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Old 11-29-2019, 08:09 PM
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Supreme Court of Canada : "A pictograph is not a law"


In the bloody obvious category, the Supreme Court of Canada has held that a pictograph is not a law.

The story:

1. Woman is on the escalator for the Montréal Métro. She's fumbling in her purse for her Métro pass and NOT HOLDING ON TO THE HANDRAIL! Quel horreur!

2. Métro cop points to a pictograph saying "Caution" and showing the person holding the handrail. "Madam, hold the handrail! It's the law! Look at the pictograph!"

3. Madam says: "No, I'm trying to get my Métro pass out."

4. Métro cop: "You're breaking the law, Madame. You're under arrest! Name!"

5. Woman: "You've got to be kidding me! Sod this!"

6. Métro cop: "In addition to not following the law requiring you to hold the handrail, as depicted on the pictograph, you are now obstructing a Métro officer (moi-même) in the execution of his duty! That's a second charge!"

6. Woman: "What?!?"

7. Métro cop: "Hold out your hands for the handcuffs!"

8. Woman: "WHAT?!?"

9. Métro cop cuffs her, searches her purse, gets her name, issues a ticket. "Voici, Madame. Your court date is on the ticket. You are now free to go. Please obey pictographs from now on."

So Madame goes to court and demands to know under what law she is charged.

"Failure to obey a pictograph" says the prosecutor.

"What law says I have to follow the pictograph?" she asks.

Prosecutor shuffles papers, mumbles a bit about safety on Métro escalators, etc.

Judge: "it appears there is no law requiring Métro users to obey pictographs. Charge dismissed."

Madame then sues the Métro cop, the Métro and the city for false arrest, claiming $20,000 in damages.

And the Quebec courts dismiss her claim.

Yes, they agree that there is no law making compliance with pictographs a legal duty, but, well, she should have been holding the handrail for safety reasons, and really, she's the author of her own misfortune. The poor Métro cop was just trying to preserve safety, and he thought there was a law, so she should have listenened to him. Civil claim dismissed at trial and by the Quebec Court of Appeal.

Madame appeals to the Supreme Court of Canada, which in measured tones and elaborate legal reasoning says: "ARE YOU GUYS FREAKING KIDDING!?! A PICTOGRAPH IS NOT A LAW!!!!"

SCC holds the cop, the Métro and the city liable en solidaire for $20,000, and rakes the Quebec courts over the coals, explaining through gritted teeth and with excessive politeness that YOU CAN'T BE ARRESTED AND CHARGED WITH OBSTRUCTION OF A LAW THAT DOESN'T EXIST, even if there's a pictograph suggesting it's a good idea to hold the handrail.

Words fail me. (And yes, the dialogue above is my take on how it went down.)

https://nationalpost.com/news/canada...-handrail-case
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Old 11-29-2019, 08:12 PM
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Same for the don’t walk” symbol I would think. Depending on how the law is written.
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Old 11-29-2019, 08:23 PM
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Wow!
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Old 11-29-2019, 08:37 PM
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I know that this is Serious Business and all that (and truthfully as dumb as it sounds it really is serious)

But I giggled like a child
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Old 11-29-2019, 08:44 PM
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Reminds me of this:

https://www.bing.com/videos/search?q...5F5&FORM=VIRE0
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Old 11-29-2019, 09:31 PM
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The cop may have had a valid point.

Yes, the pictograph is not a law. But a pictograph may be a means by which the government informs people of a law.

If I get a ticket for driving too fast, it's not because I wasn't obeying the speed limit sign. It's because I wasn't obeying the speed limit that was set by a local law. The speed limit sign isn't a law but it depicts a law.
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Old 11-29-2019, 09:34 PM
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I've always felt that pictographs like that should have no force of law unless accompanied by the corresponding message in words, and then it should be the words, not the pictograph, that matter. Pictographs are too easily misunderstood.

Example: I went hiking on a trail once. At the trailhead, there was a pictograph clearly showing a hiker wearing a backpack, inside a red circle with a red slash across it. I took it to mean "No backpacking." In fact, it meant "Trail Closed", as I found out when I encountered a park cop on horseback, a ways up the trail, shooing hikers out.

The pictographs painted in the streets, in particular the arrows on the pavement in each lane as one approaches an intersection, should have no force for another reason: It happens too often that one can't see them because the car in front of you is right on top of it. Or, in a parking space with a wheelchair pictograph, your own car is parked right on top of it. (These handicapped parking spots also have a sign posted, which is where the force of law should reside.)
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Old 11-29-2019, 10:02 PM
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I saw that on the TV news, and couldn't believe that the Montreal Metro cop did what he did. As the TV news anchor remarked, "What, was he going to come up short on his monthly quota of tickets, so he was looking for any excuse to write some?"

Last edited by Spoons; 11-29-2019 at 10:04 PM.
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Old 11-29-2019, 10:06 PM
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Originally Posted by Little Nemo View Post
The cop may have had a valid point.

Yes, the pictograph is not a law. But a pictograph may be a means by which the government informs people of a law.

If I get a ticket for driving too fast, it's not because I wasn't obeying the speed limit sign. It's because I wasn't obeying the speed limit that was set by a local law. The speed limit sign isn't a law but it depicts a law.
However in this particular case the point was that there was no law to communicate to begin with. An actual law is in the books saying we must obey the posted speed limit and the traffic movement signals (or the lighted signs in the airliner).

The effectiveness of the icon is a matter for the regulatory body to assess and the law/regulation can provide if the sign is good enough without words.

Last edited by JRDelirious; 11-29-2019 at 10:11 PM.
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Old 11-29-2019, 11:34 PM
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However in this particular case the point was that there was no law to communicate to begin with. An actual law is in the books saying we must obey the posted speed limit and the traffic movement signals (or the lighted signs in the airliner).
I agree. In this particular case, the cop was wrong. But he wasn't wrong because he was enforcing a pictograph. He was wrong because he was enforcing a law he had made up.

If the pictograph hadn't existed and the cop had just decided to tell people it was illegal to ride the escalator without holding on to the handrail, the legal issues would have been the same. The pictograph really wasn't relevant to the case.
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Old 11-29-2019, 11:42 PM
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Originally Posted by Senegoid View Post
I've always felt that pictographs like that should have no force of law unless accompanied by the corresponding message in words, and then it should be the words, not the pictograph, that matter. Pictographs are too easily mi s understood.
Canadian governments and public agencies tend to use pictographs a lot so signage doesn't have to be bilingual (or multi-lingual, in the territories, where there are more than two official languages.) using just one language can open up issues of comprehension.

Last edited by Northern Piper; 11-29-2019 at 11:43 PM.
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Old 11-29-2019, 11:42 PM
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Originally Posted by Northern Piper View Post
(And yes, the dialogue above is my take on how it went down.)

https://nationalpost.com/news/canada...-handrail-case
For the record, I like your version better. Well done!
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Old 11-30-2019, 12:15 AM
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Solution: A new national law saying "Obey all pictographs or else", and then the work OBEY! stenciled under each image nationwide. If OBEY! is missing, you're innocent.
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Old 11-30-2019, 12:20 AM
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How did she suffer $20,000 in actual damages?
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Old 11-30-2019, 12:39 AM
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How did she suffer $20,000 in actual damages?
Probably doesn't cover the legal costs, for one. And for two, she was arrested for no cause.

I especially like the bit where the cop is personally responsible for half the damages, pour encourager les autres.
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Old 11-30-2019, 12:50 AM
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Or indeed this:


https://youtu.be/CqXTzZVTs5o
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Old 11-30-2019, 12:51 AM
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Originally Posted by Little Nemo View Post
The cop may have had a valid point.

Yes, the pictograph is not a law. But a pictograph may be a means by which the government informs people of a law.

If I get a ticket for driving too fast, it's not because I wasn't obeying the speed limit sign. It's because I wasn't obeying the speed limit that was set by a local law. The speed limit sign isn't a law but it depicts a law.
Ah, but there is legal analysis beyond what Northern Piper narrated in the OP. There are, in fact, pictographs in the Metro which describe laws. "'The pictogram appears on a yellow background. It is well known that this colour generally corresponds to a warning,' Côté said. She contrasted this with other kinds of pictograms that do constitute a prohibition: for instance, those that have a small red circle and a diagonal red bar, or those with a drawing of a judge’s gavel with the amount of a fine specifically indicated."1
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Old 11-30-2019, 12:55 AM
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I agree. In this particular case, the cop was wrong. But he wasn't wrong because he was enforcing a pictograph. He was wrong because he was enforcing a law he had made up.
Well, it wasn't like he just arbitrarily decided to make up a law out of thin air so he could issue a ticket. That would just be corrupt. It's even worse. He believed that the pictograph itself effected a law. That shows a fundamentally flawed (and childish) understanding of legal legitimacy, and clearly defective training on the part of the transit authority. That's why the court also ruled against the transit authority and the city.
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Old 11-30-2019, 02:54 AM
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Ah, but there is legal analysis beyond what Northern Piper narrated in the OP. There are, in fact, pictographs in the Metro which describe laws.
Do the pictographs cite the laws? In my forty or fifty years of riding Toronto subways, buses, and streetcars; I recall many pictographs prohibiting or allowing actions, but always tagged with "TTC [Toronto Transit Commission] Bylaw No. 1." Does the same happen in Montreal?
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Old 11-30-2019, 03:09 AM
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How did she suffer $20,000 in actual damages?
From the decision (Kosoian v. Société de transport de Montréal, 2019 SCC 59)

Quote:
Originally Posted by Côté J.
[138] According to undisputed evidence, Ms. Kosoian suffered minor bodily injuries, but also above all, moral injury as a result of her unlawful arrest, the force used against her and the unreasonable search of her personal effects. As the dissenting judge clearly explained in his reasons (paras. 105 and 107), compensation for suffering, anguish and humiliation must be awarded in this case (see Baudouin, Deslauriers and Moore, vol. 1, at No. 1‑595).

[139] I insist on one point: an unlawful arrest — even for a short time — cannot be considered one of the “ordinary annoyances, anxieties and fears that people living in society routinely . . . accept” and that, as a result, do not constitute compensable injury in the sense discussed by this Court in Mustapha, at para. 9. In a free and democratic society, no one should accept — or expect to be subjected to — unjustified state intrusions. Interference with freedom of movement, just like invasion of privacy, must not be trivialized. When she took the escalator in the Montmorency subway station that evening, Ms. Kosoian certainly did not expect to end up sitting on a chair in a room containing a cell with her hands cuffed behind her back, nor did she expect to have her personal effects searched by police officers. I have no difficulty believing that such an experience caused her significant psychological stress.

[140] Turning now to the amount of damages, I would set the total at $20,000, the amount identified by the dissenting Court of Appeal judge, because that amount was not challenged in this Court.
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Old 11-30-2019, 03:15 AM
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I especially like the bit where the cop is personally responsible for half the damages, pour encourager les autres.
It's not quite like that. The apportionment of fault is 50% with the officer, and 50% with the Métro. That's the Court's assessment of how much each party's actions contributed to the outcome.

But the officer, the Métro and the city are liable solidarily. That's the civil law equivalent of "joint and several liability". Any one of them is liable to pay the full damages to the plaintiff, and then as amongst the three of them, the fault is apportioned. The officer may have an indemnity clause in his employment contract (probably a collective agreement), in which case he may not have to pay anything personally.
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Old 11-30-2019, 09:13 AM
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Reminds me of something in New York City quite a few years back.

A while back, we had an unpleasant and dictatorial mayor. You may have heard of him, since he's back in the news lately. His name is Rudy Giuliani.

One thing just about everyone knows is that jaywalking is normal behavior here, and there is no penalty whatsoever for crossing a street when the light is red (other than being obliterated by a motor vehicle if you get the timing wrong, of course). This isn't Los Angeles.

This kind of disorderly conduct did not sit well with Rudy, so he ordered the police department to ticket jaywalkers.

The police department did not issue any tickets.

Reporters for the city's tabloid papers (the Daily News and the Post) thought it would be fun to get the first ticket, and so would go to busy streets, like Fifth Avenue, and cross against the light right in front of police officers.

Still no tickets.

One reporter finally asked a cop why he wouldn't write a ticket, and the cop replied that they hadn't been able to find a statute under which they could write such a ticket.

I could probably dig up a cite if I wanted to spend an hour or so going through back issues of the News and the Post (assuming stuff that old is online), but I'm not going to. But I distinctly remember the story.
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Old 11-30-2019, 10:02 AM
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She certainly wouldn't be able to collect damages here.
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Old 11-30-2019, 12:26 PM
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I would be inclined to agree with the SCC on appeal, but at trial, I'd want to hear testimony from the officer. Did he actually and credibly believe, in good faith (for instance, on the basis of his training), that she was legally required to obey the pictograph? Not sure how she came up with $20k in damages, either. The dismissal of the charge by the trial judge is perhaps vindication enough. But monetary damages and a tongue-lashing from the SCC would certainly get the STM's attention, and force a change in policy, in a way that nothing else would.
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Old 11-30-2019, 01:34 PM
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Oh, I'd say 20K is a good "nothing else" to emphasize the need to update training. A tongue-lashing, not so much.
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Old 11-30-2019, 01:51 PM
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The case is ridiculous. But the lower courts felt the police were acting in good faith. It may seem obvious that acting in good faith means obeying and respecting the law and civil rights, but apparently this is not obvious to everybody and may be open to contention. The article I read implied this would set a precedent. Of course it will.

The police had also fined the woman $420.
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Old 11-30-2019, 02:23 PM
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Ah, but there is legal analysis beyond what Northern Piper narrated in the OP. There are, in fact, pictographs in the Metro which describe laws.
Yes, that's my point. I can't see any judge saying "A pictograph is not a law" in an official ruling. Because some pictographs do carry legal weight.

It's like a red light. A red light, by itself, is not a law. But you can break a law by not obeying a red light.
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Old 11-30-2019, 04:28 PM
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It's like a red light. A red light, by itself, is not a law. But you can break a law by not obeying a red light.
To gain a driver's licence, one must pass a test indicating adequate knowledge of traffic laws. The state driver's manual likely lists penalties. Obey or pay.

I'm not aware that transit riders are licensed. True, pedestrians mostly go unlicensed but must also obey signals like a red DON'T WALK light. Individual pedestrian violators are more likely squashed than cited for their sins - except that day I spent jailed in L.A. for crossing an empty avenue mid-block.

IMHO a pictograph carries legal weight IFF it reflects actual legislation, not merely semi-voluntary behavioral standards. I'll imagine an elevator with an image of eight stick figures in a barred red circle to reflect a legal limit of seven adults capacity. But a red-barred farting stick figure probably doesn't illustrate a law.
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Old 11-30-2019, 05:00 PM
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I'm wondering if there are laws which do not stand by themselves. In other words, are there laws that require the posting of a sign?

To give an example, could a town impose a 25 mph speed limit on its main street and then choose to not post a sign indicating this speed limit? And then hand out speeding tickets? People would obviously complain about no sign being posted but could the town argue that the law is part of the public record and is therefore enforceable even if there are no public warnings about it?
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Old 11-30-2019, 05:04 PM
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Words fail me. (And yes, the dialogue above is my take on how it went down.)
]
I knew that as soon as you had a woman in Quebec say "Sod this". Wth, dude? We're not that British, especially in Quebec.
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Old 11-30-2019, 06:27 PM
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I'm wondering if there are laws which do not stand by themselves. In other words, are there laws that require the posting of a sign?

To give an example, could a town impose a 25 mph speed limit on its main street and then choose to not post a sign indicating this speed limit? And then hand out speeding tickets? People would obviously complain about no sign being posted but could the town argue that the law is part of the public record and is therefore enforceable even if there are no public warnings about it?
I think the states all have default speed limits for roads when there are no signs. This is a traffic law all licensed drivers are supposed to know about, along with a number of others.

In Providence RI you can't park on the street overnight but there are no signs that say so. Tickets given to non-residents are readily dismissed though.
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Old 11-30-2019, 06:56 PM
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Yes, that's my point. I can't see any judge saying "A pictograph is not a law" in an official ruling. Because some pictographs do carry legal weight.



It's like a red light. A red light, by itself, is not a law. But you can break a law by not obeying a red light.
This misses the point. The fact that some pictographs do represent laws does not mean that by creating a pictograph you can create a law. Actually, I can see a judge stating that.
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Old 11-30-2019, 07:59 PM
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It may be about whether a pictograph is a law, but the Court's decision includes a very interesting paragraph.
Quote:
Originally Posted by Supreme Court of Canada

. . . A well‑informed person whose rights are infringed must be able to respond — within reason — without being held civilly liable . . . A reasonable, prudent and diligent person is not under an obligation to obey an unlawful order. . . In a free and democratic society, no one should accept — or expect to be subjected to — unjustified state intrusions. Interference with freedom of movement, just like invasion of privacy, must not be trivialized.
I was a bit surprised by the presence and wording of the last sentence above, but found it very reassuring. In addition to reaffirming the sanctity of freedom of movement, I think the justices are taking a pre-emptive stand against corporate (and other) digital tracking. Why else bring it up? The case was not about privacy. Indeed, the word 'privacy' only occurs twice in the judgment, once in the very last line of the 'summary' as above (almost as a non sequitur) and again at the end of the numbered notes, using identical language.

Last edited by KarlGauss; 11-30-2019 at 08:04 PM.
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Old 11-30-2019, 09:29 PM
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I think the laws are, in general, reassuring. But you may be reading too much into the last bit, which is more about the person being detained.

The police have a very difficult job. Though this case is regrettable, it would be wrong to force the officer to pay out of his personal pocket in this case. But the officers should know and enforce the law, not suggestions. What percent of people hold onto the handrail of a mall escalator?
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Old 11-30-2019, 09:37 PM
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And by detained, I mean in the sense of being delayed and cuffed, not being taken into custody.
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Old 11-30-2019, 09:59 PM
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I'm wondering if there are laws which do not stand by themselves. In other words, are there laws that require the posting of a sign?
In Texas, the law requires specific signage for businesses to prohibit civilians from bringing weapons on location.

Texas Penal Code § 30.06. Trespass by License Holder with a Concealed Handgun

Quote:
(B) a sign posted on the property that:

(i) includes the language described by Paragraph (A) in both English and Spanish;

(ii) appears in contrasting colors with block letters at least one inch in height;  and

(iii) is displayed in a conspicuous manner clearly visible to the public.
Any sign not meeting that exact criteria has no weight of law supporting it, including pictograms.

There are also similar laws concerning open carry (30.07) and carrying in bars (51%).

The management can also tell you personally that weapons are not permitted, but can only call the police with a trespass complaint if you refuse to leave.
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Old 11-30-2019, 10:40 PM
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This misses the point. The fact that some pictographs do represent laws does not mean that by creating a pictograph you can create a law. Actually, I can see a judge stating that.
That's not the point I was making.
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Old 11-30-2019, 10:41 PM
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Solution: A new national law saying "Obey all pictographs or else", and then the work OBEY! stenciled under each image nationwide. If OBEY! is missing, you're innocent.
The Mazinaawbikinigin of Pictured Lake is a few miles from my place. Eight people going canoeing. Hey, I'm OK with having to do that.
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Old 11-30-2019, 10:58 PM
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The police have a very difficult job. Though this case is regrettable, it would be wrong to force the officer to pay out of his personal pocket in this case. But the officers should know and enforce the law, not suggestions. What percent of people hold onto the handrail of a mall escalator?
The decision seems to make this a central issue of the case. Apparently the officer had been instructed in his official training that the pictograms were enforceable laws. This is not true; they are merely warnings.

I think in the United States this would be enough to indemnify the officer. Even if he had acted wrongly, the fault would be on the agency that had trained him incorrectly rather than on him as an individual.

From reading the opinion, this does not appear to be the case in Canada. The decision seems to be saying that even if the officer had been trained to do this, he still had a responsibility to have an overall knowledge of the law and citizen rights and recognize situations where he had been trained incorrectly.
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Old 11-30-2019, 11:49 PM
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The decision seems to make this a central issue of the case. Apparently the officer had been instructed in his official training that the pictograms were enforceable laws. This is not true; they are merely warnings.
Yes and no. The "law" in question is not a proper provincial or federal law at all; it is merely a by-law of a municipal agency.

I had a look at the STM (Société de transport de Montréal) by-law R-036 (link here), and it does indicate that ignoring a pictogram is a violation of the by-law. From the link:

Quote:
4. No one shall, within or on a building or rolling stock:

. . .

(e) ignore a guideline or pictogram posted by the Société;
Further, under s. 26 of the by-law, anyone contravening s. 4(e) is liable to a fine of $75 to $500.

So, the by-law is enforceable, and based on the facts and the by-law and the pictogram, the woman contravened the by-law. Though she may have technically contravened the STM's By-Law R-026 (as, no doubt, thousands of Montrealers do every day), the woman in Montreal did not deserve the treatment she suffered at the hands of an overzealous transit officer. I have not yet read the SCC's decision, but I'd suggest that the officer's actions towards the woman were what was at issue before the Courts, not whether the woman broke a rule in the Montréal Métro. Handcuffs and impeding freedom of movement (a guarantee under Canada's Charter of Rights and Freedoms) are permitted in appropriate circumstances, but are a little much for a municipal by-law that carries a maximum $500 fine and does not fit the definition of "appropriate circumstances."
  #41  
Old 12-01-2019, 12:04 AM
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The decision seems to make this a central issue of the case. Apparently the officer had been instructed in his official training that the pictograms were enforceable laws. This is not true; they are merely warnings.

I think in the United States this would be enough to indemnify the officer. Even if he had acted wrongly, the fault would be on the agency that had trained him incorrectly rather than on him as an individual....
Agreed, and hence my earlier post. In a similar American case the officer would almost certainly not be personally liable under sovereign immunity (and, depending upon the wording of the applicable law, neither the transit authority nor the city either, for that matter).
  #42  
Old 12-01-2019, 01:01 AM
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I'm wondering if there are laws which do not stand by themselves. In other words, are there laws that require the posting of a sign?

To give an example, could a town impose a 25 mph speed limit on its main street and then choose to not post a sign indicating this speed limit? And then hand out speeding tickets? People would obviously complain about no sign being posted but could the town argue that the law is part of the public record and is therefore enforceable even if there are no public warnings about it?
In Ontario, the province has set a baseline that does not have to be posted but can be varied by posting:

Quote:
128 (1) No person shall drive a motor vehicle at a rate of speed greater than,

(a) 50 kilometres per hour on a highway within a local municipality or within a built-up area;

. . . .

(2) The council of a municipality may, for motor vehicles driven on a highway or portion of a highway under its jurisdiction, by by-law prescribe a rate of speed different from the rate set out in subsection (1) that is not greater than 100 kilometres per hour and may prescribe different rates of speed for different times of day. 2006, c. 32, Sched. D, s. 4 (3).

. . . .

By-laws, regulations effective when posted

(11) No by-law passed under this section or regulation made under clause (7) (c) becomes effective until the highway, portion of the highway or designated area affected by the by-law or regulation, as the case may be, is signed in accordance with this Act and the regulations. 2017, c. 9, s. 4 (2).
This means that in a municipality or a built up area in Ontario the speed limit of 50 kph does not have to be posted. In practice, it usually, but not always, is posted.
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Last edited by Muffin; 12-01-2019 at 01:05 AM.
  #43  
Old 12-01-2019, 01:45 AM
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This means that in a municipality or a built up area in Ontario the speed limit of 50 kph does not have to be posted. In practice, it usually, but not always, is posted.
In my experience when driving in Ontario, there's a sign that says "50 km/h [30 mph] unless otherwise posted" at the entrance to a city or town; or at an off-ramp from a freeway. Major arterials in cities tend to be 60 km/h [35 mph], and residential streets tend to be 40 km/h [25 mph], or lower in school zones, and all are well-posted. But the "50 km/h unless otherwise posted" is enforced--just look at Bayview northbound, north of Lawrence, in Toronto. One of Toronto's favourite speed traps.
  #44  
Old 12-02-2019, 04:24 PM
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Originally Posted by Little Nemo View Post
The cop may have had a valid point.

Yes, the pictograph is not a law. But a pictograph may be a means by which the government informs people of a law.

If I get a ticket for driving too fast, it's not because I wasn't obeying the speed limit sign. It's because I wasn't obeying the speed limit that was set by a local law. The speed limit sign isn't a law but it depicts a law.
It's a good idea for signs that are informing the reader that they are mandatory, to indicate that mandatory nature somehow - for example speed limit signs in the UK are encircled in red if they are mandatory (other speed signs such as these, lacking the red circle, are advisory only). As road users are absolutely required to learn, understand and know this for their driving test, it is quite reasonable to treat the signs as law.

In the case of safety pictographs in the scenario of the OP, there is no such overarching control structure (there is no mandatory test to use public transport), so the signs alone would never be enough (unless the signs themselves somehow properly conveyed their own mandatory nature by means of accompanying text or some other means)

Last edited by Mangetout; 12-02-2019 at 04:25 PM.
  #45  
Old 12-02-2019, 07:40 PM
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Agreed, and hence my earlier post. In a similar American case the officer would almost certainly not be personally liable under sovereign immunity (and, depending upon the wording of the applicable law, neither the transit authority nor the city either, for that matter).
Sovereign immunity is much narrower in Canada. We call it “Crown immunity” because it only applies to direct delegates of the Crown, namely the federal and provincial governments (ie executive branches). Municipalités and municipal agencies, like the Métro and Métro cops, can’t claim Crown immunity.
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Last edited by Northern Piper; 12-02-2019 at 07:41 PM.
  #46  
Old 12-03-2019, 12:56 PM
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Municipalités and municipal agencies, like the Métro and Métro cops, can’t claim Crown immunity.
I should mention that according to the reports I've seen of this court case, the police officer in question is not a "Métro cop" (from what I can tell, the Montreal Metro has inspectors, but they aren't considered police officers), but an officer from the Laval municipal police department. Which doesn't change your argument in this case, but maybe it could have an effect in some other case.
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Old 12-03-2019, 02:19 PM
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He was a police officer, but he’d been designated as a Metro inspector by the STM, which is what triggered liability for both Ville de Laval and the STM, I think.
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  #48  
Old 12-03-2019, 02:53 PM
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I would be inclined to agree with the SCC on appeal, but at trial, I'd want to hear testimony from the officer. Did he actually and credibly believe, in good faith (for instance, on the basis of his training), that she was legally required to obey the pictograph? Not sure how she came up with $20k in damages, either. The dismissal of the charge by the trial judge is perhaps vindication enough. But monetary damages and a tongue-lashing from the SCC would certainly get the STM's attention, and force a change in policy, in a way that nothing else would.
I'd be interested to know why you need to hear whether the officer believed, in good faith, that he was doing the right thing? Why does that matter, in terms of deciding whether the woman had a case?

I can possibly see this being an issue in determining who was actually liable for the injury to the woman (i.e., the violation of her rights). If, for example, the officer was told by his superiors and his employer that the pictograph had the force of law, then it's not really his fault if he uses that information as a basis for his actions.

But it seems to me that her rights were violated whether or not it was done in good faith. If the officer had been told unequivocally that he should enforce all pictographs as statutes, that might mitigate some or all of his own culpability, but it in no way mitigates the violation of the woman's rights, or the harm she suffered as a result. I think we already give law enforcement officers (at least in the US) too much leeway for their "good faith" mistakes that just happen to violate people's constitutional rights.
Quote:
Originally Posted by Elendil's Heir View Post
Agreed, and hence my earlier post. In a similar American case the officer would almost certainly not be personally liable under sovereign immunity (and, depending upon the wording of the applicable law, neither the transit authority nor the city either, for that matter).
You're the judge, not me, by my understanding is that the most likely way for the officer to evade personal liability for something like this in the United States is not sovereign immunity, but qualified immunity. Under Section 1983 of the government code, government employees in the United States can be sued, on an individual basis, for violating a person's constitutional rights, but the doctrine of qualified immunity (made up out of whole cloth by an excessively deferential judiciary, IMO) says that the right must be "clearly established" by prior cases.

I understand that qualified immunity is, in some important ways, basically a subset of sovereign immunity, but I think it's worth distinguishing the two things. If this case had happened in the United States, I'm not actually sure what a court would have ruled, partly because I'm not familiar with every possible precedent, and federal courts can get incredibly specific with the type of precedent required for a constitutional right to be "clearly established."

At the very least, I wouldn't be surprised if a US court ruled along the lines of: "Yes, her constitutional rights were violated, but we haven't had a case before where an officer believed that a pictograph had the force of law, so her right not to be arrested for ignoring a pictograph was not clearly established and we're going to grant qualified immunity in this case." And if anyone thinks I'm joking about how specific these precedents sometimes have to be, go and look up some of the more baffling qualified immunity cases.
  #49  
Old 12-03-2019, 07:09 PM
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I know that this is Serious Business and all that (and truthfully as dumb as it sounds it really is serious)

But I giggled like a child
Me too. Wonderful write-up, Northern Piper.

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  #50  
Old 12-03-2019, 07:17 PM
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Originally Posted by Little Nemo View Post
I'm wondering if there are laws which do not stand by themselves. In other words, are there laws that require the posting of a sign?
Laws that govern behavior that you wouldn't be able to intuit without the presence of a sign, like parking, often do require the posting of a sign.

There was a fairly humorous case in Santa Barbara a few years ago where A man hired by the city to put up parking restriction signs was ticketed for violating the restriction on the signs he had just erected. My google-fu is failing, but he did end up winning his appeal, since the restriction was not properly indicated by signage when he parked.

Quote:
Originally Posted by Santa Barbara Municipal Code
"[n]o provision … for which signs are required shall be enforced against an alleged violator unless appropriate signs are in place and sufficiently legible to be seen by an ordinarily observant person, giving notice of such provisions of the traffic laws." Section 10.12.050.
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