In Canada, police forces have the power to intercept, question and demand the papers of anyone driving a car. They do not have to suspect that an offense has been committed or state any reason before proceeding. That way, depending on what the eminently mysterious “police flair” dictates, you become a target legally obliged to stop on the side of the road, and to justify yourself for being there.
For decades, people of color — black men in particular — and Indigenous people have been speaking out about how this discretionary power is used by police officers to make their lives miserable. Several studies have also already shown that they are disproportionately targeted by this type of arbitrary arrest. So pretty much every black man I know has been targeted by arbitrary police action (or dozens) — especially if they own a car.
Are the articles of the Criminal Code and the Highway Safety Code which confer this power on the police officers written in a racist manner? No. No Canadian law explicitly encourages the harassment of black men while driving. That said, as long as there are negative biases against certain groups — conscious or unconscious — any law written in such a way as to grant immense discretionary largesse to the person responsible for enforcing it can become a vehicle for systemic discrimination. .
As long as we can challenge a person “at random”, and that said “pif” has been developed in a society that values certain human lives more than others, in fact, injustices will be perpetrated. As long as the police forces do not have to explain themselves before intercepting a driver one, two, ten, fifty times, any institutional denunciation of racial profiling will remain wishful thinking.
Or, at least, that’s what Superior Court Judge Michel Yergeau seems to be saying, in a landmark decision of no less than 170 pages rendered on Tuesday. I quote: “The discretionary power to temporarily deprive a citizen of his liberty in this context is the most arbitrary and the least filtered there is. Further, he adds that this power has “become for some a vector, even a safe-conduct, of racial profiling against the black community”.
In his decision, Judge Yergeau declared unconstitutional the articles that conferred these powers on police forces and gave the institutions concerned six months to adapt. His words are of rare strength in the justice system. “As a society, we cannot wait for a part of the population to continue to suffer in silence in the hope that a rule of law will finally receive from the police services an application that respects the fundamental rights guaranteed by the Charter. Canadian,” he wrote. Elsewhere, he asserts that “Charter rights can no longer be left in the wake of an unlikely moment of policing epiphany.”
The words of Judge Yergeau will necessarily provoke strong reactions in the police community. However, deciding to appeal the case to the Supreme Court of Canada would not necessarily help police forces regain their power. A judgment from the highest court could, on the contrary, reinforce the decision of the Superior Court and give it, in the long term, an even greater impact on police practices in the country.
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If this historic decision falls this week, it is first and foremost thanks to the courage and vision of a young man of 22 years, Joseph-Christopher Luamba. Arrested several times by the police without receiving a statement of offense, he had had enough. He could have, like so many others before him, filed a complaint for racial profiling. Advised by the Canadian Civil Liberties Association, he instead challenged the very constitutionality of the sections of the law that justified the arbitrary arrests of drivers.
In doing so, he got us out of a trap, which Judge Yergeau also identifies himself in his decision. “It is in fact illusory to identify what triggers in police officers the intuition that will lead to a roadside interception rather than another,” he explains. “For victims, proof of this mindset is almost insurmountable except by resorting to a list of racial profiling indicators and circumstantial evidence when possible. »
In other words, even if racial profiling complaints are sometimes successful, it hinges on the complainant’s ability to demonstrate that skin color played a role in their mistreatment. We can clearly see, in the statistics, that black people are disproportionately targeted. But it is often concluded that there was no profiling if no police officer, for example, made a comment explicitly linked to racial prejudice.
To win your case once and for all, not only for yourself, but for everyone, you had to change your method. Joseph-Christopher Luamba had the strength to carry this fight against institutionalized injustice.
Let it be said afterwards that young people necessarily need to gain age and experience before becoming catalysts of change for our society.