The court will also rule on whether Kosoian’s lawsuit for damages is valid.
“It’s not about money,” says Kosoian, who sued for $69,000, split between the officer and Montreal’s transit commission. “I did not commit any crime. I did not do anything wrong. It was abuse of power on the part of the police.”
Kosoian lives in a cosy bungalow in London, Ont., with her husband and two teenage children. She says she suffered from post-traumatic stress disorder after the escalator incident in 2009, and decided it was best to leave Quebec.
“I was afraid to go outside. I had trouble sleeping. I was shaking. I was afraid of police. I always wanted to sit in the dark.
“I said, ‘I have to go somewhere where there is no métro,’ she adds, referring to Montreal’s subway. “And every time I see a policeman I’m thinking, ‘They’re going to arrest me.’ ”
“It’s about principles. It’s about the rule of law,” she says, nervously fingering court documents on her dining table. “It’s not just about me.”
Kosoian was born 47 years ago in Russia. She grew up in Georgia’s capital, Tbilisi, where she would meet her Canadian husband, Richard Church, an information technology specialist. She showed promise in chess by the age of 9, and played at semi-professional levels in France when she moved there in her 20s.
She came to Canada with her family in the early 2000s, settling in Quebec to pursue her studies in French. For years she worked as the “women’s co-ordinator” for the Canadian Chess Federation, organizing tournaments and corralling sponsors.
“In chess, if you don’t follow rules, you’re dead,” Kosoian says, emphatically. “I’m a person who followed more rules than anybody else since childhood.”
At about 5 p.m. on May 13, 2009, Kosoian stepped on the down escalator at a subway station in Laval. She was heading to her history class at a university in downtown Montreal.
Kosoian had used that same escalator almost every day for four years. She knew that at the front of the escalator, as well as at a spot halfway down, were yellow pictograms that said, “Caution … hold handrail.”
She deemed the pictogram nothing more than a warning or recommendation. Besides, the H1N1 virus was making the rounds, and Kosoian considered the handrail a cesspool of microbes.
The escalator takes 59 seconds to get to the bottom. Kosoian’s backpack was at her feet. She reached down to get a $5 bill from her wallet for subway fare and placed the pack on her back.
A police officer with the Laval force walked past her on the escalator and continued until he stepped off. A second officer in uniform then stopped in front of Kosoian on the step below when the escalator had taken her about halfway down.
The officer, Fabio Camacho, said something Kosoian didn’t hear. Two years later, during testimony at a municipal court hearing, Camacho said he saw Kosoian bent over at a 90-degree angle and told her to be careful. He claims Kosoian responded in an aggressive tone that he should go outside and do some real police work.
Camacho then ordered her to hold the handrail. Kosoian says she responded: “It’s my right to hold the handrail or not to hold it.”
According to Camacho, he warned Kosoian he would issue her a ticket and she responded by crossing her arms. Kosoian insists Camacho never warned her about a ticket. She insists he asked her for ID out of nowhere.
“I told him, ‘What have I done for you to ask for documents?’ ”
Camacho says he never asked her for ID on the escalator.
What isn’t disputed is that when Kosoian reached the bottom of the escalator, Camacho and his partner, the officer who initially walked past Kosoian, grabbed her by the arms and took her to a nearby locked room that also contained a jail cell.
In the room, Kosoian said she reached for her cellphone and announced she would call a lawyer. “They started to push me and shove me and took my bag and took my (identity) documents and handcuffed me at once.
“It was shocking for me,” Kosoian says. “We’re in a country of laws, no?”
Camacho testified that he immediately asked for Kosoian’s identification when they entered the room so he could write her a ticket for not holding the handrail. Kosoian insists that even then she was never told what she allegedly did wrong.
Camacho says she repeatedly refused to produce ID, so he placed her under arrest. He handcuffed her, he says, when she refused to hand over her bag so he could search for ID.
“I know that’s taking matters pretty far,” Camacho said, according to a transcript of his testimony. “I didn’t want to get to that point either. We had reached a point where I explained things to her but I wasn’t getting through at all.”
Camacho and his partner cuffed Kosoian’s hands behind her back and sat her in a chair. He searched her bag, found her driver’s licence and began writing her two tickets: a $100 fine for not holding the handrail, and a $320 fine for obstructing the work of a police officer.
Kosoian tried to get up to see the tickets they were writing. Camacho told her a camera in the room was recording the events and Kosoian calmed down. She says she was relieved to learn there would be evidence of what transpired.
The officers removed the cuffs, gave Kosoian her tickets, and let her go. She had spent about 15 minutes in the room.
She went to her history class in a state of shock. She told her husband of the arrest and took pictures of the red rings around her wrists made by the handcuffs.
The next day, she went to a doctor, who noted Kosoian “is in a state of shock and cries profusely,” according to court evidence. Another doctor diagnosed PTSD and put her on medication.
Also that day, Kosoian’s husband called the transit agency, Société de transport de Montréal (STM), and asked to see recordings of the incident captured by subway cameras. His request was noted by STM officials on a form dated May 14.
On May 16, a Saturday, Kosoian’s story hit the news. Camacho was off work, but received a call from his boss that weekend ordering him to get the videos. Camacho waited until he got back to work, on May 18, before making the request.
He learned the next day that the subway cameras record on a five-day loop and evidence of the incident — both on the escalator and in the locked room — had been taped over, according to court testimony.
Kosoian and her lawyer, Aymar Missakila, are incredulous.
“How can it be that the STM didn’t find it necessary to keep the tape?” Missakila asks, noting Church’s official request and the extensive media coverage. “Wasn’t it their duty to make sure the tape was preserved, given how contested the incident was and the threat of a lawsuit?”
“Do you think if I did something wrong police would not show those videos?” Kosoian says. “Of course they would.”
Public reaction wasn’t kind, either. “Surely our resources could be put to better use instead of harassing citizens going about their business,” said a complaint received by the STM, and obtained by Church through a freedom-of-information request.
“Does this ‘peace officer’ carry a gun?” the complainant added. “I hope not, as anyone who demonstrates such poor judgment should not be armed.”
The Laval police force and the transit agency defended Camacho’s actions, while acknowledging in media reports at the time that Kosoian was the first to be issued a ticket for not holding an escalator handrail. They pressed for the fines to be paid, and Kosoian’s refusal triggered a municipal court hearing in May 2011.
In March 2012, Judge Florent Bisson acquitted Kosoian of the tickets, citing numerous contradictions between the notes the police officers made immediately after the event and their testimonies in court.
“The tribunal had the impression that adjustments were made to the evidence to justify the failure of this intervention which, initially, should have been banal,” Bisson wrote.
Kosoian, on the other hand, “is credible and is believed,” he added. The judge noted that under the Criminal Code, a person can refuse to identify themselves “so long as he is not informed of the offence against him.” And Bisson wasn’t convinced the pictogram obligated subway passengers to hold the handrail.
By then, Kosoian had launched a lawsuit against Camacho, the STM and the City of Laval. In August 2015, the Quebec Court dismissed it with a legal tongue lashing.
Justice Denis Le Reste described Kosoian’s behaviour during the incident as “inconceivable, irresponsible and contrary to the elementary rules of civism in our society.”
Kosoian, the judge added, “illegally and obstinately refused to comply” with Camacho’s orders to hold the handrail and to identify herself. He blamed everything on Kosoian’s “gratuitous aggressiveness.”
Le Reste said police officers were fully justified in arresting and handcuffing Kosoian. He noted that Camacho’s actions rested on an STM regulation — R-036 — which states that no one in a building or on “rolling stock” shall “disobey a directive or pictogram posted by the Society.”
“The court concludes that the work of officer Camacho, given all the circumstances of this matter, was exemplary and irreproachable,” Le Reste wrote. “He showed very great patience and acted in accordance with the standards any other reasonable police officer would have applied in the same situation.”
Kosoian describes the ruling as an attempt to assassinate her character. She appealed and, on Dec. 5, 2017, the Quebec Court of Appeal ruled against her in a 2-1 decision.
The majority judges described Kosoian as “the author of her own misery” because she refused to co-operate with police officers “who were doing their job.”
It’s not up to police officers to determine whether a regulation is valid, the justices wrote. Camacho was trained to enforce the handrail regulation, and therefore had “reasonable motives to believe that an infraction had been committed.” That justified writing a ticket and arresting Kosoian because she refused to identify herself, the judges ruled. The STM, meanwhile, is immune from civil responsibility because it’s a public body exercising its regulatory powers in good faith.
Their dissenting colleague, Justice Mark Schrager, could not have disagreed more — on all counts.
Escalators come with the handrail pictograms already stuck to them when they’re bought. Schrager argued the transit agency’s regulation about obeying all pictograms is therefore invalid because the STM is in effect delegating its regulatory powers to the company that makes pictograms and sticks them on the escalators.
Besides, the pictogram is nothing more than a warning to hold the handrail, not an obligation, Schrager argued. That’s made clear by the word “caution” in bold letters across the top and the pictogram’s yellow and black colours. The colour of prohibition and obligation is red.
“A reasonable person looking at the pictogram would conclude that she should follow its instructions to act prudently, but that she was certainly not subjected to an obligation to hold the handrail under penalty of receiving a ticket,” Schrager wrote.
Schrager agreed with his fellow judges that, in principle, police officers are subject to the standard of how a reasonable officer would act in the same circumstances. But that doesn’t justify Camacho’s actions, he added.
“The arrest and detention of the appellant, as described, were illegal since the infraction that could have justified them was non-existent,” Schrager wrote in his dissent.
It’s not good enough for Camacho to have honestly believed that the STM’s regulation was valid, Schrager argued. The absence of malicious intent is not a defence against civil responsibility.
“The infraction did not exist. The appellant’s refusal to identify herself was therefore justified … since no infraction was committed,” Schrager wrote. And since the arrest was illegal the search of Kosoian’s bag was also illegal, he added.
Still, Schrager believed Kosoian’s “inflammatory behaviour” made her partly responsible for her misfortune. He described Camacho’s request to hold the handrail as “common sense.”
Schrager said Kosoian should be awarded $15,000 in moral damages, plus legal costs and interest. The City of Laval, Camacho and the STM are all responsible. But only the STM should pay the award because of its faulty regulation, the inadequate training it gives to police officers, and for insisting on pursuing Kosoian in municipal court, Schrager wrote.
Kosoian and her lawyer again appealed, this time to the Supreme Court. They asked four questions: Does the pictogram legally oblige people to hold the escalator handrail? Can a police officer be sued if his actions against a citizen, including use of force and arrest, are not supported by an existing law? Is the STM responsible for Camacho’s actions? Did Kosoian contribute to the damages against her by refusing to identify herself when Camacho acted on a non-existent regulation?
A spokesperson for the City of Laval, which employs Camacho, refused to comment or make Camacho available for an interview. Their legal brief urged the Supreme Court not to grant the appeal, arguing that the STM regulation governing the pictogram is valid. They added it can’t be left to citizens to decide whether they’ll co-operate with police officers based on their personal interpretation of a regulation being enforced. “You can imagine the social chaos that would ensue,” they argued.
In the last decade, the Supreme Court has only granted about 10 per cent of the 500 or so requests for appeals it receives each year. So Thomas Slade, a lawyer who is not involved in the case, says he was initially surprised when the court agreed to hear Kosoian.
“Almost every year the Supreme Court grants at least one case that’s sometimes a little bit of a head-scratcher at first,” says Slade, a partner at Supreme Advocacy, an Ottawa-based firm that specializes in appeals to the highest court.
In hindsight, Slade believes the ruling will determine the validity of pictograms across the country, and decide whether police officers can be held responsible for acting on the fictitious belief that a law or regulation exists.
“If you’re punishing someone for an offence that doesn’t exist, that seems pretty far beyond what you can actually call reasonable,” Slade says in a phone interview.
If she is successful, the money Kosoian might win will not begin to cover the costs of the multiple court battles and the Supreme Court appeal. Missakila, her lawyer, is considering how he might raise funds to help cover the costs.
Slade did “a double take” when he realized Kosoian’s battle dates back to 2009: “The wheels of justice turn quite slowly, but this is definitely going at a bit of a snail’s pace.” He doesn’t expect the court to rule until at least next fall.
For Kosoian, a Supreme Court ruling can’t come soon enough.
“I want to get on with my life,” she says. “I don’t want to become obsessed.”
Sandro Contenta is a reporter and feature writer based in Toronto. Follow him on Twitter: @scontenta