Bela Kosoian isn’t the first Canadian to suffer an injustice at the hands of the state, and almost certainly won’t be the last.
However, I suspect many Canadians who might have found themselves in her position would not have been so direct and outspoken in asserting, and subsequently fighting for, their rights.
For that, we owe Kosoian a collective debt of gratitude.
It was a welcome and resounding victory for Kosoian on Friday in the Supreme Court of Canada’s ruling on her case. However, that doesn’t undo the outrage that Kosoian’s original ordeal should evoke in us all.
The case stems from an incident that occurred at a subway station in the Montreal suburb of Laval in 2009. Kosoian was on the escalator and looking through her backpack, when police officer Fabio Camacho demanded she hold on to the handrail. Camacho had pointed to a black and yellow pictogram, and insisted that it represented a requirement.
Kosoian considered the sign a mere suggestion and did not comply with the officer’s order, citing her own concern about how unsanitary the handrail was likely to be. Nonetheless, Camacho decided that Kosoian had committed an offence and demanded she hand over her identification. Kosoian refused.
As a result, she was arrested, searched, and detained — and even handcuffed. After about 30 minutes she was released, but not before being issued two separate tickets.
The insanity of this whole situation should be immediately obvious to any right-minded observer.
The whole impetus was the fact that Kosoian was not holding the handrail, and therefore this was ostensibly for her own good — that somehow everything she was forced to endure was so authorities could protect her from herself.
It shouldn’t be a legal requirement to hold the handrail on an escalator, and as it turns out, it wasn’t in this situation. As the Supreme Court noted Friday, “a reasonable police officer in the same circumstances would not have considered failure to hold the handrail to be an offence.”
Clearly, the officer she encountered that day was not reasonable.
As much as this case should have been a slam dunk, strangely and outrageously, that didn’t prove to be the case. Kosoian was acquitted when she brought the matter before the Montreal Municipal Court, and she subsequently brought a lawsuit against the City of Laval, the Transportation Company of Montreal (STM), and Camacho himself.
However, the initial judge rejected her case. Shockingly, the judge described the officer’s conduct as “exemplary and irreproachable,” whereas Kosoian’s behaviour was “irresponsible and contrary to the basic rules of good citizenship.”
That decision was upheld on appeal (a decision which described Kosoian as “the author of her own misfortune”), which led to the Supreme Court hearing the case. It’s unfortunate that it took this long and a ruling this high up the legal food chain for sanity to finally prevail, but better late than never.
The high court was unanimous in its decision and quite scathing in its criticism of the arresting officer, the STM, and the lower courts that ruled on this case.
It’s on some broader principles that this decision should resonate across the country. The court concluded that Kosian was subjected to “unlawful arrest” and the ruling makes it clear that “in a free and democratic society, no one should accept — or expect to be subjected to — unjustified state intrusions.”
Not only that, but Kosoian was never under any obligation to comply in the first place: “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.”
In other words, Canadians cannot and should not be expected to comply with unlawful orders from police.
We’re certainly conditioned to give police officers respect and deference — which is understandable — but that doesn’t mean we should ever have to surrender our rights.
This case is an important reminder of that, and we have Bela Kosoian to thank for it.