Liability For Unlawful Arrest And Right To Refuse To Comply

On November 29, 2019, the Supreme Court of Canada (SCC) rendered its decision in Kosoian v. Société de transport de Montréal, 2019 SCC 59 and unanimously ruled in favour of Bela Kosoian, overturning the decisions of the Québec courts below and ordering the Société de transport de Montréal (STM) (the authority responsible for the subway system), the City of Laval and constable Fabio Camacho to pay her $20,000 in relation with her detention and arrest 10 years ago.

This decision is an important victory for Kosoian, but also for the Canadian Civil Law Association, which acted as intervener before the SCC in this case, and for all Canadians. Indeed, the Supreme Court ruled that police officers are civilly liable if they interfere with Canadians' rights and freedoms based on a non-existent offence. The SCC also confirmed that Canadians can refuse to identify themselves to police officers when such request has no valid legal basis, ruling that if the offence the police officer believes has been committed does not exist, neither the Québec Code of penal procedure nor any statute or common law rule gives police officers the power to require a person to follow their orders and to identify themselves.

The case arose after Kosoian was told by constable Camacho to hold the handrail of a subway station escalator as described in a pictogram and she refused to do so. She was asked to follow Camacho so a statement of offence could be issued. She refused, and Camacho and one of his colleagues then intervened physically to bring her to a holding room. She was asked to provide identification...