An end to random police stops?

"The decision was a great relief for members of Black communities across the country," says Patricia Fourcand, a member of the Quebec chapter of the Canadian Association of Black Lawyers. The organization was granted intervenor status in Luamba c. Procureur général du Québec. Justice Michel Yergeau's ruling overturns the conduct of random traffic stops, a practice that, up to now, was both allowed and deemed constitutional.

"I was particularly moved by the fact that a jurist of that calibre and talent had such a keen understanding of the issue and was brave enough to render a major decision about it," says Fourcand.

The Luamba decision abolished a common-law rule sanctioned by the Supreme Court more than 30 years ago. When the Canadian Charter of Rights and Freedoms was still in its infancy, the top court was tasked with determining the legality of unwarranted police checks in R. v. Ladouceur.

The practice had been deemed compliant with the Charter at the time, as these traffic stops were saved under section 1. Pressing public safety goals, like combatting drunk driving, overrode the violation of fundamental rights, specifically the right not to be arbitrarily detained under section 9.

"When the Supreme Court made its ruling, the risk of racial profiling, while foreseeable, was not yet as sufficiently well known to be taken into account by the highest court," wrote Justice Yergeau in his extensive factual statement [our translation].

As a result, the police were within their rights to stop any driver without reason. An officer could simply say, "The law says it's okay." 

Thirty years later, the Superior Court of Quebec has a completely different take on granting such a power to police officers. "The preponderance of evidence shows that over time, the arbitrary power of police officers to conduct traffic stops without cause has become for some officers a vehicle, if not a safe harbour, for racial profiling against the Black community. The rules of the law thus become a loophole through which this insidious form of racism is allowed to flow," wrote the Justice [our translation].

The Quebec court's decision may have national significance, but it isn't the first time a court has addressed the connection between random stops and racial profiling. In 2019, following a devastating report, Nova Scotia ordered a moratorium on the practice across the province. The city of Montréal's police department adopted a new policy two years ago to mixed results.

The Attorney General of Quebec has appealed the Luamba decision, which means that the issue may end up before the Supreme Court. But we can still speculate on the potential ramifications of the ruling should Justice Yergeau's decision be upheld by the higher courts.

Nine questions

The court conducted a thorough legal exercise. Justice Yergeau identified nine questions in dispute before overturning the Ladouceur precedent. The process was informed by numerous details from subsequent cases, the most recent being the Bedford (decriminalization of sex work) and Carter (medical assistance in dying) cases: "Has the plaintiff demonstrated that the circumstances or evidence 'fundamentally shifts the parameters of the debate'?" [our translation]

"Canada's demographics have drastically changed since the '90s; immigrants and visible minorities now make up a much larger share of the population," explains Fourcand. "Over the last three years, we've seen many more studies on unconscious bias and discriminatory legal provisions that seem objective at first glance."

While there isn't enough space in this article to list all of the questions set out in Justice Yergeau's ruling, we've included a select few below :

- In what circumstances can a trial judge deviate from a precedent established by a higher court?

- Is racial profiling, the way it is used against Black drivers, the evidentiary problems it presents and the trauma it inflicts on members of the Black community enshrined in the common-law rule and the legislation in and of themselves, or a result of their overriding application?

- After racial profiling was recognized as the cause of the random, groundless traffic stops targeting Black drivers, can the measures deployed in Quebec by the Public Security ministry, police departments and law enforcement training centres over the last few years be said to adequately remediate the breach of fundamental rights?

"I think it's a decision that restores or bolsters trust in institutions," says Fourcand. "It's a hugely important decision for all Canadians, but particularly for members of the Black community."

Better access to justice

The Clinique juridique de Saint-Michel (CJSM) played was involved in Luamba, specifically on the legal research front. A declaratory judgment to overturn the Highway Safety Code provisions had been sought—and, by the same token, the common law principles—concerning random stops. This is a rare procedure, according to Fernando Belton, founder of the Montréal-based CJSM.

Belton hopes that the decision will improve access to justice for victims of racial profiling: "There will be fewer people having to challenge these infringements before the municipal court, and there will be a drop in the number of complaints filed with Quebec's human rights commission."

Currently, a person claiming to have been a victim of racial profiling can file a complaint with Quebec's human rights commission. "To make someone wait as long as five or six years for the complaints committee to decide whether or not the complaint can be heard before the Human Rights Tribunal is to deny that person their human rights," says Belton.

Belton also foresees that putting an end to random police stops will lead to fewer police ethics complaints as well. "We know that only about 2% to 3% of complaints are brought before a police ethics committee each year. [Of those], 50% are dismissed. . . . It's clear that we've taken an important step toward better access to justice," he states.

Even so, Belton agrees with Justice Yergeau's points on the overall impact of the decision: ending random stops obviously won't make racial profiling magically disappear overnight.