Supreme Court to rule on handrail case
The case of Bela Kosoian, who was arrested for not holding a metro handrail when ordered to do so by security, will be ruled on by the Supreme Court in a few months’ time. The incident happened almost ten years ago.
david100 01:25 on 2019-04-17 Permalink
Before the idea catches hold that this woman was fined for not holding a handrail on an escalator, which is a patently stupid thing to stop someone for, but exactly what is being reported, let me bang this off. I know that newspeople read this blog.
Here’s what you must to understand:
One, she was disorderly (whether drunk, drugs, or simply obstinate, we don’t have facts) and the cops just got wrote her up on whatever. Prosecutors dropped the charges, of course.
Two, she sued for false basis of arrest, with the procedural posture as follows.
Her lawsuit was dismissed right off. When a court case is dismissed, it dies as a matter of law – ie. it’s found that there’s no relief available to the plaintiff, as a matter of law, so the court tosses it. Short story is that our judicial system lets you sue people, but you must first convince a judge that you’ve actually got what’s called a cause of action. A cause of action is a claim that some party violated your legal rights, and you have to support it with some minimal level of proof that said violation took place, based on named elements. So, for instance, if you were assaulted, and you went civil to take money off the assailant, and they moved to dismiss the case, you’d show a police report, record of conviction, maybe if it hadn’t got that far you’d file an affidavit – all showing that they committed the offense as outlined by the law. Then you’d beat the motion to dismiss.
Anyway, this case was dismissed for failure to state a claim under which relief could be granted, and she’s been appealing and arguing specifically about the legal defense to her claim – what internationally is called qualified immunity for the public security services. In a nutshell, this is a legal doctrine that immunizes certain police actions from liability, assuming they followed the law, as it was understood and reasonably interpreted at the time.
Basically, this claim in the news is not something that went to jury, it’s all about the interpretation of law, that’s what they’re fighting about.
It’s on this basis that it found its way to the Supreme Court of Canada. The Plaintiff is seeking to get a certain legal standard citizen/police interactions adopted, and Quebec is seeking another.
Obviously, behind the high-minded rhetoric, we can see the issue here pretty clearly. I’d personally love it and benefit a lot if Canada had a torts system that made it easy to take money off the government for borderline cases when the police make an example of a loudmouth “I know my rights” type, a foreigner, a drunk, a protester, etc. It’s payday central. At the same time, it’s not the sort of public policy that most Quebecois would love, given the cost of paying people out, and the fact that the harm is relatively minor, and the court costs relatively significant.
So, yeah, that’s a long way of saying this: maybe you think that cops should be hammered in the court, but maybe you also think that such a rule would cost us, not just in money but also in less effective law enforcement.
(And before the normal chorus chimes in to impute race into this, you have the Plaintiff Bela Kosoian, the Defendants Fabio Camacho and the City of Laval, and the Plaintiff’s attorney Aymar Missakila. You’re talking about a bunch of copper-tones here).
Kevin 07:36 on 2019-04-17 Permalink
I reviewed my notes from a decade ago and Kosoian was the first person in the history of the STM to be fined for not holding a handrail.
She was also fined for obstruction.
Both of those were dismissed in court — but that’s not why she’s at the Supreme Court. She’s there arguing cops were jerks.
ricardus 11:46 on 2019-04-17 Permalink
The officer had no right under the Code of Penal Procedure to order her to surrender name and address to serve her a ticket. The officer hence had no right to arrest her when she refused to surrender these things. The officer applied an offence that does not exist under any law. His arrest thus was not “authorised by law”.The officer hence committed assault as his act was not protected under s. 25 Criminal Code. The Court of Appeal ruled that sure Officer Camacho is a criminal, but under the civil regime he is not at fault because “ignorance of the law is no defence” does not apply in civil law, they ruled! They went so far as to imply that the arrest was illegal under criminal law but legal under civil law, claiming that CPP arrest powers were respected. When it does say however in s. 72 that one must have “probable cause” that an offence has been committed to serve a ticket, this does not permit that argument to work.
ricardus 11:55 on 2019-04-17 Permalink
The “obstruction” was the not giving name and address and “forcing” an arrest for an offence that does not exist.
s. 72 of the Code of Penal Procedure provides; “A peace officer who has reasonable grounds to believe that a person has committed an offence may require the person to give him his name and address, if he does not know them, so that a statement of offence may be prepared.”
It is obvious that this offence must exist. That is the officer must have reasonable grounds to believe that the subject has committed a real offence. If they suspect that the person committed an offence that does not exist, then the officer may not demand this information.
s. 73:” A person may refuse to give his name and address or further information to confirm their accuracy so long as he is not informed of the offence alleged against him.”
And if that offence does not exist, then it is clear that the person may refuse to give name and address.
The arrest power is in s. 74: “A peace officer may arrest without a warrant a person informed of the offence alleged against him who, despite the peace officer’s demand, fails or refuses to give him his name and address ….” I have seen cases where judges hive this provision from the two others to claim that there is no need for probable cause! That of course makes CPP arrest powers more permissive than Criminal Code ones if this is so and makes a mockery of the scheme of the Act! At any rate, minimally when the police “inform” of the “offence”, it must be a real offence and not a fake one like in this Kosoian case.
In municipal court, the two tickets fell because 1) The first ticket discloses an offence that does not exist, and 2) An officer applying an offence that does not exist is not in execution of his duties.
This case has huge civil liberties ramifications. Laval and the STM are arguing that police should have the right to make up the law on site or at the police station and that this is presumed correct and all persons must act as if it is correct. It becomes an easy matter to force names and addresses from people to investigate them by claiming they are committing fictitious offences.