Dismissal of a Class Action: How Far Does Police Liability Extend When Protesters Are Arrested?

In an article published by Thomson Reuters, Partner Annie-Claude Trudeau and her colleague Ariane Bergeron St-Onge comment on a recent decision in which the Superior Court of Quebec dismissed on the merits a class action suit in which the civil liability of police officers during the arrest of protesters was analyzed.

Police liability is currently very present in the media, and the judicial sphere is no exception. In June 2020, in the case of Moreault v. Ville de Québec, the Superior Court dismissed on the merits a class action seeking moral and punitive damages for an alleged violation of the rights and freedoms of several participants in a demonstration that had been declared illegal pursuant to a section of a municipal by-law. This section has since been declared unconstitutional in a parallel case.

Class action: Is the Burden of Proof Too High?

The class action was dismissed because Justice Godbout did not find any fault on the part of the Service de police de la Ville de Québec (“SPVQ”), but more importantly because he found that the group’s members had failed to transmit an itinerary in accordance with the law in force, which would have justified the declaration of illegality of the demonstration and the subsequent arrests. Section 19.2 of the Règlement sur la paix et le bon ordre – which is the section that led to this conclusion and has since been declared invalid – reads as follows: "No person shall hold or participate in an illegal demonstration on public property. A demonstration is unlawful if any of the following situations exist: [...] the time, place or route of the demonstration of which the Police Department has been notified is not observed. (our translation)"

In doing so, did Justice Godbout place too heavy a burden on the plaintiff to establish the fault of the SPVQ? It goes without saying that, like all civil liability proceedings, the class action could not be used to claim a fundamental right in a context where the claimant would not respect the law.

It should be noted that in the context of the evidence, a series of incidents involving one person at a time was identified and blamed on the police officers. The Court questioned the assessment to be given to these incidents in the class action, which must deal with identical, similar or related facts. Justice Godbout rejected the possibility of holding the City of Québec liable for this series of incidents, as they did not involve all members.

Police Accountability: A Standard of Conduct to Safeguard Rights and Freedoms

It is well known that police officers have no special immunity in the exercise of their duties. In Kosoian v. Société de transport de Montréal, the Supreme Court of Canada decided to defer the analysis of the standard applicable to unlawful infringements of Charter rights to another occasion in terms of police conduct. However, this is what the decision under review attempted to do.

The standard of conduct required of a police officer in determining whether there has been an infringement of a Charter right is far from simple. The Court distinguishes between the two applicable regimes depending on whether a right protected by the Quebec Charter or the Canadian Charter has been infringed. It then attempted to reconcile them by applying section 48 of the Police Act, holding that the police officer must adopt a course of conduct designed to safeguard rights and freedoms. The analysis should therefore, according to the Court, focus on any deviation from this "standard". The Quebec Court of Appeal will certainly further explore this issue and perhaps shed more light on it.

Whether from the perspective of the class action itself or from the perspective of police liability, the decision under review raises interesting questions that will certainly be considered by the Quebec Court of Appeal, which on November 2, 2020, denied a motion to dismiss the appeal.

For more details on this decision, see the full article published in Repères.