McGILL LAW JOURNAL
[Vol. 4
CARRIERE et une AUTRE v. CITE DE LONGUEUIL
et AUTRES*
MUNICIPALITY –
POLICE OFFIcERs –
RESPONSIBILITY FOR DAMAGE
CAUsED WHILE ON DUTY.
“Mieux vaut, pour une municipalit6, perdre le b~nufice
d’une amende que de tuer les gens.”‘
This pronouncement was part of Mr. Justice Edouard Tellier’s judgment
granting damages to the parents of a young man who had been shot by a
Longueuil policeman.
Late one evening two constables in the service of the City of Longueuil
saw a car – with no lights on –
go through a stop street at an excessive
rate of speed. They gave chase, using their siren. When they drew close to
the fleeing car they called out to it to stop. When it did not they fired warning
shots in the air. The escaping car then struck a post and its occupants fled on
foot. One of them was shot.
The victim and his friend had made several attempts that evening to steal
a car. They had in fact stolen the car in which they drove through the stop
street.
The parents of the young man sued both the police officer who killed their
son and the City of Longueuil. Their grounds against the policeman were
that he had fired the shot which had caused their son’s death and that he had
acted imprudently and without necessity in the use of his firearm. The action
against the municipality was based on the ground that the defendant was one
of its police officers and at the time of the shooting had been in the perform-
ance of the duties for which he was employed.
If municipalities in this province are to entrust their police officers with
the possession of revolvers it is of considerable importance that the law con-
cerning the use of these weapons be known.2
Article 356 C.C. says that political corporations are governed by the public
law generally, and only “in certain respects” by the civil law. The juris-
prudence has not yet satisfied itself as to what these certain respects are. It
has generally been held, however, that municipalities in Quebec are governed
by the public law.
*[1957] C.S. 143, Montreal, 30 June 1955. Confirmed by the Court of Appeal 22
Oct. 1956. Unreported.
‘At page 147.
2See here the comment by Michael J. Fawcett, [1955] 33 Can. Bar Rev., 1178.
No. 1]
CASE AND COMMENT
An important and perhaps somewhat curious principle of this law is that a
municipality is not responsible for the damage caused by its constables when
they are in the performance of their duties as public peace officers.
… police officers appointed by a city are not its agents or servants in such sense,
as to render it responsible for their unlawful or negligent acts in” the discharge of
their public duties as policemen; . . .,,
The more recently accepted view in Quebec has been that each question is
one of fact. If it can be shown that the act which caused the damage was done
purely in the interests of and under orders from the municipality, then that
body is liable for the damage. But if it appears that the damaging act was
performed in the interests of society as a whole, that is if it was part of the
maintenance of the public peace, then the local muiicipality cannot be held
responsible.
The reasoning here is that the city or town should not be open to recourse
for damage caused while preserving order in the state any more than is the
state itself. Under such circumstances, the argument runs, the master-servant
relationship does not exist between the municipal corporation and its constable.
There is no respondeat superior. This position has been stated many times in
Quebec cases. The decision in La Cit de Montreal v. Plante4 has been cited
with approval. In that case Mr. Justice Rivard stated it thus:
“Lors donc qu’un agent de police a, dans l’exercice de ses fonctions, commis quelque
acte illegal et dommageable, la responsabiliti de la corporation municipale qui l’a
nomm
sera engag6e ou ne le sera point, selon que cet acte aura W commis dans
l’exercice de la puissance de l’Etat ou en vue du service particulier de la municipa-
lit6. En d’autres termes, l’officier de police nomm6 par une corporation ne fait en-
courir de responsabilit& i celle-ci que lorsqu’il agit comme sergent de ville pour
l’excution des lois, des ordonnances et des raglements municipaux; lorsqu’il agit
plut6t comme gardien de la paix et du bon ordre, ii est le pr~pos6 de l’Etat, qui le
reconnait comme un d6l gu6 de sa puissance souveraine, et dans ce cas, la corpora-
tion 6chappe i la responsabilit6 parce qu’en nommant cet officier elle n’a W que le
d6positaire de l’autorit6 de F’Etat”
The learned judge also stated briefly that even when police officers acted
as guardians of the peace, the municipality could render itself liable for any
damage they caused by ratification of their acts. The facts of the Plante case
were that a bailiff had been unable to effect service upon an individual and,
rather than follow the recourses laid down by the law, had called in the local
police to force an entry for him. Damage was caused to the individual and to
his house and he brought suit for it against the municipality. He was upheld;
the bailiff had had no right or cause to summon the police. The police, by the
same token, could not pretend that they were preserving the peace. As they
acted under orders to aid the bailiff the municipality was held liable.
In the present case the two policemen who chased the car alleged in their
defence that they knew it was stolen. They argued that they were justified
3Dillon, Municipal Corporations, 5th ed. vol. 4 p. 2883.
4(1923), 34 K.B. 137, at 148.
McGILL LAW JOURNAL
[Vol. 4
in acting as they did. The City of Longueuil itself subscribed to their defence
and added, in a separate defence, that the two constables had not been acting
as its mandataries at the time but as guardians of the public peace, deriving
their authority from the Sovereign. Upon these grounds the City argued thft
it could not be held responsible for the young man’s death, especially as it had
not authoirzed or ratified the officers’ acts.
The court did not stop long over the argument put forward by the two
policemen. At the time they saw the car go through the stop street without
lights and at an excessive rate of speed, they did not know it was stolen.
They couldn’t have. What they knew was simply what they saw: the theft of
the automobile was not even reported till later.
“Tout ce que les policiers pouvaient reprocher aux occupants de la voiture lorsqu’ils
apergurent cette dernitre sur la rue Guillaume, c’itait une violation aux rglements
de la Cit6 de Longueuil, concernant la circulation.” 5
Without hesitation the learned judge concluded that the police officers had had
no justification whatever in acting as they did:
…
les policiers ont agi imprudemment, ils ont employ6 une violence et une force
injustifi6es, ils ont us6 de moyens arbitraires, inconsidr~s, inexplicables, ils ont manqu6
de jugement et de mesure.”8
The defence put forward by the city is more interesting. Not only did it
adopt the constables’ argument that the car was stolen and therefore required
forceful pursuit, but it alleged that its own traffic regulations had been breached.
Then, by a separate defence, it contended that the constables had not been
acting as its propos6s at the time.
The city here was seeking a decision similar to that in H~bert v. Cit6 de
Thetford Mines.7 In that case a police constable had killed a rioter while
in the employ of a circus which was visiting his municipality. He had
successfully defended an action brought against him by his victim’s widow
and in a suit of his own was attempting to recover the costs of that defence
from the municipality. It was held, first, that he had been employed by the
circus at the time of the shooting, and that a mandatary can only bind one
mandator at a time even when acting for several; and, second, that he was
discharging the duties of a peace officer. Municipalities cannot, upon the
ruling in the Plante case, be held liable for damage caused at such times
unless they have ratified the damaging acts. There had been neither allegation
nor proof of ratification.
In the case under review, the City of Longueuil was attempting to gain the
same position. It failed on two counts. First, the facts were against it: at the
time the police officers could not have laid a criminal charge because they had
before them no evidence of a breach of the peace. They could complain of no
5 & 6At page 146.
7[19321 S.C.R. 424.
No. 1]
CASE AND COMMENT
more than a failure to obey a municipal traffic regulation. This alone would
have been enough to defeat the city’s case but in addition it had in fact ratified
the acts of the two constables by its own defence.
The case of Roy v. The Municipal Corporation of Thetford Mines had to
be distinguished at this point.8 Roy was suing the municipality and certain of
its police officers for arresting and holding him without charge and searching
his house. He had been arrested upon a complaint of indecent exposure made by
a private citizen, his house had been searched and his handwriting had been
sampled on the advice of the Provincial Police in connection with the suspected
mailing of obscenities, and when the municipal police did lay a charge it was one
of vagabondage. The charge was not considered for several months and when
it was, it was dropped.
In its defence to this action the municipality said that the police officers had
acted in good faith and in no way to injure Roy’s reputation. Roy argued
that this was a ratification of their acts. The municipality had it addition denied
its liability for any damage caused. It was held by the court that there had
been no ratification by the city and that its defence was in a legitimately
alternate form.
The judgment in the present case does not go into the City of Longueuil’s
approval of its constables’ behaviour or how the court distinguished the Roy
decision. It simply holds that by its defence the city did ratify their acts. This
made it responsible for any damage resulting from those acts. The point is
somewhat incidental, however, in view of the fact that, as stated in the Plante
case, to bind the municipality ratification is only required when the police
acted as officers of the state, and in this case they clearly did not.
Plaintiffs were accorded damages, but only in the amount of $3,887.25.
The decision does nothing to alter the doctrine which says that a private
citizen who suffers damage at the hands of a police constable has no recourse
against anyone but the constable himself when the latter was engaged in
maintaining the public peace.
On the other hand, in circumstances which reveal no breach of the peace,
it will now be of little use to municipalities to deny their liability for damage
caused by their policemen on the grounds that these officers acted as mandat-
aries of the Sovereign.
JAMES BRIERLEY,*
8[1954] S.C.T. 395.
*Fourth year Law Student, McGill University.
