An “obsolete” common law rule framed by a 1990 Supreme Court of Canada ruling and codified by the Quebec Highway Safety Code that allowed police to randomly conduct motor vehicle stops without cause was set aside by a landmark Quebec Superior Court decision that held it was in violation of the Canadian Charter and a “vector, even a safe harbour” for racial profiling against the Black community.
In a decision hailed as historic as it recognizes that racial profiling is a reality that “weighs heavily” on Black communities, particularly Black drivers, Quebec Superior Court Justice Michel Yergeau held that the arbitrary power police have to carry out roadside stops without grounds is in breach of s. 7, 9 and notably 15.1 of the Charter, ostensibly the first time that s. 15 has been used to invalidate or declare inoperative a criminal provision, according to legal experts.
“We’re not there yet but potentially this decision will have an impact everywhere in Canada,” noted Karine Joizil, a Montreal litigator with McCarthy Tétrault who represented the Canadian Association of Black Lawyers, intervenors in the case. “What struck me is the clarity of the decision, and what this judgment is not about. It’s not a judgement against roadblocks, against police work, or on the values of the police. It’s really a judgment about whether s. 636 (of the Quebec Highway Safety Code) is well drafted or has the effect of creating a prejudicial effect for a category of the population that is otherwise protected by rights guaranteed under the Charter. It’s a wise and timely decision.”
Fernando Belton, a criminal lawyer who heads a legal clinic in Montreal, said Justice Yergeau’s analysis of the constitutional rights at play against the backdrop of racial profiling and the discretionary powers of police to run so-called roving random stops will be the subject of much analysis over the coming weeks, months and years. “Since 2009, s. 9 of the Charter has become much better understood by the courts and applied more often but when we look at the issues of the right to security, right to liberty and the right to equality, that’s where I would say that the courts have been somewhat lacking in looking at racial profiling from that angle,” remarked Belton, a lecturer at the McGill University’s Faculty of Law.
Marie-Eve Sylvestre, the Dean at the Faculty of Law, Civil Law Section, at the University of Ottawa, describes the ruling as historic because it circumscribes the discretionary power of police officers as they can no longer intervene without having grounds, “because when they do so, it’s an open door for racial profiling.” It’s also important, added Sylvestre, because it recognizes the existence of racial profiling and the “devastating” consequences for black communities.
The constitutional challenge was mounted by Joseph-Christopher Luamba, a 22-year old Black Montreal university student who was stopped by police nearly a dozen times between March 2019 and November 2020, either as a driver or as a passenger. Luamba, who was never fined following the random police stops, testified that he felt powerless before police and that he felt guilty behind the wheel every time he passed a patrol car even if he did nothing wrong – a common refrain among witnesses (including hockey winger for the Ottawa Senators Mathieu Joseph) who testified during 21 days of hearings, noted Justice Yergeau in Luamba c. Procureur général du Québec, 2022 QCCS 3866, a 170-page decision.
Luamba and the intervenors, including the Canadian Civil Liberties Association, challenged the constitutional validity of the common law rule and its legislative provisions stemming from it (s. 320.27, paragraph 2 of the Criminal Code and s. 636 of the Quebec Highway Safety Code), maintaining that they have gradually been subverted and diverted from its primary purpose, that is, road safety.
“Holistic approach is needed”
The challenge facing Luamba was that a divided 5-4 SCC concluded three decades ago in R. v. Ladouceur,  1 S.C.R. 1257 that random stops, outside the framework of a structured checkpoint program, restricts a driver’s freedom of action and constitutes arbitrary detention since there is no criterion, express or implied, that governs the exercise of police discretion in such cases. The SCC nevertheless held that random traffic stops are rationally connected and “carefully designed” to achieve safety on highways, and impairs as little as possible the rights of drivers. While such interceptions do constitute an arbitrary detention contrary to s. 9 of the Charter, “it does not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual’s rights,” added the SCC. The top court also held that it was unnecessary to decide whether these random stops infringed s. 7 since it has been determined that routine check random stops violate s. 9 of the Charter.
But “racial considerations,” mentioned only in passing in Ladouceur, “were not sufficiently known for the highest court to consider them,” underlined Justice Yergeau. That finding opened the door for Justice Yergeau to heed guidance from the SCC in Canada (Attorney General) v. Bedford, 2013 SCC 72,  3 S.C.R. 1101 and Carter v. Canada (Attorney General), 2015 SCC 5,  1 S.C.R. 331, which held that trial courts may reconsider settled rulings of higher courts when a new legal issue is raised and when there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate.”
Justice Yergeau then relied on a change in the social environment that was “sufficiently substantiated” by qualitative (testimony by witnesses), quantitative, statistical and expert evidence to conclude that a radical change has occurred. The evolution of social facts and the progressive expansion of the scope of the rights guaranteed by the Charter justify the re-examination of traffic stops without real cause, held Justice Yergeau. “Proving racial profiling directly is an almost insurmountable task,” said Justice Yergeau, who is set for mandatory retirement following the comprehensive Luamba decision. “In a constitutional dispute such as this one, adhering to the traditional application of the preponderance of evidence rule, as if it were a civil dispute between individuals, would more often than not deny the plaintiffs the protection of the legal and equality rights they seek…If justice is to be done, a holistic approach is needed.”
That is a lesson that should be heeded by litigators who are faced with constitutional challenges, said Joizil. “One of the elements that led the trial judge to overturn the Supreme Court’s decision was that there was new evidence provided by social facts,” said Joizil. “That’s instructive for litigation lawyers involved in Charter matters to realize that social facts can be decisive in constitutional litigation.”
Racial profiling cases winding its way through Quebec courts
Justice Yergeau found that the testimony by witnesses was conclusive as was evidence that revealed that a Black person is four times more likely than a white person to be targeted by a random police stop. Justice Yergeau also found that public security officials are aware of the “perverse” effects of racial profiling and the loss of confidence it generates among racialized people, and have launched initiatives such as training and mentoring to tackle racial profiling. But he found little evidence that these efforts have led to results, particularly since none of the schemes directly targeted the practice of arbitrary police stops. “The Court cannot but note that traffic stops without real cause remain today in the blind spot of the fight against racial profiling of black drivers,” said Justice Yergeau.
He concluded that racial profiling is an important new social fact that was “unknown” to the majority of the SCC when it expanded the scope of the common law rule on police powers.
“It must be said that when the Ladouceur ruling was issued, it was at the very beginning of the adoption of the Canadian Charter, the first years of interpretation, and it was an extremely divided judgment,” observed Sylvestre, who testified as an expert in the case. “It was important for Justice Yergeau to be able to say that the issue of racial profiling had not been examined in 1990 by the Supreme Court, that the very notion of racial profiling did not exist in that form. In the literature, we didn’t use those terms, we didn’t have the evidence. We did not have the analysis surrounding racial profiling that we have today.”
Turning his attention to s. 9 of the Charter, Justice Yergeau dismissed arguments by the federal and provincial government that the case was really based on an illegal use of the rule of law. Instead, Justice Yergeau found that the discretionary power to momentarily deprive a citizen of his liberty is “the product of an unfathomable mental process” that can be exercised without leaving any trace, with no specific framework. “While police forces struggle to mobilize on racial profiling, roadside interceptions permitted by the rule of law continue to be a vehicle for it,” said Justice Yergeau. The strict standard of proportionality in s. 1 of the Charter cannot accommodate this imbalance when other means are available to police forces to effectively ensure road safety – a conclusion that by itself was sufficient to dismiss the case, added Justice Yergeau.
Yet in order “to do justice to the arguments that were raised,” Justice Yergeau proceeded to analyze the reach of s. 7 and s. 15.1 of the Charter in this case. “It reflects the evolution of the law since 1990 when the Ladouceur judgment was handed down,” remarked Bruce Johnston, a Montreal lawyer with Trudel Johnston & Lespérance who represented the Canadian Civil Liberties Association. “Ladouceur was decided solely on s. 9. But s. 7 has evolved enormously in case law since 1990, leading it to be viewed as a novel legal issue in this case. Of course, s. 15 was not even in force when the facts underlying the Ladouceur decision was rendered.”
Justice Yergeau found that the rule of law that authorizes arbitrary traffic stops without real cause “with the disproportionate impact” they have on Black drivers infringes the right to liberty and security of the person guaranteed by s. 7 of the Charter and that the infringement violates the principles of fundamental justice.
After examining case law around s. 15.1 of the Charter, Justice Yergeau concluded that the rule of law, which allows selection of drivers based solely on police intuition without any other grounds, has a detrimental effect given the disproportionate impact of traffic stops without real grounds on Black people.
“One thing that is very significant is that, to my knowledge, this is the first time that s. 15 has been used to invalidate or declare inoperative a criminal provision,” said Johnston. “And that’s important because the judgment finds that there are effects on racialized communities and not just on individuals. It is very significant that a judge makes this finding because it is unacceptable.”
Justice Yergeau granted a six-month delay until the rules and legislation allowing random police stops will be deemed to be officially invalid. But legal experts expect the ruling to be appealed. “The fact that the court of first instance rendered a favourable decision bodes well for the future when it comes before the Supreme Court,” said Belton, who too has been subjected to random police stops. “My children, even if they are very young, are well aware of this reality because of the colour of their skin.”
In the meantime, Joizil points out that the Luamba ruling is already being used, and that it provides guidance for litigators as well. “Lawyers representing racialized people have a lot of material in these 170 pages that can be used in all kinds of cases,” said Joizil, who too has been subjected to a random police stop.
This story was originally published in The Lawyer’s Daily.