Meanwhile, on a Canadian escalator

November 30, 2019 3:37 PM

Ten years after Bela Kosoian refused to hold the handrail on an escalator, the Supreme Court of Canada has ruled that police officers have a professional responsibility to act reasonably and know the law. The officer who arrested Kosoian is personally liable for half of the $20,000 award for damages, even though he acted in good faith and in accordance with his training.

Highlights from the ruling, which rejected lower court rulings that Ms. Kosoian "behaved in a manner that was inconceivable, irresponsible and contrary to the basic rules of good citizenship", that she was the "author of her own misfortune", and that the police officer's work was "exemplary and irreproachable":

The general rules of extracontractual civil liability do not demand "total infallibility", nor do they require the "conduct of a person endowed with superior intelligence and exceptional skill who is capable of foreseeing and knowing everything and who acts properly in all circumstances". ... [However], the standard of conduct expected of police officers is justifiably high: a police officer who acts unlawfully cannot easily escape civil liability by relying on his or her ignorance or misunderstanding of the law.

As professionals responsible for law enforcement, police officers must be able to exercise judgment with respect to the applicable law. They cannot rely blindly on the training and instructions given to them, nor can they mechanically follow internal policies, directives and procedures or usual police practices.

The fact that police officers have received training does not authorize them to lay aside their own judgment. Here, despite the training received, the very sight of the pictogram should at least have raised a doubt in the mind of a reasonable police officer as to whether it created an offence.

K was entitled to refuse to obey an unlawful order and therefore committed no fault.... Unless a statutory provision or common law rule clearly imposes it, there is no obligation to identify oneself to, or indeed to cooperate with, a police officer.

Constable Camacho also had to exercise his professional judgment, regardless of the training he had received; as a result, he cannot avoid liability by arguing that he acted in accordance with that training.

The appellant may not have acted in an exemplary fashion, but the fact remains that she had no legal obligation to hold the handrail. In this context, her lack of cooperation does not in itself constitute a civil fault. It was Constable Camacho who caused the situation to escalate by ordering her to hold the handrail, requiring her to identify herself and insisting on giving her a statement of offence. All of those actions were unlawful. At that moment, given that the offence alleged did not exist in law, the appellant was perfectly entitled to refuse to identify herself and then simply to walk away.

Average citizens will, of course, often prefer to be cautious and to comply with an order given by a police officer even where they have doubts about its lawfulness. They will identify themselves and graciously accept a statement of offence, subject to contesting it later. In fact, they run serious risks if they refuse to comply because they believe that the offence alleged against them is non-existent or invalid. If they are mistaken, they could, for example, be convicted of a criminal offence: wilfully obstructing a peace officer. Nevertheless, a well-informed person does not commit a civil fault merely by refusing to comply with an order that proves to be unlawful.

posted by clawsoon (23 comments total)

Nevertheless, a well-informed person does not commit a civil fault merely by refusing to comply with an order that proves to be unlawful.

Amen.
posted by mhoye at 3:54 PM on November 30, 2019 [45 favorites]

Sweet sweet rule of law thank you lord apply it directly to my forehead
posted by bleep at 3:56 PM on November 30, 2019 [22 favorites]

The idea that police officers get virtually unlimited license to act without regard for the actual, precise, literal, legislated, written law is one that must be pushed back upon at every possible turn.
posted by Etrigan at 3:58 PM on November 30, 2019 [92 favorites]

This is actually a lower standard for liability than applies in the U.S. Good for Canada!
posted by praemunire at 4:04 PM on November 30, 2019 [6 favorites]

the Supreme Court of Canada has ruled that police officers have a professional responsibility to act reasonably and know the law. The officer who arrested Kosoian is personally liable for half of the $20,000 award for damages

This is such an incredibly sensible and reasonable way of holding cops accountable to the rule of law so it makes me despair that it will never ever happen in the United States.
posted by Karaage at 4:05 PM on November 30, 2019 [45 favorites]

Good. Last thing we need is property owners posting a bunch of overly cautious warning signs and then mobilizing cops to force compliance. Let adults decide what level of risk they’re willing to accept. There are sure to be elevators and staircases for those who don’t want to ride escalators around people who aren’t holding the handrail.
posted by mantecol at 4:12 PM on November 30, 2019 [4 favorites]

It feels like police officers doing bad things have been using mutually incompatible defenses for a while now: I'm a professional who has the right to exercise my professional judgement; or, there was some minor deficiency in my training and therefore I'm not responsible.

The SCC is expecting people who have the power to save a life, ruin a life, or end a life to always be held to the first standard. The ruling expects a lot from officers; they can't just do what all the other officers are doing and expect to be okay:

"[i]t is not sufficient . . . that the common professional practice be followed in order to avoid liability. That practice has to be demonstrably reasonable". The mere fact that an error of law is repeated does not make it excusable.

I wonder what police unions are saying about the ruling.
posted by clawsoon at 4:21 PM on November 30, 2019 [10 favorites]

Wait so is "disobeying a pictogram" a crime or not? Like, that gets complex.
posted by freebird at 4:23 PM on November 30, 2019 [6 favorites]

Yes, officer, I'm confused, which pictogram am I supposed to obey?
posted by jeremias at 4:35 PM on November 30, 2019 [1 favorite]

freebird: Wait so is "disobeying a pictogram" a crime or not? Like, that gets complex.

The ruling covers that in paragraphs 85-92. The gist that I get from it is that the content of pictogram matters (pictogram in question is here), and that's where it was important that the officer exercises reasonable professional judgement:

Therefore, a subway user does not “disobey” a pictogram unless it creates an obligation or prohibition. 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. ...

Police officers — like subway users, in fact — have no choice but to examine the elements of the various pictograms posted by the STM to understand what is or is not an offence. ...

[A] cursory analysis is sufficient to show that a reasonable person in the same circumstances — and a fortiori a reasonable police officer — would not regard the pictogram as imposing an obligation... The pictogram appears on a yellow background. It is well known that this colour generally corresponds to a warning, not to an obligation...

In other words, if it looks like a warning, it's a warning. If it looks like a command - the stroller with the red line through it, the stop button with the "$200 fine for misuse" statement pointing at it - it's a command.

I have some sympathy for the officer, given that multiple judges at lower levels agreed with his interpretation that all the pictograms imposed an obligation (is the police officer supposed to have better legal judgement than judges?), but it seems like the Supreme Court felt that those judges only agreed with the police officer because he was a police officer. A normal person looking at the sign would think, "Okay, holding the handrail is a good idea, and they'd like me to do it, like eating my vegetables and brushing my teeth. Duly noted."
posted by clawsoon at 4:46 PM on November 30, 2019 [23 favorites]

I wonder what police unions are saying about the ruling.

Likely some variant of the following:

"The law doesn't apply to us. Even if it did, policing is hard. What, are YOU anti-police? Let's see some ID. Also, give us more money."
posted by mandolin conspiracy at 5:10 PM on November 30, 2019 [16 favorites]

This is an interesting ruling and nothing like it would ever happen in the US, where the police can shoot you for not holding a handrail if they really want to.

What's so amazing to me is that the arrest ever happened in the first place. What copper is out there on handrail patrol? It seems fair to me to assume that he *wasn't* acting in good faith but was out to ruin somebodies day and decided to single out this woman.
posted by dis_integration at 5:27 PM on November 30, 2019 [11 favorites]

We can still murder people who stand on the left side, though, right?
posted by TheWhiteSkull at 5:32 PM on November 30, 2019 [27 favorites]

We can still murder people who stand on the left side, though, right?

IANAL, but force majeure.

For the reasons stated above, I would allow the appeal with costs throughout, set aside the judgment rendered by the Quebec Court of Appeal on December 5, 2017 and the judgment rendered by the Court of Québec on August 11, 2015, and order the respondents, Société de transport de Montréal, Ville de Laval and Fabio Camacho, solidarily to pay $20,000 with interest at the legal rate and the additional indemnity provided for in art. 1619 C.C.Q. from the date of service at trial. Among the respondents, the Société de transport de Montréal will be liable for 50 percent of the damages and Constable Fabio Camacho for 50 percent.

So, in the end it looks like she also won costs, but for 10 years it seems she's been out-of-pocket on her case.

To be completely charitable, maybe a whole bunch of people ate it on the escalator that week, so they were out reminding people. Escalator accidents are pretty common and can be quite nasty. I had the misfortune of witnessing one once.

But still, it's the proportionality of the police response to the situation in the first place that's deeply troubling.
posted by mandolin conspiracy at 5:42 PM on November 30, 2019 [2 favorites]

You can tell this happened in Canada because in the United States the cops would have just said she assaulted them.
posted by srboisvert at 5:55 PM on November 30, 2019 [9 favorites]

I find it fascinating that this agent received a commendation in 2012 for going into a burning building to help elderly people out of it at great danger to his life.

People are weird, and capable of both the best and the worst.
posted by WaterAndPixels at 6:18 PM on November 30, 2019 [16 favorites]

We have those exact same caution signs on escalators in Toronto transit stations, and the idea of a transit cop detaining, arresting and fining you for NOT HOLDING THE HANDRAIL is as absurd as it is terrifying. Absurd because who in their right mind would even think this was some kind of bylaw violation, let alone one that needed to be aggressively prosecuted; terrifying because here is an actual case in Montreal where it happened, which means it's not at all ridiculous to imagine it happening here as well.
posted by chrominance at 8:21 PM on November 30, 2019 [7 favorites]

(for reference I'm talking about the sign Kosoian is holding up in the last link in the OP)
posted by chrominance at 8:22 PM on November 30, 2019

This is eminently reasonable. Individual officers should be held to account for their misconduct. It is also important to identify deficiencies in training, where they exist, but they cannot be used as an excuse for unfamiliarity with the basic provisions of the law an officer is intending to enforce.

Bad training is more of a reasonable excuse in emergent situations where it is well known that what is trained is what is executed in those first few seconds. Anything after that, though, and training again becomes less meaningful in explaining an officer's choices and actions.

The basic human factors and psychology of how all this works has been well known for decades, so it's nice to see courts making it into the late 20th century.
posted by wierdo at 11:18 PM on November 30, 2019 [5 favorites]

This was an interesting bit from the ruling, too:

In the circumstances, and in light of Ms. Kosoian’s protests, Constable Camacho could not reasonably be certain that he was acting within his powers. He should have refrained from giving her a statement of offence and then made further inquiries as to the meaning of the pictogram and the scope of the by‑law.

If I'm reading that correctly, the court is saying that when someone tells a police officer that they're being an idiot, the officer should maybe pause for a second and ask themself if they are, in fact, being an idiot.

That does not fit with my impression of how we train police officers to approach confrontation.
posted by clawsoon at 6:03 AM on December 1, 2019 [41 favorites]

That does not fit with my impression of how we train police officers to approach confrontation.

But it certainly should be, don't you think? Especially when it is not a life threatening or time sensitive situation!

"Come on, officer, seriously?!"

Option A: Take a few breaths, think it through, relax a little bit... "Well please be careful next time, we just want everybody to be safe, you are free to go."
Option B: "COMPLY! COMPLY!"
posted by Meatbomb at 10:10 AM on December 1, 2019 [14 favorites]

Police officers can be held personally liable in the US on a 42 USC Sec. 1983 claim, but it's certainly an uphill climb and negligence isn't enough.
posted by snuffleupagus at 1:39 PM on December 1, 2019 [1 favorite]

We can still murder people who stand on the left side, though, right?


nope
nope
posted by dmd at 10:47 AM on December 2, 2019 [1 favorite]