when there is no obligation to do so.

CCLA is grateful to Torys LLP and, in particular, Sylvie Rodrigue, Marie-Eve Gingras, and Emma Loignon-Giroux for acting pro bono for the CCLA in this appeal.